author: BLATZ, Chief Justice. GILBERT, Justice

text:
    STATE of Minnesota, Respondent, v. Jerrett Lee ANDERSON, Appellant.
    No. C9-02-1043.
    Supreme Court of Minnesota.
    Aug. 7, 2003.

      Barry V. Voss, Voss and Hickman, P.A., Minneapolis, for Appellant.
    Michael A. Hatch, Minnesota Attorney General, St. Paul, Amy Klobuchar, Henne-pin County Attorney, Thomas A. Weist, Assistant County Attorney, Minneapolis, for Respondent.
   OPINION

BLATZ, Chief Justice.

In this pretrial appeal, appellant Jerrett Lee Anderson challenges the court of appeals’ decision reversing the district court’s dismissal of the charge of unintentional second-degree felony murder for lack of probable cause. Anderson argues that, when the second-degree felony-murder statute is read in conjunction with our prior holdings, the court of appeals’ decision must be reversed. We agree and hold that the predicate offenses of felon in possession of a firearm and possession of a stolen firearm cannot support the charge of unintentional second-degree felony murder.

The facts giving rise to this appeal are not in dispute. On February 26, 2002, Jerrett Lee Anderson arrived at Blake Rogers’ residence in Minneapolis and, at about 10:45 p.m., joined Rogers and a friend of Rogers in Rogers’ bedroom. While there, Anderson showed them a 12-gauge shotgun, which was missing its rifle stock, and stated that the shotgun had been stolen. Rogers’ friend handled the shotgun, and all three noticed that the shotgun was loaded. As the shotgun was returned to Anderson, Rogers was kneeling in front of his stereo system, inserting compact discs. Anderson then pointed the shotgun at Rogers, and it discharged, killing Rogers. Anderson and Rogers’ friend fled the residence.

Anderson was charged with second-degree unintentional felony murder, in violation of Minn.Stat. § 609.19,' subd. 2(1) (2002), and third-degree murder (“depraved mind” killing), in violation of Minn. Stat. § 609.195(a) (2002). The district court dismissed the second-degree felony-murder charge, ruling that felon in possession of a firearm and possession of a stolen firearm are not proper predicate offenses for second-degree felony murder.

The state appealed under Minn. R.Crim. P. 28.04, subd. 1, which permits appeals from pretrial orders of the trial court. In a 2-1 decision, the court of appeals concluded that possession of a loaded, stock-less shotgun pointed at the victim was inherently dangerous. State v. Anderson, 654 N.W.2d 367, 372 (Minn.App.2002). Accordingly, the court of appeals held that the district court erred in dismissing the second-degree felony-murder charge. Id. The dissenting judge argued that there is nothing inherently dangerous about the two predicate unlawful firearm possession offenses. Id. at 373. Viewing the majority holding as an unwarranted extension of the felony-murder doctrine to “status” offenses, the dissenting judge explained that she “would [have affirmed] the trial court’s pretrial order dismissing the unintentional murder in the second-degree (felony-murder) charge on the grounds that the ‘status’ offenses of unlawful possession of a firearm and possession of a stolen firearm cannot serve as predicate offenses to felony-murder.” Id. at 372, 375. It is from this court of appeals’ decision that Anderson appeals.

The single issue presented by this case is whether the offenses of felon in possession of a firearm and possession of a stolen firearm are proper predicate offenses for a charge of unintentional second-degree felony murder. This issue is a question of law, subject to de novo review. Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984). Whether a statute has been properly construed is also a question of law, reviewed de novo. State v. Stevenson, 656 N.W.2d 235, 238 (Minn.2003).

We begin with the statutory provisions at issue. The felon-in-possession statute provides that a person who has been adjudicated delinquent of a crime of violence shall not be entitled to possess a firearm for 10 years following restoration of civil rights or expiration of his or her sentence, and a violator is subject to a penalty of up to 15 years imprisonment or a $30,000 penalty, or both. Minn.Stat. § 624.713, subds. 1(b), 2 (2002). Similarly, the receiving stolen property statute provides that the offense of possession of a stolen firearm is subject to up to 20 years confinement or a fine of $100,000, or both. Minn. Stat. §§ 609.53, subd. 1 (2002); 609.52, subd. 3(1) (2002). The second-degree felony-murder statute, under which Anderson was charged, provides that a person who “causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting” may be sentenced to imprisonment for not more • than forty years. Minn.Stat. § 609.19, subd. 2(1). This statutory provision does not define what constitutes “a felony offense.”

To understand the felony-murder statute, it is helpful to review the historical backdrop surrounding its enactment as well as our case law. To begin, Minnesota’s second-degree felony-murder statute codifies the common law felony-murder rule: “ ‘if one intends to do another felony, and undesignedly kills a man, this is also murder.’ ” Rudolph J. Gerber, The Felony Murder Rule: Conundrum Without Principle, 31 Ariz. St. L.J. 763, 765 (Í999) (quoting Sir William Blackstone, Commentaries on the Laws of England 947 (George Chase ed., 4th ed. 1938)). Viewed in historical context, the common law felony-murder rule, though stated broadly, was limited in scope and consequence because there were few felonies at common law — all were mala in se and most were life-endangering — and because all were punishable by death. James J. Tomkovicz, The Endurance of the Felony-Murder Rule: A Study of the Forces that 'Shape Our Criminal Law, 51- Wash. & Lee L.Rev. 1429, 1445-46 (1994). As a result, application of the felony-murder rule at common law was consistent with the requirement of mens rea because the malice required for murder could be imputed from the wrongful mental attitude for the predicate felony, and “it made little difference whether the felon was hanged for the felony or for the murder.” 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 7.5, at 207 n. 4 (1986); State v. Branson, 487 N.W.2d 880, 881 (Minn.1992).

More recently, because the number of felonies has increased and many comparatively minor offenses are classified as felonies, malice is imputed from crimes that are much less severe than murder. Branson, 487 N.W.2d at 882. For this reason, many courts have judicially limited the application of the doctrine so that not every felony offense serves as a predicate felony for a felony-murder charge. Id.; see also 2 LaFave & Scott, Jr., supra, § 7.5, at 206-11.

In Minnesota, prior to 1981, predicate felonies for felony murder were those felonies “committed upon or affecting the person whose death was caused.” 40 Minn. Stat. Ann. § 609.195 at 333, 1963 advisory committee cmt. (West 2003). This language limited the application of the felony-murder statute so that “a purely property crime would not fall within the clause [as a proper predicate felony].” Id. In State v. Nunn, we stated that the justification for this limitation was to “isolate for special treatment those felonies that involve some special danger to human life.” 297 N.W.2d 752, 753 (Minn.1980). Accordingly, district courts were to determine whether an offense involved a special danger to human life by examining the offense in the abstract together with the facts of the particular casé, including the circumstances in which the felony was committed. Id. at 754.

In 1981, the legislature amended Minnesota’s felony-murder statute, increasing the severity of the offense from third-degree murder to second-degree murder and deleting the limiting language, “a felony upon or affecting the person whose death was caused.” Act of May 19, 1981, ch. 227, §§ 10 and 11, 1981 Minn. Laws 1006, 1010 (amending ' Minn.Stat. §§ 609.19, 609.195 (1980) and codified at MinmStat. § 609.19, subd. 2 (1982)). In State v. Back, decided after the 1981 amendment was adopted, we held that even a property offense can be used as an underlying felony when a special danger to human life is present. 341 N.W.2d 273, 276-77 (Minn.1983). In essence, in interpreting the 1981 statutory amendment, we concluded that the possible universe of predicate offenses was expanded to include property offenses but that the previous limitation — that “a special danger to human life” be present — was not abandoned.

In recent years, Minnesota courts have continued to consider both the elements of the predicate felony in the abstract and the totality of the circumstances in determining whether the predicate felony involves a special danger to human life. See State v. Cole, 542 N.W.2d 43, 53 (Minn.1996) (“When determining if the underlying felony involves a special danger to life, we not only consider the elements of the underlying felony in the abstract, but also the facts of the particular case and the circumstances under which the felony was committed”). In Cole, we. concluded- a special danger to human life existed where the defendant, armed with a loaded gun, entered a department store to exchange stolen goods for cash. Id. at 46, 53. To avoid arrest for the felony theft charge, the defendant shot and killed a police officer. Id. at 47. We determined that both the property crime of theft and the second-degree assault were proper predicate offenses because “the circumstances of this case clearly demonstrate that special danger existed.” Id. at 53. Furthermore, we noted that the assault itself was a proper predicate felony to a felony-murder conviction because assault is not a property crime but a crime against the person. Id.

In the instant case, the state argues that Anderson’s felon-in-possession and possession of a stolen firearm offenses support a charge of felony murder. In support of its position, the. state first contends that under the plain meaning of the second-degree felony-murder statute, any felony, except those expressly excluded by the statute, can serve as a predicate felony.

The plain language of the second-degree felony-murder statute punishes perpetrators of all unintentional deaths caused during the commission of “a felony,” with the exception of crimes that are predicates for first-degree niurder:

Whoever does * * * the following is guilty of unintentional murder in the second degree and may be sentenced to imprisonment for not more than 40 years:
(1) causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting ⅜ * *.

Minn.Stat. § 609.19, subd. 2(1). Admittedly, under its plain language, except for the three specified exceptions, the statute appears to apply to all other felonies. In re Welfare of M.D.S., 345 N.W.2d 723, 729 (Minn.1984).

However, this interpretation ignores the history of our court’s judicial limitation of the felony-murder rule as set forth in precedent. We have recognized that when the legislature does not amend our construction of a statute, the court’s construction stands. Western Union Telegraph Co. v. Spaeth, 232 Minn. 128, 131-32, 44 N.W.2d 440, 441-42 (Minn.1950) (“The ‘judicial construction of a statute, so long as it is unreversed, is as much a part thereof as if it had been written into it originally’ ” and quoting 6 Dunnell, Dig. & Supp. § 8936b); see also Minn.Stat. § 645.17 (2002) (providing that “when a court of last resort has construed the language of a law, the legislature in subsequent laws on the same subject matter intends the same construction to be placed upon such language”). Therefore, our post-1981 case law, read in conjunction with the statutory language, is dispositive.

In 1980 — before the' 1981 amendment — we adopted the “special danger to human life” standard which, in Minnesota, requires consideration of the elements of the underlying felony in the abstract and the circumstances under which the felony was committed. Nunn, 297 N.W.2d at 753-54. Post-amendment, in 1983 and 1996 respectively, we decided Back, 341 N.W.2d 273, and Cole, 542 N.W.2d 43. See also M.D.S., 345 N.W.2d at 729-30 (citing, in 1984, Nunn’s special danger to human life standard). In Back, we cited-Nunn’s special danger to human life standard and recognized that if a property offense involved special danger to human life, it could support a felony-murder conviction. Back, 341 N.W.2d at 277. Our court advanced Nunn again in Cole by rejecting Cole’s argument that the district court had mistakenly relied upon Back. Cole, 542 N.W.2d at 52. In concluding that felony theft and second-degree assault were proper predicate felonies for second-degree felony murder, we noted that the special danger standard requires consideration not only of “the elements of the underlying felony in the abstract, but also the facts of the particular case and the circumstances under which the felony was committed.” Id. at 53. In summary, our posN1981 cases consistently have recognized Nunn’s special danger to human life two-part standard to limit the application of the felony-murder rule in Minnesota, and the legislature has not legislated otherwise.

Applying the statute as previously interpreted by us to this record, we conclude that the predicate offenses of felon in possession of a firearm and possession of a stolen firearm are not inherently dangerous. While the use of a firearm can pose significant danger to human life, simple possession — standing alone — does not. In other words, there is nothing about a felon’s possession of a firearm, or of a stolen firearm — in the abstract — that in and of itself involves a special danger to human life. As the district court below explained:

While a felon in possession of a firearm or stolen firearm creates a dangerous situation, there -is a material distinction between the level of imminency and probability of the special danger to human life in that situation than in a situation involving the traditional felony predicates. The predicate felony in this case does not require an act of violence in carrying out the crime. Nor can it be persuasively argued that death would be the natural and probable consequence of the Defendant’s conduct in carrying out the predicate offense. .

Because felon in- possession of a firearm and possession of a stolen firearm are not dangerous in the abstract, these predicate felonies fail the special danger to human life standard. Accordingly, we hold that the predicate offenses of felon in possession of a firearm and possession of a stolen firearm cannot support the charge of unintentional second-degree felony murder.

Reversed.

GILBERT, Justice

(dissenting).

I respectfully dissent from the majority opinion and would affirm the court of appeals. The majority adopts the reasoning of the dissenting judge in the court of appeals panel, which would have affirmed a district court’s dismissal of this charge. The district court dismissed this charge in part because, in its reasoning, “[t]he felony offense of felon in possession is more akin to the criminalization of the status of a person, namely, one who is a felon and who possesses a firearm or stolen firearm. Such felony offense is malum prohibitum as opposed to malum in se.” The majority wisely avoids adopting the status offense rationale of the district court but still appears to be intrigued by the district court’s reasoning. Rather than reverting to an exercise in Latin, we should deal with the realities of this situation, including the clear intent of the legislature.

The majority acknowledges that the appellant was a felon in possession of a firearm, in fact a stolen firearm. This firearm happened to be a loaded, shortened 12-gauge shotgun. See Minn.Stat. § 609.67, subd. 1(c) (2002). Furthermore, this appellant had already been adjudicated a delinquent of riot in the second degree, which is a crime of violence under Minn. Stat. § 624.712, subd. 5 (2002). It also appears to be undisputed that the appellant pointed the shotgun at the victim, it discharged, and Rogers was shot in the head.

The majority candidly admits that “under its plain language, except for the three specified exceptions, the statute appears to apply to all other felonies.” Accordingly, the majority concedes that the felon in possession statute and felon in possession of stolen goods are predicate acts under Minn.Stat. § 609.19, subd. 2(1) (2002). The majority then holds, “we conclude that the predicate offenses of felon in possession of a firearm and possession of a stolen firearm are not inherently dangerous.” I disagree. This case involves exactly the inherently dangerous situation the legislature envisioned.

The appellant had already been adjudicated delinquent of a crime of violence. The majority summarily concludes that “there is nothing about a felon’s possession of a firearm, or of a stolen firearm — in the abstract — that in and of itself involves a special danger to human life.” First of all, we should not decide this case in the abstract. Second, we must recognize that a felon in possession of a firearm is not one of those “many comparatively minor offenses [that] are classified as felonies” noted by the majority. The legislature has determined that felons and firearms are not a good mix. Likewise, the crime of riot in the second degree is a serious crime of violence, which had been recently committed by appellant. Now, the appellant has not only been adjudicated delinquent, but also acts to possess a stolen gun, which is loaded and had been shortened. Shortly upon entering the house of the victim, this gun, which the appellant was feloniously possessing, was pointed at the victim and used to shoot him in the head. Possession of a loaded gun in these circumstances is indeed the type of felony that is inherently dangerous and represents a special danger to human life. As the majority states, “we noted that the special danger standard requires consideration not only of ‘the elements of the underlying felony in the abstract, but also the facts of the particular case and the circumstances under which the felony was committed.’ ” (quoting State v. Cole, 542 N.W.2d 43, 53 (Minn.1996)). While I agree with the majority that we must be careful in the application of the felony murder doctrine so that not every felony offense serves as a predicate felony for a felony-murder charge, the legislature wisely included the felonies in issue here within the felony-murder statute.

The majority casts away the clear legislative directive of this enhanced crime by summarily concluding that the offenses of felon in possession of a firearm and possession of a stolen firearm are not felonies sufficiently dangerous to support a felony-murder conviction. The majority opinion effectively amends the statute and discounts the legislative process’s recognition of the obvious inherent danger of convicted felons possessing firearms. This is precisely the especially dangerous situation that the legislature may have anticipated in expanding the felony-murder statute to include all but a few designated felonies under this statute. The dangerous combination of a felon and an illegally possessed gun made it possible for the most serious of felonies to be committed; that of wrongfully taking an individual’s life.

      . Minnesota Statutes section 624.713, which defines this offense, is entitled "Certain Persons Not to Have Pistols or Semiautomatic Military-Style Assault Weapons.” For ease of reference we will adopt the parties’ description of this offense for the purposes of this opinion.

      . The dissenting judge explained that “each of these offenses is malum prohibitum — a crime because it is prohibited by statute — rather than malum in se — an inherently immoral act.” Anderson, 654 N.W.2d at 373.

      . In 1998, Anderson was adjudicated delinquent for the crime of riot in the second degree, a "crime of violence” pursuant to Minn.Stat. § 624.712, subd. 5 (2002). It is a felony for one who is adjudicated delinquent of a crime of violence to possess a firearm. Minn.Stat. § 624.713, subds. 1(b), 2.

      .The felonies that traditionally supported a felony-murder conviction were: "homicide, mayhem, rape, arson, robbery, burglary, larceny, prison breach, and rescue of a felon.” State v. Aarsvold, 376 N.W.2d 518, 521 (Minn.App.1985).

      . Malum in se means "a wrong in itself[.] * * ⅜ An act is said to be malum in se when it is inherently and essentially evil, that is, immoral in its nature and injurious in its consequences, without any regard to the fact of its being noticed or punished by the law of the state.” Black’s Law Dictionary 959 (6th ed. 1990). In comparison, malum prohibitum means “a thing which is wrong because [it is] prohibited; an act which is not inherently immoral, but becomes so because its commission is expressly forbidden by positive law.” Id. at 960.

      .We reject the state’s argument that the standard to determine whether an underlying felony can support a charge of second-degree felony murder is a one-part inquiry — whether the offense involves a special danger to human life as committed. Minnesota's special danger to human life standard is not merely a totality of the circumstances standard but rather a two-part inquiry into the inherent danger of the offense and the danger of the offense as committed. Looking only at the circumstances of a particular case — i.e. the facts — would eviscerate the special danger to human life standard because the predicate offense would always be found to have been committed in a particularly dangerous manner if a death occurs.

      . Contrary to the implications set forth in the dissent, we are not writing on a clean slate. We cannot, and should not, ignore our precedent interpreting Minnesota’s felony-murder statute in order to render an opinion reaching a different result. While in the future the legislature may choose to amend the statute to clarify or to change the statute’s reach, the fact remains that, to date, despite our existing precedent interpreting the statute, it has not.

      . Because we reverse on these grounds, we do not reach Anderson’s argument that the court of appeals should be reversed because the required causal relationship between the predicate offense and the resulting death is lacking.


source: Caselaw Access Project

author: GILBERT, Justice. PAGE, Justice MEYER, Justice

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Marcus Keith MILLER, Appellant.
    No. C5-02-1119.
    Supreme Court of Minnesota.
    Aug. 7, 2003.

      Lawrence W. Pry (# 144514), Assistant State Public Defender, Minneapolis, MN, for Appellant.
    Michael A. Hatch, Minnesota Attorney General, Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer (# 131957), Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

GILBERT, Justice.

Appellant Marcus Keith Miller was charged by indictment in Hennepin County for first-degree murder, Minn.Stat. § 609.185(1) (2002), and second-degree murder, Minn.Stat. § 609.19, subd. 1(1) (2002), for the killing of Wendy Bozeman. A jury trial was held. The jury returned guilty verdicts on both charged counts. A sentencing hearing was held and appellant received the mandatory sentence for first-degree murder, life in prison. Appellant appeals the judgment of conviction on the following grounds: (1) the district court committed reversible error when it allowed the state to introduce DNA evidence developed through the use of PCR-STR process and random match probability statistics that were not shown to fall within this court’s DNA exception to the rule against admission of quantitative, statistical probability evidence; and (2) the district court committed reversible error when it admitted testimony by police that appellant kept a list of sexual partners that included references to prostitutes, and a plastic female head used by appellant as a sex toy. We affirm.

At 5:20 in the afternoon on May 31, 2001, a woman walking her dog in Theodore Wirth Park discovered a severed human arm. She reported the discovery to park employees who then called 911. The area of the park where the arm was found was cordoned off and searched. The search eventually led to the discovery of another arm, two legs and a head. Subsequently, these remains were identified as those of Wendy Bozeman. A garbage can within the park was inspected and found to contain a plastic garbage bag. That garbage bag contained three other garbage bags, Allied parking lot ticket stubs, a City Pages newspaper, a Burger King french fry container, cigarette butts, blood and human tissue.

Ronald Rucker, the father of Wendy Bozeman’s son, testified at trial to the following. His longtime relationship with Wendy ended and the two separated, but they remained in touch for the purpose of raising their 14-year-old son. In November of 2000, Bozeman had fallen on hard times and asked if their son could move in with Rucker. Rucker agreed, and hearing that Bozeman had no place to stay, allowed her to move into his home too. Thereafter, Bozeman lived with Rucker on and off between November and May. On May 30, 2001, Bozeman went to work at her job downtown. That evening, while their son was at a church activity, Rucker saw that Bozeman was in the bathroom and smelled the odor of cocaine coming from the bathroom. In the early morning hours of May 31, between 12:00 and 12:30 a.m., Bozeman said she “was going around the corner” and that she would be back. Rucker understood that to mean that she was going to a nearby drug house to get drugs. Bozeman left with only her keys and identification. She never returned.

The next day Rucker read in the newspaper that an African-American woman’s body had been found in Theodore Wirth Park. Rucker called the police and local hospitals and was directed to the coroner’s office. He called the coroner’s office and provided a description of Bozeman. He was asked to come down to identify her remains. Rucker positively identified the remains of Bozeman from a photo of the remains taken by the coroner.

A surveillance camera in Theodore Wirth Park provided evidence implicating appellant. Police sergeant Erika Christensen testified as to what the video showed, and the video was introduced into evidence. At 3:28 p.m., the video shows a Geo Tracker or Suzuki Sidekick come up to the parking lot, slow down and then go through again. The vehicle returns 5 to 8 minutes later and the driver parks it in the north end of the parking lot. A man exits the vehicle and walks to a trash can approximately 20 feet from the parking spot and appears to place a trash bag into the trash can. The man returns to the vehicle, stands for a moment in front of the vehicle, walks to the back of the vehicle and stands there for another brief moment, and then gets in the vehicle and leaves. From a review of the video the police were also able to determine that the vehicle in the video was a 1992-1996 model Geo Tracker.

Prior to the arrival of the vehicle, the only other time the video shows someone near the trash can is at 12:54 p.m. At that time a park employee, riding on a motorized cart, stops in the area of the trash can, gets out and looks inside the trash can and then gets back onto the vehicle and drives away. A man testified that he was the park employee on the video and that although he had no particular recollection of checking that garbage can, if there had been trash in the can, he would have removed it.

Paul Melchert testified that while driving through the park in the afternoon of May 31, he saw a vehicle parked on the side of the road in a no-parking area and a man standing by the curb. The back tailgate of the vehicle was open and there was a garbage bag to the man’s left. Melchert testified that his attention was drawn to the man because he believed the man was dumping trash in a city park. At the time, Melchert considered reporting the man to the park authorities for illegal dumping, but ultimately decided not to report the incident and left the park. Upon reading in Monday’s newspaper that human remains had been found in the park, Mel-chert contacted the police.

Melchert testified that the vehicle was a turquoise car with a hatchback that hinged on the left side and had a black roof and purple and white decaling. He described the man he had seen as “a light-skinned African male with longer hair kind of in — I call them Jeri curls.” He testified that the man was wearing a dark green jogging suit with a white patch on the front that came into a triangle. Melchert testified that he did not get a good enough look at the man to be able to identify him.

The investigating officers were able to track the Allied parking ticket stubs found in the trash can at the park back to a specific parking lot in downtown Minneapolis. The officers went to the lot and noticed a Geo Tracker matching the description of the one appearing in the surveillance video. The parking lot attendant told the officers that the driver of the Tracker worked at Augie’s, a bar next to the parking lot. The officers ran the Tracker’s license plate and discovered the vehicle was registered to appellant.

The officers returned to the parking lot later in the day and upon seeing that the Tracker was still in the lot, entered Au-gie’s pretending to be license inspectors with the Minneapolis Police Department. Appellant informed the officers that his shift -had ended at 8 p.m. on May 30 and he had not worked on May 31.

Appellant was placed under police surveillance. While under surveillance he drove to the Salvation Army and left a garbage bag at the front door. The police recovered 'the bag. The bag contained numerous empty beer and liquor bottles, women’s jewelry and paper backing from self-adhesive floor tiles. The officers followed appellant back to his home where they could see through the window that he was “scrubbing or cleaning something.”

Appellant did not testify at trial. The investigating officers provided the following testimony. Appellant, having heard that he was under investigation, on his own initiative, went to the Minneapolis police homicide office. There he met with the investigating officers, the same officers who had talked to him earlier at Augie’s when posing as liquor license inspectors. Appellant spoke with investigators for 3 hours. Appellant denied knowing Boze-man. Appellant explained that he was employed as a disk jockey at Augie’s in downtown Minneapolis and lived in an apartment that was part of a warehouse space. He was converting part of the warehouse space into a training facility for disk jockeys. Appellant told the officers that he had worked at Augie’s on May 30 until 8 p.m., and that after work he spent the evening hours drinking at several bars in Minneapolis. Appellant said that he returned to Augie’s at around 1:15 a.m. in order to give one of the club’s dancers a ride home. Appellant told the officers that he drove home fast because he was drunk and that he arrived at his home between 2:00 and 2:30 a.m.

Appellant claimed that he was home alone in his residence from 2:00 or 2:30 a.m. until he woke up the next day around noon. Appellant told the officers that he had a severe hangover from the previous night and spent quite some time throwing up. He felt like he needed to get out of the house, so he went to a nearby store where he purchased an orange. He then drove to Theodore Wirth Park to eat the orange in order to alleviate the effects of the hangover. He claimed he ate the orange and threw the remainder of the orange in the trash and then left. He also said that he was wearing a green Michigan State shirt and gray sweatpants that day.

During the course of the interview, one of the officers left the room and was informed that appellant’s fingerprints were found on one of the parking ticket stubs found in the trash can at the park. The officers then continued the interview, asking more direct questions about the murder of Wendy Bozeman. Appellant claimed that he picked up some garbage near the curb while at the park and threw it in the trash can. When confronted with the descriptions of the surveillance video and the statement by Melchert, appellant denied stopping in the area where the remains were discovered and stated that he merely slowed down because of the speed limit signs. Appellant explained that when he found the trash bag on the curb, he had cleaned out his vehicle. At the conclusion of the interview, appellant was arrested and taken to the Hennepin County Jail Intake.

Search warrants were then drawn up for appellant’s residence and another address that was listed on appellant’s driver’s license. The Minnesota Bureau of Criminal Apprehension (BCA) began the search of appellant’s residence at around 7 or 8 p.m. on June 7. When the officers entered they noticed a strong order of chlorine bleach, which seemed to be coming from the bathroom. In the doorway of the bathroom were a bucket and mop. An officer described the shower curtain as looking new. The bathroom walls were painted black. The officers also found a paint roller with black paint and several previously opened containers of black paint.

The officers seized a roll of black trash bags from the kitchen and these bags were found to be of the same general type as those found in the trash can at the park. In the sleeping area of the residence the police found a plastic female head with a mouth that opened and closed, described as a sex toy by the officer testifying at trial. The plastic female head sex toy was seized pursuant to a second search warrant, issued on June 8, 2001. This second warrant was issued after the officers had entered appellant’s residence pursuant to the first search warrant. This second search warrant sought permission to seize items that the officers had seen while in appellant’s residence when executing the first search warrant including “[s]exual toys or devices or any items of that nature used for sexual acts.” The warrant was supported by an affidavit from Sergeant Christensen. Residue on the doll subsequently tested positive for the presence of semen.

The investigating officers testified that the floor of appellant’s shower stall appeared to have been damaged by a sharp tool. In parts of the shower these markings had been melted and reshaped in what the officer hypothesized was an attempt to cover up evidence that the shower had been damaged. Appellant’s residence contained a number of hand tools, a cordless drill, soldering irons and a torch. In the office area the police found an article discussing the human skeleton. A list of appellant’s sexual partners was also found. Among the names on the list there were nine entries where the sexual partners were referred to as prostitutes.

At the entrance to the bathroom, under the floor tiles, the investigators found what appeared to be blood. DNA tests were conducted on the samples and were found to be a match with Wendy Bozeman’s DNA profile. Later, after the BCA team had left, the Minneapolis homicide officers assigned to the case returned to appellant’s residence. One of the officers noticed a group of blood spatters on the wall in the bathroom that the BCA investigative team had not noticed. The BCA team was called back to the residence and.collected the samples; these blood samples also were a DNA match with Wendy Boze-man. A BCA forensic scientist explained the testing procedure and the statistical significancé of the matches he found, testifying that “we did not expect to see this DNA profile occur more than once in the world’s population.”

Appellant’s Geo Tracker was seized for processing. The Tracker, green with white and purple pinstripes and a black soft top, matched the description provided by Melchert and the vehicle shown in the surveillance video. Several locations within the Tracker tested positive for the presence of blood, including areas of the back seat, the seat belt, the wheel-well cover, the driver’s door handle, the steering wheel, the carpeting and on the rear bumper area. Three samples from the Tracker were subjected to DNA testing, one from the seat belt, one from a side panel next to the passenger side back seat and a third from the steering wheel. The sample from the steering wheel matched the DNA of appellant. The other two samples matched the DNA of Bozeman.

The Hennepin County assistant chief medical examiner testified that an autopsy conducted on the human remains found in the park revealed a variety of injuries, including sharp force injuries and blunt force injuries, which consisted of bruises, scratches, lacerations or tears into the skin surface. The death was classified “as homicide in manner due to complex homicidal violence.” Evidence of hemorrhaging present in the victim’s airway and in her eye indicated that she had been choked or strangled. The condition of the remains was consistent with the victim having been killed within 24 hours of the time of the autopsy. The most likely cause of death was strangulation. The victim also had suffered hemorrhage to the brain caused by trauma to the head. Tests revealed that the victim was under the influence of cocaine at the time of death; The examiner also testified that dismemberment occurred after the victim was dead.

The torso .of an African-American woman was found near railroad tracks in north Minneapolis on June 21. The torso had decomposed to such an extent that it was not possible to conduct a DNA test to match it to Bozeman. An examination of the level of decomposition, including study of insects within the torso, was consistent with the torso having been at the site where it was found for 2 to 3 weeks before it was discovered, which would be consistent with the torso being dumped around the same time as the human remains found in Theodore Wirth Park.'

I.

Appellant presents two arguments that the admission of DNA evidence was error. The first claim is that the PCR-STR process used by the BCA has not been proved to produce results that are accepted as reliable and trustworthy within the scientific community. A Frye-Mack hearing was not held in this case. But at trial, defense counsel filed a motion in limine to exclude any testimony regarding the DNA evidence because it involved the use of the STR system. The defense argued that the then-recent court of appeals decision in State v. Traylor, 641 N.W.2d 335 (Minn.App.2002), rev’d, 656 N.W.2d 885 (Minn.2003), should be considered authority for excluding the DNA evidence, which involved the use of the STR process. The DNA evidenced was allowed.

James A. Liberty, a BCA Forensic Science Laboratory employee, testified at trial as to the results of the DNA tests, which indicated Bozeman’s blood was found on appellant’s bathroom wall, the floor at the threshold to his bathroom and within his Geo Tracker. Liberty testified that the frequency with which one would expect to see the DNA profile match that of Bozeman was “once in the world’s population.” Liberty also testified that a sample of blood from the steering wheel of the Geo Tracker, matched that of the appellant, and the chance of selecting someone at random from the population who would be a match for that profile was “one in one billion.” Liberty attributed the significant difference in the two statistical probabilities given to the fact that there was insufficient DNA present on the steering wheel to do testing with two kits, therefore only one kit was used. There was no effort by defense counsel to cross-examine on the frequency testimony nor was any rebuttal evidence offered on the point.

Evidentiary rulings are within the discretion of the district court. State v. Ashby, 567 N.W.2d 21, 25 (Minn.1997). We review evidentiary rulings for an abuse of discretion. Id.

Appellant’s trial occurred after the court of appeals ruling in State v. Traylor, but before this court’s reversal of that ruling. State v. Traylor, 656 N.W.2d 885 (Minn.2003). Appellant’s brief to this court was also written before our decision in Traylor and states, “Whatever result this Court reaches in Traylor will be dispositive of Miller’s challenge to the PCR-STR testing performed in this case.” We approved use of PCR-STR testing methodology in Traylor. 656 N.W.2d 885. Appellant concedes the Traylor decision resolved the issue so as to eliminate the PCR-STR claim. We agree.

Appellant next argues that the testimony of the BCA expert was not based on the “interim ceiling method” recommended by the National Research Council and approved by’this court in State v. Bloom, 516 N.W.2d 159 (Minn.1994). Appellant argues that in this case the state did not establish that the statistics to which Liberty testified fell within the exception to the prohibition on statistical evidence that we recognized in Bloom.

The state claims appellant’s argument is nonsensical for two reasons. First, the state contends the National Research Council (NRC) no longer recommends the “interim ceiling method.” The state goes on to assert that in 1996 the NRC concluded the “interim ceiling method” was no longer scientifically justifiable and that frequency statistics should instead be calculated using the “product rule method.” The state quotes the 1996 NRC report as stating, “ ‘In general, the calculation of a profile frequency should be made with the product rule’ both for VNTR and PCR based systems.”

The second argument the state offers to refute appellant’s claim is that the NRC did not recommend the “interim ceiling method” for use in conjunction with STR testing. The state claims that in 1996 the NRC explained that the “interim ceiling method” was designed and intended for use with the VNTR-based systems. Furthermore, that same year the NRC concluded that the “product rule method” was the appropriate method for use with VNTR-based testing as well as STR-based testing. The state concludes by arguing that because we approved STR testing in Traylor, it naturally follows the “product rule method” is the appropriate method.

Appellant, in his reply brief, states that he does not dispute the state’s characterization of the NRC’s position on the use of the ceiling principle in conjunction with PCR-based testing. Appellant argues that in Bloom this court expressed concern that population frequency statistics would be misunderstood by the jury as a quantification of the likelihood that a defendant is guilty. Appellant offers further support for this position by citing State v. Kromah, 657 N.W.2d 564 (Minn.2003), where we advised courts to be aware of “the potentially prejudicial nature of the statistical probability evidence and ensure that DNA identification evidence is not presented in a misleading or unfairly prejudicial way.” Id. at 567. Appellant argues that the district court did nothing to limit the prejudicial impact of the statistical evidence, thus, the admission of the evidence was reversible error.

In recognition of the fact, acknowledged by both parties to this action, that the NRG recognizes the “product rule method” as the appropriate method to use with STR testing, we conclude the district court did not abuse its discretion by admitting the statistics based on the “product rule method.” Here, the evidence was not presented in a misleading or unfairly prejudicial way. Furthermore, at trial, the defendant did not offer any rebuttal evidence on this point, attempt any cross-examination on this testing or request any jury instruction to limit the prejudicial effect of the evidence. As such, the district court was not required sua sponte to instruct the jury.

II.

Appellant presents three distinct arguments that the evidence of a list of sexual partners, including references to prostitutes, and a plastic female head sex toy were unlawfully seized in violation of the Fourth Amendment. First, appellant argues that the first search warrant was invalid as it relates to authorizing the seizure of the list of appellant’s sexual partners because the warrant lacked the necessary particularity. Second, he claims the affidavit supporting the first search warrant did not contain sufficient information for the issuing judge to find probable cause supporting a search for the “personal writings and notes.” Finally, appellant argues that the second warrant likewise did not provide a basis for a finding of probable cause for the plastic female head sex toy. Appellant’s motion to suppress the evidence was denied by the district court at the conclusion of a Rasmussen hearing held immediately preceding appellant’s trial.

“[W]hen reviewing a district court’s probable cause determination made in connection with the issuance of a search warrant [we] * * * afford the district court’s determination great deference.” State v. Rochefort, 631 N.W.2d 802, 804 (Minn.2001). We “review[ ] a district court’s decision to issue a warrant only to consider whether the issuing judge had a substantial basis for concluding that probable cause existed.” Id. “[DJoubtful or marginal cases should be largely determined by the deference to be accorded to warrants.” Id.

We begin our analysis by addressing appellant’s argument that the first search warrant was invalid as it relates to authorizing the seizure of the list of appellant’s sexual partners because the warrant lacked the necessary particularity as it relates to the seizure of “personal writings and, notes.”

The first search warrant authorized a search and seizure of the following:

A human torso; Photographic and video evidence; latent and visible blood evidence; latent and visible fiber evidence mailings to show occupancy; black, plastic garbage bags; parking lot tickets; Cigarette butts; personal writings and notes; address books; vehicle information; possible murder weapons which would cause a “chop-type” injury; residual blood/fiber evidence in sink traps or drains; womens clothing to include blue jeans, a dark jacket, light-colored tennis shoes; items belonging to the victim, ‘Wendy Bozeman”; mens clothing to include gray sweatpants, green sweatshirt (possibly MI State); any other evidence tending to show the crime of murder has occurred and that a specific person(s) committed the murder.

Appellant cites Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), to support the argument that this search was unconstitutionally broad as applied to the list of sexual partners. In Andresen, the Supreme Court stated the following:

General warrants of course, are prohibited by the Fourth Amendment. “(T)he problem (posed by the general warrant) is not that of intrusion per se, but of a general, exploratory rummaging in a person’s belongings ... (The Fourth Amendment addresses the problem) by requiring a ‘particular description’ of the things to be seized.” Coolidge v. New Hampshire, 403 U.S. 443, 467 [91 S.Ct. 2022, 29 L.Ed.2d 564] (1971). This requirement “ ‘makes general searches !.. impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.’ ” Stanford v. Texas, 379 U.S. 476, 485 [85 S.Ct. 506, 13 L.Ed.2d 431] (1965) (quoting Marron v. United States, 275 U.S. 192, 197 [48 S.Ct. 74, 72 L.Ed. 231] (1927)).

Andresen, 427 U.S. at 480, 96 S.Ct. 2737.

The state cites as persuasive authority, United States v. Wayne, 903 F.2d 1188 (8th Cir.1990). The search warrant at issue in Wayne authorized seizure of “[quantities of cocaine or derivatives thereof, and United States currency, documents and records which may be associated with said contraband.” Id. at 1195. In Wayne, the defendant argued that “documents and records which may be associated with said contraband” lacked the requisite particularity under the Fourth Amendment. Id. The court held constitutionally permissible the subsequent seizure of “ledger books, the address books, the rolodex, the photographs, the marijuana handbook, the letter from a co-conspirator, and the telephone records.” Id. The court concluded that the provision allowed the searcher to identify the objects authorized to be seized and stated:

The standard to be used in this determination is one of practical accuracy rather than technical nicety. Where the precise identity of goods cannot be ascertained at the time the warrant is issued, naming only the generic class of items will suffice because less particularity can be reasonably expected than for goods (such as those stolen) whose exact identity is already known at the time of issuance.

Id. (quoting United States v. Johnson, 541 F.2d 1311, 1313-14 (8th Cir.1976)).

We have recognized that when determining whether a clause in a search warrant is sufficiently particular, the circumstances of the case must be considered, as well as the nature of the crime under investigation and whether a more precise description is possible under the circumstances. State v. Poole, 499 N.W.2d 31, 34 (Minn.1993) (‘We have recognized that there is a degree of flexibility to the particularity requirement.”); State v. Ruud, 259 N.W.2d 567, 573 (Minn.1977) (“A warrant can only be as specific as the nature of the materials sought will allow.”). In State v. Hannuksela, 452 N.W.2d 668, 674 (Minn.1990), we acknowledged that at the time the warrant was sought the officers “did not definitely know all of the circumstances surrounding [the victim’s] disappearance although they were then in possession of sufficient facts to establish probable cause that he was the victim of foul play and that appellant was involved.” In that case we held the district court did not err by admitting evidence that was seized pursuant to a warrant authorizing the search of the defendant’s residence and the seizure of “personal property belonging to [the victim].” Id. at 672, 674.

Granting the district court considerable deference, as is required when reviewing the issuance of a warrant, we conclude that under the totality of the circumstances the search warrant was sufficiently particular to authorize the seizure of the list of sexual partners. See Hannuksela, 452 N.W.2d at 674 (concluding “under all of the circumstances” the warrant met minimal constitutional standards). The warrant at issue here authorized seizure of “personal writings and notes [and] address books.” The list at issue here is personal writings and notes with some characteristics of an address book. It contained a list of former acquaintances, as would be expected to be contained within an address book, but in this case the personal information recorded about each person was not related to where they lived, but rather were notes related to their previous sexual encounter with appellant. Accordingly, in seizing the list the police did not need to effect a “general exploratory rummaging in [appellant’s] belongings,” Andresen, 427 U.S. at 480, 96 S.Ct. 2737, but were able to seize only those things fitting the particular description of “personal writings and notes [and] address books.” As such, the warrant was sufficiently particular as it relates to the list of sexual partners seized from appellant’s residence.

Appellant next claims that even if the warrant was sufficiently particular in describing the list of sexual partners, there was no probable cause to support the seizure of either the list or the plastic female head sex toy. Appellant claims that because the list of sexual partners made no mention of Bozeman, it lacked the necessary nexus to her disappearance, death and dismemberment to have been supported by probable cause.

A judge, based on the information provided regarding the nature and circumstances of a crime, may use common sense to draw reasonable inferences as to what evidence is likely to be found. In Illinois v. Gates, 462 U.S. 213, 231-32, 103 S.Ct. 2317, 76 L.Ed.2d 527, (1983), the United States Supreme Court stated the following:

Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. As these comments illustrate, probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.

Gates addressed the information needed to support a probable cause finding that would result in the issuance of a search warrant, not the probable cause relating to a particular piece of evidence within the suspect’s home. Id. at 231, 103 S.Ct. 2317. Nonetheless, the case is instructive in that it cautions against the formulation of a “neat set of legal rules” for issues relating to probable cause. Thus, in determining whether the warrant application provided probable cause for the seizure of the lists of sexual partners, the question is whether the evidence listed in the warrant application linking appellant to Bozeman was such that law enforcement could make the reasonable inference that appellant’s home contained “personal writings and notes [and] address books” that would provide evidence of Bozeman’s murder. We conclude that the inference was reasonable and there was sufficient information to support a probable cause finding.

Appellant argues that the affidavit supplied by Sergeant Christensen as part of the warrant application was too subjective, vague and conclusory to justify issuance of the second warrant for the seizure of the plastic female head sex toy, and cites State v. Souto, 578 N.W.2d 744, 749 (Minn.1998), as-support for this argument. In Souto we stated that assertions in a warrant affidavit are too vague and con-clusory to support probable cause if the issuing magistrate cannot independently evaluate the officer’s conclusions. Id. However, in Souto, the law enforcement affiant merely stated “he knew” that the defendant was involved in possession or distribution of drugs. Id. Here, the officer stated in the affidavit that she knew the plastic head was in the home, having seen it upon entering the house pursuant to the first warrant, evidence placed appellant at the place where the remains were found, and the remains included a severed head of a woman. The officer’s theory, expressed in the supporting affidavit, was that based on her training, and given the nature of this homicide, the plastic head was “symbolic” of the manner in which the victim was decapitated. Such a theory was supported by the facts of the case known at the time. As such, we conclude that the district court judge did not err in finding probable cause to support the seizure of the plastic female head sex toy.

III.

Appellant next asserts that even if the district court did not err by not suppressing the list of sexual partners and the plastic head, the evidence was not admissible under Minn. R. Evid. 402 and 408. We review a district court’s evidentiary rulings for an abuse of discretion. Ashby, 567 N.W.2d at 25.

Appellant argues that the list of sexual partners was not relevant under Minn. R. Evid. 402, because the victim’s name was not on the list, the list contained only a small number of prostitutes, and the evidence that the victim was engaged in prostitution was also weak. We disagree.

The evidence of a list of sexual partners that contained references to prostitutes is relevant under Minn. R. Evid. 402. The list revealed that appellant on occasion had sex with prostitutes. Rucker testified that the night Bozeman disappeared she went to buy drugs and that on occasion Boze-man would engage in prostitution in order to support her drug habit. As such, the list is circumstantial evidence of a connection between the victim and appellant.

Appellant argues that even if the evidence is considered relevant, its probative value is outweighed by the prejudicial effect and, as such, should have been excluded under Minn. R. Evid. 403. In support of this contention, appellant cites State v. Harris, 521 N.W.2d 348, 351-52 (Minn.1994). The evidence that appellant kept a list of sexual partners is quite distinct from the situation in Harris, where evidence was introduced that the defendant masturbated to the newspaper photo of the victim while in his jail cell. Id. at 353. Here, the evidence is far less inflammatory and is highly relevant to the state’s case because it shows a potential link between appellant and the victim. Furthermore, the district court took steps to reduce the prejudicial effect of the list of sexual partners. The list of sexual partners was not introduced into evidence and no reference was made to the sexual acts on the list, nor was the list provided to the jury. Rather, it was made a court exhibit. The testifying officer was asked if a list of sexual partners was found, to which he responded in the affirmative. He was then asked how many references there were to prostitutes and he responded that there were nine such references. Again, in the state’s rebuttal to appellant’s pro se closing argument, wherein appellant mentioned the list of sexual partners, the state explained the list of partners was relevant only because it showed the appellant’s interest in having sex with prostitutes and the victim was known to have engaged in prostitution.

Appellant further claims that the plastic female head sex toy was not relevant and any relevance the plastic head had was outweighed by its prejudicial effect: Thus, the plastic head should have been excluded under Minn. R. Evid. 402 and 403.

The state counters by arguing that the plastic head was relevant because it was symbolic of Bozeman’s decapitation. The district court allowed the plastic head into evidence concluding, “[I]t has some probative value. There is argument that the victim in this case was dismembered, her head was found in a separate spot, the [plastic] head is. prominently displayed in the house.” Sergeant Christensen testified at trial and described the .appearance of the interior of appellant’s living quarters on the night the police entered it pursuant to the first warrant. The state asked whether anything grabbed the sergeant’s attention. After defense counsel’s objection was overruled she explained that in the middle of the sleeping area was a doll with a red wig and sunglasses. She went on to explain that it was sitting on two rolls of toilet paper. She described the doll as made of a soft, flesh-like material and explained that it was anatomically correct with a mouth that opened and closed. In the corner of the mouth was a sperm-like substance. The plastic head was then marked for identification and received into evidence. Liberty testified that the material found on the doll was semen. Although the state argued to the district court and upon appeal that the plastic head was symbolic of the victim’s decapitation, that argument was never made to the jury-

Although the state’s theory that the plastic head is symbolic of the decapitation does involve some conjecture, we cannot conclude the district court abused its discretion by finding the evidence to be sufficiently relevant under Minn. R. Evid. 402. Much the same rationale as applied to the list of sexual partners can also be applied to references to the plastic head. Although appellant argues that its introduction portrayed him as a depraved sexual deviant; the evidence does not appear to have the inflammatory nature of the evidence we held to have been admitted in error in Harris. While the district court’s conclusion that the plastic head was relevant because the victim was decapitated requires substantial inference, such rulings are best left to the discretion of the district court and are- reviewed for an abuse of discretion. As such, we conclude the district court did not abuse its discretion by allowing the limited references to and introduction of the plastic head sex toy, nor did it err by admitting evidence relating to the list of sexual' partners . referencing prostitutes.

IV.

In his pro se brief appellant argues that the assistance he received from counsel was unreasonable and he identifies a number of specific actions taken by counsel, either acts or omissions, that he alleges failed to meet the prevailing professional norms of a defense counsel.

“An appellant arguing that he or she received ineffective assistance of counsel must demonstrate that counsel’s representation fell below an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsel’s errors.” State v. Lahue, 585 N.W.2d 785, 789 (Minn.1998). The appellant bears the burden of proof on an ineffective assistance of counsel claim. Id. There is a strong presumption “that counsel’s performance fell within a wide range of reasonable assistance.” Id. Counsel’s decisions regarding trial strategy are granted particular deference. Id. “Which witnesses to call at trial and what information to present to the jury are questions that lie within the proper discretion of the trial counsel.” Id. at 789-90 (quoting State v. Jones, 392 N.W.2d 224, 236 (Minn.1986)).

Appellant argues that his trial counsel failed to present a witness that would place appellant somewhere else during the time the victim was last seen alive, and an eyewitness who had seen the victim in the presence of an unknown person when the victim was last seen alive. Appellant alleges that his trial counsel knew about these witnesses, but did not believe that théy would make much difference, because DNA would be the main issue. Appellant further asserts that his trial counsel was ineffective because counsel failed to somehow act upon the fact that some unidentified fingerprints were found on items in the trash at Theodore Wirth Park, unidentified fibers were found on the recovered torso, and a light switch and a plastic pail in appellant’s residence contained DNA that remains unidentified. Appellant fails to articulate precisely how his counsel could have responded to this information, and merely asserts “counsel should have acted upon this with the training and experience they possessed instead of concentrating on one thing.” Appellant further argues that his trial counsel was ineffective by failing to properly cross-examine the witnesses against him. Appellant claims that Melchert, who testified that he saw a light-skinned African-American man, with a garbage bag standing next to a Geo Tracker near the area of the park where the trash containing blood and tissue was found, improperly described that the Geo Tracker’s tailgate opened on the right, whereas appellant claims that model Tracker opens from the left. Appellant alleges that by failing to point out this alleged mistake his trial counsel was deficient.

Appellant further claims that his trial counsel was ineffective during cross-examination of Sergeant Michael Carlson, the investigator who found blood spatter on the wall of the bathroom after the BCA investigative team had left. The BCA team was then called back and collected the blood samples, which were a match with DNA from Bozeman. Appellant complains that counsel failed to ask the “effective” questions during Carlson’s cross-examination. Appellant also alleges that the cross-examination of Rucker was so deficient as to merit a new trial. Specifically, appellant complains that his trial counsel failed to point out, through cross-examination, that Rucker was twice arrested for domestic assault against Bozeman and that she filed an order for protection wherein she stated that Rucker had said, “I’ll kill you.” Finally, appellant claims that in a pretrial, out-of-court conference, his counsel told him that he had represented Ruck-er in a previous case and there may be a conflict of interest, but doubted that the court would dismiss him from the case so late in the process.

Appellant’s claims focus almost entirely on trial tactics. In State v. Jones, 392 N.W.2d 224, 236 (Minn.1986), we stated, “trial tactics should not be reviewed by an appellate court, which, unlike the counsel, has the benefit of hindsight.” We went on to recognize that “[c]ounsel must, after all, have the flexibility to represent a client to the fullest extent possible.” Id. The claims raised by appellant in his pro se brief are of the type we have repeatedly declined to recognize as amounting to ineffective assistance of counsel. See Jones, 392 N.W.2d at 236 (Minn.1986).

Finally, appellant has failed to provide an argument that the various tactical decisions of his trial counsel with which he now takes issue with on appeal prejudiced his case. Thus, even if counsel’s performance was deficient, appellant has failed to carry his burden of demonstrating that the representation resulted in prejudice. See Lahue, 585 N.W.2d at 790.

Appellant’s final claim of ineffective assistance of his trial counsel is that one of his attorneys mentioned in an out-of-court conference that he had represented Rucker in a previous matter, and that it might be considered a conflict of interest, but the court would not dismiss counsel so late in the process. Appellant implies that this conflict of interest led to his counsel’s decision not to cross-examine Rucker on his tumultuous and sometimes violent history with Wendy Bozeman. However, the decision not to cross-examine Rucker on that issue can also be considered a tactical decision. We have held that “until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.” Gustafson v. State, 477 N.W.2d 709, 713 (Minn.1991) (quoting Cuyler v. Sullivan, 446 U.S. 335, 349-50, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)). Appellant has provided no evidence to support his claim that a conflict of interest existed. Appellant’s ineffective assistance of counsel claim is without merit.

Affirmed.

CONCURRENCE AND DISSENT

PAGE, Justice

(concurring in part, dissenting in part).

I concur in the result and in most of the court’s reasoning. I cannot agree, however, with the court’s conclusion that the trial court did not abuse its discretion in admitting the plastic head sex toy into evidence. “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Minn. R. Evid. 401. The plastic head sex toy was not relevant to the victim’s decapitation or to anything else. The fact that Miller possessed the sex toy does not tell us anything about whether he killed the victim. Moreover, because this evidence lacked any probative value, the danger of unfair prejudice was clear and present. See Minn. R. Evid. 403 (stating “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice”).

The trial court’s abuse of discretion notwithstanding, I would hold, on the record presented, that the error in admitting this piece of evidence was harmless. See State v. Chomnarith, 654 N.W.2d 660, 665 (Minn.2003) (noting that, if no constitutional violation has been alleged, the test for measuring whether the trial court’s abuse of discretion was harmless is whether the error substantially influenced the jury’s decision).

MEYER, Justice

(concurring in part, dissenting in part).

I join in the concurrence and dissent of Justice Page.

      . Variable Number of Tandem Repeat.

      . At the close of the trial, appellant, against the advice of counsel, chose to discharge his counsel in order to give his own pro se closing argument. After the completion of that closing argument, upon appellant’s request, counsel was reappointed.


author: MEYER, Justice.

text:
    Carlos Ondre SESSIONS, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. CX-02-1813.
    Supreme Court of Minnesota.
    Aug. 7, 2003.

      Carlos Ondre Sessions, Stillwater, Pro Se.
    Mike Hatch, Attorney General, St. Paul, Amy Klobuchar, Hennepin County Attorney, Minneapolis, for Respondent.
   OPINION

MEYER, Justice.

A jury convicted appellant Carlos Ondre Sessions of first-degree murder and he was sentenced to life in prison. Sessions appeals from the postconviction court’s summary denial of his petition for postcon-viction relief. Sessions argues that the postconviction court abused its discretion by refusing him a hearing and denying his petition. We affirm the postconviction court.

Lillian Enrooth was killed on December 11, 1998. State v. Sessions, 621 N.W.2d 751, 753 (Minn.2001). A Hennepin County jury convicted Carlos Sessions of her murder. Id. at 754. The most critical evidence was DNA evidence of the victim’s blood found on Sessions’ shoes and in the car he was driving, and bloody shoeprints found at the victim’s home that matched the prints of Sessions’ shoes. See id. In addition, Sessions had enlisted acquaintances to help him cash checks on En-rooth’s account on the day of her death. Id. at 753-54. Sessions was given the mandatory sentence of life in prison. Id. at 753.

On direct appeal, we affirmed Sessions’ conviction. Id. at 752-53. We addressed three issues. First, we held that the trial court committed harmless error when it responded to a question from the jury outside Sessions’ presence. Second, we held that Sessions was precluded from appealing the trial court’s failure to instruct on a lesser-included offense. And third, we concluded that the evidence supported the conviction. Id. at 755-57.

Sessions petitioned the district court for postconviction relief on April 29, 2002. He made four claims in his pro se petition. Sessions asserted that: (1) the prosecutor failed to disclose all the evidence that had been gathered; (2) his trial counsel was ineffective because counsel did not investigate potential alibis, breached his contract with Sessions by failing to follow through on an agreed-upon plan of representation, and failed to object to jury instructions regarding Sessions being at or near the scene of the crime; (3) the cumulative effects of these errors combined to deny him a fair trial; and (4) he received ineffective assistance of appellate counsel. He claimed his appellate counsel did not properly investigate his case by not following up on the alibi witnesses he suggested. Sessions also claimed that appellate counsel breached her contract with him by not bringing our attention to his two pro se issues in oral argument during the direct appeal.

The postconviction court denied Sessions’ petition without a hearing. The court’s memorandum reasoned that three of Sessions’ claims were known at the time of the direct appeal, and therefore were barred by Townsend v. State, 582 N.W.2d 225, 227-28 (Minn.1998), which relies on our seminal ruling in State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976). The only remaining claim not barred by the Knaffla rule concerned the efforts of his appellate counsel. The postconviction court found “[d]efendant’s appellate counsel’s decision not to argue issues raised in his [supplemental pro se] brief does not rise to the level of ineffective assistance of counsel.”

The postconviction court must grant a hearing on a postconviction petition, unless the petition and the record “conclusively show that the petitioner is entitled to no relief.” Minn.Stat. § 590.04, subd. 1 (2002); Ives v. State, 655 N.W.2d 633, 635 (Minn.2003). After a postconviction court summarily denies postconviction relief, we review the evidence to determine whether the postconviction court abused its discretion. Ives, 655 N.W.2d at 635. Only upon proof that the postconviction court abused its discretion will we reverse the findings. Id.

We will address the following issues in turn: whether the postconviction court abused its discretion by applying Knaffla to bar Sessions’ claims about his trial without holding a hearing, and whether the postconviction court abused its discretion by denying his claim of ineffective assistance of appellate counsel without holding a hearing.

We held in Knaffla that any issues that were raised on direct appeal, or known by the defendant and not raised on direct appeal, will not be considered in a postcon-viction appeal. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). We have identified three exceptions to the Knaffla rule: if additional fact-finding is required to fairly address a claim of ineffective assistance of counsel, if a novel legal issue is presented, or if the interests of justice require relief. Ives, 655 N.W.2d at 635-36. The third exception may be applied if fairness requires and the petitioner did not “ ‘deliberately and inexcusably’ fail to raise the issue on direct appeal.” Boitnott v. State, 640 N.W.2d 626, 630 (Minn.2002) (quoting Russell v. State, 562 N.W.2d 670, 672 (Minn.1997)).

The postconviction court ruled that three of the four issues Sessions raised in his petition were barred by the Knaffla rule: ineffective assistance of trial counsel, the prosecutor’s violation of discovery rules, and his claim that he was denied a fair trial. Sessions implicitly acknowledges that these three issues indeed were known and not raised during his direct appeal. However, Sessions attempts to invoke the “interests of justice” exception. He argues that his failure to raise these issues was not “deliberate and inexcusable” and that but for his attorney’s advice, he would have raised those issues in his direct appeal.

None of Sessions’ three claims about his trial fit into the “interests of justice” exception to Knaffla. Sessions’ claim of ineffective assistance of trial counsel is not the type granted under the “interests of justice” exception. See Ives, 655 N.W.2d at 636 (holding that Ives’ claim of ineffective assistance of trial counsel did not fit within the interests of justice exception). Sessions’ claim about the prosecution withholding potentially exculpatory evidence also does not fit into an exception to Knaff-la. Claims of a prosecutor’s failure to disclose exculpatory evidence have been barred under Knaffla, in part because they were known at the time of the direct appeal. See Ferguson v. State, 645 N.W.2d 437, 448 (Minn.2002). Here, Sessions knew or should have known about the discovery violations at the time of his direct appeal. In addition, Sessions offers nothing to support his assertions that the excluded documents were exculpatory, and we have held that allegations must be more than bald assertions or unsupported statements. See Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971). As Sessions’ two individual claims are barred by Knaffla, we also will not consider his third claim that cumulatively his trial counsel and the discovery violations denied him a fair trial.

Sessions also argues that under Minn.Stat. § 590:04, subd. 1, he deserved a hearing on his claims about his trial. That statute requires that “[u]nless the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief, the court shall promptly set an early hearing on the petition and response thereto.” Id. A petitioner must allege facts that “if proven by a fair preponderance of the evidence, entitle him to relief.” State v. Rhodes, 627 N.W.2d 74, 86 (Minn.2001) (quoting Roby v. State, 531 N.W.2d 482, 483 (Minn.1995)). However, the three issues Sessions raised in connection with his trial were barred by Knaffla and did not clearly fit within any of the exceptions to Knaffla. Thus, the postconviction court did not abuse its discretion in denying Sessions a hearing on those claims.

Sessions next argues that the postcon-viction court abused its discretion by dismissing his claim of ineffective assistance of appellate counsel. In particular, he is aggrieved that the court did not separately address the two ways in which he claimed his representation was deficient (breach of contract and failure to investigate).

In order- to prevail on a claim of ineffective assistance of appellate counsel, the petitioner must show that his or her attorney’s performance “fell below an objective standard of reasonableness and that he [or she] was prejudiced as a result.” Ives, 655 N.W.2d at 637. The petitioner’s burden of proof with respect to prejudice is to establish a “reasonable probability” that but for appellate counsel’s error, the direct appeal would have had a different outcome. Id.

Sessions’ primary complaint about his appellate lawyer is that on direct appeal she did not argue his pro se issues during oral argument. Cast in the most favorable light, Sessions is arguing that his attorney promised she would raise his pro se issues before this court, and breaking that promise constitutes a denial of his constitutional right to counsel. There may be occasions when an attorney has promised something so fundamental to a defendant’s right to a fair trial that his or her failure to keep that promise will support an ineffective assistance of appellate counsel claim. However, in this case, Sessions cannot meet both prongs of the test for ineffective assistance of counsel. As either prong is determinative, we choose to focus only on the second prong, whether Sessions could demonstrate a reasonable probability that the outcome of his direct appeal would have been different if his appellate counsel had raised his pro se issues in oral argument.

We conclude that Sessions did not demonstrate that he was prejudiced by his appellate counsel’s failure to argue his pro se issues upon direct appeal because Sessions did not show that, but for his appellate counsel’s performance, the outcome would have been different. We addressed the more substantive of Sessions’ pro se claims in our opinion — his claim that the evidence produced in his trial was insufficient to support his conviction — and found the evidence sufficient. Sessions, 621 N.W.2d at 757. Another of Sessions’ pro se claims was that the judge erred in giving a general instruction to the jury on weighing witness credibility. While we did not specifically address this pro se issue, we did conclude that the evidence was sufficient to convict on the charge of first-degree murder. Id. Even if the jury instruction was error, it was harmless error, and counsel’s failure to argue the issué on appeal would not have changed the outcome of the appeal.

Sessions’ second complaint about his appellate counsel is that she failed to sufficiently investigate his case because she did not look beyond the trial transcripts in determining whether his trial counsel was ineffective. Sessions implicitly posits that if his appellate counsel had interviewed more of his friends, she would have concluded that their testimony presented a credible alibi for him, and therefore his trial counsel was ineffective for not raising that alibi. We have previously held that a petitioner cannot evade the Knaffla rule simply by repackaging his or her ineffective assistance of trial counsel claim as an ineffective assistance of appellate counsel claim. Sutherlin v. State, 574 N.W.2d 428, 485 (Minn.1998). In Sutherlin, a petitioner raised an ineffective assistance of appellate counsel claim, based largely on the assertion that the appellate attorney should have raised a claim of ineffective assistance of trial counsel. We reasoned that the petitioner “is in effect simply recharacterizing an issue that he should have raised on direct appeal.” Id. In this case, we conclude that Sessions’ claim that his appellate counsel failed to fully investigate his case fails because the substance of the claiin concerns his trial counsel and should have been raised on direct appeal. In addition, Sessions has made no showing that “ ‘there is a reasonable probability that absent his appellate counsel’s error, the outcome of his direct appeal would have been different.’ ” Ives, 655 N.W.2d at 637 (quoting Sanders v. State, 628 N.W.2d 597, 608 (Minn.2001)).

Sessions maintains he deserved an evidentiary hearing on his claims of ineffective assistance of appellate counsel. But, his allegations do not meet the statutory standard. Sessions’ argument about ineffective assistance 'of appellate counsel conclusively showed he was not entitled to relief. He was not prejudiced by either his appellate counsel’s failure to raise his pro se issues at oral argument, since they were addressed in his supplemental brief, or his appellate counsel’s alleged failure to investigate his case, because he made no showing that the outcome of his direct appeal would have been different. Therefore, we hold that it was not an abuse of discretion for the postconviction court to deny Sessions’ petition without a hearing.

Affirmed.

      . In fact, Sessions’ claim with respect to his appellate counsel’s failure to argue his pro se issues is framed more like a civil breach of contract claim than a constitutional right to counsel claim. Interpreted as a breach of contract claim, the postconviction court was not required to address Sessions’ claims regarding his appellate counsel's breach of contract. Minnesota Statutes § 590.01, subd. 1 (2002) establishes two grounds upon which petitioners may request postconviction relief: (1) their conviction or sentence violated their constitutional rights or a state or federal statute, and (2) there is new scientific evidence that establishes their innocence. Breach of contract is a civil claim that does not fit into either of those categories.


author: MINGE, Judge.

text:
    In the Matter of the REVOCATION OF THE FAMILY CHILD CARE LICENSE OF GAIL BURKE.
    No. C4-02-1886.
    Court of Appeals of Minnesota.
    Aug. 5, 2003.
    Jeffrey M. Johnson, Schurhammer & Johnson, Faribault, MN, for relator.
    Jenel Kristen Wavra, Faribault, MN, for respondent Rice County.
    Considered and decided by TOUSSAINT, Chief Judge, STONEBURNER, Judge, and MINGE, Judge.
   OPINION

MINGE, Judge.

In this certiorari appeal from the commissioner’s order revoking relator’s child daycare license for failure to supervise and for violating licensing rules, relator argues that the Commissioner of Human Services abused her discretion. Because the evidence in the record does not support the sanction of revocation, we reverse and remand.

FACTS

In April 1998, relator Gail Burke began operating a child daycare facility licensed by the Minnesota Department of Human Services (DHS). Daycare services were located primarily in the lower level of the budding, which had been constructed as a split-level home. A paved biking and walking path runs behind the facility.

Burke’s compliance problems with the DHS began on July 26, 2001, when she received her first correction order for failure to supervise. That afternoon, while the DHS licensor Colleen Peterson was visiting the daycare facility next door to Burke’s, Peterson observed a group of children leave Burke’s fenced 'backyard and walk down the bike path. Burke’s ten-year-old daughter and two friends had unlocked the gate, intending to take a crayfish to a nearby shallow' creek. One four year, old and six school-aged daycare children tagged along. Peterson followed and found them one to two blocks away on the path. Burke’s daughter released the crayfish into the shallow creek while the daycare children watched from the path. As Peterson and the children returned to the daycare, Burke’s sixteen-year-old daughter, who had come to retrieve the daycare children, met them on the path.

Peterson estimated that twelve minutes passed from the time the children exited the backyard to their return to the daycare. Burke knew of the crayfish and had suggested that her daughter dispose of it. At the time the group left, she had been tending to an infant and preparing a celebration for a daycare child’s birthday. When she discovered that the whole group had left, she sent her sixteen year old out to bring them back.

Based on the July 26, 2001 correction order, the DHS ordered a one-year conditional license. Burke timely requested reconsideration of the order. One year later, in August 2002, the one-year conditional license decision was affirmed.

In the interim, and apparently unrelated to the pending reconsideration, Burke was the subject of another sanction áction by DHS. It was triggered by a death on the night of April 8, 2001 of an infant who had been at Burke’s daycare center that day. The child died at the parent’s home apparently of sudden infant death syndrome (SIDS). On April 9, Burke phoned the office of the DHS licensor to report the death. That same day, DHS licensor Peterson visited Burke’s facility. When she arrived, Burke was on the upper level, and the door to the lower level was closed. When Peterson asked to see the room that the deceased infant had slept in, Burke unlocked the room where two children were sleeping. Burke explained to Peterson that she had locked the door to keep a disruptive child out so other children could nap without disturbance. Since the lock was on the inside, the children other than a toddler, could let themselves out and the key was just outside the room. On this visit, Peterson also observed a child enter the furnace room through an open door.

Based on this visit, the DHS issued another correction order, which noted four violations: failure to supervise, failure to notify the DHS of the SIDS death, failure to secure the furnace-room door, and locking the nap-room door. Three days later, the DHS issued an order revoking Burke’s license. In addition to the incidents cited in the second correction order, the order of revocation erroneously stated that on April 8 an infant died while napping in Burke’s care. The DHS based the revocation order on Burke’s “chronic failure to provide adequate supervision” and the “extremely serious nature of these licensing violations.”

Burke appealed the DHS order of revocation. At a hearing before an administrative law judge (ALJ), Peterson and Burke testified, as well as five parents who were confident of Burke’s ability to run a daycare and supervise children. Five additional parents, including a DHS employee, submitted affidavits to the effect that they and their children were pleased with the daycare. Burke stated that the children in her daycare have their parents’ permission to use the path behind the daycare. As for the April 9 incident, Burke stated that it was not a typical day since it was the day after the apparent SIDS death. She also explained that normally the furnace-room door is closed, but she had just opened it to answer the phone located in the furnace-room.

The ALJ recommended that Burke’s license be suspended for two days and conditional for 18 months. In September 2002, the commissioner adopted all of the ALJ’s findings. These included the correction that the SIDS death had occurred after the child left the daycare and that Burke had phoned the DHS and reported the incident the next day. With one minor change, the commissioner also adopted the ALJ’s conclusions that on July 26 and April 9, Burke failed to supervise by being out of sight or hearing of an infant, toddler, or preschooler and had also failed to make the furnace inaccessible and had locked the nap-room door. But instead of the two-day suspension and 18-month conditional license recommended by the ALJ, the commissioner’s order affirmed the DHS’s revocation of Burke’s license. In the commissioner’s memorandum, she stated that Burke “violated numerous licensing rules on an ongoing basis that placed day care children at serious risk of harm.” Burke petitioned for appeal by writ of certiorari.

ISSUE

Did the evidence support the commissioner’s decision to revoke relator’s daycare license?

ANALYSIS

Administrative-agency decisions enjoy a presumption of correctness and may be reversed only when they are arbitrary and capricious, exceed the agency’s jurisdiction or statutory authority, are made upon unlawful procedure, reflect an error of law, or are unsupported by substantial evidence in view of the entire record. Minn.Stat. § 14.69 (2002) (also' providing for reversal or modification if decision is in violation of constitutional provisions); Dep’t of Human Servs. v. Muriel Humphrey Residences, 436 N.W.2d 110, 117 (Minn.App.1989), review denied (Minn. Apr. 26, 1989). In reviewing an agency’s decision on a legal issue, this court is not bound by the agency’s ruling. Id. A reviewing, court must defer to the agency’s fact-finding process and be careful not to substitute its findings for those of the agency. Dokmo v. Indep. Sch. Dist. No. 11, 459 N.W.2d 671, 674-75 (Minn.1990). Absent a clear abuse of discretion, a reviewing court must also defer to an agency’s choice of sanction. In re Licenses of Kane, 473 N.W.2d 869, 877 (Minn.App.1991) (citing In re License of Haugen, 278 N.W.2d 75, 80 n. 10 (Minn.1979)), review denied (Minn. Sept. 25, 1991).

Minnesota’s Human Services Licensing Act authorizes the commissioner to impose any one of various sanctions when a licensee fails to comply with an applicable law or rule or term of a correction order or conditional license. Minn.Stat. §§ 245A.06-.07 (2002). The commissioner may issue a correction order or conditional license, suspend or revoke a license, impose a fíne, or secure an injunction. Minn.Stat. §§ 245A.06, subds. 1-3, .07, subds. 1, 3. Licensors and inspectors may also place the license holder on probation. Minn. R. 9543.0100, subp. 5. Before imposing any sanction, the commissioner “shall consider the nature, chronicity, or severity of the violation of law or rule and the effect of the violation on the health, safety, or rights of persons served by the program.” Minn.Stat. §§ 245A.06, subd.l, 245A.07, subd. 1.

DHS agency rules divide possible daycare license sanctions into three main types of enforcement actions: issuance of correction orders, probation, and negative licensing actions. Minn. R. 9543.1050, subps. 1, 7. Within the negative licensing actions are suspension, immediate suspension, and revocation. Minn. R. 9543.1060. The rules reflect a relative hierarchy of sanctions, increasingly severe based on the effect of the violations.

Revocation is appropriate when “continued operation of the program is not in the best interest of persons served by the program and would pose an unacceptable risk of harm to persons served by the program.” Id., subp. 4. Suspension, a less severe sanction, is available when it is “in the best interests of persons served ⅜ * * and would not pose a risk of harm to persons served by the program.” Id., subp. 5. Probation is available when the commissioner determines that revocation, suspension, and immediate suspension are not warranted. Minn. R. 9543.1050, subp. 7. Finally, correction orders, the least severe sanction, may be issued if the violation can be corrected within a reasonable time and the violation does not imminently endanger the health, safety, or rights of the people served by the program. See Minn.Stat. § 245A.06, subd. 1; Minn. R. 9543.1050, subp. 1.

The statutory standard for sanctioning violations of daycare rules requires consideration of the nature, chronicity, or severity of the violations and their effect on those served by the program. Minn.Stat. §§ 245A.06, subd. 1, .07, subd. 1. The rules elaborate on this standard by requiring that the commissioner also consider before imposing a negative licensing action:

A. the laws or rules that have been violated;
B. the nature and severity of each violation;
C. whether the violation is recurring or nonrecurring;
D. the effect of the violation on persons served by the program;
E. an evaluation of the risk of harm to persons served by the program;
F. any evaluations of the program by persons served or their families;
G. relevant facts, conditions, and circumstances concerning the operation of the program; and
H. any aggravating or mitigating factors related to the violation.

Minn. R. 9543.1060, subp. 2. While we are mindful that the commissioner has broad discretion in fashioning an appropriate sanction, we conclude that the statute and rules detail the many considerations involved in an enforcement action to ensure that the commissioner exercises that discretion within distinct parameters.

The record reflects that Burke had operated the daycare without incident for the three years prior to the first correction order. Then there were only two incidents in which a total of three rules were violated in a nine-month period. While the DHS considered the first incident “serious,” it constituted one rule violation— failure to supervise a preschool child for approximately twelve minutes when he followed a group of children down a path. The DHS did not place Burke on probation, and waited over 12 months to reconsider and affirm the conditional license decision. This delay does not indicate grave DHS concern over the incident. In contrast, one week after the second incident, the DHS issued an order of revocation. But that order was partially based on erroneous findings that Burke had failed to comply with the terms of the conditional license, an infant had died while napping in Burke’s care, and Burke failed to report the death. Some of these erroneous findings are of utmost gravity. Absent these erroneous findings, the violations cited in the second correction order were failure to supervise by being out of sight and hearing of an infant, a toddler, or a preschooler, not securing the furnace-room door, and locking the nap-room door. These remaining violations do not appear to be significantly more serious than those cited in the first correction order.

The licensing act and rules also require that the sanction take into consideration the effect of the violation on the people served by the program. While Burke does not dispute the violations, she submitted the testimony of persons served by the program who indicated that revocation was not in their best interests or their children’s best interests. The testimony indicated these people did not consider their children to be in any risk of harm. One of the parents was a DHS employee. The commissioner’s decision was- silent as to this testimony and other mitigating factors offered to explain the circumstances surrounding the violations.

This court has determined that the severity of an administrative sanction must reflect the seriousness of the violation. Revocation of a real estate broker’s license for improperly withdrawing earnest money from a trust account was deemed too drastic a sanction in In re License of Haugen, 278 N.W.2d at 81. Similarly, in In re Licenses of Kane, this court reversed an insurance license revocation for misrepresentations to senior citizens finding that revocation exceeded the action necessary to protect the public and to deter such conduct in the future. 473 N.W.2d at 878. While licensing and monitoring of childcare facilities is unique and requires heightened scrutiny to protect a vulnerable segment of our population prone to harm and injury, we conclude that the statute and rules provide the guidelines necessary to provide balance to protect the license holder as well. As in Kane and Haugen, the commissioner’s choice of sanction must not exceed the seriousness of the violation and must be supported by the record.

There is no evidence in this case of deliberate or callous disregard for the children. Nor is there evidence of injury or near injury to the children. In addition, parents have come to the defense of the license holder. The commissioner’s decision to terminate Burke’s daycare business by revoking her license was initially based on several erroneous grounds, and is too severe, and is not supported by the record. This court does not determine sanctions; we only review for abuse of discretion. If the commissioner determines that negative licensing action is necessary in this situation, an explanation of that decision should be provided considering the nature of the conduct and the choice among sanctions. Here, such an analysis was not made.

DECISION

We reverse the commissioner’s order for revocation and remand for reconsideration of a lesser sanction consistent with this opinion and with the statutes and rules of the DHS.

Reversed and remanded.