author: KLAPHAKE, Judge.

text:
    In re the CUSTODY OF the CHILD OF Jason Billy WILLIAMS, petitioner, Respondent, v. Korrin Ann CARLSON, Appellant.
    No. A04-2223.
    Court of Appeals of Minnesota.
    Aug. 2, 2005.

      Kent D. Marshall, Marshall Law Office, Barrett, MN, for respondent.
    Jeffrey D. Skonseng, Krekelberg, Skon-seng & Hastings, P.L.L.P., Fergus Falls, MN, for appellant.
    Considered and decided by WILLIS, Presiding Judge, KLAPHAKE, Judge, and SHUMAKER, Judge.
   OPINION

KLAPHAKE, Judge.

The district court adjudicated respondent as the father of the parties’ child and awarded him sole physical custody. On appeal, the mother argues: (1) the genetic testing showing that respondent was not the father of the child rebuts any presumption raised by the parties’ signing of a recognition of parentage; (2) the record does not support the court’s findings on the best interests factors; and (3) the court committed reversible error in denying her motion for new trial, when the test results were not known until after trial.

While we agree that the district court erred in ordering the genetic testing, we conclude that such error was harmless. Because (1) appellant failed to timely move to vacate the recognition of parentage; (2) the record supports the court’s findings regarding the best interests factors; and (3) no errors occurred during trial that unreasonably prejudiced appellant, we affirm.

FACTS

Appellant Korrin Ann Carlson, n/k/a Korrin Ann Angevine, and respondent Jason Billy Williams were never married. They became romantically involved in February 1996, but were not living together at the time of J.J.W.’s birth on January 17, 2000. Respondent is identified on J.J.W.’s birth certificate as the father, and J.J.W. has respondent’s surname. Two days after J.J.W.’s birth, the parties executed a recognition of parentage pursuant to Minn. Stat. § 257.75 (1998). Neither party has revoked or moved to vacate the recognition of parentage.

Respondent has been very involved in J.J.W.’s life since his birth. For the first two years, the parties agreed that instead of hiring a babysitter, respondent would care for J.J.W. Respondent has lived his entire life on his parent’s farm in Hewitt, Minnesota, and is employed full time in the general farming operations. Respondent took care of J.J.W. at the farm during the day, and the parties alternated responsibility for his care in the evening. Respondent’s mother has also been extensively involved in caring for J.J.W.

During the parties’ relationship and since J.J.W.’s birth, appellant has lived at six different locations; been employed by eight different companies, primarily in part-time positions; and has had three sexual relationships, including the one with respondent. At the time of the district court’s decision, appellant was married and living in a two-bedroom mobile home in Little Falls, Minnesota, with her husband, Shawn Angevine. Also living in the mobile home were J.J.W.; S.A, Angevine’s son from a previous relationship with a third party; and K.C., appellant’s daughter born from a previous relationship with a third party. Appellant was also pregnant at the time of trial.

One of appellant’s sexual partners, Jeremiah Rapier, has a criminal record and a history of domestic violence. On at least one occasion during appellant’s romantic involvement with Rapier, he assaulted her in the presence of J.J.W. and K.C. Appellant subsequently terminated the relationship.

In July 2002, appellant petitioned for an order for protection (OFP) against respondent. Pursuant to the parties’ stipulation, the OFP, which contained no factual findings that respondent committed any acts of domestic abuse or assault on appellant, was entered by the district court and ordered respondent to have limited contact with appellant. During the OFP proceedings, appellant admitted that respondent was the father of J.J.W. As part of the OFP proceedings and pursuant to the stipulation, the court awarded sole physical and legal custody of J.J.W. to appellant subject to respondent’s right of visitation. In fact, the parties continued to equally share in the actual physical custody, parenting, and caretaking of the child from the entry of the OFP to the time of trial in this matter.

In September 2002, respondent filed a petition to establish custody and visitation pursuant to Minn.Stat. §§ 257:75, subd. 3(1); 257.541, subd. 3; and 518.156, subd. 1 (2002). Appellant filed an answer admitting that respondent is the father of J.J.W. and requesting that the court order “genetic testing to establish paternity.” The district court granted the request and ordered testing.

On June 12, 2003, the child support magistrate for Cass County, Minnesota, issued findings of fact, conclusions of law, and an order establishing respondent’s child support obligation. Respondent was identified as the father of J.J.W.; he has fully complied with the order and all subsequent orders entered by the magistrate.

Prior to trial on the custody issues, the district court appointed a guardian ad li-tem to represent the best interests of J.J.W. The guardian ad litem made an independent investigation, which included personal visits with the parties, and filed a written report. She recommended that the parties share joint legal custody and that respondent be awarded sole physical custody of J.J.W., with liberal visitation granted to appellant.

The district court held a custody trial on March 2, 2004. Although the court and the parties did not receive the test results until May 14, 2004, the court considered the results as part of its judgment. Ultimately, the results excluded respondent as the biological father of J.J.W. The court nevertheless awarded respondent sole physical custody of J.J.W., with liberal visitation to appellant and joint legal custody to both parties. Appellant filed a posttrial motion for amended findings, conclusions, and order, or, alternatively, a new trial. The court granted various portions of the motion for amended findings, but denied the motions for amended conclusions of law and order, and for a new trial. This appeal followed.

ISSUES

1. Did the district court err when it declared the existence of a parent and child relationship?

2. Did the district court abuse its discretion when it awarded respondent sole physical custody?

3. Did the district court abuse its discretion when it denied appellant’s motion for a new trial?

ANALYSIS

An appellate courts review of custody determinations is limited to determining whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn.1996). Determinations of child custody must be based on the best interests of the child. Minn. Stat. § 518.17, subd. 3(a)(3) (2004). When considering the best interests of the child, the district court must make detailed written findings that reflect the courts consideration of the factors defined by statute. See Minn.Stat. § 518.17, subd. 1(a) (2004); Rogge v. Rogge, 509 N.W.2d 163, 165 (Minn.App.1993), review denied (Minn. Jan. 28, 1994). A district court’s findings of fact will be sustained unless they are clearly erroneous. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn.1985). Interpretation of statutes is a question of law that this court reviews de novo. Dorman v. Steffen, 666 N.W.2d 409, 411 (Minn.App. 2003).

I.

Appellant argues that the district court erred by failing to declare the nonexistence of the father-child relationship based on the genetic test results, which excluded respondent as the child’s biological father. In her answer to respondent’s petition, appellant admitted that “[respondent] and [appellant] are the parents of [J.J.W.] and that they “signed a Recognition of Parentage on January 19, 2000.” She also requested genetic testing “to establish paternity.”

When the mother and father of a child sign a recognition of parentage (ROP), they state and acknowledge under oath that they are the biological parents of the child and wish to be recognized as such. Minn.Stat. § 257.75, subd. 1 (2004). If the ROP is not revoked within 60 days after its execution, if there is no presumed father, or if no other man has signed an ROP under Minn.Stat. § 257.55, subd. 1(g) or (h) (2004), the “recognition has the force and effect of a judgment or order determining the existence of the parent and child relationship.” Minn.Stat. § 257.75, subd. 3 (2004). Once the ROP has been properly executed and filed, “if there are no competing presumptions of paternity, a judicial or administrative court may not allow further action to determine parentage.” Id. “The judgment or order of the court determining the existence or nonexistence of the parent and child relationship is determinative for all purposes.” Minn. Stat. § 257.66, subd. 1 (2004).

Here, the district court ordered genetic testing pursuant to Minn.Stat. § 257.62, subd. 1(a) (2004), which states:

The court ... may, and upon request of a party shall, require the child, mother, or alleged father to submit to blood or genetic tests. A mother or alleged father requesting the tests shall file with the court an affidavit either alleging or denying paternity and setting forth facts that establish the reasonable possibility that there was, or was not, the requisite sexual contact between the parties.

(Emphasis added.) However, appellant did not provide the requisite affidavit denying paternity. See Witso v. Overby, 627 N.W.2d 63, 69 (Minn.2001) (discussing affidavit required by section 257.62). To the contrary, in her answer she admitted that respondent was the father and only sought to “establish paternity” by requesting the tests. We therefore conclude that genetic testing was not permissible under Minn. Stat. § 257.62, subd. 1.

We further conclude that, contrary to the district court’s analysis, this case does not involve a presumption of paternity. The district court indicated that “Minn.Stat. § 257.55, subd. 1(e) provides that a man is presumed to be the biological father of a child if ‘he and the child’s biological mother acknowledge the paternity of the child in a writing signed by both of them under section 257.34 and filed with the state registrar of vital statistics.’ ” Section 257.34, however, involves a declaration of parentage (DOP), which declares and acknowledges under oath that the signatories are the biological parents of the child. Minn.Stat. § 257.34, subd. 1 (2004). The execution of a DOP “creates[s] a presumption that the signatory is the biological father of the child for the purposes of [the Parentage Act].” Minn. Stat. § 257.34, subd. 1(c). This case does not involve a DOP, nor does it involve competing presumptions under Minn.Stat. § 257.55.

Rather, this case involves the execution of an ROP with no competing presumptions of paternity. In order to overcome the force and effect of an ROP under these circumstances, a party must bring an action to vacate “within one year of the execution of the recognition or within six months after the person bringing the action obtains the results of blood or genetic tests that indicate that the man who executed the recognition is not the father of the child.” Minn.Stat. § 257.75, subd. 4(a) (2004). The burden of proof is on the moving party, who must request vacation on the basis of fraud, duress, or material mistake of fact. Minn.Stat. § 257.75, subd. 4(b).

Here, appellant has failed to meet these requirements. She has not brought an action to vacate the ROP within one year after its execution or by November 2004, which is six months after May 2004, the date that she obtained the results of the genetic tests. Nor has she alleged vacation of the ROP is necessary due to fraud, duress, or material mistake of fact. We therefore conclude that the district court did not err when it declared the existence of a parent and child relationship between respondent and J.J.W.

Even if we were to construe the proceedings here as a timely request to vacate the ROP on the basis of newly discovered evidence, we would still affirm the district court’s decision. The district court also noted that “because no other man is presumed to be the child’s father, [respondent’s] presumption of paternity under [section 257.55, subd. 1(d) ] is conclusive.” See Minn.Stat. § 257.55, subd. 1(d) (2004) (stating man is presumed biological father if “he receives child into his home and openly holds out the child as his biological child”). We therefore affirm the district court’s declaration of a parent and child relationship between respondent and J.J.W.

II.

Once paternity has been recognized through an ROP, the father may petition for rights of custody or parenting time in an independent action under Minn.Stat. § 518.156 (2004). See Minn.Stat. § 257.541, subd. 3 (2004). “The proceeding must be treated as an initial determination of custody under section 518.17.” Id. Here, the court applied the best interests factors to determine custody.

Appellant asserts that the record does not support the court’s findings on the best interests factors. She specifically argues that: (1) she is the primary caretaker; (2) the court overlooked J.J.W.⅛ interactions and relationship with S.A. and K.C.; and (3) the court incorrectly found that J.J.W. was better adjusted to living with respondent. Rather than addressing the 13 factors individually, appellant’s specific challenges are addressed.

The “primary caretaker” is “the person who provides the child with daily nurturance, care and support.” Pikula, 374 N.W.2d at 711. The court found that both parties have been intimately involved in raising J.J.W. since birth. Both have prepared meals, provided baths and medical care, and attended to him at bedtime and in the morning on an equal basis. The court stated that the facts do not support a preference for primary caretaker in either party. When the facts demonstrate that both parents share responsibility for and performance of child care in an entirely equal way, then no preference arises. Id. at 713-14. Review of the record supports the court’s finding of shared parenting.

The court noted that J.J.W. is emotionally bonded and assimilated into both families and has “a particularly close relationship with his older half-sister, [K.C.].” The court does not make any particular findings regarding S.A, except for the fact that he is JJ.W.’s stepbrother. The record is replete with reference to J.J.W’s close relationship with K.C., but contains less information regarding his relationship with S.A. They play together, but the record refers to their interactions in general terms.

With regard to JJ.W.’s adjustment to living with respondent, the court stated that “[J.J.W.] appears to be slightly better adjusted to living at [respondent’s] home (farm) near Hewitt, than living with [appellant] in her new home with [Angevine].” The court noted in another factor that J.J.W. “becomes upset when his custody is transferred” from respondent to appellant. The court also noted that respondent has a more stable home, having lived on the family farm his entire life, whereas appellant has moved to six locations in the past five years; has had three romantic partners, one of whom physically abused appellant in J.J.W.’s presence; and J.J.W. currently lives in a two-bedroom mobile home with his mother and stepfather, S.A., K.C., and a baby due in July 2004. The record supports these findings.

A district court “may not use one factor to the exclusion of all others.” Minn.Stat. § 518.17, subd 1(a) (2004). The law “leaves scant if any room for an appellate court to question the [district] courts balancing of best-interests considerations.” Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn.App.2000). The district court made specific findings regarding each best interests factor. In its memorandum discussing the application of the factors to the sole custody determination, the court noted that respondent has shown “greater stability in his living circumstances since [JJ.W.’s] birth and has a more stable family environment than [appellant].” The court also noted the permanency of respondents life plans, as well as appellants multiple romantic relationships, frequent moves, and unstable work life since J.J.W.S birth. Finally, the court noted the tone of familial relationships of the two families, commenting on the fact that there is animosity between appellant and her father and his girlfriend, which has created significant verbal disputes involving considerable profanity in her home in the presence of the children. When viewing the record in the light most favorable to the district courts findings, we conclude that the findings supporting the award of sole physical custody of J.J.W. to respondent are not clearly erroneous and that the courts decision was not an abuse of discretion.

III.

A district courts decision to deny a new trial motion is within its sound discretion and will not be disturbed on appeal absent a clear abuse of that discretion. Myers v. Hearth Techs., Inc., 621 N.W.2d 787, 790 (Minn.App.2001), review denied (Minn. Mar. 13, 2001). A district courts denial of a motion for new trial is not an abuse of discretion when the causes justifying a new trial, as listed in Minn. R. Civ. P. 59.01, have not been shown to exist. See Tovsland v. Tovsland, 358 N.W.2d 700, 702 (Minn.App.1984). Rule 59 establishes the grounds and procedures that determine when a new trial may be granted. The purpose of a motion for a new trial is to permit the correction of errors by the trial judge without requiring an appeal. Pierce v. Nat’l Farmers Union Prop. & Cas. Co., 351 N.W.2d 366, 368 (Minn.App.1984). In order to grant a new trial, a court must find a cause specified in the rules and must further find that prejudice has resulted to the opposing party. See Meagher v. Kavli, 256 Minn. 54, 62, 97 N.W.2d 370, 376 (1959).

Appellant argues that newly discovered evidence, the genetic test results, was not available until after the trial and the parties were not “allowed to address the [e]f-fect of the results” to the court. She therefore asserts that a new trial should be granted or that the matter be remanded for the taking of additional evidence relating to the test results.

At the conclusion of the trial, the attorneys and the court discussed the receipt of the test results. The court allowed the parties to submit their final arguments and proposed findings seven days after the receipt of the test results so they could address the results in their submissions, to which appellant’s counsel agreed. Appellant made no request to leave the record open.

In appellant’s motion for a new trial, she did not specify any ground for which the court should grant a new trial. She stated that if the court does not grant her request for amended findings, conclusion, and order, “it would be the request of [appellant] that the Court order a new trial in light of the genetic test results which were received following hearing of this matter on March 2, 2004.” Nothing else is stated regarding a new trial. The district court noted in its memorandum regarding the motion for a new trial that appellant’s motion “does not set forth the ‘grounds’ for the motion under Rule 59.01. Therefore, the motion for a new trial must be denied on that basis.” See Waldner v. Peterson, 447 N.W.2d 217, 219 (Minn.App.1989). The court nonetheless reviewed the record and concluded that “no errors occurred during the conduct of the trial, which were unreasonably prejudicial to [appellant].”

The court did address the test results in its conclusions and memorandum. Based on the court’s analysis, the results did not affect its determination because there was no other man claiming to be J.J.W.’s father. Further, even though the court erred in ordering the tests, any error based on newly discovered evidence relating to the test results would be harmless.

DECISION

Because the recognition of parentage was never properly vacated, it continues to have the force and effect of a judgment or order that respondent is the adjudicated father. While the district court erred in ordering the genetic tests because appellant never filed the required affidavit, such error was harmless because no other man is presumed to be JJ.W.’s father. The district court’s findings regarding the application of the best interests factors support the court’s award of sole physical custody to respondent. Because the district court addressed the genetic tests in its conclusions and order, and because no errors occurred at trial that unreasonably prejudiced appellant, the court did not err in denying appellant’s motion for a new trial.

Affirmed.


source: Caselaw Access Project

author: TOUSSAINT, Chief Judge.

license: Public Domain

text:
    In the Matter of the WELFARE OF J.L.P., Child.
    No. A05-67.
    Court of Appeals of Minnesota.
    Aug. 5, 2005.

      Mike Hatch, Attorney General, St. Paul, MN; and Robert M.A. Johnson, Anoka County Attorney, Kristin C. Larson, Assistant County Attorney, Anoka, MN, for respondent.
    Felix J. Sahlin, St. Paul, MN, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge; LANSING, Judge; and MINGE, Judge.
   SPECIAL TERM OPINION

TOUSSAINT, Chief Judge.

The state has filed a motion to dismiss this appeal from an order revoking appellant J.L.P.’s probation in this extended jurisdiction juvenile (EJJ) proceeding and executing the adult sentence. Because we conclude the appeal was timely filed, and because there are no other grounds for dismissal, we deny the motion to dismiss, as well as appellant’s requests for relief.

FACTS

J.L.P. was charged in a 2000 delinquency petition in Goodhue County with criminal vehicular operation and criminal vehicular homicide. The prosecutor designated the prosecution as an EJJ proceeding. In 2001, J.L.P. pleaded guilty, and the matter was transferred to Anoka County for disposition. The district court in Anoka County imposed a juvenile out-of-home placement, along with two stayed adult sentences.

In August 2003, the district court made a finding that J.L.P. had violated the terms of his EJJ probation. It appears, from appellant’s brief, that the district court executed at least part of the adult sentence, and J.L.P. served 180 days in an adult correctional facility. J.L.P. then apparently returned to EJJ status until the November 2004 order that he now appeals. On March 30, 2004, J.L.P. was again charged with violating the conditions of his EJJ probation. After a hearing, the district court revoked probation on both counts, rejecting J.L.P.’s challenge to the constitutionality of the EJJ statute. The district court issued its order on November 10, 2004, and J.L.P. filed this appeal on January 10, 2005, 61 days later. The state argues that the appeal should have been filed within 30 days, as required by Minn. R. Juv. Delinq. P. 21.03, subd. 2(A).

ISSUES

1. What time limitation applies to the filing of an appeal from a probation-revocation order in an extended jurisdiction juvenile proceeding?

2. Is appellant entitled to any relief based on respondent’s filing of the motion to dismiss?

ANALYSIS

Timeliness of the appeal

The state argues that this appeal should have been filed within 30 days, the deadline for appealing most orders in juvenile delinquency proceedings. See Minn. R. Juv. Delinq. P. 21.03, subd. 2(A). J.L.P. does not cite a rule allowing a longer appeal time, but instead relies primarily on the notice of appeal filed in State v. Garcia, 683 N.W.2d 294 (Minn.2004). But, although Garcia involved an appeal from an EJJ revocation, the opinion does not discuss the jurisdictional issue of the applicable time limit for appeal. Therefore, it is not precedential authority on that jurisdictional issue. See State v. Thoma, 569 N.W.2d 205, 207 (Minn.App.), aff'd mem. 571 N.W.2d 773 (Minn.1997).

Both parties have overlooked the provision in rule 19.11, subd. 3(E), of the juvenile delinquency rules, which states:

The probationer or the prosecuting attorney may appeal from the court’s decision [on revoking EJJ probation] according to the procedure provided for appeal from a sentence by the Minnesota Rules of Criminal Procedure 28.05.

Minn. R. Juv. Delinq. P. 19.11, subd. 3(E). The rule referenced, rule 28.05, subd. 1(1), of the rules of criminal procedure, gives a party 90 days to appeal a sentence. (The rule also governs appeals from adult probation revocation orders. Minn. R.Crim. P. 27.04, subd. 3(5).)

The reference in rule 19.11 to the “procedure” provided in rule 28.05 of the rules of criminal procedure extends to the time allowed for appeal. This appeal was filed 61 days after the November 10, 2004 order, and therefore was well within the 90-day limit provided in rule 28.05.

Even if the rule were ambiguous, there appears to be no other authority for applying the 30-day appeal deadline that applies to other juvenile-delinquency appeals. Once the adult sentence is executed, the jurisdiction of the juvenile court terminates. MinmStat. § 260B.130, subd. 5. At that point, the need to adhere to the policy of expedited handling of juvenile-delinquency appeals is diminished.

The state also argues that J.L.P. cannot raise his challenge to the constitutionality of the EJJ statute at this time because he failed to appeal the original order imposing the EJJ sentence as well as the 2003 order revoking EJJ probation. But this argument goes to this court’s scope of review, not to its jurisdiction to hear the appeal. The state can address this argument to the panel assigned to consider the merits of the appeal.

The state points out that J.L.P. did not file his appellant’s brief along with the notice of appeal, as is generally required for sentencing appeals under rule 28.05, and that appellant cited rule 28.02, as well as rule 28.05, in his statement of the case and notice of appeal. The criminal rules allow a defendant appealing a probation-revocation order to file his appellant’s brief later if he needs to order a transcript. Minn. R.Crim. P. 27.04, subd. 3(5). The same latitude should be allowed in EJJ probation-revocation appeals. It would be unfair to require J.L.P. to file his appellant’s brief before the transcript that he ordered was delivered. It would also be hyper-technical to dismiss the appeal because J.L.P. mistakenly cited rule 28.02, the rule governing appeals from criminal convictions, in his appeal papers. The state has shown no prejudice from this mistaken citation. See Boom v. Boom, 361 N.W.2d 34, 36 (Minn.1985) (outlining factors to consider in determining whether to dismiss for nonjurisdictional defect, including prejudice to the other party); State v. Herem, 365 N.W.2d 771, 772 (Minn.1985) (applying Boom factors in criminal appeal).

Appellant’s requests for relief

J.L.P. asks that this court issue an order determining the state’s motion to dismiss is in bad faith, denying the state’s motion for an extension of its briefing time, and barring the state from participating in oral argument. This court has already granted the state’s motion for an extension of its briefing time in a separate order. And we conclude that the motion to dismiss was not brought in bad faith. The state merely overlooked a provision in the juvenile delinquency rules that J.L.P.’s attorney also overlooked. There are no grounds to sanction the state by denying it an opportunity to participate in oral argument.

Motions denied.


author: FORSBERG, Judge.

text:
    STATE of Minnesota, Respondent, v. Mike Thomas MAHR, Appellant.
    No. A04-1390.
    Court of Appeals of Minnesota.
    Aug. 9, 2005.

      Mike Hatch, Attorney General, St. Paul, MN, and Katherine M. Johnson, Chisago County Attorney, Mark D. Person, Assistant County Attorney, Center City, MN, for respondent.
    John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by SHUMAKER, Presiding Judge, WILLIS, Judge, and FORSBERG, Judge.
   OPINION

FORSBERG, Judge.

Appellant Mike Thomas Mahr was convicted of first-degree controlled substance crime, in violation of Minn.Stat. §§ 152.021, subds. 2a, 3(a); .096, subd. 1 (2002) (conspiracy to manufacture methamphetamine), following a trial on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn.1980). Appellant challenges his conviction, alleging that (1) the district court erred by refusing to suppress evidence discovered during a stop of the vehicle in which appellant was a passenger; (2) his waiver of his jury trial rights was not knowing and intelligent because he did not realize that he was waiving his right to contest the sufficiency of the evidence; and (3) the district erred by sentencing him on more than one conviction arising out of the same behavioral incident.

Because the officer had a particularized and objective basis to make a limited investigatory stop and because appellant made a knowing and intelligent waiver of his jury trial rights, we affirm his conviction. Although the district court transcript reflects imposition of only one sentence, the district court records and Department of Corrections accounts recite multiple sentences; we order these records corrected to accurately reflect the imposition of one sentence.

FACTS

On March 26, 2003, Chisago City police officer Jennifer Knutson ran the license plate of a Jeep Cherokee that passed her and discovered that the owner of the car, listed as Joshua Budd, had a suspended license. She turned her squad around, caught up with the Jeep after about one mile, and pulled it over using her squad lights. Knutson was unable to see the driver during this period of time, but stated that she could see two adult figures in the Jeep. Knutson left her squad and walked up to the Jeep. She could not see in the back windows of the Jeep because they had been spray-painted black. When she got to the driver’s window, Knutson discovered that the driver was a female, and thus apparently not Joshua Budd. Knutson observed that the driver (1) was sweating profusely, despite the cool weather, (2) was extremely nervous, (3) spoke quickly and was laughing, and (4) told Knutson she had been looking for her sunglasses. The driver’s physical movements were jerky and Knutson described her as “jittery and excitable.” Knutson was not a Certified Drug Regulation Expert, but had stopped other drivers who were impaired by drugs; she formed the impression that the driver was under the influence of some drug, probably a stimulant.

Officer Knutson told the driver that she stopped the car because the registration indicated that the owner had a suspended license. The driver informed Knutson that she had just purchased the car, hadn’t transferred title, and had no insurance. The driver stated that she didn’t have her license with her and gave her name as Jerilyn Marie Bjorklund, DOB 09/29/64. Knutson ran a license check and found no such name on file. She then cheeked with the dispatcher, who could find no record of that name. Knutson returned to the Jeep and asked the driver for her real name and date of birth. She responded that she was legal. Knutson then asked the passenger, appellant Mike Thomas Mahr, for his license, and he stated that he didn’t have it with him. Appellant gave his name as Steven Thomas Marshall, DOB 10/09/84. Knutson continued to question him, because he appeared to be closer to 40, rather than 19 years old. Appellant stated that he had given her his son’s birth date and finally admitted that his name was Michael Thomas Mahr, DOB 12/13/60. Knutson ran a license check, which revealed that appellant’s license was suspended and that he had three active warrants. Knutson placed both appellant and Shanahan under arrest.

Police officers who searched the Jeep found drug paraphernalia and three stolen checks belonging to Beulah Giddings in Shanahan’s purse and other items associated with meth manufacturing. Police contacted Giddings’ daughter, who had a power of attorney on her behalf. The daughter stated that appellant was watching Giddings’ home and gave police permission to search it. Once there, police discovered evidence of a meth lab and eventually arrested several people. A search warrant was issued and a more extensive search was conducted. The evidence discovered during this search provided the basis for the charges brought against appellant.

Conceding that if the original stop was lawful, the search of Giddings’ home was lawful, appellant contested the stop at the omnibus hearing. The district court issued written findings ruling that the stop was lawful and concluding that Knutson had a basis to stop the car based on the suspended license of the registered owner. The court further found that both the equipment violation (obstructed windows) and Knutson’s observations of indicia of drug use in Shanahan provided a basis for prolonging the stop. The district court therefore refused to suppress the evidence.

On the scheduled trial date, October 27, 2003, appellant agreed to submit the matter on stipulated facts under State v. Lothenbach, 296 N.W.2d 854 (Minn.1980). Before doing so, appellant was questioned by the court:

The Court: And specifically you understand that you’re giving up to have— the right to have a jury of 12 persons determine the facts and determine your guilt or innocence on these matters?
The Defendant: Yes, Your Honor.
The Court: You also understand that it’s — there’s a substantial likelihood under this procedure that you may be found guilty and that this is, in essence, to preserve your right to challenge the search and seizure issue in this case?
The Defendant: Absolutely, right, Your Honor.

On October 28, 2003, the district court entered an order finding appellant guilty; no findings of fact were made. Appellant was sentenced on April 28, 2004, to the presumptive sentence of 110 months on one count of conspiring to manufacture methamphetamine.

ISSUES

1.Did the district court err by refusing to suppress evidence discovered as the result of an investigatory stop?

2. Did appellant, who agreed to a Loth-enbach proceeding, make a knowing and intelligent waiver of his jury trial rights?

3. Did the district court err by imposing multiple punishments for a single behavioral incident?

ANALYSIS

Legality of Stop

In an appeal of the district court’s pretrial order refusing to suppress evidence, we independently review the facts and determine as a matter of law, whether the district court erred in refusing to suppress the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn.1999). A police officer may make a limited investigatory stop if the officer has a “particularized and objective basis” for suspecting that the person stopped is engaged in criminal activity. State v. Pike, 551 N.W.2d 919, 921 (Minn.1996) (quotation omitted). When a police officer is aware that the owner of a vehicle has a revoked license, there is a sufficient basis for reasonable suspicion of criminal activity if the officer observes the vehicle being driven. Id. at 922. But if the officer’s initial reasonable suspicion is dispelled by further investigation prior to the stop, a limited investigatory stop is not justified. State v. Britton, 604 N.W.2d 84, 88 (Minn.2000); Pike, 551 N.W.2d at 922. Once the officer’s initial suspicions are satisfied, the scope or duration of an investigatory stop may not be prolonged without additional justification. State v. Fort, 660 N.W.2d 415, 418-19 (Minn.2003).

Knutson stopped the Jeep in which appellant was a passenger because a motor vehicle check revealed that the registered owner, a male, had a suspended license. Knutson was not aware that the driver of the Jeep was female until she approached the driver’s window, because the rear windows of the Jeep were painted black. Although Knutson’s initial suspicions based on the suspended license of the male registered owner were dispelled, she observed that the driver, Shanahan, was sweating profusely in cool weather, jittery, excitable, nervous, and moving with jerky motions, actions that Knutson identified with drug usage. Shanahan stated that she had just bought the Jeep, had no insurance, could not produce a driver’s license, and initially both she and appellant gave Knut-son false names. Upon learning his true name, Knutson discovered that appellant had three outstanding arrest warrants and placed him under arrest. During the subsequent search of appellant, Shanahan, and the Jeep, stolen checks and materials associated with methamphetamine manufacturing were discovered. Based on this, a warrant was issued to search the house where appellant was staying. The evidence discovered provided a basis for the charges against appellant.

Knutson’s stop of the Jeep was justified by the knowledge that the registered owner had a suspended license. Knutson’s further observations provided a sufficient basis for a particularized and objective belief that the occupants of the Jeep were engaged in criminal activity. The investigative stop of the Jeep was thus lawful and the district court therefore did not err by refusing to suppress the evidence.

Jury Trial Waiver

In State v. Busse, 644 N.W.2d 79, 88-89 (Minn.2002), the supreme court stated that a defendant who uses the Lothen-bach procedure may not obtain appellate review of the sufficiency of the evidence. A defendant who wants to challenge the state’s proof must proceed to trial instead of agreeing to a Lothenbach proceeding. Busse, 644 N.W.2d at 89. This court has differentiated between a Lothenbach proceeding and a stipulated-facts trial under Minn. R.Crim. P. 26.01, subd. 3, stating that the rule permits the defendant to raise issues on appeal as from any trial to the court, whereas the Lothenbach procedure is intended merely to preserve pretrial issues when the facts are basically undisputed. State v. Riley, 667 N.W.2d 153, 158 (Minn.App.2003), review denied (Minn. Oct. 21, 2003).

Contrary to appellant’s assertion that a Lothenbach proceeding is the equivalent of a guilty plea, this court stated that

a Lothenbach proceeding does not involve a guilty plea. A true Lothenbach stipulation does not involve a concession of guilt, and is intended only to preserve the defendant’s right of appeal while avoiding an unnecessary jury trial. We therefore disagree with appellant’s contention that an agreement to a stipulated-facts trial is the functional equivalent of a guilty plea[.]

State v. Johnson, 689 N.W.2d 247, 252-53 (Minn.App.2004) (citations and quotations omitted), review denied (Minn. Jan. 20, 2005).

Before proceeding here, appellant was informed that, by agreeing to a Loth-enbach proceeding, he was giving up his rights to a jury trial, to have a jury decide his guilt or innocence, to confront witnesses, and to testify on his own behalf. The district court also told him that there was a “substantial likelihood” that he would be found guilty and that the procedure was being used to preserve his right to challenge the search and seizure issue. Appellant conceded that he understood and waived these rights. The record reflects that appellant made a knowing and intelligent decision to use a Lothenbach proceeding, rather than proceed to a jury trial.

Appellant points out that the court failed to make -written findings, as required by Minn. R.Crim. P. 26.01, subds. 2, 3, which state that in a felony trial without a jury, including a trial on stipulated facts, the district court must issue written findings within seven days after the general finding of guilt. The district court did not comply with this rule.

On its face, the rule applies to court trials and to stipulated-facts trials; as stated above, a Lothenbach proceeding technically is neither. In a court trial, under rule 26.01, subd. 2, the court hears and decides disputed facts; in a stipulated-facts trial under rule 26.01, subd. 3, the facts are not disputed, but the court determines if the defendant’s guilt is proved beyond a reasonable doubt, and the defendant is permitted to appeal as from any other trial. The Lothenbach proceeding is a concession that the state’s facts are accurate, with the primary purpose of permitting the defendant to appeal a pretrial ruling, while avoiding a trial for reasons of judicial economy. Because a Lothenbach proceeding is not a court trial or a stipulated facts trial, the findings requirement of rule 26.01 does not apply.

Multiple Sentences

When multiple charges arise out of a single behavioral incident, Minn. Stat. § 609.035 limits punishment to a single sentence. State v. Bookwalter, 541 N.W.2d 290, 293 (Minn.1995). “Multiple punishments” refers to multiple sentences, including concurrent sentences. Id. The test for whether multiple offenses arose out of a single behavioral incident is whether they occurred at the same time and place and whether the conduct was motivated by an effort to obtain a single criminal objective. Id. at 294 (stating that court should consider factors of time, place, and motivation in determining if conduct is a single behavioral incident). Here, all three charges arose out of the search conducted at the Giddings’ residence.

According to the sentencing transcript, the district court sentenced appellant only on the first count of the complaint, conspiracy to manufacture methamphetamine. The Chisago County Register of Actions and Department of Corrections inmate base file record, however, reflect convictions and concurrent sentences on all three charged offenses. We therefore order these records to be modified to reflect one sentence arising out of this incident.

Appellant’s Pro Se Briefs

In addition to the issues raised by his counsel, appellant argues that the state suppressed exculpatory evidence by failing to test evidence recovered pursuant to the search warrant for fingerprints. Appellant provides no basis for this claim.

Appellant also states that he was denied his right to a speedy trial. Generally, a defendant is guaranteed the right to a jury trial within 60 days after a written or oral demand, unless good cause for a delay is shown. Minn. R.Crim. P. 11.10. No speedy trial demand was made. While a delay beyond 60 days is presumptively prejudicial, the court must examine (1) the reason for the delay; (2) whether the defendant asserted the right to a speedy trial; and (3) whether the defendant has been prejudiced by the delay. State v. Johnson, 498 N.W.2d 10, 15-16 (Minn.1993). Based on the record before us, all delays here occurred by defense request. Appellant’s contention has no merit.

DECISION

The arresting officer had a reasonable suspicion of criminal activity that provided a basis for an investigatory stop, and her continuing observations of suspicious activity supported a continuation of the stop. Appellant was informed and made a knowing and intelligent waiver of his rights to a jury trial when he decided to submit this matter as a Lothenbach proceeding. Because the primary issue here was the district court’s pretrial ruling, its findings in support of that ruling are sufficient to satisfy the requirements of Minn. R.Crim. P. 26.03, subds. 2, 3. We direct the district court and the Department of Corrections to correct their records to reflect one conviction and one sentence arising out of this incident. Appellant’s pro se issues are without merit. We therefore affirm appellant’s conviction and sentence, as modified.

Affirmed as modified.

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

      . The driver never gave her name, but was eventually identified as Jerilyn Shanahan.


text:
    In the Matter of the Application of Carol HILDEBRANDT for Duty-Related Correctional Plan Disability Benefits.
    No. A04-2127.
    Court of Appeals of Minnesota.
    Aug. 9, 2005.

      Joseph T. O’Neill, O’Neill, Grills & O’Neill, P.L.L.P., St. Paul, MN, for relator Carol Hildebrandt.
    Mike Hatch, Attorney General, Rory H. Foley, Assistant Attorney General, St. Paul, MN, for respondent PERA.
    Considered and decided by WRIGHT, Presiding Judge; TOUSSAINT, Chief Judge; and PETERSON, Judge.
   OPINION

TOUSSAINT, Chief Judge.

Relator Carol Hildebrandt challenges the decision of respondent the Public Employee’s Retirement Association (PERA) denying her duty-related disability benefits. She argues the PERA board erred in interpreting the phrase “act of duty” in Minn.Stat. § 353E.06 (2004) to mean that the disability must arise from an inherent danger associated with her job. She also argues that because all four doctors who examined her concluded that her disability was job related, the PERA board’s determination is arbitrary and unsupported by the evidence. Because we conclude that under the unambiguous language of Minn. Stat. § 353E.06, subd. 1(2004), Hilde-brandt is entitled to duty-related disability benefits, we reverse the board’s determination.

FACTS

Carol Hildebrandt is a 61-year-old woman who worked for the Lake of the Woods Sheriffs Department as a jail- or/dispatcher from 1981 to September 2003. On September 8, 2003, Hilde-brandt’s last day of work, she answered a 911 call from a woman whose son was having a seizure. When the call was disconnected because of a computer malfunction, Hildebrandt was unable to secure the name or address of the caller. Although the sheriff was able to help resolve the situation, Hildebrandt became very nervous and upset. She was dizzy, short of breath, scared, and shaking. At this point she decided she could no longer handle the strain of being a 911 operator and resigned her position.

On September 10, 2003, Hildebrandt was examined by Dr. Amy Fletemier, who diagnosed Hildebrandt as suffering from “depression/anxiety” and chronic pain in her upper and lower back. Dr. Fletemier’s report states that these conditions render Hildebrandt “physically or mentally unfit to perform the duties of a correctional officer. This is a direct result of an injury or illness which occurred during, or arose out of, an act of duty.”

On September 17, 2003, Hildebrandt submitted an application for duty-related disability benefits under MinmStat. § 353E.06 (2004). In the “injury/illness” section of the application, Hildebrandt states that she has been suffering from “extreme pain in my upper back ... [and] I have had a lot of difficulty with my job mentally especially the 911 operator.” She also states in the application:

On Sept. 8th, I again had extreme pain in [my] upper back.... I felt like running out of my office. I had a 911 call that I felt wasn’t handled properly because of equipment failure. I came very close to panicking. I was shaking, crying, I felt like I couldn’t breathe, I wasn’t dizzy, but I felt like I couldn’t stand.... I can’t remember the last time I laughed. I can’t remember a day I haven’t broke down and cried. After 22 years as [a] 911 operator/dispatcher/jailer I feel physically and mentally broke down.

After receiving Hildebrandt’s application, the PERA staff requested the Minnesota Department of Health review Dr. Fle-temier’s report. Dr. William Paule of the department of health opined that Hilde-brandt “meets the criteria for occupational disability” and concluded that a review of the case in one year would be appropriate “[b]ecause of the possibility of improvement in depression, etc.”

In November 2003, the PERA staff requested the department of health to authorize a psychiatric independent medical examination of Hildebrandt. The examination was conducted by Dr. Lori Suval-sky. Dr. Suvalsky diagnosed Hildebrandt as suffering from “panic disorder, depression not otherwise specified.” Dr. Suval-sky also concluded that Hildebrandt’s disability was “a direct result of an injury or illness which occurred during, or arose out of, an act of duty.” In reaching her diagnosis, Dr. Suvalsky found that Hildebrandt

was relatively symptom-free for a number of years until she got into a situation at work where the workload that was expected of her seemed to be above what she was capable of, both in terms of quantity and in terms of skill level.... Ms. Hildebrandt clearly suffers from depressive symptomatology. More prominent, however, is her panic disorder, which is directly related to her self-esteem issues and her inability to function in a high stress environment. She clearly is occupationally disabled ... and could not work in this setting in the future, as her anxiety level escalates dramatically when she is put in that position.

After receiving Dr. Suvalsky’s report, the PERA staff again requested the department of health to determine if Hilde-brandt was occupationally disabled. After reviewing the report, Dr. Mankey of the department of health concluded Hilde-brandt “meets the criteria for occupational disability ... [and] future medical evaluations may be waived.”

In March 2004, PERA denied Hilde-brant’s application for duty-related disability benefits, instead finding that she was entitled to non-duty-related benefits. According to the testimony of PERA Pension Analyst Coordinator Patricia Kappelhoff, PERA denied duty-related benefits because

the back problems that had been experienced by Ms. Hildebrandt had been corrected. That the workstation had been taken care of, and that was no longer a problem. And that the anxiety attacks and panic disorders actually [were] caused by the interpersonal relationships with her employer rather than the job itself. And so, the committee had determined at that point that it was a non-duty-related disability benefit.

Hildebrandt then requested a fact-finding hearing before an Administrative Law Judge (ALJ). The ALJ concluded that Hildebrandt had shown “by a preponderance of the evidence that her disability is the direct result of an injury or sickness that was incurred in or arose out of an act of duty. Her disability is primarily emotional, and secondarily physical. Both of these arose out of her work as a dispatcher/jailer.” In the accompanying memorandum, the ALJ concludes:

Hildebrandt’s disability is predominately caused by her mental and emotional reaction to problems on the job. Some of these problems were caused by favoritism shown to the new male coworker. Others were caused by his behavior and attitudes. Another cause was the impact of new technologies and new procedures that were imposed without giving Hildebrandt the kind of training and break-in period that she needed. Finally, some part of the job would have been stressful under any circumstances. 911 call from frantic persons, being alone with prisoners accused of all sorts of crimes — these did create moments of stress that would challenge most people. All of these factors, taken together, plus the discomfort from the physical problems, caused Hildebrandt to conclude that she just could not handle the job any longer.

In August 2004, the PERA staff issued a memorandum taking exception with some of the ALJ’s findings and his conclusion and stated the staff believed duty-related benefits “are payable only when the disability results from an act of duty which exposes the member to the heightened risks for which these benefits were intended, and not where as here the disability results from personality conflicts with coworkers and complaints about working conditions.” In disputing the ALJ’s finding that Hildebrandt became upset when a computer malfunction occurred during a 911 call, the staff argued:

While it is true that Ms. Hildebrandt testified about the computer malfunction and her immediate reaction to it, the finding must be read in context with the other findings indicating that Ms. Hilde-brandt was experiencing anxiety as a result of personnel changes and office reorganization. These changes in her work environment were the primary cause of her anxiety and are not the type of ‘duties’ contemplated by Minn. Stat. § 353E.06, subd. 1.

The staff also disputed the ALJ’s conclusion that Hildebrandt had met her burden to prove that her disability was a direct result of an injury that arose out of an act of duty as a jailer/dispatcher. The staff maintained the conclusion was incorrect because the evidence demonstrated that

it was not the nature of the work that Ms. Hildebrandt performed that resulted in her disability. Rather, it was her reaction to the expectations of her supervisors that caused her disability. Since this reaction was not a condition that would arise normally out of her prescribed duties, it should not be considered a qualifying event for purposes of duty-related benefits.

The PERA board then conducted a public hearing in which Hildebrandt participated by phone. During the hearing Hil-debrandt testified:

I will be the first to admit that we had a very stressful office with Ron Wendler, when he became employed with us. I wrote in my letters. I said this at my fact-finding hearing. But they keep mentioning personality conflicts, and this I do not understand. What personality conflict and what co-worker did I have that I could have this conflict with? I work by myself, 12 hours a shift, and I always work the night shift. The Sheriff worked days. And Ron Wendler and I always worked opposite shifts.

In response to a board member’s question to Hildebrandt why she had not returned to work if she was fine with her supervisors and the ergonomic issues had been resolved, Hildebrandt testified:

Because I cannot handle 911 calls.... [Y]ou can’t imagine what it’s like trying to get an address from a person, just a simple address from a person whose husband is suffering from ... a heart attack or a baby can’t breathe.... You can’t imagine the way I prayed that I wouldn’t have to get up in the morning to face them if I made a mistake.

A board member also testified at the hearing:

I’m having trouble supporting the staff recommendation.... [H]er personal doctor, the medical examiner’s office and our independent medical evaluator did state that ... her disability was duty-related. And while I understand the difference between the benefit that would be received, it seems to me that events over a period of time caused a duty-related disability. And also, in the record, it shows where her doctor on several occasions excused her from work for longer than a day or two, and at one point it was actually a week and at another point it was about two weeks. And of course ... when she was away from work she got better. When she returned to work, she ... came back into her other condition after a period of time. And it seems to me that it’s absolutely a duty-related disability.

At the end of the hearing, a board member moved that the board “support the staffs recommendation based on their testimony at the meeting today and testimony of [assistant attorney general] Rory Foley.” The motion carried with two no votes and Hildebrandt was denied duty-related disability benefits. This appeal follows.

ISSUES

1. Did the legislature intend to limit duty-related disability benefits under Minn.Stat. § 353E.06, subd. 1(2004), only to those disabilities that were incurred in, or arose out of, an act of duty that is uniquely hazardous to a local-government correctional-facility employee?

2. Was the PERA board’s decision to deny Hildebrandt duty-related benefits arbitrary, unreasonable, or unsupported by substantial evidence?

ANALYSIS

The Minnesota Supreme Court has analogized a public-retirement-fund board to an administrative agency, and so we review the PERA board’s decision under the standard used for agency decisions. Axelson v. Minneapolis Teachers’ Ret. Fund Ass’n, 544 N.W.2d 297, 299 (Minn.1996). As such, we will reverse the PERA board’s decision only if it is “fraudulent, arbitrary, unreasonable, unsupported by substantial evidence, not within its jurisdiction, or based on an error of law.” Id. (quotation omitted). In a challenge to the decision of an administrative agency, requiring this court to construe the words of a statute, we review the statutory interpretation de novo and then consider whether the agency’s decision was reasonable in light of the proper meaning of the statute. Citizens for a Balanced City v. Plymouth Congregational Church, 672 N.W.2d 13, 19 (Minn.App.2003); see also St. Otto’s Home v. Minn. Dep’t of Human Servs., 437 N.W.2d 35, 39 (Minn.1989) (stating “[w]hen a decision turns on the meaning of words in a statute or regulation, a legal question is presented”).

I.

Hildebrandt argues that PERA erred in its interpretation of when a disability arises out of or is incurred in “any act of duty.” The PERA board “construe[d] this language together with the different disability benefits outlined in Minn.Stat. § 353E.06, subds. 1, 2 (2004) to limit duty[related] disability benefits to those hazardous situations envisioned by Minn.Stat. § 353.63 (2004) and not to ordinary personality disputes in the office setting.”

While conceding that this court is not bound by the board’s interpretation of the phrase “act of duty,” PERA argues that its determination is entitled to “great weight.” We have noted in the past that “[w]hen the meaning of a statute is doubtful, courts should give great weight to a construction placed upon it by the department charged with its administration.” Goodnature v. Mower County, 558 N.W.2d 19, 20 (Minn.App.1997) (quotation omitted) (emphasis added). But when the legislature’s intent is ascertainable by considering the meaning of the statutory language in light of general grammatical principles, the meaning is not doubtful and we do not defer to an administrative agency’s determination. St. Otto’s Home, 437 N.W.2d at 39-40; see also Minn.Stat. § 645.16 (2004) (stating purpose of statutory interpretation is to discern the intention of the legislature).

As a “jailor/dispatcher” for the • Lake of the Woods Sheriffs department, Hildebrandt’s request for disability benefits falls under ch. 353E (2004), the “Local Government Correctional Service Retirement Plan.” Hildebrandt is seeking duty-related disability benefits under Minn.Stat. § 353E.06, subd. 1, which provides:

A local government correctional employee who.becomes disabled and physically or mentally unfit to perform the duties of the position as a direct result of an injury, sickness, or other disability that is medically determinable, that was incurred in or arose out of any act of duty, and that renders the employee physically or mentally unable to perform the employee’s duties, is entitled to a disability benefit.

In this appeal, we need only determine the meaning of the phrase “act of duty.” In ascertaining which acts of duty the 'legislature intended Minn.Stat. § 353E.06, subd. 1, to cover, we presume the legislature’s choice of words indicate its intent. See Northern States Power Co. v. Comm’r of Revenue, 571 N.W.2d 573, 575 (Minn.1997) (holding that in construing the meaning, and scope of a statute, the words of the statute govern and are given their common and approved usage.). In subdivision 1, the legislature provided that the local correctional employee is entitled to duty-related disability benefits if the injury arose from any act of duty. We assume the legislature intended “any” to modify “act of duty.” Cf. MinmStat. § 645.08(3) (stating “general words are construed to be restricted in their meaning by preceding particular words”). “Any” is defined, depending on the context, as “[o]ne, some, every, or all without specification.” The American Heritage Dictionary 64 (4th ed. 2000). When the word is used “[i]n the affirmative, sentences it means ‘every,’ or ‘all’.” Bryan A. Garner, The Oxford Dictionary of American Usage and Style 24 (2000). Applying the corn-mon meaning of “any” to “act of duty,” it is clear that the legislature intended a local correctional employee to receive “duty-related” disability benefits for injuries that were directly caused by all tasks or functions required of that employee, without limitation. See The American Heritage Dictionary 64 (4th ed. 2002) (defining “duty,” among other possibilities, as “service, function, or task assigned to one”).

Having determined that the scope of “any act of duty” is clear from the plain meaning of those words, we need not consider PERA’s argument that the legislature’s policy statement in Minn.Stat. § 353.63 (2004) for the police and firefighter retirement plan should be used to restrict the meaning of “acts of duty” in Minn.Stat. § 353E.06, subd. 1. See Mutual Service Cas. Ins. Co. v. League of Minnesota Cities Ins. Trust, 659 N.W.2d 755, 760 (Minn.2003) (stating “where the intention of the legislature is clearly manifested by plain and unambiguous language, [appellate courts] have neither the need nor the permission to engage in statutory interpretation”). We note, however, that there are marked difference between the police and firefighter retirement plan under Minn. Stat. 353.63 353.68 (2004) and the other public employee retirement plans, which would suggest applying the policy statement to any plan other than the police and firefighter retirement plan is not appropriate. For instance, Minn.Stat. 353.63 provides that “benefits provided in sections 353.63 to 353.68 are more costly than similar benefits for other public employees” and that the special benefits are provided to the police and the firefighters in recognition that “this work is hazardous” and that there are “particular dangers inherent in these occupations” that are not present for other public employees covered by other plans.

II.

Based on the plain meaning of “any act of duty” in Minn.Stat. § 353E.06, subd. 1, we next consider whether the PERA board’s decision to deny Hilde-brandt duty-related benefits was arbitrary, unreasonable, or unsupported by substantial evidence. The appellant must demonstrate by a preponderance of the evidence that the PERA board’s findings are arbitrary, unreasonable, or not supported by substantial evidence. In re Application of Alters, 533 N.W.2d 646, 652 (Minn.App.1995), review denied (Minn. Aug. 30,1995). Substantial evidence is such relevant evidence, considered in its entirety, as a reasonable mind might accept as adequate to support a conclusion. Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 825 (Minn.1977).

The board, in denying benefits, adopted the PERA staffs conclusion that Hildebrandt’s disability was caused by personality conflicts with her employer rather than by the job itself. There is nothing in the record before us that supports this conclusion and PERA points to no evidence that suggests Hildebrandt’s disability was simply the result of personality conflicts. It is unclear how Hildebrandt’s condition can be the result of personality conflicts with co-workers when it is uncontested that she works the night shift by herself.

In contrast, there is substantial evidence in the record that leads to the conclusion that Hildebrandt’s condition was incurred in, or arose out of, an act of duty. Both Dr. Fletemier and Dr. Suval-sky concluded that Hildebrandt’s disability was “a direct result of an injury or illness which occurred during, or arose out of, an act of duty.” Dr. Suvalsky concluded in her diagnosis that Hildebrandt “was relatively symptom-free for a number of years until she got into a situation at work where the workload that was expected of her seemed to be above what she was capable of, both in terms of quantity and in terms of skill level.” Further, two doctors from the department of health concluded that Hildebrandt was “occupationally disabled.” Also, it is undisputed that on Hildebrandt’s last day, a computer malfunction disconnected an emergency call before she was able to obtain the needed information and this incident caused her to be dizzy, short of breath, and scared. And as one of the board members pointed out, the record shows that Hildebrandt’s condition improved when she was away from work, but when she returned to work her condition was exacerbated. Under these circumstances, a reasonable person could only conclude that Hildebrandt’s disability is a direct result of an “act of duty.”

DECISION

Under the unambiguous language of Minn.Stat. § 353E.06, subd. 1, Hildebrandt is entitled to duty-related disability benefits because her disability was the direct result of tasks or functions that she was required to perform as a jailor/dispatcher.

Reversed.

      . Non-duty disability would entitle Hilde-brandt to receive 19% of her highest average salary, while duty-related disability would pay her 47.5% of that salary. See Minn.Stat. 353E.06, subds. 1, 2.

      . On appeal, PERA argues that Hildebrandt failed to present sufficient evidence of "the requisite nexus between [her] disability and any hazardous nature of her job.” To the extent that PERA is now arguing that Hilde-brandt’s disability is not a “direct result” of her employment, this argument has never been raised prior to this appeal and any such claim is waived. See Thiele v. Stick, 425 N.W.2d 580, 585 (Minn. 1988) (holding reviewing court must generally consider only those issues that the record shows were presented and considered below in deciding the matter before it).


author: GORDON W. SHUMAKER, Judge.

text:
    Gordon WONG, Respondent, v. INTERSPACE-WEST, INC., Appellant.
    No. A04-2409.
    Court of Appeals of Minnesota.
    Aug. 9, 2005.

      David S. Holman, Burnsville, MN, for respondent.
    Kristine A. Kubes, Erica Gutmann Strohl, Meagher & Geer, PLLP, Minneapolis, MN, for appellant.
    Considered and decided by KLAPHAKE, Presiding Judge; SCHUMACHER, Judge; and SHUMAKER, Judge.
   OPINION

GORDON W. SHUMAKER, Judge.

Appellant-contractor challenges the district court’s ruling that its prelien notice did not meet the statutory requirements for print type, making its notice invalid and defeating its mechanic’s lien. Appellant argues that a computer-generated document should be classified as “printed” rather than “typewritten” for purposes of Minn.Stat. § 514.011, subd. 1 (2004), and that the district court incorrectly applied the standard for typewritten documents to this computer-generated document. Because we find that the district court erred, we reverse and remand.

FACTS

By written contract, appellant Inter-space-West, Inc. agreed to build a home for respondent Gordon Wong. Because In-terspace intended to employ subcontractors or material suppliers, or both, it was obligated by law to give to Wong a prelien notice. Interspace contends that it did give to Wong the requisite notice.

Disputes arose between Interspace and Wong during the construction of the home. Interspace ultimately filed a mechanic’s lien against the property. Wong then brought a declaratory-judgment action, contending that Interspace is not entitled to a mechanic’s lien because it did not provide a proper prelien notice.

Wong moved for summary judgment. In granting that motion and declaring In-terspace’s hen invalid, the district court ruled only on the issue of the form of the alleged prelien notice. The court held that neither of two alleged prelien notices complies with the statutory requirements as to form. Thus, the court did not reach the fact issues of what documents constituted the parties’ contract and whether or not the alleged prelien notice was timely given. Interspace appeals from the court’s ruling on the legal issue of the adequacy of the form of the alleged prelien notice.

ISSUE

The prehen notice supplied to respondent was a computer-generated document. The statutorily mandated language appeared in the document in 12-point, bold-type font. Did the district court err by determining that this document was “typewritten” rather than “printed” and thus not in compliance with Minn.Stat. § 514.011, subd. 1 (2004), thereby entitling the property owner to judgment as a matter of law?

ANALYSIS

Prelierir-Notice Compliance

The district court correctly held that a “[flailure to strictly comply with statutory prelien notice requirements defeats a mechanic’s lien.” The court then concluded that Interspace’s September 29, 2003 prehen notice does not meet the statutory requirement of form because it is “a typewritten document” that must be all in capital letters and this notice is in bold print but not in capitals.

Minn.Stat. § 514.011, subd. 1 (2004), provides, in part, that if the prelien notice is in a “printed” document it must appear in “at least 10-point bold type,” and if it is in a “typewritten” document it must appear “in capital letters.” Interspace’s notice of September 29, 2003, was computer-generated and appears in 12-point bold type. Interspace contends that the form of its notice satisfies the statutory “printed” notice requirement. Wong contends, and the district court agreed, that Inter-space’s notice is typewritten and, therefore, must be entirely in capital letters to comply with the statute. Thus, we are required to determine whether Inter-space’s computer-generated notice is “printed” or “typewritten.” If the former, it complies in form with section 514.011, subd. 1; if the latter, it does not comply with the statute.

Statutory construction is a question of law, which this court reviews de novo, Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). Words and phrases in statutes are to be construed according to their common and approved usages, unless special or technical meanings are provided. Minn.Stat. § 645.08 (2004). Section 514.011, subd. 1, contains no special or technical definitions of “printed” or “typewritten.” Thus, we first look to the lexical meanings of those terms.

The term “printed” refers to an impression produced from ink on paper by a printing press or by an electronic printer. American Heritage Dictionary of the English Language 1108, (4th ed.2002). “Typewritten” means something that is written on a typewriter. Id. at 1486.

Wong argues that the notice was typewritten because the information was typed into a machine by using a keyboard, a process substantially the same as that involved with a typewriter. Wong’s interpretation of the statute places the focus on the method of input of the information that appears in the notice. Interspace emphasizes the output of the machine, focusing on how the notice appears after it has been produced, irrespective of its means of production.

This computer-generated notice has input characteristics of a typewritten document and output characteristics of a printed document. But we are persuaded that the concern of the statute, and the intent of the legislature, is to make the prelien notice sufficiently conspicuous so that an unwitting property owner will not lose his property to undisclosed subcontractors or material suppliers who acquire mechanics’ liens. The supreme court explained this purpose of the statute by describing the historical problem that prompted the enactment of the prelien-notice requirement:

In 1973, the legislature, at the urging of the attorney general, sought to correct a problem then frequently faced by homeowners when they entered into contracts with building contractors for the improvement of their property. Often, as the proponents of the legislation urged, a homeowner would find that, after he had paid the contractor in full, numerous other subcontractors or mate-rialmen that were previously unknown to him had filed mechanics’ liens against his property. To rectify this evil, the legislature added the notice requirements of § 514.011.

Nasseff v. Schoenecker, 312 Minn. 485, 490, 253 N.W.2d 374, 377 (1977).

The court in Nasseff stated that the purpose of the statute “was to protect an owner from hidden liens arising from labor or materials supplied to the contractor by subcontractors or materialmen ... whose identities were unknown and often unas-certainable by the owner.” Id. The purpose of the statute is to require the conveyance of notice. The focus is thus on output, that is, how and when the notice is given and what it contains. The manner in which information is entered into a machine seems irrelevant to the statutory purpose as long as the output complies with the statutory requirements. So, the proper focus is on the created document rather than the process of its creation.

In enacting the prelien-notice requirement, the legislature surely was aware in 1973 that construction contracts would be either typewritten or commercially preprinted, or a combination of both. Furthermore, the contracts were likely to have many provisions in the same font. If the prelien notice was to be effective, it would have to stand out from the rest of the provisions. A typewriter could produce type of a single size and could do so in capital letters. A printer could produce bold type of various sizes. Because of a typewriter’s limitations, the surest way to make a notice provision conspicuous in a document was to require it to be produced in capital letters. The more versatile printer could both make the type size larger and more conspicuous through bold type. Thus, the distinction between typewritten and printed documents in the 1973 statute reflected an understanding of technological capabilities, but it was the final appearance of the document that made the difference in whether or not notice would be effective.

In the 21st century, the personal computer is ubiquitous and is fully capable of functioning much like a printer in that it can create bold-type font and various type sizes. The computer-generated notice at issue has sufficient characteristics of the “printed” document contemplated by the legislature in 1973 that it satisfies the requirement of the statute for “printed” notices. It exceeds the 10-point minimum and it is in bold-type font. Thus, we hold that the district court erred as a matter of law in classifying the September 29, 2003 prelien notice that Interspace gave as “typewritten” and, therefore, statutorily defective.

Genuine Fact Issue

Summary judgment is appropriate when there are no genuine issues of material fact and either party is entitled to judgment as a matter of law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). On appeal from summary judgment, this court must determine whether there are any genuine issues of fact and whether the district court erred in its application of the law. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn.1998). “On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.” Fabio, 504 N.W.2d at 761. When the district court grants summary judgment based on the application of a statute to undisputed facts, the result is a legal conclusion, reviewed de novo by the appellate court. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998).

Wong claims that the prelien notice should also be deemed defective because it was a document separate from the parties’ contract. If a written contract exists between the parties, the prelien notice must be included in that contract. Minn.Stat. § 514.011, subd. 1. But Interspace contends that the prelien notice document was included in the packet of materials constituting the contract and, therefore, it should be considered to be part of the contract. The questions of whether the prelien notice was timely, whether it was included in the parties’ contract, and what writings constituted that contract are all genuine issues of material fact for resolution at trial.

DECISION

Because the prelien notice appellant supplied was in 12-point, bold-type font, it satisfied the requirements of a “printed” document under Minn.Stat. § 514.011, subd. 1 (2004), and the district court’s determination that the notice was defective because it was not in capital letters is reversed.

Because the questions of whether the prelien notice was timely, was included in the parties’ contract, and what writings constituted the contract are questions of fact, we remand to the district court.

Reversed and remanded.


author: STONEBURNER, Judge.

text:
    STATE of Minnesota, Appellant, v. Farah Abshir WARSAME, Respondent.
    No. A05-488.
    Court of Appeals of Minnesota.
    Aug. 9, 2005.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, Minneapolis, MN, for appellant.
    Mark D. Nyvold, Richard J. Malacko, St. Paul, MN, for respondent.
    Considered and decided by MINGE, Presiding Judge; WILLIS, Judge; and STONEBURNER, Judge.
   OPINION

STONEBURNER, Judge.

The state appeals the district court’s pretrial ruling that the victim’s statements to a police officer describing how appellant threatened her and inflicted her obviously fresh injuries were testimonial and therefore inadmissible at trial under Craivford v. Washington, 541 U.S. 36,124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Because we conclude that the district court erred in determining that the statements were testimonial, we reverse and remand to the district court for a determination of admissibility based on exceptions to the hearsay rule.

FACTS

Eden Prairie police officer John Wilson responded to a 911 call regarding respondent’s address. Wilson arrived at the scene within two minutes and was flagged down by a woman in the middle of the street two or three houses away from respondent’s address. As soon as Wilson stopped his car, the woman stated, “My boyfriend just beat me up.” The officer determined that the woman, N.A., was associated with the call for which he was dispatched and began to assess her injuries. He observed a bump on her head approximately the size of a baseball that was swollen, red, and appeared fresh. Wilson had N.A. sit on the curb because she appeared potentially faint, grabbed his EMT bag, and checked the rest of her head and neck area. He observed fresh bruising on her neck. N.A. told Wilson she had been choked. Wilson asked N.A. “some form of open-ended question of what happened.” N.A. told Wilson that when her boyfriend (respondent) came home, she wanted to talk, he did not, and they argued. He went to the kitchen, grabbed a cooking pot, and struck her in the head with it. She fell on the bed and he got on top of her and was choking her. Her sister tried to get respondent off of her. Respondent then went into the kitchen, got a knife, and came after her, threatening to kill her, and chased her from room to room.

N.A., who was crying and shaking as she talked to Wilson, said she was very frightened and believed respondent was going to kill her. She said she was three months pregnant but did not believe she sustained any injuries that could harm the baby. She said respondent left in a car with one of her sisters. N.A. told Wilson she had tried to call 911. All of the phone lines were cut, so she was walking to the police department, which was approximately one block from her house, to report the assault.

Officer Robert Olson arrived at the scene about one or two minutes after Wilson arrived. He had Wilson illuminate the side of N.A.’s head with his flashlight and observed “one of the largest lumps ... that I’ve ever seen.” Olson heard N.A. give Wilson a description of respondent. Olson relayed the description over the radio along with the information that respondent had a knife. Olson left the scene after three to five minutes to investigate the house.

Respondent was charged with one count of domestic assault and one count of making terroristic threats. When N.A. failed to respond to the state’s subpoena, the state moved for admission of her statements under the excited-utterance exception to the hearsay rule. The district court concluded that everything except N.A.’s initial statement “My boyfriend just beat me up,” was testimonial and inadmissible under Crawford,. The district court did not reach the issue of whether the statements were excited utterances or fell under any other exception to the hearsay rule. This appeal by the state followed.

ISSUE

Did the district court err in ruling that N.A.’s statements made near the scene of her assault as an officer assessed and treated her injuries were testimonial and therefore inadmissible under Crawford v. Washington ?

ANALYSIS

I. Standard of review

When the state appeals from the pretrial ruling of a district court suppressing evidence, an appellate court will reverse the district court’s determination only if the state demonstrates clearly and unequivocally that the district court erred and that, unless reversed, the error will have a critical impact on the outcome of the trial. State v. Webber, 262 N.W.2d 157, 159 (Minn.1977). The state must show that the suppression of evidence significantly reduces the likelihood of a successful prosecution. State v. Joon Kyu Kim, 398 N.W.2d 544, 551 (Minn.1987). The same standard applies to an appeal from a pretrial ruling that evidence is inadmissible under Crawford. See State v. Krasky, 696 N.W.2d 816, 818 (Minn.App.2005).

Respondent does not dispute that the district court’s ruling has a critical impact in this case because, without N.A.’s statements, there is no evidence to support the felony charge of terroristic threats.

II. Are N.A.’s statements testimonial?

In Crawford, the United States Supreme Court held that testimonial hearsay evidence is only admissible in a criminal trial against a defendant when the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant about the evidence. Crawford v. Washington, 541 U.S. at 68, 124 S.Ct. at 1374. The district court concluded that the statements at issue in this case are testimonial, and, because respondent has not had an opportunity to cross-examine N.A. about the statements, they are inadmissible. Whether a statement is “testimonial” under Crawford is a question of law that this court reviews de novo. See Krasky, 696 N.W.2d at 818. We will reverse a district court’s factual findings only if they are clearly erroneous. State v. Spears, 560 N.W.2d 723, 725 (Minn.App. 1997), review denied (May 28,1997).

Crawford left the definition of “testimonial” open, but noted various formulations of “testimonial” statements:

ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, pri- or testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecuto-rially, ... extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony or confessions, [and] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

Krasky, 696 N.W.2d at 819 (quoting Crawford, 541 U.S. at 51-52, 124 S.Ct. at 1364). Crawford also gives examples of statements that would be included in the definition of “testimonial”: (1) prior testimony at a preliminary hearing, before a grand jury, or at a former trial; (2) formal testimonial material such as affidavits, depositions, or confessions; and (3) a formal statement to government officers or statements taken by police officers in the course of interrogation. 541 U.S. at 51-52, 68,124 S.Ct. at 1364,1374.

In a recent case involving whether statements made in a 911 call were testimonial under Craivford, this court found it unnecessary to determine whether statements made by assault victims to police officers who responded to their 911 call are “testimonial,” but we stated:

We are not convinced that a police response to an incident when the victims are in distress and primarily concerned with ensuring that their assailant has been apprehended satisfies any of the formulations or examples of testimonial hearsay provided by the Supreme Court- This dialogue, although certainly part of an investigative process, is not an “interrogation” and does not result in a formal statement....
The statements are fundamentally different from “testimonial” statements taken in anticipation of trial. They lack the formalized nature of a deposition, affidavit, interrogation, or grand jury testimony. [The victims’] statements are highly unlikely to be calculated for effect in future legal proceedings. Their narrative statements following the stressful events are neither “solemn” declarations .... nor accounts of a crime made “with an eye toward trial.”

State v. Wright, 686 N.W.2d 295, 305 (Minn.App.2004) (citations omitted), review granted (Minn. Nov. 23, 2004). In Wright, the district court determined that the victim’s statements to the officers were excited utterances, which this court considered, stating: “[Victim’s] demonstrated emotional distress — the very quality that justified the admission of their statements as excited utterances — is inconsistent with a determination that they were made with a belief that such statements ‘would be available for use at a later trial.’ ” Id.

In this case, the district court found that the information at issue:

was in response to questioning by the officer. There was no testimony that was done to effect an arrest. It was clearly done to obtain evidence that could be used at trial. [N.A.] knew that she was no longer in danger as she was safely in the presence of a police officer. She would be less deeply affected by the trauma of the situation. 15 to 20 minutes is sufficient time to reflect on the evening’s events and provide detailed information. It is clear to this court that this is information that a reasonable person would be expected — could expect to be used prosecutorially.

But Wilson testified that N.A. made the statements at issue during the course of the 15 to 20 minutes he was with her. Therefore, the district court’s finding that N.A. had 15 to 20 minutes “to reflect” before making the statements is clearly erroneous. And the record reflects that N.A. was crying, shaking, and very upset, the “questioning” by Wilson was in the form of an open-ended question about what happened, and the suspect was still at large when the statements at issue were made.

The state argues that to be testimonial, N.A.’s statements had to have been made in response to “structured police questioning,” citing State v. Burrell, 697 N.W.2d 579, 600 (Minn.2005). In Burrell, there was a Crawford challenge to admission of a tape-recorded statement by defendant’s mother taken at the police station when defendant’s mother voluntarily went to the police station to inquire about the circumstances of her son’s arrest. Id. at 586-87, 590-91. Because neither the recording nor a transcript of the exchange was made part of the record, the supreme court concluded that it was unable “to make an informed decision whether [mother’s] statements are testimonial within the meaning of Crawford .... [And we are] unable ... to determine whether her comments are admissible hearsay under Crawford, i.e., were not made in response to ‘structured police questioning.’ ” Id. at 600. The supreme court remanded the matter to the district court for a such a determination. Id. We decline to read Burrell to hold that only statements made in response to structured police questioning are testimonial. But Burrell obviously strongly supports the state’s argument that the open-ended, at-the-scene questions posed by Wilson do not meet the formulation in Crawford of statements taken by police in the course of interrogation.

There are many cases from other jurisdictions that have reviewed initial police-victim interaction at the scene of an incident under Crawford. Although there is a great deal of conflict among the cases, a majority of post-Crawford cases involving initial police-victim interactions at the scene hold that the situations do not involve interrogation and that resulting statements are not testimonial. See, e.g., State v. Kilday, 20 Cal.Rptr.3d 161 (Cal.Ct.App.2004) (holding that statement received when officers were responding to a call from hotel manager and encountered victim in lobby when area was unsecured and situation uncertain was nontestimonial); People v. King, 2005 WL 170727, at *6, — P.3d -(Colo.Ct.App.2005) (holding that when a crime victim makes an excited utterance to a police officer, in a noncustodial setting and without “indicia of formality,” the statement is nontestimonial); People v. Mackey, 5 Misc.3d 709, 785 N.Y.S.2d 870, 874 (N.Y.Crim.Ct.2004) (holding that statements made by witness who approached officer that were not in response to structured police questioning, not in a formal setting or a formalized document, and the primary purpose of the statements was to seek protection, were nontestimonial); Hammon v. State, 829 N.E.2d 444, 458 (Ind.2005) (holding victim’s statements to officer relating “basic facts” shortly after the incident occurred were not testimonial). See also Anderson v. State, 111 P.3d 350, 354 n. 26 (Alaska Ct.App.2005) (summarizing some of these cases and others).

Many courts have also indicated that a narrative response to a single question from a police officer generally does not indicate “police interrogation” or a testimonial statement. See, e.g., Anderson, 111 P.3d at 353 (consulting dictionaries for the “colloquial” meaning of “interrogation,” noting that the American Heritage Dictionary 4th ed.2000, defines “interrogate” as “to examine by questioning formally or officially,” and that Merriam-Webster Dictionary of Law (1996 ed.) defines it as “to question formally and systematically,” and holding that a police officer’s single question (“[w]hat happened?”) to assault victim was not an interrogation); Marc v. State, 166 S.W.3d 767, 2005 WL 1294969, at * 8-9 (Tex.App.2005) (holding that statements of two crying, “almost hysterical” rape victims describing assaults and identifying suspect to police three hours after the fact and twenty minutes after the fact, respectively, were not “testimonial,” despite indication that officer asked one of the victims “what had happened,” and defendant’s argument that statements were “rational, thinking responses to questions posed by the police” resembling police interrogation); see also Anderson, 111 P.3d at 357 (J. Mannheimer, concurring) (stating, “[a]s used in everyday speech, ‘interrogate’ has a more limited meaning than ‘ask’ or ‘inquire’ or even ‘question.’ An ‘interrogation’ is a formal, systematic questioning that is conducted to advance an official investigation ... Prisoners are interrogated. Suspects are interrogated.”).

The reasoning in these cases, together with the Burrell decision, leads us to conclude that the district court erred by holding that N.A.’s statements were testimonial simply because they were given in response to some questioning by the officer.

We further conclude that the evidence does not support the district court’s finding that the questioning “was clearly done to obtain evidence that could be used at trial.” When Wilson was flagged down by N.A., he did not know that she was associated with the 911 call. After he learned that she was, he was still unaware of the nature of the crime, the identity of the alleged assailant, or the medical condition of N.A. Although an officer may be aware that parts of an investigation may ultimately become evidence at trial, there is no evidence in this record that the purpose of Wilson’s questioning was to obtain evidence that could be used at trial. See People v. West, 355 Ill.App.3d 28, 291 Ill.Dec. 72, 823 N.E.2d 82, 89 (2005) (noting previous case that held responding officers were not “producing evidence in anticipation of a potential criminal prosecution in eliciting basic facts from [the victim] about the nature and cause of her injuries” and holding that purpose of questioning was not to produce evidence for a criminal prosecution, when record contained no indication that responding officer knew the nature of the crime, the location of the assailant, or the medical concerns of the victim) (quotation omitted); see also Harrimon, 829 N.E.2d at 457 (stating court’s belief that “other examples given by the Supreme Court indicate that a ‘police interrogation’ is properly limited to attempts by police to pin down and preserve statements rather than efforts directed to determining whether an offense has occurred, protection of victims or others, or apprehension of a suspect.”).

We also reject, as error, the district court’s use of its finding that N.A.’s statement “is information that a reasonable person would ... expect to be used prose-cutorially ” as a basis for holding that the statement was testimonial. One of the formulations of a “core class of ‘testimonial’ statements” in Crawford is “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for rise at a later trial.” 541 U.S. at 52, 124 S.Ct. at 1364 (emphasis added). Crawford does not elaborate on what circumstances would give rise to such a reasonable belief on the part of an objective witness. Although we agree with the implication of the district court’s use of the words “used prosecutorally” that an objective witness could reasonably believe that information such as that given by N.A. would be the basis of further investigation or taken into consideration by a prosecutor in determining whether to file charges, that is not the formulation described in Crawford. We cannot conclude that this knowledge equates with a reasonable belief that the statement itself would be “available for use at a later trial.”

Some decisions from other jurisdictions that have relied on this formulation to identify whether a statement is testimonial suggest a standard that results in virtually every statement implicating a person in a crime being classified as testimonial. For example, in Lopez v. State, 888 So.2d 693, 699-700 (Fla.Dist.Ct.App.2004), the court, rejecting the assertion that an excited utterance can never be testimonial, stated that:

a startled person who identifies a suspect in a statement made to a police officer at the scene of a crime surely knows that the statement is a form of accusation that will be used against the suspect. In this situation, the statement does not lose its character as a testimonial statement merely because the de-clarant was excited at the time it was made.

Although we agree with the proposition that an excited utterance can be testimonial, we note that Crawford does not discuss “accusatorial” statements, and we have rejected such a low threshold for determining what gives rise to reasonable knowledge that a statement will be used at a later trial. See Wright, 686 N.W.2d at 302 (concluding that statements to 911 operator identifying defendant as assailant “do not fit within the definitions or the examples of ‘testimonial’ statements” contained in Crawford). In this case, N.A. told Wilson that she was on her way to the police station near her house when she encountered Wilson. She also explained that all of the phone lines at her house had been cut. Her assailant was still at large, and she was injured. That she was seeking police protection and assistance is evident; that she or any objective witness would have believed she was making such statements to be preserved for use at a later trial is not evident.

Although Wright did not rule on whether similar statements given to police in that case were testimonial, given the paucity of any other binding authority in this area, we find the comments in Wright about the nature of such statements to be very instructive. We conclude that the circumstances of N.A.’s statements do not bring those statements within any of the formulations or examples of testimonial statements set out in Crawford. We recognize that Crawford leaves open the issue of whether other types of statements could be found to be testimonial, but no other argument or authority has been presented by respondent that would lead us to conclude that N.A.’s statements were testimonial under Crawford.

III. Admissibility of N.A.’s statements

Because we have concluded that N.A.’s hearsay statements are nontestimo-nial, their admissibility at trial depends on whether the statements are admissible under Minnesota’s evidence law. Crawford, 541 U.S. at 68, 124 S.Ct. at 1374 (stating that “[wjhere nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law....”). In this case, the state sought to admit the statements as excited utterances. Because the district court first determined that the statements were inadmissible because they were testimonial, the district court did not reach the issue of whether they qualify under Minnesota law as excited utterances. We therefore remand for a determination of whether the statements are admissible under any exception to the prohibition against the admission of hearsay evidence.

DECISION

The district court erred in concluding that an injured victim’s statements made to a police officer within nine minutes of a 911 call, concerning the identity of her assailant and the circumstances of the assault were testimonial under Crawford v. Washington. Because admissibility of the victim’s nontestimonial hearsay statements depends on whether the statements constitute an exception to Minnesota hearsay law, we remand to the district court for such a determination.

Reversed and remanded.

      . N.A.’s sister was present during the assault and talked to Olson at the house. She also failed to respond to the state's subpoena, and the district court denied the state’s motion to admit her statements based on the conclusion that those statements were also testimonial. The state has not appealed that ruling.

      . We reject the state's argument that the entire category of excited utterances is exempt from Crawford because there was a recognized exception for excited utterances at common law. Crawford recognized only a single exception for dying declarations as "sui gen-erte.” 541 U.S. at 56 n. 6, 124 S.Ct. at 1367 n. 6. The excited-utterance exception was "[c]onspicuously omitted,” from Crawford. Wright, 686 N.W.2d at 309 (J. Hudson, concurring specially in part and dissenting in part).