source: Caselaw Access Project

author: GILDEA, Justice.

license: Public Domain

text:
    Gilberto ARREDONDO, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A07-1983.
    Supreme Court of Minnesota.
    Aug. 14, 2008.

      Lawrence Hammerling, Chief State Appellate Public Defender, St. Paul, MN, for appellant.
    Theodore David Sampsell-Jones, Special Assistant State Public Defender, St. Paul, MN, for appellant.
    Lori Swanson, Attorney General, St. Paul, MN, for respondent.
    Richard Robert Maes, Lyon County Attorney, Marshall, MN, for respondent.
   OPINION

GILDEA, Justice.

. This case comes to us on appeal from the postconviction court’s denial of appellant, Gilberto Arredondo’s petition for post-conviction relief. Arredondo was convicted of first-degree felony murder for the 1993 death of Ramon Guardiola. We affirmed the conviction on direct appeal. State v. Arrendondo, 531 N.W.2d 841 (Minn.1995). Arredondo subsequently petitioned for postconviction relief, but the postconviction court denied the petition without holding an evidentiary hearing. We affirm.

The facts underlying the crime and the evidence against Arredondo are set forth in our opinion in Arredondo’s direct appeal. See Arrendondo, 531 N.W.2d 841. Arredondo was indicted for first-degree premeditated murder, Minn.Stat. § 609.185(1) (2000); first-degree felony murder, Minn.Stat. § 609.185(3) (1996); second-degree intentional murder, Minn. Stat. § 609.19(1) (1994); and second-degree felony murder, Minn.Stat. § 609.19(2) (1994), for Ramon Guardiola’s death. At Arredondo’s request, in addition to the charges in the indictment, the offense of first-degree misdemeanor manslaughter, Minn.Stat. § 609.20(2) (1994), was submitted to the jury and the jury was instructed on the elements of that offense pursuant to the CRIMJIGs then in effect. See 10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 11.21, 11.22 (3d ed.1990). A Lyon County jury found Arredondo guilty of first-degree felony murder, second-degree intentional murder, second-degree felony murder, and first-degree misdemeanor manslaughter, but not guilty of first-degree premeditated murder. The district court convicted Arredondo of first-degree felony murder and sentenced him to life in prison.

Arredondo appealed his conviction to this court, arguing that the evidence “was insufficient to prove that: (1) the murder and the underlying felony, aggravated robbery, occurred during one continuous chain of events; and (2) he remained an accomplice during the murder.” Arrendondo, 531 N.W.2d at 843. We affirmed the conviction. Id.

Arredondo subsequently filed a petition for postconviction relief, alleging that: (1) the jury returned legally inconsistent verdicts, (2) testimony of a key State witness was admitted in violation of the rules of evidence, (3) his right of consular assistance under the Vienna Convention was violated, and (4) the defense of voluntary intoxication should have been presented to the jury. Arredondo alleged that both trial and appellate counsel rendered ineffective assistance by failing to pursue each of these errors. The postconviction court concluded that the underlying claims were Knaffla-barred and that Arredondo failed to allege facts that would entitle him to relief on the ineffective assistance of counsel claims. The postconviction court nonetheless considered the substantive issues, determined that Arredondo’s claims were all without merit, and denied relief without conducting an evidentiary hearing. Arre-dondo now appeals the postconviction court’s denial of relief, asserting the same issues with the exception of the voluntary intoxication defense.

When reviewing a postconviction court’s decision, we review questions of law de novo and findings of facts for abuse of discretion. Leake v. State, 737 N.W.2d 531, 535 (Minn.2007). The postconviction court is required to conduct an evidentiary hearing “ ‘[u]nless the petition and the files and records of the proceedings conclusively show that the petitioner is entitled to no relief.’” Id. (quoting Minn.Stat. § 590.04, subd. 1 (2006)). Argumentative assertions by the petitioner without factual support are insufficient to necessitate a hearing. Gail v. State, 732 N.W.2d 243, 249 (Minn.2007).

I.

We turn first to Arredondo’s claim that the jury returned legally inconsistent verdicts, and that both trial and appellate counsel rendered ineffective assistance by failing to pursue the error. The postcon-vietion court concluded that the verdicts were not inconsistent; in the alternative, based on State v. Netland, 535 N.W.2d 328 (Minn.1995), the court concluded that Ar-redondo “ ‘got exactly what he asked for’ ” by requesting that the lesser-included offense of first-degree misdemeanor manslaughter be submitted to the jury. We review the legal consistency of a verdict de novo. State v. Laine, 715 N.W.2d 425, 434-35 (Minn.2006).

Because an inconsistent verdict would have been evident from the trial record, Arredondo either knew or should have known of this issue at the time of his direct appeal. Having failed to raise it on direct appeal, the issue is now barred by the Knaffla rule. The same is true for his claim of ineffective assistance of trial counsel related to this issue. See White v. State, 711 N.W.2d 106, 110 (Minn.2006) (noting “that an ineffective assistance of trial counsel claim is generally Knaffla-barred in a postconviction petition if the claim can be decided on the basis of the trial record and the briefs”); see also Leake, 737 N.W.2d at 535-36; Black v. State, 560 N.W.2d 83, 85 (Minn.1997).

But we have said that “[cjlaims of ineffective assistance of appellate counsel on direct appeal are not barred by the Knaffla rule in a first postconviction appeal because they could not have been brought at any earlier time.” Leake, 737 N.W.2d at 536; see also Schneider v. State, 725 N.W.2d 516, 521 (Minn.2007); Townsend v. State, 723 N.W.2d 14, 19 (Minn.2006). Because this is Arredondo’s first petition for postconviction relief, we conclude that his ineffective assistance of appellate counsel claim is properly before us.

In order to succeed on an ineffective assistance of appellate counsel claim, Arredondo must show that his appellate “ ‘counsel’s representation fell below an objective standard of reasonableness’ ” and that “ ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Fields v. State, 733 N.W.2d 465, 468 (Minn.2007) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Appellate counsel is not required to raise all possible claims on direct appeal, and counsel need not raise a claim if she “could have legitimately concluded that it would not prevail.” Cooper v. State, 745 N.W.2d 188, 193 (Minn.2008). Representation by Arredondo’s appellate counsel thus did not fall below an objective standard of reasonableness if “counsel could have legitimately concluded that [Ar-redondo] would not have prevailed” on the legally inconsistent verdict claim. See Schneider, 725 N.W.2d at 523; see also Cooper, 745 N.W.2d at 192-93; Leake, 737 N.W.2d at 536. To determine whether Arredondo’s appellate counsel could have legitimately concluded that Arredondo would not prevail on the claim of legally inconsistent verdicts, we turn to an examination of the merits of that claim.

We have said that “[v]erdicts are legally inconsistent when proof of the elements of one offense negates a necessary element of another offense.” State v. Cole, 542 N.W.2d 43, 50 (Minn.1996). Reversal is warranted if a jury renders legally inconsistent verdicts. State v. Moore (Moore II), 481 N.W.2d 355, 360 (Minn.1992).

Arredondo argues that the guilty verdicts on the first-degree felony murder and second-degree intentional murder charges are inconsistent with the guilty verdict on the first-degree misdemeanor manslaughter charge. According to the statutes in effect at the relevant time, a person is guilty of first-degree felony murder if that person “causes the death of [another] with intent to effect [that] death” and while committing or attempting to commit a felony. Minn.Stat. § 609.185(3) (1996). A person is guilty of second-degree intentional murder if that person causes the death of another intentionally, but without premeditation. Minn.Stat. § 609.19(1) (1994). And a person is guilty of first-degree misdemeanor manslaughter if that person “causes the death of another in committing or attempting to commit a misdemeanor or gross misdemeanor offense with such force and violence that death of or great bodily harm to any person was reasonably foreseeable.” Minn. Stat. § 609.20(2) (1994).

The postconviction court ruled that the verdicts were not inconsistent based on the rationale of the court of appeals in State v. Barsness, 473 N.W.2d 325, 328 (Minn.App.1991), rev. denied (Minn. Aug. 29, 1991). In Barsness, the court considered whether a guilty verdict on a charge of seeond-degree intentional murder was inconsistent with a guilty verdict on a charge of second-degree culpable negligence manslaughter. Id. at 327-28. The court concluded that the verdicts were not inconsistent. Id. at 328. The court noted that the crime of second-degree intentional murder did not require that the defendant act with the purpose or specific intent to cause death. Id. Rather, the element of intent was satisfied “if the defendant believed his act would result in death.” Id. (citing Minn. Stat. §§ 609.19(1) (1990), 609.02, subd. 9(4) (2006)). Concluding that such a “mental state of ‘belief or ‘knowledge’ of the consequences” did “not conflict with the notion of recklessness,” which is a mental state for culpable negligence manslaughter, the court held that the verdicts were not legally inconsistent. Id.

Arredondo argues that under State v. Moore (Moore I), 458 N.W.2d 90 (Minn.1990), a guilty verdict of first-degree misdemeanor manslaughter is legally inconsistent with guilty verdicts of first-degree felony murder and second-degree intentional murder, because first-degree misdemeanor manslaughter is “a crime of negligence” whereas the others are “specific intent crimes.” The defendant in Moore I was found guilty of first-degree premeditated murder, second-degree unintentional murder, and second-degree culpable negligence manslaughter for the shooting death of his wife. Id. at 91. We held that the guilty verdicts of first-degree premeditated murder and second-degree culpable negligence manslaughter were legally inconsistent because we could not “reconcile the jury’s findings that defendant caused the death of his wife with premeditation and intent and at the same time caused that death through negligence or reckless conduct.” Id. at 94. Moore I does not compel the conclusion that the verdicts in this case are legally inconsistent. As the court of appeals noted in Barsness, Moore I reflected the “considerable difference” between premeditation and intent. 473 N.W.2d at 328. This case does not involve that difference because the jury here found Arredondo not guilty of first-degree premeditated murder.

Moreover, the guilty verdicts at issue in this case involve the belief that death would result and the foreseeability of that result, not the mental states of premeditation and negligence, which we found to be contradictory in Moore I. In Barsness, the court of appeals concluded that intent and culpable negligence are not legally inconsistent because “[t]he risk created by culpably negligent conduct remains a ‘risk,’ not a certainty, of causing death, just as a ‘belief that death will result falls short of absolute certainty.” 473 N.W.2d at 328. Moreover, in Cole, we concluded that “the terms ‘recklessness’ and ‘intent’ are not mutually exclusive.” 542 N.W.2d at 51. Based on this precedent, we conclude that a reasonable attorney could have decided that the requirements of intent and reasonable foreseeability are not mutually exclusive, and that Arredondo’s claim that the verdicts in this case were legally inconsistent therefore would not have prevailed. Accordingly, we hold that Arredondo did not receive ineffective assistance of appellate counsel and that the postconviction court did not err by denying relief as to this claim.

II.

We next consider Arredondo’s claim that hearsay statements by Julio Rodriguez, one of the State’s witnesses, were erroneously admitted at trial to prove the element of intent, and that trial and appellate counsel rendered ineffective assistance by failing to pursue the error. Trial counsel did not object to the introduction of these statements at trial. On review, the postconviction court determined that the statements were admissible because “[t]he record as a whole indicates that the prosecution was surprised when Rodriguez testified in a manner inconsistent with his prior statement on certain points,” and that the statements were used , to refresh Rodriguez’s recollection. The court alternatively ruled that the statements were admissible under the residual exception to the hearsay rule.

Because this evidentiary issue was apparent from the trial record, Arredondo knew or should have known of it at the time of his direct appeal; the claim and related ineffective assistance of trial counsel complaint therefore are Knafflabarred. See Leake, 737 N.W.2d at 536; Black, 560 N.W.2d at 85. But Arredondo’s ineffective assistance of appellate counsel claim remains, and this claim requires that we examine the merits of the evidentiary issue to determine whether appellate counsel could have legitimately concluded that the claim would not prevail. See Cooper, 745 N.W.2d at 193; Leake, 737 N.W.2d at 536.

Arredondo’s claim is based on the State’s direct examination of Rodriquez where the State asked Rodriguez four separate times to review portions of the transcript of a statement he made to Bureau of Criminal Apprehension (BCA) agents in Eagle Pass, Texas, and then to testify from that transcript. Portions of the transcript were either read into the record or confirmed by Rodriquez, but the transcript of the interview itself was not offered or received into evidence. Arre-dondo challenges the admission of those portions of Rodriguez’s testimony as hearsay. Counsel for Arredondo did not object to the introduction of this testimony.

Because trial counsel did not object, Arredondo’s appellate counsel would have had to demonstrate that the admission of this evidence should be reviewed for plain error. Minn. R.Crim. P. 31.02. Plain error requires (1) error (2) that is plain, and (3) the error must affect the defendant’s substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn.1998). In order for plain error to exist, “ ‘the trial error must have been so clear under applicable law at the time of conviction, and so prejudicial to the defendant’s right to a fair trial, that the defendant’s failure to object — and thereby present the trial court with an opportunity to avoid prejudice — should not forfeit his right to a remedy.’ ” State v. Pilot, 595 N.W.2d 511, 518 (Minn.1999) (quoting Rairdon v. State, 557 N.W.2d 318, 323 (Minn.1996)). If the three Griller prongs are met, we “then assess[ ] whether [we] should address the error to ensure fairness and the integrity of the judicial proceedings.” Griller, 583 N.W.2d at 740.

Under the first two Griller prongs, we examine whether the testimony was admitted in error and whether the error was plain (i.e., contrary to “ ‘case law, a rule, or a standard of conduct’ ”). State v. Simion, 745 N.W.2d 830, 843 (Minn.2008) (quoting State v. Ramey, 721 N.W.2d 294, 302 (Minn.2006)). Arredondo argues that it was an error to admit Rodriguez’s testimony because it was hearsay. Hearsay is defined “as an out-of-court statement offered as evidence to prove the truth of the matter asserted.” State v. Manthey, 711 N.W.2d 498, 504 (Minn.2006) (citing Minn. R. Evid. 801(c)). The rules of evidence “bar the admission of hearsay unless it fits under one of a number of exceptions, which generally reflect the recognized reliability of statements made in certain situations.” Id. (citing Minn. R. Evid. 802, 803, 804).

Arredondo focuses his argument on'the exception for recorded recollections set forth in Minnesota Rule of Evidence 803(5), and argues that Rodriguez’s testimony did not satisfy this exception. But we have held that excerpts from witnesses’ prior statements to police are properly admitted as recorded recollections. See State v. Zeimet, 348 N.W.2d 338, 341 (Minn.1984) (holding that witnesses’ prior statements to police were admissible as recorded recollections where the “witnesses gave their prior statements when they had personal knowledge of defendant’s admissions; the statements were contemporaneously and accurately recorded; both witnesses lacked sufficient present recollection ... to testify fully and accurately about the subject matter; and both witnesses testified that they were being truthful when they made the statements that were recorded”). Separate from this exception, the record indicates that the State used some portions of the transcript in an effort to refresh Rodriquez’s recollection. See Minn. R. Evid. 612. We have recognized that the district court “has wide discretion in permitting use of [written material] to refresh a witness’s memory and in the references that may be made thereto.” State v. Bauer, 598 N.W.2d 352, 368 (Minn.1999) (internal alteration and quotation omitted). Finally, as the postconviction court noted, this testimony could also have properly been admitted under the residual exception to the hearsay rule, Minn. R. Evid. 807. See State v. Ortlepp, 363 N.W.2d 39, 44 (Minn.1985) (discussing requirements for admission of evidence under residual exception).

On the basis of these exceptions to the hearsay rule and the discretion afforded district courts on evidentiary matters, Ar-redondo’s appellate counsel could have legitimately concluded that Arredondo could not demonstrate that his claim should be reviewed under the plain error doctrine and that his hearsay claim as to the four portions of Rodriguez’s testimony would not prevail. We therefore hold that Arre-dondo’s ineffective assistance of appellate counsel claim is without merit and that the postconviction court did not err by denying relief as to this claim.

III.

We next consider Arredondo’s claim that he was denied his right to consular assistance under Article 36 of the Vienna Convention on Consular Relations (VCCR), and that his trial and appellate counsel rendered ineffective assistance by failing to pursue the error. Because Arredondo’s VCCR claim was knowable at the time of his direct appeal, and can be decided on the basis of the trial court record, it is Knaffl-barred. See Maharaj v. State, 778 So.2d 944, 959 (Fla.2000) (holding that a claim under the VCCR was procedurally barred where it was not raised on direct appeal); Rummer v. State, 722 N.W.2d 528, 535-36 (N.D.2006) (same). The same is true for his claim of ineffective assistance of trial counsel related to this issue. But Arredondo’s ineffective assistance of appellate counsel claim remains, and we therefore proceed to examine the merits of his VCCR claim in order to determine whether appellate counsel could have legitimately concluded that the claim would not prevail. See Cooper, 745 N.W.2d at 193; Leake, 737 N.W.2d at 536.

Article 36 of the VCCR provides that upon arrest a foreign national has the right to contact the consular post of his home country, and that the arresting authorities must inform the detainee of that right. Vienna Convention on Consular Relations art. 36, para. 1(b), Apr. 24, 1963, 21 U.S.T. 77, U.N.T.S. 261; see Ademodi v. State, 616 N.W.2d 716, 718 (Minn.2000). It is unsettled whether the VCCR “gives rise to any individually enforceable rights.” United States v. Cazares, 60 Fed.Appx. 223, 226 (10th Cir.2003). The U.S. Supreme Court has not definitively decided the issue, but has stated that the VCCR “arguably confers on an individual the right to consular assistance following arrest.” Breard v. Greene, 523 U.S. 371, 376, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998). In 2006 the Court again left open the question of whether the VCCR “grants individuals enforceable rights,” assuming without deciding that Article 36 granted the petitioners such rights. Sanchez-Llamas v. Oregon, 548 U.S. 331, -, 126 S.Ct. 2669, 2677-78, 165 L.Ed.2d 557 (2006). In Sanchez-Llamas, the Court held “that a State may apply its regular rules of procedural default to Article 36 claims.” 126 S.Ct. at 2674.

Even if we were to assume — as the Supreme Court did in Breard, 523 U.S. at 376, 118 S.Ct. 1352, and Sanchez-Llamas, 126 S.Ct. at 2677-78-that the VCCR creates an individual, judicially enforceable right, Arredondo must establish prejudice from the alleged violation of the VCCR in order to prevail. See Breard, 523 U.S. at 377, 118 S.Ct. 1352 (stating that even if the VCCR claim was “properly raised and proven, it is extremely doubtful that the violation should result in the overturning of a final judgment of conviction without some showing that the violation had an effect on the trial.” (citing Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991))); see also Medellin v. Dretke, 544 U.S. 660, 665 n. 3, 125 S.Ct. 2088, 161 L.Ed.2d 982 (2005) (explaining that in Breard the Court had noted “that a successful Vienna Convention claimant must demonstrate prejudice”).

Arredondo cites United States v. Villa-Fabela, 882 F.2d 434 (9th Cir.1989), overruled in part by United States v. Proa-Tovar, 975 F.2d 592, 595 (9th Cir.1992), and United States v. Rangel-Gonzales, 617 F.2d 529 (9th Cir.1980), in support of his claim that prejudice should be presumed upon a showing that: he was not advised of his rights under the VCCR; if he had known, he would have availed himself of the right to consult the Mexican consulate; and if consulted, the consulate would have assisted him. But we typically do not presume prejudice from trial errors. See, e.g., State v. Sanders, 376 N.W.2d 196, 204 (Minn.1985) (“Ordinarily, a convicted criminal defendant who seeks a new trial because of alleged trial error bears the burden of convincing the appellate court not only that error occurred but that it was prejudicial.”). Based on our rule, Arre-dondo’s appellate counsel could have reasonably concluded that Arredondo would have had to show prejudice from a violation of the VCCR in order for the claim to have merit.

With respect to prejudice, Arredondo’s claim, in essence, is that he did not understand English well enough and that with the help of the Mexican consulate he would have been better able to defend himself. The postconviction court determined that Arredondo “offered no facts in the petition that explain what material evidence he would intend to submit at an evidentiary hearing,” including “any specific advice that the [consul] would have given which would have had some impact on specific aspects of the case.” The postconviction court further rejected Arredondo’s claim that, because English was his second language, he needed assistance from the consul in order to fully understand the proceedings.

As the postconviction court found, the trial record indicates that Arredondo was questioned about his ability to communicate in English during his police interview with BCA agents, and he stated that he was able to communicate. The record also reveals that the agents offered Arredondo an interpreter, which he refused. Arre-dondo also testified at trial that he is able to read and write English, and that he was educated from first through ninth grades at an English-speaking school in Texas. Additionally, an interpreter was available during trial, and Arredondo participated in the trial and gave responses to questions. He never indicated that he did not understand the proceedings. We have carefully reviewed the trial record and conclude that it supports the postconviction court’s findings.

Based on the state of the law, appellate counsel reasonably could have determined that any possible violation of the notice provision of the VCCR would require a demonstration of prejudice. Based on the trial record, counsel could also have reasonably determined that Arredondo would not be able to show prejudice from lack of invocation of the VCCR. We therefore hold that Arredondo’s ineffective assistance of appellate counsel claim is without merit and that the postconviction court did not err when it denied relief ; as to this claim.

Affirmed.

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

      . Arredondo's name was misspelled as "Ar-rendondo” in the opinion deciding Arredon-do's direct appeal.

      . In Netland we were asked to consider whether a guilty verdict of third-degree depraved mind murder is legally inconsistent with a guilty verdict of first-degree premeditated murder. 535 N.W.2d at 331. The "defendant specifically requested the trial court to submit third-degree depraved mind murder” to the jury. Id. Over "vigorous objection of the state,” the trial court "submitted third-degree depraved mind murder” to the jury and gave “the defendant's requested instruction.” Id. We held that "[u]nder these circumstances — namely, that the defendant got exactly what he asked for — we need not and do not address the issue of the legal consistency of the jury's verdicts.” Id. Like the defendant in Netland, Arredondo requested that the misdemeanor manslaughter instruction be given to the jury. But, as set forth below, we determine that Arredondo's appellate counsel could have legitimately concluded that the legally inconsistent verdicts claim was without merit. We therefore do not reach the issue of whether our analysis in Netland operates to preclude postconviction review of this claim.

      . Under State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976), claims raised by the petitioner in a direct appeal and claims known but not raised in the direct appeal will not be considered in a postconviction proceeding. Likewise, a claim that the petitioner should have known of at the time of direct appeal will not be considered in a postconviction proceeding. See Black v. State, 560 N.W.2d 83, 85 (Minn.1997). Exceptions to the Knaffla rule exist for novel claims, the legal basis of which was not available on direct appeal, or if fairness requires review and "the petitioner did not deliberately and inexcusably fail to raise the claim on direct appeal." Perry v. State, 731 N.W.2d 143, 146 (Minn.2007). Arredondo does not argue that either exception applies to his claims.

      . Despite the general Knaffla bar, " ‘a claim of ineffective assistance of trial counsel that cannot be decided on the district court record because it requires additional evidence need not be brought on direct appeal and may be brought in a postconviction petition.’ ” State v. Martin, 695 N.W.2d 578, 588 (Minn.2005) (quoting Torres v. State, 688 N.W.2d 569, 572 (Minn.2004)), abrogated on other grounds by State v. Her, 750 N.W.2d 258, 265 n. 5 (Minn.2008). Arredondo's claim does not fall within this exception.

      . The misdemeanor manslaughter statute provides: “Whoever ... (2) causes the death of another in committing or attempting to commit a misdemeanor or gross misdemeanor offense with such force and violence that death of or great bodily harm to any person was reasonably foreseeable, and murder in the first or second degree was not committed thereby” is guilty of first-degree misdemeanor manslaughter. Minn.Stat. § 609.20(2) (1994). The crimes of first- and second-degree murder therefore seem, by definition, to be inconsistent with the crime of misdemean- or manslaughter. But the jury was not instructed based on the language of the statute. At Arredondo's request, the jury was instructed as to the elements of misdemeanor manslaughter as set forth by the CRIMJIGs then in effect. See 10 Minn. Dist. Judges Ass'n, Minnesota Practice-Jury Instruction Guides, Criminal, CRIMJIG 11.21, 11.22 (3ded.l990). Those instructions did not contain the last clause of Minn.Stat. § 609.20(2) (1994), which is the clause that seems to make misdemeanor manslaughter inconsistent with fírst- and second-degree murder. Moreover, Arre-dondo does not argue on appeal that the language of the misdemeanor manslaughter statute makes the verdicts inconsistent. We therefore do not reach the issue of whether the language of the statute renders the verdicts inconsistent. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988).

      . The jury in this case was instructed that the State had to prove that Arredondo acted with intent to kill for both first-degree felony murder and se'cond-degree intentional murder. The jury was also instructed that "[i]n order to find [that the] defendant had an intent to kill, you must find [that the] defendant acted with the purpose of causing death or believed that the, act would have that result.” Thus, under the instructions given in this case, the jury could have found Arredondo guilty of first-degree felony murder and second-degree intentional murder, even if it concluded that Arredondo did not act with the purpose of causing death, if it concluded that he believed that death would result from his actions. For misdemeanor manslaughter, the jury was instructed that the State had to prove that Arre-dondo "cause[d] the death of another in committing ... a misdemeanor ... offense[ — in this case, assault — ] with such force and violence that the death of or great bodily harm to any person was reasonably foreseeable.” The jury was thus instructed to determine whether the State had proven that the victim’s death was reasonably foreseeable from Arredondo's use of force and violence.

      . Before asking Rodriguez to review the transcript for the first time, the State asked whether Rodriguez remembered giving the statement. Rodriguez responded, “Yeah. That was six months ago. How can I remember every single thing?” The State had Rodriquez testify about four statements he made to law enforcement that were reflected in the transcript wherein Rodriquez reported that Arredondo: (1) wanted to move the victim’s body "out of sight”; (2) said the victim was “hard to die”; (3) threatened to physically harm Rodriguez if he “talk[ed]” about the killing; and (4) said during the bus ride from Minnesota to Texas, “If you can’t do the time, don’t do the crime."

      . We have been presented with a VCCR violation issue on only one occasion. See Ademodi, 616 N.W.2d 716. In that postconviction case, appellant sought to have his conviction vacated on the basis that he was entitled to consular notification under Article 36 of the VCCR. Id. at 717. The district court vacated the conviction, finding that appellant had been prejudiced by the State’s failure to inform him of his right to consular assistance. Id. The court of appeals reversed, “holding that, assuming the Vienna Convention does create individual rights, a showing of prejudice must be made in order for a court to impose a remedy.” Id. Just like Arredondo, Ademodi failed to raise a VCCR violation claim on direct appeal. Id. at 718. We concluded that Ademodi waived his VCCR claim, and explained that it was “knowable because it had a reasonable basis in the law at the time of his appeal.” Id. at 719. We then considered whether fundamental fairness required a substantive review of the argument, but determined that no review was required because Ademodi "fail[ed] to articulate the particular facts of the case supporting his claim” and made “only a bald allegation of unfairness.” Id. We did not directly address in Ademodi whether the VCCR creates an individual, judicially enforceable right.

      . In his memorandum in support of his petition for postconviction relief, Arredondo requested an evidentiary hearing to demonstrate that with advice from the Mexican consulate, “he would have gained a better understanding” of the proceedings and his rights. Specifically, Arredondo requested an evidentiary hearing to demonstrate:
      (1) that he did not know of his right to consular assistance, (2) that he would have availed himself of the right had he known it, (3) that Mexican consular officials were never notified of [his] arrest and charges, (4) that the Mexican consulate would have provided him substantial assistance, (5) that at the time of the trial, he did not understand English well, and that he lacked a full understanding of the nature of the proceedings against him, and (6) that with the assistance of the Mexican consulate, he would have gained a better understanding of the charges and proceedings, he would have had a better understanding of his legal options, including his plea offer, and that he would have had the opportunity to seek an alternate counsel of his choice.


author: LANSING, Judge.

text:
    Tena V. VAN KAMPEN, Appellant, v. WASECA MUTUAL INSURANCE COMPANY, n/k/a Austin Mutual Group, Respondent, Westfield Insurance, a/k/a Westfield Group, defendant and third party plaintiff, Respondent, v. Rispens Seeds, Inc., et al., Third Party Defendants.
    No. A07-1457.
    Court of Appeals of Minnesota.
    Aug. 5, 2008.

      John M. Riedy, Jorun Groe Meierding, Maschka, Riedy & Ries, Mankato, MN, for appellant.
    James H. Turk, Blethen, Gage & Krause, Mankato, MN, for respondent Austin Mutual Group.
    Richard P. Wright,- Cheryl Hood Langel, McCollum, Crowley, Moschet & Miller, Ltd., Minneapolis, MN, for respondent Westfield Insurance.

      Peter C. Sandberg, Dunlap & Seeger, P.A., Rochester, MN, for third party defendants Rispens Seeds, Inc.
    Considered and decided by STONEBURNER, Presiding Judge; LANSING, Judge; and WORKE, Judge.
   OPINION

LANSING, Judge.

The district court granted summary judgment dismissing Tena Van Kampen’s underinsured-motorist (UIM) claims because she failed to protect her UIM insurers’ subrogation rights when she entered into a joint settlement under which her daughter, son-in-law, and grandchildren received the limits of the at-fault driver’s liability policy and Van Kampen received no payment. Because Van Kampen did not forfeit her right to UIM coverage, and because a genuine issue of material fact remains on whether the UIM insurers were prejudiced by inadequate notice of the settlement, we reverse in part and remand. But because summary judgment was properly granted against the third-party claims brought by the UIM insurers, we affirm in part.

FACTS

Tena Van Kampen, her daughter, and her three grandchildren were severely injured in August 2000 when the car that Van Kampen was driving was struck by a vehicle driven by Paul Brey and owned by Rispens Seeds, Inc. Van Kampen’s son-in-law owned the car that Van Kampen was driving.

Van Kampen’s daughter, son-in-law, and three grandchildren sued Van Kampen, Brey, and Rispens Seeds. Before trial, the daughter, son-in-law, and grandchildren reached a tentative settlement with Brey and Rispens Seeds. Under the terms of the settlement, Van Kampen’s daughter, son-in-law, and three grandchildren would receive all of Brey and Rispens Seeds $1.5 million in insurance coverage. As part of the settlement, Van Kampen would receive no payment and would also release any claim against Brey and Ris-pens Seeds.

Van Kampen sent notice of the settlement to her underinsured-motorist insurers on May 6, 2004. Van Kampen had UIM coverage from two sources. First, she had her personal coverage through Austin Mutual Group, which provided UIM coverage of $250,000 for each person. Second, because the car was owned by her son-in-law, each occupant was covered under the son-in-law’s policy with Westfield Insurance. The Westfield policy had UIM coverage limits of $50,000 for each person and $100,000 for each occurrence.

Van Kamperis notice informed the UIM insurers that Van Kamperis daughter, son-in-law, and grandchildren would receive the full policy limits and that Van Kampen would be limited to pursuing UIM and no-fault benefits. The letter gave the UIM insurers thirty days to substitute their own payment to preserve their right to sue Brey and Rispens Seeds themselves. On May 24, 2004, Austin Mutual indicated that it was approving the settlement. On that same day, Van Kampen, her daughter, her son-in-law, and her grandchildren signed the settlement agreement. On June 10, 2004, thirty-five days after the settlement notice, Westfield also approved the settlement.

Because Van Kamperis daughter and grandchildren had not settled with Van Kampen, their claim against Van Kampen proceeded to trial. A jury found that Van Kampen was not liable, that Brey and Rispens Seeds were completely at fault, and that Van Kamperis daughter, son-in-law, and grandchildren had sustained damages of $1,685,446. Because of the jury’s damages determination, Westfield paid Van Kampen’s daughter and son-in-law $50,000 in UIM benefits.

Van Kampen then sued the UIM insurers to collect UIM benefits for herself. The UIM insurers moved for summary judgment against Van Kampen, arguing that Van Kampen forfeited her right to UIM coverage by settling her claims against Brey and Rispens Seeds without payment and that the settlement notice was inadequate. The district court granted summary judgment against Van Kam-pen. The district court also granted summary judgment against the UIM insurers’ third-party claims against Brey and Ris-pens Seeds, which alleged that Brey and Rispens Seeds were responsible for the inadequate notice. The summary judgment dismissing the third-party claims is not challenged. Van Kampen, however, appeals the district court’s summary judgment against her claim.

ISSUES

I. Did Van Kampen forfeit her right to UIM coverage by settling her claim against Brey and Rispens Seeds without receiving payment?

II. Did Van Kampen forfeit her right to UIM coverage by failing to give the UIM insurers adequate notice of the proposed settlement?

ANALYSIS

On appeal from summary judgment, we determine whether there are any genuine issues of material fact and whether a party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03; Yang v. Voyagaire Houseboats, Inc., 701 N.W.2d 783, 788 (Minn.2005). In assessing the evidence, we take the view most favorable to the party against whom judgment was granted. Motorsports Racing Plus, Inc. v. Arctic Cat Sales, Inc., 666 N.W.2d 320, 323 n. 1 (Minn.2003). But if the nonmoving party fails to raise a material issue of fact on any element essential to establishing its case, summary judgment is appropriate. Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn.1995).

This case is about the subrogation rights of underinsured-motorist insurers. Subro-gation is “the remedy by which, when the property of one person is used to discharge a duty of another ..., under such circumstances that the other will be unjustly enriched by the retention of the benefit thus conferred, the former is placed in the position of the obligee.” Restatement (Third) of Suretyship and Guaranty § 27 cmt. A (1996). An insurance company can, for example, acquire a sub-rogation right when it pays a claim to an insured that should have been paid by a tortfeasor.

Insureds have, as a matter of equity, a duty to preserve their insurers’ subrogation rights. See Bacich v. Homeland Ins. Co., 212 Minn. 375, 376, 3 N.W.2d 665, 665 (1942) (noting that failure to preserve subrogation rights constitutes defense to coverage). This duty limits an insured’s ability to pursue insurance benefits after settling claims against a tortfea-sor. Because the insurer is placed in the position of the insured when it obtains subrogation rights, the settlement will bar the insurer from recovering against the tortfeasor. See id. (holding that settlement bars subrogation). Thus, an insured who settles a claim against a tortfeasor without the insurer’s consent cannot then collect on the insurance policy. Id. Instead, the insured must either (1) collect on the policy and subrogate the claim to the insurer or (2) obtain a judgment against the tortfeasor.

When UIM coverage is involved, however, this framework thwarts the policy goals of the No-Fault Automobile Insurance Act, Minn.Stat. §§ 65B.41-.71 (2006), which governs UIM coverage. Because UIM coverage is “add on” coverage, insureds cannot force their UIM insurers to pay before the tortfeasor’s insurer pays. See Employers Mut. Cos. v. Nordstrom, 495 N.W.2d 855, 858 (Minn.1993) (requiring insured to recover from tortfeasor’s liability insurance before proceeding to arbitrate underinsured-benefits claim). Thus, under the ordinary subrogation framework, the insured must either obtain consent to settle or obtain a judgment against the tortfeasor. But forcing every injured insured to obtain consent or to obtain a judgment would be inconsistent with the policy goals of the No-Fault Automobile Insurance Act, which include encouraging prompt payment and easing the burden of litigation. See Schmidt v. Clothier, 388 N.W.2d 256, 260 (Minn.1983) (discussing statutory policies).

In Schmidt v. Clothier, the supreme court addressed this problem by establishing a check-substitution procedure that permits insureds to obtain prompt payment. Id. at 262-63. The decision “has been a model for both state courts and the insurance industry because of its substitute payment answer to the limits exhaustion dilemma posed by underinsured motorist insurer insistence upon retention of subrogation rights.” 3 Irvin E. Schermer & William J. Schermer, Automobile Liability Insurance § 42:17 (4th ed.2004).

The Schmidt-Clothier procedure permits insureds to settle with the tortfeasor after first giving notice of the proposed settlement to their UIM insurers. Schmidt, 338 N.W.2d at 263. The UIM insurer then has thirty days to respond to the proposed settlement. Id. If the UIM insurer wants to preserve its subrogation rights, it must pay the insured the amount of the proposed settlement. Id. The UIM insurer may then proceed directly against the tortfeasor. Id. If the UIM insurer does not respond to the notice within thirty days, the UIM insured is permitted to accept the settlement and extinguish the UIM insurer’s subrogation rights. Id.

In this case, the UIM insurers — Austin Mutual and Westfield Insurance — argue that Van Kampen failed in two ways to comply with the Schmidt-Clothier procedure. First, they argue that Van Kampen forfeited her UIM coverage because she settled with the tortfeasor without receiving payment. Second, they argue that Van Kampen failed to provide adequate notice of the settlement.

I

The UIM insurers argue that Van Kampen forfeited her UIM coverage by settling her claim against Rispens Seeds without receiving payment. They argue that the terms of the settlement prevented them from asserting their sub-rogation rights for two reasons. First, they argue that the settlement terms made it impossible for them to “substitute their check” to protect their subrogation rights. Second, they argue that Van Kampen failed to reach a “best settlement” with Rispens Seeds. We reject both arguments.

First, contrary to the district court’s conclusion, the proposed settlement did not prevent the UIM insurers from asserting their subrogation rights. Because Van Kampen did not receive payment, the district court concluded that the UIM insurers were unable to “substitute their check” and prevent Van Kampen from signing the release. This conclusion is consistent with the language used in numerous cases that emphasizes — perhaps misleadingly — the act of check substitution. But this approach does not account for the purpose of the check-substitution procedure.

The Schmidt-Clothier procedure permits UIM insureds to settle their claims against the tortfeasor while permitting UIM insurers to preserve their subro-gation rights. See Schmidt, 338 N.W.2d at 263 (balancing interests of parties). If the UIM insurer elects to preserve its subro-gation rights, it can object to the settlement and prevent an insured from settling the claim. Id. When the insurer asserts its subrogation rights, it must “substitute its check” and pay the insured the amount of the proposed settlement. Id. Thus, through check substitution, the Schmidt-Clothier procedure provides the insured with prompt payment.

The central act in this procedure, however, is not the check substitution. Instead, it is the insurer’s act of objecting to the settlement and asserting its subrogation rights. The terms of Van Kampen’s settlement did not prevent the UIM insurers from asserting their subrogation rights. It is reasonable to question, in these circumstances, what a UIM insurer must do to assert those rights. It may have been sufficient to simply object to the settlement and pay no money. But we need not answer that question in this case. The UIM insurers took no action at all to object to the settlement agreement. The UIM insurers needed to do something to assert their subrogation rights. Because the UIM insurers failed to assert their rights and acquiesced in the settlement agreement, we see no basis for concluding that Van Kampen forfeited her UIM coverage by settling without payment.

Second, as the district court recognized, if an insured is eligible for UIM insurance benefits, the “insurer may not deny a UIM claim based on the insured’s failure to reach the best settlement with the tortfeasor.” Dohney v. Allstate Ins. Co., 632 N.W.2d 598, 607 (Minn.2001).

Although UIM coverage is “add on” coverage, the Schmidt-Clothier procedure permits the UIM insured to settle for less than the tortfeasor’s policy limits. The UIM insured might do this to reduce litigation costs or because of concerns about liability. Dohney, 632 N.W.2d at 605. But an under-the-limits settlement raises further issues: Does the insured really qualify for UIM coverage? Is the insured improperly trying to use UIM coverage as primary coverage?

Because of these issues, UIM insurers argued in Dohney that the insured should be required to reach a “best settlement” with the tortfeasor. Id. at 603. But the supreme court in Dohney concluded that a “best settlement” test would undermine the UIM’s statutory purpose of “easing the burden of litigation and encouraging prompt payment of claims.” 632 N.W.2d at 606. As a result, the supreme court rejected any rule requiring that a settlement under the Schmidt-Clothier procedure be a “best settlement.” Id. at 607. Instead, a UIM insurer must directly challenge the insured’s eligibility for UIM benefits by requiring the insured to demonstrate that the tortfeasor was underinsured. See id. at 607 n. 7 (noting that “the insured still must prove damages greater than the tortfeasor’s policy limit in order to be eligible for UIM benefits”).

Thus, under the Dohney rule, Van Kampen did not forfeit her coverage by failing to reach a “best settlement.” The UIM insurers, however, attempt to distinguish Dohney on two grounds. First, Austin Mutual argues that “any plaintiff could accept zero for her injuries and look to her UIM benefits for compensation as a first party insurer.” Not so. As explained in Dohney, the insured must still prove that the tortfeasor was underin-sured. Id. at 607 n. 7. In addition, the UIM insurer could prevent a zero-dollar settlement by asserting its subrogation rights. Second, Westfield argues that Van Kampen forfeited her UIM coverage because she did not receive consideration in exchange for releasing Brey and Rispens Seeds. But this argument assumes that consideration in a contract requires cash payment. In fact, “[e]onsideration may consist of some benefit accruing to one party or some detriment suffered by the other.” See Estrada v. Hanson, 215 Minn. 353, 355, 10 N.W.2d 223, 225 (1943) (defining consideration). Thus, the settlement agreement under which Van Kampen’s family received $1.5 million from Brey and Rispens Seeds constituted a valid contract, and the terms of the agreement did not prevent the UIM insurers from asserting their subrogation rights. Therefore, the UIM insurers have not provided a basis on which to distinguish Dohney.

Furthermore, even if the supreme court had adopted a “best settlement” rule in Dohney, the rationale for such a rule would not apply in this case. The rationale for a “best settlement” rule would be that an insured who settles for less than the tortfeasor’s coverage limits might not really be underinsured. Dohney, 632 N.W.2d at 603. But in this case it is undisputed that Brey and Rispens Seeds’ coverage limits were exhausted. And the UIM insurers have not argued that Brey and Rispens Seeds were not underinsured. Thus, there would be no basis for applying a “best settlement” rule in this case.

Ordinarily, a release without payment might suggest that the tortfeasor was not liable. Thus, the UIM insurers could argue that there was no underinsured vehicle. But that would be a direct challenge to whether the tortfeasor was underin-sured as permitted by Dohney — not a challenge to the structure of the settlement. In this case, however, there is no dispute that Brey and Rispens Seeds were liable for Van Kampen’s injuries.

Van Kampen and her family apparently structured the settlement in a way that maximizes insurance recovery. But the UIM insurers have not established that this was improper. The UIM insurers had two options for challenging this settlement: (1) asserting their subrogation rights or (2) acquiescing to the settlement and later requiring Van Kampen to prove that Brey and Rispens Seeds were underinsured. These options adequately protected the UIM insurers from overpayment. But the UIM insurers failed to exercise either option. The approach the UIM insurers wish to take in this case — second-guessing the structure of the settlement after it has already been made — is not needed to protect their legitimate interests.

Because the terms of Van Kampen’s settlement did not.prevent the UIM insurers from asserting their subrogation rights and the supreme court has rejected a “best settlement” test, Van Kampen did not forfeit her UIM insurance coverage when she settled. Therefore, summary judgment should not have been granted based on the terms of Van Kampen’s settlement.

II

Under the Schmidh-Clothier procedure, UIM insureds must send their UIM insurers notice of their proposed settlement. Schmidt, 338 N.W.2d at 263. The notice must give the UIM insurers thirty days to respond and must inform the insurer of the proposed settlement. Am. Family Mut. Ins. Co. v. Baumann, 459 N.W.2d 923, 925 (Minn.1990). The notice must identify (1) the insured, (2) the tortfeasor, (3) the tortfeasor’s liability insurer, (4) the limits of the tortfeasor’s automobile-liability insurance, and (5) the agreed-on settlement. Id. at 927. The UIM insurer can deny UIM coverage if it is prejudiced by inadequate notice. Id. The failure to provide adequate notice creates a presumption of prejudice, but the insured can introduce evidence to rebut this presumption. Id.

In this case, the district court did not address whether the notice was adequate. The record, however, demonstrates that Van Kampen’s settlement notice was inadequate for two reasons. First, it fails to clearly indicate that under the settlement Van Kampen would release her claim against Brey and Rispens Seeds. Although the letter was written by Van Kampen’s attorney, was labeled a “Schmidt-Clothier ” notice, and stated that Van Kampen would be limited to UIM and no-fault benefits, the notice does not state the settlement itself will involve Van Kampen — as opposed to her daughter, son-in-law, and grandchildren. Second, Van Kampen did not wait thirty days before entering into the settlement agreement. Although Austin Mutual consented to the settlement during the thirty-day period, Westfield did not. Because Van Kampen settled with the tortfeasor before the thirty-day period expired, she did not provide Westfield with the thirty-day notice.

Nonetheless, the existence of prejudice presents a genuine issue of material fact. Because the settlement notice was sent by Van Kampen’s attorney and labeled a “Schmidt-Clothier notice,” the meaning of the notice would have been sufficiently clear to many insurers. In addition, Van Kampen produced an affidavit indicating that the UIM insurers were present at the settlement negotiations. Thus, the record would permit a fact-finder to conclude that the UIM insurers had actual notice of the terms of the settlement. On these facts, Van Kampen may therefore be able to rebut the presumption that the UIM insurers were prejudiced by defects in the notice itself.

Similarly, Van Kampen may be able to rebut the presumption that Westfield was prejudiced by her failure to wait thirty days before settling her claim. Westfield did not provide a response until thirty-five days after receiving the notice. Based on this fact, Van Kampen would be able to establish that Westfield would not have asserted its subrogation rights even if she had waited for a response. In addition, because Westfield’s late response approved the settlement, it is even more unlikely that Westfield would have asserted its sub-rogation rights.

The UIM insurers argue that Van Kampen failed to rebut the presumption because Van Kampen failed to show that Brey and Rispens Seeds would have been financially unable to pay a judgment in excess of its insurance limits. In some cases, this court has suggested that such evidence is necessary. See Kluball v. Am. Family Mut. Ins. Co., 706 N.W.2d 912, 918-19 (Minn.App.2005) (affirming summary judgment when defendant failed to introduce evidence about tortfeasor’s financial status); Behrens v. Am. Family Mut. Ins. Co., 520 N.W.2d 763, 768 (Minn.App.1994) (same), review denied (Minn. Oct. 14, 1994). Although evidence that the tortfeasor could not pay any amount greater than its insurance coverage would be sufficient to rebut the presumption of prejudice, it is not necessary in every case. In this case, the record reveals very little connection, if any, between the UIM insurers’ failure to assert their subrogation rights and the defects in the notice. Instead, the record contains evidence that the UIM insurers were aware of the terms of the settlement and failed — through choice or neglect — to object to the settlement. Although Rispens Seeds apparently could have paid amounts in excess of their liability coverage, Van Kampen may be able to show that her UIM insurers would have failed to pursue subrogation even if notice had been adequate.

Thus, although Van Kampen failed to provide adequate notice, Van Kampen may be able to show that the UIM insurers were not prejudiced. Therefore, a genuine issue of material fact exists, and the summary judgment cannot be affirmed based on inadequate notice.

Finally, we note that the district court granted summary judgment against the UIM insurers’ third-party claims against Brey and Rispens Seeds. In the third-party complaints, the UIM insurers attempted to assert subrogation rights against Brey and Rispens Seeds on the basis that Brey and Rispens Seeds were responsible for the inadequate notice of the settlement. Regardless of whether the settlement notice was adequate, however, the settlement extinguished the UIM insurers’ subrogation rights. See Bacich, 212 Minn. at 376, 3 N.W.2d at 665 (holding that settlement bars subrogation). Accordingly, the district court correctly granted summary judgment against the UIM insurers’ third-party claims.

DECISION

Because the UIM insurers’ subrogation rights were extinguished as a matter of law, and the third-party claims were properly dismissed, we affirm in part. Because Van Kampen did not forfeit her right to UIM coverage by settling her claims against the tortfeasor without payment and because a genuine issue of material fact exists about whether the UIM insurers were prejudiced by inadequate notice of the settlement, we reverse in part and remand the district court’s summary judgment.

Affirmed in part, reversed in part, and remanded.


author: STONEBURNER, Judge.

text:
    Fred MORGAN, Jr., Appellant, v. 2000 VOLKSWAGEN, LICENSE NO. 279, VIN # 3VWRA29M2YM125643, Respondent.
    No. A07-1922.
    Court of Appeals of Minnesota.
    Aug. 12, 2008.

      Frank Bibeau, Christopher Allery, An-ishinabe Legal Services, Cass Lake, MN, for appellant.
    Lori Swanson, Attorney General, St. Paul, MN, and Julie Bruggeman, Mahno-men County Attorney, Mahnomen, MN, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge; SHUMAKER, Judge; and STONEBURNER, Judge.
   OPINION

STONEBURNER, Judge.

Appellant, an enrolled member of an Indian tribe, challenges forfeiture of his vehicle, asserting that the State of Minnesota does not have jurisdiction to enforce its vehicle-forfeiture statute against the vehicle he used in committing a designated offense on his tribe’s reservation.

FACTS

Appellant Fred Morgan, Jr., an enrolled member of the Minnesota Chippewa Tribe, was charged with a “designated offense,” triggering forfeiture of respondent 2000 Volkswagen, License No. 279, VIN # 3VWRA29M2YM125643, owned by Morgan and used in the commission of the offense. The designated offense was committed in Mahnomen County, which is wholly within the boundaries of the White Earth Reservation of the Minnesota Chippewa Tribe.

Morgan timely demanded judicial determination of the vehicle forfeiture under Minn.Stat. § 169A.63, subd. 8(d) (2006), asserting that the forfeiture action should be dismissed because Minnesota lacks jurisdiction to enforce the vehicle-forfeiture statute when the incident triggering forfeiture involves conduct that occurred on an Indian reservation and the owner of the vehicle is an Indian. The district court denied Morgan’s motion to dismiss, concluding that, for the purpose of jurisdiction to enforce a statute- on an Indian reservation, the vehicle-forfeiture statute is a criminal law, and state jurisdiction exists under federal law granting Minnesota broad criminal jurisdiction over specified areas of Indian country, including the White Earth Reservation. This appeal followed.

ISSUE

Does the state have jurisdiction to enforce its civil vehicle-forfeiture law against a vehicle owned by an enrolled member of an Indian tribe when the conduct giving rise to forfeiture occurred on the owner’s reservation?

ANALYSIS

I. Public Law 280 jurisdiction

Issues of jurisdiction are reviewed de novo. State v. R.M.H., 617 N.W.2d 55, 58 (Minn.2000). Federal statutes and caselaw govern a state’s jurisdiction over Indians. Id. Congress granted Minnesota broad criminal and limited civil jurisdiction over specified Indian country within the state. Act of Aug. 15 1953, Pub.L. No. 83-280, §§ 1162, 1360, 67 Stat. 588-90 (1953) (codified as amended at 18 U.S.C. § 1162 (2000), 28 U.S.C. § 1360 (2000)).

In State v. Stone, 572 N.W.2d 725, 728 (Minn.1997), the supreme court adopted the analytical framework approved by the United States Supreme Court in California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987), for determining whether Minnesota has jurisdiction under Public Law 280 to enforce a state law in Indian country. Cabazon instructs that

when a State seeks to enforce a law within an Indian reservation under the authority of Pub.L. 280, it must be determined whether the law is criminal in nature, and thus fully applicable to the reservation ... or civil in nature, and applicable only as it may be relevant to private civil litigation in state court.

480 U.S. at 208, 107 S.Ct. at 1088. In making this determination, laws are classified as state “criminal/prohibitory” laws or state “civil/regulatory” laws:

[I]f the intent of a state law is generally to prohibit certain conduct, [it is crimmal/prohibitory and] it falls within Pub. L. 280’s grant of criminal jurisdiction, but if the state law generally permits the conduct at issue, subject to regulation, it must be classified as civil/regulatory and Pub.L. 280 does not authorize its enforcement on an Indian reservation. The shorthand test is whether the conduct at issue violates the State’s public policy.

Id. at 209, 107 S.Ct. at 1088. But there is no bright-line distinction between the classifications, and “[t]he applicable state laws governing an activity must be examined in detail before they can be characterized as regulatory or prohibitory.” Id. at 211 n. 10, 107 S.Ct. at 1089 n. 10.

To determine whether the vehicle-forfeiture statute is “criminal/prohibitory” or “civil/regulatory,” we begin with an examination of relevant parts of the statute and existing caselaw involving the statute. The statute provides that “[a] motor vehicle is subject to forfeiture under this section if it was used in the commission of a designated offense or was used in conduct resulting in a designated license revocation.” Minn.Stat. § 169A.68, subd. 6(a) (2006). “An action for forfeiture is a civil in rem action and is independent of any criminal prosecution. All proceedings are governed by the Rules of Civil Procedure.” Minn.Stat. § 169A.63, subd. 9(a) (2006). This court has rejected the classification of the vehicle-forfeiture statute as “punishment” for double-jeopardy purposes. Hawes v. 1997 Jeep Wrangler, 602 N.W.2d 874, 878 (Minn.App.1999) (noting that the legislature designed the vehicle-forfeiture statute as a civil proceeding to serve the nonpunitive remedial goal of enhancing public safety and stating that there was no support in the record for a conclusion that a “forfeiture proceeding is so punitive that it can only be characterized as criminal”).

Morgan submitted numerous district court decisions to the district court demonstrating that district courts have frequently relied on Hawes to conclude that the vehicle-forfeiture statute must be classified as “civü/regulatory” in the context of a Public Law 280 analysis. In this case, however, the district court held that for purposes of determining jurisdiction, the statute is “criminal/prohibitory and not civil/regulatory” because “[t]he intent of this law is to prohibit certain conduct and not to regulate permitted conduct.” The district court distinguished the jurisdictional analysis from the double-jeopardy analysis undertaken in Hawes, finding that, consistent with double-jeopardy caselaw, the statute is, for double-jeopardy purposes, a civil-remedial sanction that does not violate the Minnesota and United States Double Jeopardy Clauses.

The Minnesota Supreme Court used a similar approach in determining whether MinmStat. § 243.166 (2002), which requires registration by persons who have been convicted or adjudicated delinquent of designated crimes, could be enforced against an Indian on his reservation. State v. Jones, 729 N.W.2d 1, 3 (Minn.2007). The supreme court had previously classified the registration statute as “remedial” rather than “punitive” under a double-jeopardy analysis. Id. at 9 (citing Boutin v. LaFleur, 591 N.W.2d 711, 717 (Minn.1999), and Kaiser v. State, 641 N.W.2d 900, 907 (Minn.2002)). But in Jones, the supreme court, without overruling Boutin and Kaiser, noted that neither of those cases determined how the statute should be classified under Cabazon. Id. The supreme court explained that Boutin and Kaiser were distinguishable:

We acknowledge that our use in Bout-in and Kaiser of the terms “punitive”— which we used interchangeably with “criminal” — and “civil, regulatory” could cause confusion in our analysis under the Cabazon/Stone test, which distinguishes conduct that is “criminal/prohibitory” from that which is “civil/regulatory.” But “punitive” is not the same as “prohibitory,” and the definition of “regulatory” under the [ ] analysis of Boutin and Kaiser does not have the same meaning as “regulatory” employed by Pub. L. 280 and Cabazon.... Therefore, for all the foregoing reasons, we conclude that Boutin and Kaiser are distinguishable and do not require us to conclude that [the registration statute] is civil/regulatory in nature under the Cabazon/Stone test.

Id. at 11.

Because Hawes did not address the classification of the vehicle-forfeiture statute under the Cabazon/Stone test, we conclude that, consistent with the supreme court’s reasoning in Jones, the holding in Hawes does not answer the question of whether the statute is criminal/prohibitory or civil/regulatory in the context of a jurisdiction analysis under Public Law 280. And designation of the statute as “criminal/prohibitory” for the jurisdiction analysis does not make the statute “punitive” for double-jeopardy purposes, as Morgan argues. We return then, to a determination of the proper classification of the vehicle-forfeiture statute under the Cabazon/Stone analysis.

The first step in determining the classification of a statute under Cabazon/Stone is to identify the conduct at issue. Stone, 572 N.W.2d at 730. The supreme court in Stone noted some ambiguity in the shorthand test described in Cabazon because “[t]he Supreme Court did not clearly state whether the ‘conduct at issue’ to be analyzed is the broad conduct ... or the narrow conduct,” a distinction that the supreme court found “crucial when the broad conduct is generally permitted but the narrow conduct is generally prohibited, or vice versa.” Id. at 729. “The broad conduct will be the focus of the test unless the narrow conduct presents substantially different or heightened public policy concerns. If this is the case, the narrow conduct must be analyzed apart from the broad conduct.” Id. at 730.

We conclude that the broad conduct at issue in this case is owning a vehicle that is operated on public highways, and the narrow conduct is owning such a vehicle when it is used in the commission of a designated offense under the vehicle-forfeiture statute or to engage in conduct that results in a designated license revocation. See Minn.Stat. § 169A.63, subd. 6(a). Having identified the broad and narrow conduct at issue, we must determine whether the narrow conduct “presents substantially different or heightened public policy concerns” than the broad conduct.

In State v. Busse, the supreme court examined the statute that prohibits driving after cancellation as inimical to public safety and identified the broad conduct involved as “driving” and the narrow conduct as “driving after cancellation as inimical to public safety.” 644 N.W.2d 79, 83 (Minn.2002). The supreme court determined, based on the criminal sanctions imposed by the statute and because the statute targeted those who exhibit a “pattern of behavior [that] signals both a significant alcohol or drug problem and a defiance of the laws of our state, and thus, a significant risk to public safety,” that the narrow conduct involved heightened public-policy concerns. Id. at 86-87.

In Stone, which involved jurisdiction to enforce various non-DWI-related traffic offenses, the supreme court identified the broad conduct at issue as driving and the narrow conduct as driving without a valid license or proof of insurance, driving without a seatbelt, or driving in excess of the speed limit. 572 N.W.2d at 780. The supreme court concluded that the narrow conduct related to the general public policy of promoting safety on roadways and did not involve heightened public policy. Id. at 730-31. Stone states that the public policy underlying laws aimed at driving while impaired “is substantially heightened in comparison to the general scheme of driving laws, in that their violation creates a greater risk of direct injury to persons and property on the roadways.” Id. at 731.

The designated offenses and license revocations that trigger vehicle forfeiture all relate to driving while impaired, suggesting heightened public-policy concerns. However, the narrow focus of the vehicle-forfeiture statute is not on driving conduct, but rather the ownership of the involved vehicle. Owners of vehicles are subject to numerous regulations. Owners of vehicles operated on public highways are required to register, Minn.Stat. § 168.09, subd. 1 (2006); insure, Minn.Stat. § 65B.48, subd. 1 (2006); maintain and operate in a safe condition, Minn.Stat. § 169.47, subd. 1 (2006); and appropriately dispose of such vehicles, Minn.Stat. § 168B.03 (2006). In order to avoid forfeiture, the vehicle-forfeiture statute requires that a vehicle owner not have any “actual or constructive knowledge that the vehicle [will] be used or operated in any manner contrary to law,” or show that “the owner took reasonable steps to prevent use of the vehicle by the offender.” Minn.Stat. § 169A.63, subd. 7(d) (2006). As with the laws involved in Stone, all of these laws, including the vehicle-forfeiture law, appear to be closely related to the general public policy of promoting safety on the roadways. Therefore, we conclude that the narrow conduct involved in the vehicle-forfeiture law does not need to be analyzed apart from the broad conduct.

“After identifying the focus of the Cabazon test, the second step is to apply it. If the conduct is generally permitted, subject to exceptions, then the law controlling the conduct is civil/regulatory.” Stone, 572 N.W.2d at 730. Plainly, the ownership of vehicles is generally permitted conduct, subject to regulation, leading us to conclude that the vehicle-forfeiture statute is a civil/regulatory statute, and the state does not have authority under Public Law 280 to enforce it against Indian-owned vehicles for conduct occurring on the owner’s reservation.

We further conclude, however, that even if we were to analyze the narrow conduct apart from the broad conduct, under the “shorthand test” for distinguishing civil/regulatory statutes from eriminal/pro-hibitory statutes, we would reach the same conclusion: that the statute is civil/regulatory. Stone instructs that in close cases, Cabazon’s “shorthand public policy test,” which provides that conduct is criminal if it violates the state’s public policy, aids in the distinction. 572 N.W.2d at 730.

Because all laws implicate some public policy, “in light of the purpose of Public Law 280 to combat lawlessness, [the supreme court] interprets public policy, as used in the Cabazon test, to mean public criminal policy.” Id. “Public criminal policy goes beyond merely promoting the public welfare. It seeks to protect society from serious breaches in the social fabric which threaten grave harm to persons or property.” Id. In Stone, the supreme court listed four factors useful in determining whether an activity violates state public policy in a manner serious enough to be considered criminal:

(1) the extent to which the activity directly threatens physical harm to persons or property or invades the rights of others; (2) the extent to which the law allows for exceptions and exemptions; (3) the blameworthiness of the actor; (4) the nature and severity of the potential penalties for a violation of the law. This list is not meant to be exhaustive, and no single factor is dispositive.

Id. We turn, then, to the application of these factors in the case at hand.

a. The extent to which the activity directly threatens physical harm to others or property

Because the narrow conduct involves ownership of a vehicle used by an impaired driver, it can be said to involve a direct threat of physical harm to others or property, and this factor would weigh in favor of holding that the vehicle-forfeiture law is criminal/prohibitive.

b. The extent to which the law allows for exceptions and exemptions

The vehicle-forfeiture law is not mandatory or automatic; a vehicle is only subject to forfeiture. And the law contains exceptions: it does not apply to a vehicle when the owner did not know of a driver’s intended unlawful use or when an owner, secured party, or lessor of the vehicle took steps to terminate the unlawful use. Minn.Stat. § 169A.63, subd. 7(c), (d). Additionally, the law does not prohibit the owner from owning other vehicles. We conclude that this factor weighs in favor of holding that the statute is civil/regulatory.

c. The blameworthiness of the actor

The owner of a vehicle subject to forfeiture need not be the person who commits the conduct on which forfeiture is based. And forfeiture is presumed under the statute for conduct such as failing to appear for a scheduled court appearance and failing to seek timely judicial review of a license revocation as well as for conviction of the designated offense on which the forfeiture is based. Minn.Stat. § 169A.63, subd. 7(a)(l)-(3). Because the owner of a vehicle that is subject to forfeiture may be relatively blameless, we conclude that this factor weighs in favor of a determination that the statute is civil/regulatory.

d. The nature and severity of the potential penalties for a violation of the law

The nature of the penalty is fixed: forfeiture of the vehicle. There are no criminal penalties involved. The severity of forfeiture appears to depend on the financial circumstances of the person or persons affected by the forfeiture. We conclude that this factor weighs in favor of a determination that the statute is civil/regulatory.

Therefore, under the “shorthand public policy test,” we conclude that, even if the focus is on the “narrow conduct,” the vehicle-forfeiture statute is properly classified as civil/regulatory, and Public Law 280 does not expressly grant the state jurisdiction to enforce the statute against an Indian-owned vehicle for conduct committed on the owner’s reservation.

II. Jurisdiction under exceptional circumstances

Absent an express congressional grant of jurisdiction, Minnesota can nonetheless exercise jurisdiction over “on-reservation activities by tribal members” if “exceptional circumstances” exist and federal law does not preempt state jurisdiction. Jones, 729 N.W.2d at 12 (Anderson, J. concurring) (citing Cabazon, 480 U.S. at 215, 107 S.Ct. at 1083); R.M.H., 617 N.W.2d at 60 (noting that “a state may exercise jurisdiction on a tribal reservation absent express federal consent if the operation of federal law does not preempt it from doing so”). “Cases presenting ‘exceptional circumstances,’ such that the Supreme Court has approved the exercise of state jurisdiction over the activities of member Indians on reservations without an express federal grant of authority, have primarily involved an indirect purpose to regulate non-Indians.” Stone, 572 N.W.2d at 731 (citing Washington v. Confederated, Tribes of Colville Indian Reservation, 447 U.S. 134, 159, 100 S.Ct. 2069, 2084, 65 L.Ed.2d 10 (1980) (holding that a state could require reservation “smoke shops” to collect state sales tax from non-Indian customers); Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 483, 96 S.Ct. 1634, 1646, 48 L.Ed.2d 96 (1976) (same)).

This court recently held that, based on “strong state interests” and absent a threat to “the federal interest in preserving tribal self-government,” the state has jurisdiction to civilly commit a member of the Red Lake Band of Chippewa Indians as a sexually dangerous person. In re Commitment of Beaulieu, 737 N.W.2d 231, 241 (Minn.App.2007). But in Stone, the supreme court found that the state had not established extraordinary circumstances permitting enforcement of statutes regulating driving conduct against Indians on their reservations because the state had failed to show circumstances sufficient to “overcome the right of reservation Indians to make their own laws and be ruled by them.” 572 N.W.2d at 732.

In this case, the state has not filed an appellate brief or otherwise asserted that jurisdiction exists under “exceptional circumstances.” We conclude that any argument for jurisdiction on this basis is waived and need not be addressed.

DECISION

Because the vehicle-forfeiture law, Minn. Stat. § 169A.63, is a civil/regulatory law, the state lacks jurisdiction under Public Law 280 to enforce the statute against Indian owners of vehicles for conduct that occurs on the owner’s reservation. Because the state has failed to show any other basis for asserting jurisdiction to enforce the vehicle-forfeiture law in these circumstances, the district court erred in denying Morgan’s motion to dismiss the forfeiture proceeding against his vehicle.

Reversed.

      . Morgan was charged with one count of third-degree driving while impaired (Minn. Stat. §§ 169A.20, subd. 1(1), .26, subd. 1 (2006)), and one count of second-degree refusal to submit to chemical test (Minn.Stat. §§ 169A.20, subd. 2, .25, subd. 1(b) (2006)). Section 169A.25 is included in the definition of a "designated offense” under Minn.Stat. § 169A.63, subd. 1(e)(1) (2006).

      . Morgan seeks prohibition of enforcement of the vehicle-forfeiture statute against any Indian-owned vehicle for conduct that occurred on any reservation. We limit this decision to the facts presented: enforcement of the law against an Indian-owned vehicle for conduct committed on the owner’s reservation.

      . In response to Morgan's argument that if the vehicle-forfeiture statute is a criminal law, enforcement of the forfeiture statute together with prosecution for the designated offense violates the -Double Jeopardy Clause of the United States Constitution, the district court reasoned that for double-jeopardy analysis, the forfeiture statute is remedial and rationally related to the state’s purpose of removing such offenders from the road.

      .The grant of jurisdiction excluded the Red Lake Reservation. § 1162, 67 Stat. at 588. And in 1973, the state retroceded all criminal jurisdiction over the Bois Forte Reservation back to the federal government under the authority of 25 U.S.C. § 1323. 1973 Minn. Laws ch. 625, § 3, at 1501.

      . No argument has been advanced in this case that the state has jurisdiction under Pub. L. 280’s limited grant of jurisdiction to enforce state civil laws on Indian reservations.

      . The vehicle-forfeiture statute was recodified in 2000 from section 169.1217 to section 169A.63. 2000 Minn. Laws ch. 478, art. 1, § 37, at 1519-24.

      . Under Public Law 280, the Red Lake Band reservation is excluded from the grant of state jurisdiction. See 18 U.S.C. § 1162(a) (2000). At the time Beaulieu was decided, the tribe did not have laws addressing commitment of sexually dangerous persons. Beaulieu, 737 N.W.2d at 239.