author: STRINGER, Justice.

text:
    In re the Marriage of Rolf Edward ROGERS, petitioner, Appellant, v. Lisa Anne ROGERS, Respondent.
    No. C2-99-1325.
    Supreme Court of Minnesota.
    March 8, 2001.

      Jane Binder, Christine N. Howard, Minneapolis, for appellant.
    Geraldine Carien Steen, Minnetonka, for respondent.
    Gary Alan Debele, Chair, Amicus Committee, Minneapolis, for Amicus Curiae, Minnesota Chapter of the American Academy of Matrimonial Lawyers.
   OPINION

STRINGER, Justice.

Appellant Rolf Edward Rogers (Rolf) and respondent Lisa Anne Rogers (Lisa) were married in 1982 and divorced in 1994. Three children were born of the marriage. Lisa was granted physical custody of the children following the divorce and Rolf was ordered to pay child support and spousal maintenance. Rolf was granted physical custody of the children in 1998 but continued to pay child support to Lisa. In 1999 Rolf petitioned the court to terminate his child support obligation, correct a clerical mistake that required him to continue paying spousal maintenance for a longer period of time than originally agreed, and award him the right to claim the dependency exemptions for the children for income tax purposes. The district court denied Rolfs request to eliminate his child support obligation and his request regarding the dependency exemptions. The court corrected the clerical error regarding the spousal maintenance obligation but concluded that the child support obligation should be recalculated in light of the ensuing change in income, resulting in an increased child support obligation for Rolf. The court of appeals expressed approval of the 1998 child support order despite Rolf having sole physical custody of the children, but held that the district court erred by increasing the child support obligation sua sponte and awarding a dependency exemption to Lisa. The court of appeals remanded for further findings on Rolfs claim of decreased income. We affirm in part, reverse in part and remand for further findings under Minn.Stat. § 518.551, subd. 5(i) (1998).

The heart of our inquiry is whether Minnesota’s statutory child support scheme has been properly applied to the facts here. The child support guidelines establish a rebuttable presumption that the child support obligor owes a statutorily fixed percentage of the obligor’s income based on the obligor’s income and the number of children. Minn.Stat. § 518.551, subd. 5(b) and 5(i) (1998). To overcome the presumption and deviate from the statutorily prescribed child support award, the court must make written findings supporting the deviation and explaining how the deviation serves the best interests of the children. Minn.Stat. § 518.551, subd. 5(i). It has generally been presumed that the parent with sole physical custody will spend the appropriate amount on the children directly and thus it is not necessary to order child support.

Minnesota is one of seven states in which the child support guidelines statute does not expressly provide a formula to address child support where both parents have extensive custodial privileges. To provide a method for resolving child support issues in such cases, an approach called the Hortis [Valento formula has evolved out of a series of cases decided by the court of appeals interpreting the guidelines to require courts to treat each parent with joint physical custody as a child support obligor as to the portion of time the child spends with the child’s other parent. Each obligor is required to pay the child support obligation indicated under the child support guidelines at Minn. Stat. § 518.551, subd. 5(b) (1998), reduced by the percentage of time that the parent has physical custody of the children. A deviation is permitted only if the court determines it is needed to serve the best interests of the children and is supported by the findings required by Minn.Stat. § 518.551, subd. 5(i).

The court of appeals later extended the principle of joint obligation when it held that the statutory guidelines require the application of the Hortis/Valento formula where one parent has been granted sole physical custody but both parents spend equal amounts of time caring for the children. Tweeton v. Tweeton, 560 N.W.2d 746, 748 (Minn.App.), rev. denied (Minn. May 28, 1997). Although each parent in Tweeton cared for the children 50% of the time, the court stated that the:

method of calculating child support described in Hortis and Valento was not premised upon the legal designation of the parents as “joint custodians,” but upon the pragmatic observation that the arrangements reviewed in those cases called for provision of a significant amount of physical care by each parent.

Id. Applying this principle, the court of appeals held in this case that the child support guidelines require application of the Hortis/Valento formula when both parents provide “significant physical care” for the children, but the court did not define significant physical care. Rogers v. Rogers, 606 N.W.2d 724, 727 (Minn.App.2000).

Turning to the circumstances here, the judgment and decree granting the parties’ divorce in 1994 incorporated the parties’ stipulations and stated that Rolf had a gross monthly income of approximately $5,000 and Lisa had a gross monthly income of approximately $1,200. Lisa was granted “primary” physical custody of the children, $1,190 per month child support, a child care contribution of $180 per month, and rehabilitative spousal maintenance until January 1, 2000. The parties stipulated that the court had no future jurisdiction to award further spousal maintenance, and the decree provided for joint legal custody of the children. Rolf was granted extensive visitation rights with the children and was awarded the right to claim the three children as dependents for income tax purposes until the spousal maintenance obligation ceased. Thereafter the dependency exemptions were to be divided between the parties.

In 1998, on Rolfs motion, “actual physical custody” of the children was awarded to him but the parties continued to have joint legal custody of the children with Lisa retaining visitation rights with the children approximately 45% of the time. Rolf did not request child support from Lisa incident to the change in physical custody. The district court held however, that under the “pragmatic approach” of Tweeton, it was “in the children’s best interests that [Rolf] continue to pay some child support to help [Lisa] meet her housing expense” and ordered Rolf to pay approximately $593 in child support per month based on the method of computation outlined in the Hortis/Valento formula. Taking the first step of the Hor-tis/Valento — formula the calculation of each party’s support obligation as if that party were the child support obligor — the court made findings regarding each party’s income and the percentage of income owed as child support under the child support guidelines. See Minn.Stat. § 518.551, subd. 5(b). The court found Rolfs monthly net income to be $6,246.00 and he therefore had a guidelines obligation of $2,077.25 per month. Lisa’s monthly net income of $1,134.85 from employment and $500.00 in spousal maintenance resulted in a guidelines obligation of $620.68 per month. The court then reduced the obligations of each party proportionately so that each parent would pay child support only for the percentage of time the other parent had physical custody. Forty-five percent of Rolfs guidelines obligation was approximately $934; fifty-five percent of Lisa’s obligation was approximately $341 therefore Rolf was obligated to pay Lisa $593.39 per month, the difference when the guidelines obligations are offset.

The current litigation began in April of 1999 when Rolf returned to the district court after having been awarded sole physical custody of the children a year earlier, requesting termination of his $593.39 child support obligation and arguing that there had been a significant change in circumstances because his expenses exceeded his income and Lisa was utilizing less visitation with the children than was awarded to her in 1998. The district court denied Rolfs motion on the basis that he presented no evidence of a substantial decrease in income and its finding that the visitation exercised by Lisa was not significantly less than the 45% time awarded to her in 1998. The court commented that even if visitation were diminished from the 55%-45% split contemplated by the parties, the court would keep the child support award in place because it was vital to facilitate the children’s visitation with Lisa.

Rolf also requested that the court correct an error in the 1994 decree regarding spousal maintenance payments. The 1994 decree ordered spousal maintenance for a period of four years but also stated spousal maintenance would be paid from January 1, 1995 through January 1, 2000 a period of five years. The court determined that the termination date was a clerical error and should be corrected in Rolfs favor, ending Rolfs spousal maintenance obligation a year earlier than the date specified in the decree. The district court also held however, that because it had previously considered the erroneous spousal maintenance award in its calculation of the income of the parties when setting child support, the child support award should be increased to reflect the reduction in spousal maintenance. The court denied Rolfs request to retain all three of the income tax dependency exemptions and ordered that one of the dependency exemptions be awarded to Lisa because without spousal maintenance, Lisa needed increased cash flow to maintain a residence that would accommodate overnight visitation with the children.

In a split decision on review, the court of appeals expressed approval of the earlier award of child support to Lisa and held that the Hortis/Valento formula must be applied where one parent has sole physical custody but the noncustodial parent “provides a significant amount of physical care for his or her children,” even if it is not a 50-50 split as in Tweeton. Rogers, 606 N.W.2d at 727-28. The court affirmed the district court’s determination that the visitation with Lisa had not significantly decreased, but remanded for further findings on Rolfs claim of decreased income. Id. at 728. The court reversed the recalculation of child support in conjunction with the correction of the clerical error relating to the timing of termination of spousal maintenance on the basis that under Minn. Stat. §§ 518.64, subd. 1 (1998) and 518.551, subd. 5(i), the district court did not have authority to increase child support sua sponte. Rogers, 606 N.W.2d at 728. Finally, the court reversed the district court’s ruling relating to the allocation of dependency exemptions and awarded the exemptions to Rolf, stating that utilizing the exemptions as income support in lieu of spousal maintenance was without legal justification. Id. at 729.

On appeal to this court Rolf argues he should not be required to pay child support to Lisa and challenges the court of appeals’ holding that the Hortis/Valento formula is an application of the guidelines and must be applied where the noncustodial parent provides a significant amount of physical care. Rolf further challenges the finding that Lisa’s visitation with the children is 45% and asserts that the award of child support to a noncustodial parent contravenes legislative intent that child support be awarded as a percentage of the noncustodial parent’s income as provided in the child support guidelines. Minn.Stat. § 518.551, subd. 5(b).

Lisa responds that Rolfs failure to appeal the district court’s use of the Hor-tis/Valento formula at the time physical custody was granted to Rolf in 1998 bars him from challenging the district court’s application of Hortis/Valento and limits the proper scope of review to whether Rolf has presented evidence of a substantial change in circumstances that renders the existing child support order unreasonable and unfair. Lisa maintains that the award of the dependency exemptions to Rolf by the court of appeals should be reversed because the issue was not addressed in the briefs or at oral argument before that court. Lisa also argues that the district court’s authority to clarify the inconsistency in the judgment and decree regarding the termination of spousal maintenance under Minn. R. Civ. P. 60.01 necessarily included the authority to adjust the child support award because the court’s 1998 child support order was based in part on the clerical error.

I.

We begin our analysis with an inquiry into whether the Hortis/Valento formula is a proper application of the child support guidelines where one parent has been awarded sole physical custody, a question of first impression before this court.

First we consider the child support statutes and their evolution in the history of the child support obligation system in Minnesota. In 1984 Congress adopted legislation requiring, among other things, that all states establish advisory child support guidelines as a condition of federal child support enforcement funding. The act was amended in 1988 to require states to establish guidelines that would create a rebuttable presumption regarding the correct amount of child support to be awarded in a divorce proceeding. Minnesota complied, and under the guidelines adopted in this state the child support obligation is calculated as a percentage of the obligor’s income based on the obligor’s income and the number of children. The guidelines establish a re-buttable presumption that the prescribed amount is owed. To impose a higher or lower child support obligation, the court must make written findings supporting the deviation and explain how the deviation best serves the interests of the child. See Minn.Stat. § 518.551, subds. 5(c) and (i). As noted above however, the court of appeals has grafted onto the guidelines the Hortis/Valento formula. In Hortis and Valento the court of appeals held that the child support guidelines require the allocation of the child support obligation between the parents where physical custody is shared. The court went a step farther in Tweeton and held that the child support guidelines require the child support obligation to be allocated between the parents where one parent is awarded sole physical custody but the physical custody arrangement provides for “a significant amount of physical care by each parent.” 560 N.W.2d at 748-49.

In 1998 the legislature amended the definition of child support obligor to provide that a person with sole physical custody is presumed not to be a child support obligor and not required to make child support payments unless the court makes specific written findings to overcome the presumption. Minn.Stat. § 518.54, subd. 8 (2000). Thus the “pragmatic” approach in Tweeton that ignores the custodial label in favor of the reality of significant responsibility for the physical care of the children by both parents was rejected, absent findings overcoming the presumption that a sole custodian is not a child support obligor. See Minn.Stat. § 518.54, subd. 8.

Here, on the basis that Rolf was awarded sole physical custody and cares for the children 55% of the time, the court of appeals expressed approval of the district court’s use of the Hortis/Valento formula with following comment:

[I]f a noncustodial parent provides a significant amount of physical care for his or her children,' the district court must, under Tweeton, apply the Hortis/Valento formula. Also, because the Hortis/Va-lento formula, and hence Tweeton, are an application of the guidelines, if a noncustodial parent does provide a significant amount of physical care, the district court can deviate from the Hortis/Valen-to/Tweeton formula (i.e. deviate from the guidelines) only if it makes appropriate findings [under Minn.Stat. § 518.551, subds. 5(c) and 5(i) ].

Rogers, 606 N.W.2d at 727. The court of appeals concluded that even though the children are in the physical care of the noncustodial parent less than 45% of the time, the statutory language requires that the HortisfValento formula be applied. Id. at 727-29.

The emphasis on whether physical custody is sole or joint in the 1998 statutory amendment to the definition of child support “obligor” in Minn.Stat. § 518.54, subd. 8 strongly suggests legislative dissatisfaction with the approach by the court of appeals in Tweeton, Rogers and Rumney relying on the percentage of time children are in the physical care of the noncustodial parent. When this 1998 amendment is considered in the context of Minn.Stat. § 518.551, subd. 5 (1998), a comprehensive process for determining child support emerges. An analysis of the needs of the children under the six statutory factors in Minn.Stat. § 518.551, subd. 5(c) is the appropriate method for channeling the discretion of the district court to fashion an arrangement that takes into account the parents’ financial condition as well as the needs and best interests of the children. The legislature intended that the percentage of the children’s days that are spent with the noncustodial parent not be the determinative factor in the statutory scheme and may be taken into account only in the context of applying the six factors to be considered in setting or modifying child support, or in determining whether a deviation from the guidelines should be approved. Minn.Stat. § 518.551, subds. 5(c) and 5(i). A prescriptive approach in applying the guidelines based solely on the amount of time the noncustodial parent spends with the child as has emerged in Hortis, Valento and Tweeton is at odds with the legislative scheme.

Further, the statutory presumption against treatment of the parent with sole physical custody as a child support obligor is equally at odds with the application of the Hortis, Valento and Tweeton approach to sole physical custody arrangements. The presumption can be overcome by meeting the requirements for a deviation from the guidelines under Minn.Stat. § 518.551, subd. 5(i), but the 1998 statutory amendment reemphasizes the legislature’s overriding concern for the best interests of the child and its intent that deviations from the guidelines be governed by Minn.Stat. § 518.551, subds. 5(c) and 5(i) rather than the percentage of time the children are in the care of the noncustodial parent. Therefore we hold that application of the Hortis/Valento formula where one parent has sole physical custody is a deviation from the guidelines that must be supported by consideration of the statutory factors in Minn.Stat. § 518.551, subds. 5(c) and 5(i).

Because the district court awarded sole physical custody to Rolf in 1998, when this matter came back before the district court in 1999 on Rolfs motion to terminate child support and spousal maintenance and award him the dependency exemptions, the district court and later the court of appeals erred in failing to consider the 1998 legislative amendment to section 518.54, subd. 8 providing that a person designated the sole physical custodian of the children is presumed not to be a child support obligor “unless the court makes specific written findings to overcome this presumption.” Minn.Stat. § 518.54, subd. 8. The premise that the Hortis/Valento formula is an application of the child support guidelines where both parents provide significant care for the children is erroneous. The 1998 amendment to Minn.Stat. § 518.54, subd. 8 compels the conclusion that Hortis/Valento is not to be applied in circumstances of sole physical custody, absent findings of grounds for deviation from the guidelines under Minn.Stat. § 518.551, subd. 5(i). We therefore remand to the district court for further findings under Minn.Stat. § 518.551, subds. 5(c) and 5(i) and determination whether the presumption that Rolf is not a child support obligor has been overcome.

II.

The second issue we consider is the court of appeals’ ruling that the district court failed to consider Rolfs claim that his income had decreased when it denied Rolfs motion for termination of his child support obligation. Because of the broad discretion given the district court to provide for the support of the children in a dissolution, reversal is warranted only if the district court’s ruling is clearly erroneous. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn.1984). The district court’s modification of child support will not be reversed absent an abuse of discretion. Hennessy v. Stelton, 302 Minn. 550, 550, 224 N.W.2d 926, 927 (1974) (per curiam).

To establish a rebuttable presumption that the existing child support order is “unreasonable and unfair” the moving party may show a change in the earnings or needs of the party or the children that would result in a new order at least 20% and $50 a month higher or lower than the current order. Minn.Stat. § 518.64, subd. 2(b)(1) (2000). The district court noted in its order that Rolf did not claim that he had suffered a substantial decrease in his income. As Rolf acknowledged in his brief to the court of appeals, modification to the child support order based on his alleged decrease in income would result in a reduction of 15% which is insufficient to meet the statutory threshold in Minn.Stat. § 518.64, subd. 2(b)(1). The court of appeals’ remand for further findings regarding Rolfs income is therefore unnecessary.

Rolf waived an evidentiary hearing on his contention that the district court and the court of appeals failed to recognize that the child support order should be reduced because Lisa was not taking advantage of the visitation awarded to her in 1998. Based on affidavits submitted by the parties, the district court found that the actual visitation schedule was close to the 45-55% split ordered in 1998 and the missed visitation amounted to little more than minor changes in the visitation schedule. The court of appeals held that the record supported the district court’s findings and we agree.

III.

Next we turn to the court of appeals’ ruling that the district court did not have authority to modify the child support order in the absence of a motion to modify and an inquiry into the parties’ incomes and present circumstances under Minn. Stat. § 518.64 (2000). The district court may correct a clerical error at any time under Minn. R. Civ. P. 60.01, and the inconsistency regarding the date of termination of spousal maintenance was a clerical error. The 1998'order required $593 per month in child support until Rolfs spousal maintenance obligations expired in January of 2000. When the date was corrected to January of 1999, Lisa’s income was reduced retroactive to January 1, 1999. The district court recalculated the child support obligation in the same manner as before, substituting the correct income figures. In these unique circumstances, it was within the discretion of the district court to adjust the child support obligation incident to correction of the clerical error. We reverse the court of appeals’ ruling that the district court did not have authority to recalculate the child support obligation in conjunction with correction of the clerical error.

IV.

Finally we address the court of appeals’ ruling reversing the district court’s denial of Rolfs motion requesting that he be awarded the income tax exemptions for all three children.

The district court awarded one dependency exemption to Lisa until only one child qualified as a dependent and directed that the remaining exemption be alternated on a yearly basis, as set forth in the original judgment and decree. The district court noted its concern that Lisa have enough cash flow to maintain sufficient accommodation for the children on overnight visits in light of the termination of spousal maintenance and concluded that an award of all three of the exemptions to Rolf would not be in the best interests of the children. In 'reversing the district court, the court of appeals stated that dependency exemptions should not be used as income support in lieu of spousal maintenance and held that the district court abused its discretion by following the terms of the original decree without considering the fact that physical custody had changed.

The Internal Revenue Code states that upon dissolution of a marriage the parent with primary custody of a minor child is entitled to claim the child as a dependent. 26 U.S.C. § 152(e)(1) (2000). The code does not preclude state district courts from allocating tax dependency exemptions to a noncustodial parent incident to the determination of child support and physical custody. In light of the district court’s consideration of the relative resources of the parties in awarding the dependency exemption, there was sufficient evidence to support the district court’s conclusion that it would not be in the best interests of the children to award all three federal and state income tax dependency exemptions to Rolf. Therefore the court of appeals’ ruling regarding the district court’s award of the exemptions is reversed.

In sum, we affirm the ruling of the court of appeals that the evidence was sufficient to support the district court’s finding that Lisa’s visitation with the children had not significantly decreased. We reverse the court of appeals regarding Rolfs claim of decreased income because we find that a remand and additional findings are unnecessary. We reverse the court of appeals as to modification of Rolfs child support obligation incident to the correction of a clerical error and as to the award of tax exemptions. We reverse the court of appeals’ ruling that the Hortis/Valento formula must be applied to a custody arrangement in which one parent has sole physical custody but both parents provide a significant amount of physical care. We remand to the district court for proceedings with respect to these rulings. In light of our holding that application of the Hor-tis/Valento formula is a deviation from the guidelines where sole physical custody has been awarded to one parent, we also remand to the district court for further findings under Minn.Stat. § 518.551, subds. 5(c) and 5(i) and consideration of whether the statutory presumption that the sole custodian is not a child support obligor has been overcome.

Affirmed in part and reversed in part.

      . Benjamin was born October 11, 1983, Phillip was born March 15, 1986, and Katherine was bom May 11, 1987.

      . See, e.g., Hortis v. Hortis, 367 N.W.2d 633, 635 (Minn.App.1985) (“Although both parents owe an equal duty of support, historically the assumption has been that the custodial parent provides his or her share of the support, whether through services or through expenditures not monitored by the court. Statutory enforcement has been applied only against the non-custodial parent who may more easily avoid the obligation.”).

      . Jane C. Venohr & Robert G. Williams, The Implementation and Periodic Review of State Child Support Guidelines, 33 Fam. L.Q. 7, 18-21 (1999).

      . In Hortis, each parent had physical custody of the children for six months out of the year and thus cared for the children 50% of the time, but one parent’s income was more than twice that of the other parent. 367 N.W.2d at 634. Noting that the guidelines assume the custodial parent will be contributing his or her share of child support directly, the court of appeals held that the guidelines generally require the court to treat each joint custodial parent as a child support obligor during the period the other parent is physically caring for the child. Id. at 635-36.

      .A year later in Valento v. Valento, the court of appeals considered a similar case in which the father’s income was more than twice that of the mother, physical and legal custody was joint, and the children were in the care of their father 43% of the time and their mother 57% of the time. 385 N.W.2d 860, 861 (Minn.App.), rev. denied (Minn. June 30, 1986). The court of appeals held that because the guidelines assume that the parent with physical custody spends the support obligation on the children directly, the proper melhod of calculating child support is to prorate the amount each parent would owe under the child support guidelines in Minn.Stat. § 518.551, subd. 5(b), by the proportion of time the children spend with the other parent. Valento, 385 N.W.2d at 862-63. The Valento court indicated that its method of calculating support "should be used in all joint custody situations, unless there are specific reasons for a departure” after consideration of the five factors in Minn.Stat. § 518.17, subd. 4 (1984). Valento, 385 N.W.2d at 863. Minnesota Statutes § 518.17, subd. 4, was repealed in 1986, but some of its factors are currently found in Minn.Stat. § 518.551, subd. 5(c). Act of March 24, 1986, ch. 406, § 9, 1986 Minn. Laws 580, 586.

      . The decree provided that Rolf was entitled to the dependency deductions for the three children as long as he was obligated to pay spousal maintenance. Once the spousal maintenance obligation ceased, Lisa and Rolf would annually alternate a 1-2 division of the dependency deductions. When the income tax deduction was no longer available for the oldest child, Lisa and Rolf would each be entitled to take one deduction. When the second child no longer qualified, the parties were to claim the remaining dependency exemption in alternate years.

      . The court recalculated the parties’ incomes using the figures in its 1998 order, subtracting spousal maintenance from Lisa’s income. The court then applied the Hortis/Valentó formula, resulting in an order of $689.64 per month child support to Lisa, an increase of approximately $96 per month.

      .The dissent would have affirmed the district court’s modification of the child support award in conjunction with the correction of the clerical error regarding spousal maintenance, the ruling that there was no substantial decrease in Rolfs income, and the allocation of the dependency exemptions. Rogers, 606 N.W.2d. at 729-30 (Schumacher, J., concurring in part, dissenting in part).

      . The issue of the application of Hortis/Valento was addressed by the district court in its conclusions of law and was raised in a petition for review.

      . Child Support Enforcement Amendments of 1984, Pub.L. No. 98-378, § 467, 98 Stat. 1305, 1321-22 (1984) (amending 42 U.S.C. §§ 667). Minnesota first adopted child support guidelines in 1983 to determine the appropriate allocation of child support for parents receiving public assistance. Act of June 9, 1983, ch. 308, § 7, 1983 Minn. Laws 1748, 1757-59 (codified at Minn.Stat. § 518.551, subd. 5 (2000)).

      . Family Support Act of 1988, Pub.L. No. 100-485, § 103, 102 Stat. 2343, 2346-48 (1988) (codified at 42 U.S.C. §§ 666-67).

      . Moylan v. Moylan, 384 N.W.2d 859, 862-63 (Minn.1986) (recognizing that Act of June 9, 1983, ch. 308, § 17, 1983 Minn. Laws 1748, 1757-59, and its subsequent revision by Act of April 25, 1984, ch. 547, § 16, 1984 Minn. Laws 933, 938, required application of the child support guidelines in all cases, not just those involving public assistance).

      . Minnesota Statutes § 518.551, subd. 5(b), provides that: "The court shall derive a specific dollar amount for child support by multiplying the obligor’s net income by the percentage indicated ⅜ * ⅜.”

      . Minnesota Statutes § 518.551, subd. 5(i) states:
      The guidelines in this subdivision are a re-buttable presumption and shall be used in all cases when establishing or modifying child support. If the court does not deviate from the guidelines, the court shall make written findings concerning the amount of the obligor’s income used as the basis for the guidelines calculation and any other significant evidentiary factors affecting the determination of child support. If the court deviates from the guidelines, the court shall make written findings giving the amount of support calculated under the guidelines, the reasons for the deviation, and shall specifically address the criteria in paragraph (c) and how the deviation serves the best interests of the' child.

      . Minn.Stat. § 518.551, subd. 5(c) (1998) provides that:
      In addition to the child support guidelines, the court shall take into consideration the following factors in setting or modifying child support or in determining whether to deviate from the guidelines:
      (1) all earnings, income, and resources of the parents, including real and personal property, but excluding income from excess employment of the obligor or obligee that meets the criteria of paragraph (b), clause (2)(ii);
      (2) the financial needs and resources, physical and emotional condition, and educational needs of the child or children to be supported;
      (3) the standard of living the child would have enjoyed had the marriage not been dissolved, but recognizing that the parents now have separate households;
      (4) which parent receives the income taxation dependency exemption and what financial benefit the parent receives from it;
      (5) the parents’ debts as provided in paragraph (d); and
      (6) the obligor’s receipt of public assistance.

      . Act of Apr. 10, 1998, ch. 382, art. I, § 4, 1998 Minn. Laws 845, 846 (codified at Minn. Stat. § 518.54, subd. 8). Because no effective date is specified, the amendment was effective August 1, 1998. Minn.Stat. § 645.02 (2000).

      . Minnesota Statutes § 518.54, subd. 8 provides:
      “Obligor” means a person obligated to pay maintenance or support. A person who is designated as the sole physical custodian of a child is presumed not to be an obligor for purposes of calculating current support under section 518.551 unless the court makes specific written findings to overcome this presumption.
      In 2000 the legislature enacted the Parenting Plan Statute encouraging parties to stipulate to parenting schedules and allowing parties to use alternate terminology to describe the custody arrangement in lieu of stating that one parent has sole custody, but did not alter the language in section 518.54 providing that the sole physical custodian is presumed not to be the child support obligor. Act of Apr. 25, 2000, ch. 444, 2000 Minn. Laws 980.

      . In a decision of the court of appeals filed shortly after Rogers, the court declined to apply Hortis/Valento to offset the child support owed by a noncustodial father who provided physical care for his children 39% of the time and whose monthly income was slightly less than the mother’s. Rumney v. Rumney, 611 N.W.2d 71, 72-73 (Minn.App.2000).
      The court reasoned that extending Hor-tis/Valento beyond the noncustodial parent care of 45% in Rogers to the 39% in Rumney would give parents with physical custody less incentive to grant additional visitation to noncustodial parents, as each day of visitation might have unfavorable financial consequences. Rumney, 611 N.W.2d at 73-74. Citing the 1998 statutory amendment to the definition of "obligor,” the court determined that it should "limit the use of the Hortis/Va-lento/Tweeton guidelines modification to cases * * * [in which] parties have joint physical custody or when the non-custodial parent provides a nearly equal amount of physical care, as in Tweeton and Rogers." Rumney, 611 N.W.2d at 74-75.

      . We express no opinion regarding whether the application of the Hortis/Valento formula is appropriate in a joint custody situation as that matter is not before us.

      . Amicus curiae, the Minnesota Chapter of the American Academy of Matrimonial Lawyers, contends that this area of the law is so murky this court should adopt the three-part test for deviations from the statutory child support guidelines espoused by the Supreme Court of Louisiana in Guillot v. Munn, 756 So.2d 290, 300 (La.2000). The Louisiana test requires the court to determine whether: 1) the visitation is extraordinary rather than "lypical”; 2) whether the extra time spent with the noncustodial parent results in a greater financial burden on that parent and a lesser financial burden on the custodial parent; and 3) whether the application of the guidelines would be counter to the best interest of the child or inequitable to the parties. Guillot, 756 So.2d at 300. The approach suggested by amicus places great emphasis on the amount of time the children spend with the noncustodial parent however, and therefore is not in accord with our legislative scheme in Minn.Stat. § 518.551.

      . The issue of how much time Lisa spends with her children is irrelevant, in any event, absent findings that overcome the presumption that Rolf is not an obligor pursuant to Minn.Stat. § 518.54, subd. 8.

      . See, e.g., Hughes v. Hughes, 35 Ohio St.3d 165, 518 N.E.2d 1213 (1988), cert. denied, 488 U.S. 846, 109 S.Ct. 124, 102 L.Ed.2d 97 (1988). Contra Voelkerv. Voelker, 520 N.W.2d 903 (S.D.1994).


source: Caselaw Access Project

author: LANCASTER, Justice.

license: Public Domain

text:
    STATE of Minnesota, petitioner, Appellant, v. Dennis Eugene RICHARDSON, Respondent.
    No. C5-99-1819.
    Supreme Court of Minnesota.
    March 15, 2001.
   OPINION

LANCASTER, Justice.

Respondent Dennis Eugene Richardson was charged in Kandiyohi County with driving after revocation of his license, in violation of Minn.Stat. § 171.24, subd. 2(3) (2000). Richardson moved to dismiss the charge, claiming that all evidence should be suppressed because the traffic stop was not supported by reasonable suspicion. The district court granted the motion and the state brought a pretrial appeal under Minn.R.Crim.P. 28.04. The court of appeals affirmed. We conclude that the lower courts erred; therefore, we reverse and remand for trial.

The essential facts are not disputed. On July 9, 1999, Atwater Police Dispatch sent out an “attempt to locate” call for a car traveling the Willmar-Atwater stretch of Highway 12; the car was reported to be “driving all over the road.” The radio message described the car as a red Plymouth and gave its license plate number. This information was relayed from the state patrol, which had in turn received its information from a motorist. An Atwater police officer, driving from Willmar to At-water on Highway 12 and monitoring the police radio, saw an approaching red vehicle cross over the fog line and come back across its lane to the center line. The officer observed that the car’s license plate number matched that of the car reported in the radio dispatch. The officer stopped the vehicle and discovered that the license of the driver, Richardson, had been revoked. The officer cited Richardson for driving after license revocation.

Richardson moved to dismiss the complaint, claiming that all evidence should be suppressed, arguing that neither the information provided to the officer in the radio dispatch nor the officer’s own observations provided sufficient particularized facts to support the reasonable suspicion required for a stop. The district court concluded that the traffic stop had violated Richardson’s right against unreasonable seizure under the Fourth Amendment to the United States Constitution; the court suppressed all evidence and dismissed the complaint. In an- unpublished opinion, a divided panel of the court of appeals affirmed the suppression of evidence and dismissal of the complaint.

We will normally reverse a district court’s pretrial decision to suppress evidence only when the state demonstrates clearly and unequivocally that the district court erred in its judgment and that the error will have a critical impact on the outcome of the trial. State v. Othoudt, 482 N.W.2d 218, 221 (Minn.1992); State v. Webber, 262 N.W.2d 157, 159 (Minn.1977). Where, as in this case, the facts are not in dispute and the decision to suppress is a question of law, we may independently review the facts and determine whether, as a matter of law, the evidence needs to be suppressed. Othoudt, 482 N.W.2d at 221.

A brief investigatory stop by police requires reasonable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 21-22, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Such a stop is lawful “if the state can show the officer to have had a ‘particularized and objective basis for suspecting the particular person stopped of criminal activity.’ ” State v. Pike, 551 N.W.2d 919, 921 (Minn.1996) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). The investigatory stop must be based upon specific and articulable facts that, along with rational inferences from those facts, reasonably warrant the intrusion of a stop, but it is not necessary that the police detect an actual violation of the law. Id. at 921-22. In determining whether a stop is justified, we consider the totality of the circumstances and acknowledge that trained law enforcement officers are permitted to make inferences and deductions that would be beyond the competence of an untrained person. State v. Kvam, 336 N.W.2d 525, 528 (Minn.1983).

In this case, the police officer saw an oncoming vehicle cross and recross the fog line after he had been apprised by a radio report that the same vehicle had been reported to be driving “all over the road.” This combination of the officer’s own observations, together with information received in the police dispatch, was sufficient to give the officer a particularized and objective basis for suspecting the driver of criminal activity. Erratic driving of the type observed by the officer and reported by the motorist could reasonably indicate violation of any of a number of Minnesota statutes. E.g., Minn.Stat. § 169.13, subd. 2 (2000) (operating a vehicle in manner likely to endanger property or person, including driver); Minn.Stat. § 169A.20, subd. 1(1) (2000) (operating a vehicle under the influence of alcohol). Even observing a motor vehicle weaving within its own lane in an erratic manner can justify an officer stopping a driver. Kvam, 336 N.W.2d at 528.

Both the court of appeals and the respondent compare this case to Olson v. Comm’r of Pub. Safety, 371 N.W.2d 552 (Minn.1985), in which we held that an anonymous citizen report of a possibly drunken driver, giving the vehicle’s license plate number and vehicle’s location and direction of travel, did not provide reasonable suspicion for a traffic stop. Id. at 554, 556. In Olson, the police did not observe any erratic driving before they stopped the vehicle, and were acting solely on the unidentified motorist’s tip. Id. at 553. In contrast, here the officer’s independent observation of erratic driving forms part of the totality of the circumstances to which we look for justification of the stop.

After an independent review of the undisputed facts, we conclude that the district court erred in its determination that the officer’s stop of Richardson was unlawful. We hold that the officer was in possession of specific, articulable facts that, together with rational inferences from those facts, provided an objective basis for suspicion of criminal activity and therefore, the stop was warranted.

Reversed and remanded.

      . The dispatch announcement did not include any information regarding the identity of the reporting motorist and it is unknown whether the stale patrol received the motorist's name when the information was phoned in.

      . The state argues that Officer Schmidt actually observed (as opposed to reasonably suspected) two traffic violations when he saw Richardson cross the fog line: first, that Richardson was not driving in the "roadway” as required by Minn.Stat. § 169.18, subd. 1 (2000), and second, that Richardson drove outside his marked traffic lane in violation of Minn.Stat. § 169.18, subd. 7(a) (2000). Because we determine that the stop was justified based on reasonable suspicion, we do not address this argument.


author: DANIEL F. FOLEY, Judge.

text:
    STATE of Minnesota, Respondent, v. Scott Patrick MATELSKI, Appellant.
    No. C1-00-660.
    Court of Appeals of Minnesota.
    Feb. 20, 2001.

      Mike Hatch, Attorney General, Natalie E. Hudson, Assistant Attorney General, St. Paul, MN; and Lisa Borgen, Clay County Attorney, Courthouse, Moorhead, MN, for respondent.
    John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by ANDERSON, Presiding Judge, HALBROOKS, Judge, and FOLEY, Judge.
   OPINION

DANIEL F. FOLEY, Judge.

Appellant Scott Matelski challenges his conviction for aiding and abetting a drive-by shooting in violation of Minn.Stat. § 609.66, subd. le(b) (1998) and aiding and abetting a crime committed for the benefit of a gang in violation of Minn.Stat. § 609.229, subd. 2 (1998). Because we conclude that there was sufficient evidence to convict Matelski and the district court properly admitted gang evidence to prove that Matelski aided and abetted his fellow gang member in committing the crime, we affirm. But we modify Matelski’s sentence because he was improperly adjudicated guilty of both a crime and a lesser-included offense of that crime.

FACTS

Appellant, along with Richard Carillo, Rebekah Miller and Laura Zachariason, was driving by Romkey Park, in Moor-head, Minnesota, when someone yelled insults in the direction of their car. Angrily, Carillo drove Miller’s 1988 silver Oldsmobile out of town. He stopped the car on a country road and took out a revolver and an Altoids mint container full of bullets. Carillo and Matelski shot the gun at some bottles and Matelski wiped his fingerprints off of the gun. Matelski and Carillo were both wearing green shirts.

On the way back to town, Carillo stopped the car to speak to a person on the side of the road. Miller testified that the man appeared “Mexican.” Carillo showed the gun to the man and Matelski got out of the car to talk to the man. Miller heard them discussing “Villa Lo-bos.” The four also stopped at a gas station where Carillo and Matelski spoke to another man, unsuccessfully urging him to join them in going to the park to start a confrontation.

The group drove to an area in Romkey Park where five or six persons were playing basketball. One person threw an object into the car, striking Matelski in the lip. Matelski got out of the car to confront the thrower. Carillo, sitting in the driver’s seat of the car, reached across Miller in the passenger seat and shot the gun two or three times across her face. Then Carillo stepped out of the car and shot over the top of the car twice.

After the shooting, Carillo dropped the gun on the ground and Matelski yelled at him to pick it up. Carillo did so and he and Matelski got back in the car. As they were leaving, Carillo and Matelski shouted “Villa Lobos for life,” “that’s what you get,” “next time would be worse,” and some Spanish phrases. In the car, Matel-ski and Carillo told Miller and Zachariason to “keep [their] stories straight” should they get caught.

The group went to Miller’s apartment where Matelski changed out of his green shirt into Miller’s jersey. After changing vehicles, from Miller’s car to Zacharia-son’s, the four drove past the park and then went to a friend’s apartment to watch the ten o’clock news. The police apprehended all four as they were leaving the apartment. Both Carillo and Matelski initially denied any involvement in the shooting.

After Miller consented to a search of her car and apartment, police found the Altoids tin and the gun in her dresser drawer. Zachariason testified that she had seen Carillo place the gun into the drawer. Miller later found Matelski’s shirt and a hat with the initials “VL” and a five-pointed star on it and gave them to the police. Miller testified that Carillo was a member of the Villa Lobos gang and that his nickname was “Hi-C.” Matelski’s “gang” nickname was “Half-Pint.”

With a warrant, police searched Matel-ski’s apartment and recovered (1) a Green Bay Packers hat with “VL,” a five-pointed star, and the name “Half-Pint” written on it; (2) another hat with a six-pointed star with a pitchfork pointing through it and the abbreviation “VL” written on it; (3) a martial-arts weapon shaped like a pitchfork; (4) a tool box with the name “Villa Lobos” written inside of it; (5) a pair of shorts with the abbreviation “VL” and other gang symbols written on them; (6) a pair of pants with writing stating “Half-Pint,” and “VL,” and showing pitchforks and five-pointed stars; and (7) ten photographs depicting, among other things, Ma-telski, Carillo, and others wearing green clothing and showing hand signals.

Clay County Sheriffs Detective Tim Griffin, a member of the Northwest Gang Strike Force, testified at trial that the abbreviation “VL” and the five-pointed star symbolize the Villa Lobos criminal gang. Moorhead Police Officer Jay Philli-pi, also a gang-strike-force member, testified that he had known Carillo and Matel-ski by their nicknames, Hi-C and Half-Pint, for some time. He also stated that an informant had told him that Hi-C and Half-Pint were involved in the crime. He testified that the hand signals are “gang” hand signals, that gang members often wear identifying colors and, that Villa Lo-bos gang members wear green clothing to identify that they are members of the Villa Lobos gang. He also testified that the pitchforks symbolize the Villa Lobos gang’s disrespect for another gang.

Clay County Sheriffs Lieutenant Jerome Thorsen, also a gang-strike-force member, named Matelski as a member of the Villa Lobos gang. He further testified that he has documented 86 members of the Villa Lobos gang, that the gang members collectively and individually engage in a pattern of criminal behavior, and that gang members other than Matelski and Carillo “have been involved in and some ⅞ * * have been arrested and convicted of crimes including aggravated robbery, assault, burglary, theft * * * [a]nd numerous drug offenses.” Thorsen also testified about five of the ten criteria that the strike force uses to determine gang membership: (1) admission to being a gang member; (2) association with known gang members; (3) having tattoos indicating gang membership; (4) wearing gang symbols; and (5) inclusion in photographs with known gang members or in photographs depicting persons giving gang hand signals. The district court admitted this evidence and testimony over defense counsels’ objections.

Prior to trial, Matelski offered to stipulate that he was a member of the Villa Lobos, a criminal street gang. The district court refused to accept Matelski’s offer to stipulate. After a three-day trial in which Matelski and Carillo were tried together, the jury found the co-defendants guilty. The district court adjudicated Ma-telski guilty of both aiding and abetting a drive-by shooting and aiding and abetting a crime committed for the benefit of a gang, sentenced Matelski to 60 months in prison for aiding and abetting a crime committed for the benefit of a gang, and stayed imposition of the sentence for the aiding and abetting a drive-by-shooting charge. This appeal followed.

ISSUES

I. Was the evidence sufficient to convict Matelski?

II. Did the district court abuse its discretion in refusing to accept Matelski’s stipulation that he was a member of the Villa Lobos gang?

III. Did the district court err in adjudicating Matelski guilty of both aiding and abetting a crime committed for the benefit of a gang and aiding and abetting a drive-by shooting?

ANALYSIS

I.

Matelski argues that the evidence of his guilt was legally insufficient. On appeal, a reviewing court performs a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient for the jurors to reach their verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). A verdict will not be disturbed

[i]f the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that defendant was proven guilty of the offense charged.

State v. Norgaard, 272 Minn. 48, 52, 136 N.W.2d 628, 632 (1965). The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Steinbuch, 514 N.W.2d 793, 799 (Minn.1994).

A person may be held liable for another’s crime “if the person intentionally aids, advises, hires, counsels or conspires with * * * the other to commit the crime.” Minn.Stat. § 609.05, subd. 1 (1998). A defendant is criminally liable for aiding and abetting if he or she played a knowing role in the crime and took no steps to “thwart its completion.” State v. Ostrem, 535 N.W.2d 916, 924 (Minn.1995). But mere presence at the crime scene “does not alone prove that a person aided or abetted, because inaction, knowledge or passive acquiescence does not rise to the level of criminal culpability.” Id. (citing State v. Russell, 503 N.W.2d 110, 114 (Minn.1993)). While active participation in the offense’s overt act is not required, a person’s presence, companionship, and conduct before and after an offense are circumstances from which a person’s criminal intent may be inferred. Id. (citing State v. Ulvinen, 313 N.W.2d 425, 428 (Minn.1981)).

Several facts support the jury’s conclusion that Matelski knew that Carillo planned on shooting the gun in the park in retaliation for the insults they had suffered earlier. First, Matelski, an admitted gang member, was driving around with Carillo, another gang member, when they were insulted in the park. The group then went to a rural area to practice shooting the gun. Before returning to the park, they showed the gun and spoke of Villa Lobos to one person and told another person that they planned on starting a confrontation. Witnesses testified that Matel-ski was present when Carillo shot the gun. After the shooting, Matelski yelled to Car-illo to pick up the gun and they both yelled things having to do with Villa Lobos. Also after the shooting, Matelski changed clothing, discarding his green shirt, which may have been indicative of Villa Lobos gang membership. The group also changed cars before driving by the park where the shooting occurred. Matelski and Carillo initially denied their involvement in the shooting and told Miller and Zachariason to “keep [their] stories straight” if either got caught. All of these actions reasonably support the jury’s conclusion that Ma-telski knew of Carillo’s plan to shoot the gun in the park and that he aided in that effort.

II.

Matelski further argues that the district court abused its discretion in refusing to accept his pretrial offer to stipulate that he is a member of the Villa Lobos criminal gang. Instead, over objection, the district court admitted extensive gang evidence and testimony that Matelski contends is cumulative and unfairly prejudicial.

The district court has discretion in the admissibility of evidence and its ruling will not be reversed absent an abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn.1989). Upon review, the defendant has the burden of proving that the district court abused its discretion in admitting the evidence and that the defendant was prejudiced. State v. Willis, 559 N.W.2d 693, 698 (Minn.1997). Reversal is warranted only when there is any reasonable doubt the result would have differed had the evidence not been admitted. Id. at 699. For two reasons, we conclude that the district court did not abuse its discretion in refusing to accept Matelski’s offer to stipulate that he was a member of Villa Lobos, a criminal street gang.

First, to prove the underlying crime of aiding and abetting, the state needed to present evidence of Matelski and Carillo’s shared gang membership. Committing a crime for the benefit of a gang is a substantive offense. Minn.Stat. § 609.229, subd. 2 (1998); State v. Chuon, 596 N.W.2d 267, 270 (Minn.App.1999), review denied (Minn. Aug. 25, 1999). A “criminal gang” is a group of three or more persons that

(1) has, as one of its primary activities, the commission of one or more offenses listed in section 609.11, subdivision 9; (2) has a common name or ⅜ * * identifying sign or symbol; and (3) and includes members who individually or collectively engage in or have engaged in a pattern of criminal activity.

Minn.Stat. § 609.229, subd. 1 (1998). Minn.Stat. § 609.11, subd. 9 (1998) includes the crime of drive-by shooting.

To convict Matelski of aiding and abetting a crime committed for the benefit of a gang, the state needed to prove first that Matelski aided and abetted Carillo and second, that Matelski committed his crime for the benefit of a gang. To prove that Matelski aided and abetted Carillo, the state needed to prove that Matelski had a knowing role in the crime. See Ostrem, 535 N.W.2d at 924. That knowing role can be inferred from presence, companionship, and conduct before and after the crime. Id. To further prove that Ma-telski committed a crime for the benefit of a gang, the state needed to prove that the Villa Lobos is a criminal gang, that Matel-ski is a member of that gang, and that he committed the crime for the benefit of the gang. See Minn.Stat. § 609.229, subd. 1 (1998); Chiton, 596 N.W.2d at 269.

Gang-related evidence, including evidence of criminal activity by other gang members, is admissible to prove that the defendant committed a crime for the benefit of a gang. See Chuon, 596 N.W.2d at 270. Here, the gang evidence is essential to proving that Matelski aided and abetted Carillo. Although Matelski’s offer to stipulate may have helped prove that the crime was committed for the benefit of a gang, the gang evidence and testimony was needed to show that Matelski and Carillo were often in each other’s presence, were companions and participated in gang activities together. These facts, in turn, help establish that Matelski aided and abetted Carillo’s crime.

Second, even if the gang evidence was not needed to help prove Matel-ski’s knowing role in Carillo’s crime, a criminal defendant’s offer to stipulate generally does not take away the state’s right to offer evidence. State v. Davidson, 351 N.W.2d 8, 10 (Minn.1984). A defendant may not be allowed to unilaterally control the need for relevant evidence by offering to stipulate, especially where the evidence bears upon other issues not covered by the stipulation. Id. But where the potential for unfair prejudice substantially outweighs the evidence’s probative value, there are exceptions to the general rule. Id. at 11; see also Minn.R.Evid. 403.

Minnesota courts have recognized that a district court must accept a defendant’s stipulation to prior convictions in certain cases unless the facts underlying the prior conviction are relevant to some disputed issue. See Davidson, 351 N.W.2d at 11 (defendant may stipulate to being convicted felon for purposes of trial for felon in possession of handgun); State v. Berkelman, 355 N.W.2d 394, 397 (Minn.1984) (in gross misdemeanor DWI prosecution, defendant’s offer to stipulate to prior convictions prevents admission of evidence); State v. Clark, 375 N.W.2d 59, 62 (Minn.App.1985) (defendant charged with aggravated DWI permitted to avoid evidence of prior conviction for driving after revocation).

Matelski would like this court to add to the Berkelman exception and declare that a district court-must accept a criminal defendant’s offer to stipulate to being a gang member when being tried for a crime committed for the benefit of a gang. But outside of the prior conviction exceptions discussed, district courts generally do not abuse their discretion in not allowing defendants to preclude prosecution evidence by an offer to stipulate. See, e.g., State v. Durfee, 322 N.W.2d 778, 785-86 (Minn.1982) (defense could not stipulate that victim suffered great bodily harm so that photographs would not be admitted into evidence); State v. Barsness, 473 N.W.2d 325, 328 (Minn.App.1991) (state not required to accept stipulation as to cause of death of infant so as to prevent photographs from being admitted into evidence), review denied (Minn. Aug. 29, 1991). There is no reason to make an exception here and allow persons charged with committing a crime for the benefit of a gang to stipulate to membership in a criminal gang. Accordingly, we conclude that the district court did not abuse its discretion in refusing Matelski’s offer to stipulate that he was a member of a criminal gang.

III.

Finally, Matelski argues that because aiding and abetting a drive-by shooting is a lesser-included offense of aiding and abetting a crime committed for the benefit of a gang, the aiding and abetting a drive-by shooting conviction should be vacated. The state concedes that aiding and abetting a drive-by shooting is a lesser-included offense of aiding and abetting a crime committed for the benefit of a gang and that it was error for the district court to adjudicate Matelski guilty of both crimes. We agree.

Under Minnesota law, a defendant “may be convicted of either the crime charged or an included offense, but not both.” Minn.Stat. § 609.04, subd. 1 (1998). “A crime necessarily proved if the crime charged were proved” is a lesser-included offense. Id. Thus, because aiding and abetting a drive-by shooting is a lesser-included charge of aiding and abetting a crime committed for the benefit of a gang, Matelski may only be formally adjudicated guilty of one of those crimes. The proper procedure for the district court to follow in this situation is to adjudicate formally and impose sentence on one count only. State v. LaTourelle, 343 N.W.2d 277, 284 (Minn.1984). If the adjudicated conviction is later vacated for a reason not relevant to the remaining conviction, the remaining but not adjudicated conviction may be formally adjudicated and sentence may be imposed. Id.

Accordingly, we vacate Matelski’s conviction for aiding and abetting a drive-by shooting. See State v. Hackler, 532 N.W.2d 559, 559 (Minn.1995) (order op.) (affirming defendant’s conviction for first-degree assault but vacating conviction of second-degree assault because that crime is lesser-included offense of first-degree assault).

DECISION

Because there is sufficient evidence for the jury to convict Matelski of aiding and abetting a crime committed for the benefit of a gang, and the district court did not abuse its discretion in admitting necessary gang-related evidence and testimony, we affirm. But because the district court erred in adjudicating Matelski guilty of both the crimes of aiding and abetting a crime committed for the benefit of a gang and aiding and abetting a drive-by shooting, which is a lesser-included offense of aiding and abetting a crime committed for the benefit of a gang, we vacate Matelski’s conviction for aiding and abetting a drive-by shooting.

Affirmed as modified.

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


author: GORDON W. SHUMAKER, Judge

text:
    CENTRAL SPECIALTIES, INC., Relator, v. COMMISSIONER OF ECONOMIC SECURITY, Respondent.
    No. C4-00-989.
    Court of Appeals of Minnesota.
    Feb. 27, 2001.

      Kyle E. Hart, Dereck R. Brower, Fa-byanske, Westra & Hart, P.A., Minneapolis, MN, for relator.
    Kent E. Todd, St. Paul, MN, for respondent-commissioner.
    Considered and decided by WILLIS, Presiding Judge, SHUMAKER, Judge, and HUSPENI, Judge.

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

   OPINION

GORDON W. SHUMAKER, Judge

Relator Central Specialties, Inc. challenges the commissioner’s representative’s determination 'that Minn.Stat. § 268.057, subd. 7(a) (1998), permits adjustment without interest where the adjustment was for a tax paid under protest. We affirm.

FACTS

Relator Central Specialties, Inc. was one of four companies owned by a group of family members. When three of the companies laid off most of their employees, relator hired many of them to work for it. That prompted the Commissioner of Economic Security to treat relator as a successor to those companies and to charge their reemployment experience ratings to relator. The commissioner then redetermined relator’s unemployment tax rate and assessed an additional $500,161. Relator paid the tax under protest. Ultimately, this court held that relator was not the successor to the other three companies and that the commissioner could not charge their experience rating to relator. Central Specialties, Inc. v. Commissioner of Econ. Sec., C2-98-2027, 1999 WL 326197 (Minn.App. May 25, 1999), review denied (Minn. Aug. 17, 1999).

After our decision, relator asked the department of economic security to refund the erroneously paid tax and to include interest. Characterizing the matter as a “processing error,” the commissioner adjusted relator’s unemployment tax account by refunding $500,094.65, without interest. Upon administrative review, the commissioner’s representative ruled that the law does not provide for interest on an employer’s overpayment of a tax when the department refunds the overpayment. Contending that it is entitled to interest on the overpayment, relator appeals.

ISSUE

Minn.Stat. § 268.057, subd. 7(a) (1998), provides that the department of economic security does not have to pay interest on a refund of an unemployment compensation tax payment when the employer applies for the refund and the commissioner determines that the employer paid the tax in error. Does this statute apply when the court of appeals, rather than the commissioner, determines the error that caused a tax overpayment but the commissioner determines the refund to which the employer is entitled?

ANALYSIS

The commissioner’s representative’s findings will not be disturbed if there is evidence reasonably tending to support them. Tuff v. Knitcraft, 526 N.W.2d 50, 51 (Minn.1995). We are not bound by the commissioner’s representative’s conclusions of law. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn.1989). Statutory construction and interpretation present a question of law which we review de novo. See St. Otto’s Home v. Minnesota Dep’t of Human Servs., 437 N.W.2d 35, 39-40 (Minn.1989) (requiring de novo review of agency decision involving questions of law); Arvig Tel. Co. v. Northwestern Bell Tel. Co., 270 N.W.2d 111, 114 (Minn.1978) (explaining statutory interpretation presents legal question).

Courts interpret statutes to ascertain and effectuate legislative intent. Minn.Stat. § 645.16 (1998); see also Klein Bancorporation, Inc. v. Commissioner of Revenue, 581 N.W.2d 863, 866 (Minn.App.1998), (noting that “[w]e presume plain and unambiguous statutory language manifests legislative intent.”) (citation omitted), review denied (Minn. Sept. 22, 1998). When a statute is free of ambiguity, we look only at its plain language. Turna v. Commissioner of Econ. Sec., 386 N.W.2d 702, 706 (Minn.1986).

The commissioner contends that the law pertaining to refunds of unemployment compensation taxes controls here:

If an employer makes an application for a credit adjustment of any amount paid as taxes or interest thereon * * *, and the commissioner determines that the payment or any portion was erroneous, the commissioner shall make an adjustment and issue a credit without interest. If a credit cannot be used, the commissioner shall refund, without interest, the amount erroneously paid. The commissioner, on the commissioner’s own motion, may make a credit adjustment or refund under this subdivision.

Minn.Stat. § 268.057, subd. 7(a) (1998).

Relator argues that the statute does not apply because (1) relator did not make an “application” for an adjustment and (2) the commissioner never determined the erroneous payment. Rather, relator urges, it made the payment under protest and the court of appeals determined the erroneous payment.

The statute contains no special definition of “application,” nor does it prescribe any particular form or method of seeking an adjustment. In its letter of February 6, 1998, relator protested the commissioner’s redetermination of relator’s tax and requested specific adjustments if relator succeeded on appeal. We believe this letter fits the ordinary use of the word “application.” The fact that relator is protesting the tax does not change our conclusion. The statute deals with the procedure for claiming credits and refunds for erroneous payments. A protest of a tax determination coupled with the reason for the protest would seem to be a normal, logical component of an application for a credit adjustment.

In the previous appeal, we held that the evidence did not support a conclusion that there was a sufficient interrelationship among the four companies to justify a transfer of the experience ratings of three of them to relator. Without the experience ratings of three other companies, relator wo(uld be liable for a lower tax. We did not deal with the issue of the amount of tax, if any, that relator was liable for.

After we held that the basis for relator’s experience rating was improper, the commissioner recalculated the tax and determined that relator was entitled to a refund of a portion of the tax paid. Thus, the commissioner participated in the determination of the erroneous payment and we believe that participation satisfies the statute that evinces a legislative intent not to require interest on refunds of erroneously collected unemployment compensation taxes.

DECISION

Because the terms of Minn.Stat. § 268.057, subd. 7(a) (1998), prohibit payment of interest on over-payments of taxes, relator Central Specialties, Inc. is not entitled to payment of interest for taxes that it over-paid under protest.

Affirmed.


author: KALITOWSKI, Judge RANDALL, Judge

text:
    Lawrence K. DAVIES, on behalf of himself and all others similarly situated, Respondent, v. WEST PUBLISHING COMPANY, et al., Appellants.
    No. C1-00-1324.
    Court of Appeals of Minnesota.
    March 6, 2001.

      Guy M. Burns (admitted pro hac vice), Johnson, Blakely, Pope, Bokor, Ruppel & Burns, Tampa, FL; and Thomas J. Lyons, Sr., Thomas J. Lyons, Jr., Thomas J. Lyons & Associates, P.A., Maplewood, MN, (for respondent).
    Vernon J. Vander Weide, Thomas V. Seifert, Head, Seifert & Vander Weide, Minneapolis, MN, (for appellants).
    Considered and decided by KALITOWSKI, Presiding Judge, RANDALL, Judge, and CRIPPEN, Judge.
   OPINION

KALITOWSKI, Judge

This case involves respondents’ contention that West Publishing Company, through an association it controlled, improperly distributed the association’s surplus funds to all West employees and not just to employees who deposited funds with the association. The sole issue on this appeal involves the application of a six-year statute of limitations to West’s allegedly improper distributions. In determining that the statute of limitations did not apply, the district court certified three questions to this court as important and doubtful pursuant to Minn. R. Civ. App. P. 103.03(h) (2000): Does repealed Minn.Stat. § 50.12 (repealed 1995) bar application of a statute of limitations? Does the continuing violation doctrine toll the running of the statute of limitations? Have respondents presented sufficient evidence of equitable estoppel to prevent application of the statute of limitations? This court has rephrased the three certified questions to accurately reflect the law.

FACTS

West Publishing Employees’ Preferred Stock Association (WPSA) was created in 1912 by West Publishing Company (West) to provide West employees an opportunity to voluntarily deposit part of their paychecks in an account managed by WPSA. At all times, those with accounts were promised and paid a guaranteed rate of return. Those who chose to participate could withdraw part or all of the money they deposited at any time. Members received quarterly statements that provided their current balance and reported any account activity.

The West employee handbook informed employees that all full-time West employees were members of WPSA, regardless of whether they chose to make deposits in the saving plan. When employees left West they were paid the balance on their accounts, if any, plus guaranteed interest that had accrued to that date.

WPSA was governed by six officers and two other members, all West executives, who were elected at WPSA’s annual meetings. It is undisputed that WPSA members received notice of WPSA’s annual meeting and were allowed to attend. Members received one vote for every $10 in deposits. At the annual meeting, the treasurer presented a statement that included information on WPSA’s investments, members’ deposits, and its reserve or surplus. The evidence in the record indicated that no one had ever asked for the minutes from the annual meetings, but that if asked, the treasurer would have provided any member with a copy.

Over time WPSA accumulated a surplus. Beginning in January of 1967, the WPSA governing board began making distributions from the surplus to all full-time West employees on a per capita basis, regardless of whether they had deposits with WPSA. On 16 separate occasions, WPSA made payments from surpluses to West employees in the same fashion, typically, in the amount of $160 or $200 per employee. The decision on the time and amount of the distribution was based on a number of variable criteria. There was no evidence that questions about the distributions were raised at any of the annual meetings.

WPSA included a letter with each distribution informing employees that all full-time West employees were members of WPSA, that a special distribution was being paid to all members in the same amount, that the special distribution was attributable to successful investment and management of WPSA funds, and that no special distribution could be guaranteed in the future. The last of 16 distributions took place on November 29,1996.

After West was purchased by The Thomson Corporation, the WPSA governing board decided to dissolve and terminate WPSA. At this time, WPSA had a surplus of approximately $8.6 million. The Minnesota Department of Commerce, pursuant to a consent decree with West, requested that WPSA pay out all funds on deposit and distribute the surplus in an equitable manner.

Subsequently respondent Lawrence K. Davies filed a lawsuit to contest the distributions that were paid to all full-time West employees by WPSA from January 1967 to November 1996, claiming that the distributions should have been made only to employees with funds on deposit with WPSA. The district court certified the case as a class action that eventually included all employees of West who had funds on deposit with WPSA at any time between January 20, 1967, and July 31, 1999. The district court denied summary judgment on the limited issue of whether the six-year statute of limitations barred the class members’ challenge to 15 of the distributions and certified to this court three questions concerning application of the statute of limitations.

' ISSUES

1. Are the certified questions important and doubtful?

2. Does repealed Minn.Stat. § 50.12 (repealed 1995), which applied to claims “for deposits,” apply to claims by members of an unincorporated voluntary association against their corporate employer for alleged breach of fiduciary duty arising from the distribution of surplus money that exceeded member deposits and guaranteed interest?

3. Does the continuing violation doctrine toll or extend the six-year statute of limitations of Minn.Stat. § 541.05, subd. 1(1) (2000), for a claim for breach of fiduciary duty alleging improper distributions made over a 30-year period?

4. Is there evidence in the record to prove the necessary elements of equitable estoppel so as to toll the running of the six-year statute of limitations?

ANALYSIS

I.

Respondents first contend that the district court’s certified questions are not “important and doubtful.” This court may hear an appeal from a denial of a motion for summary judgment “if the trial court certifies that the question presented is important and doubtful.” Minn. R. Civ.App. P. 103.03(h) (2000); Jostens, Inc. v. Federated Mut. Ins. Co., 612 N.W.2d 878, 883 (Minn.2000). Whether a question is important and doubtful raises a legal question and is subject to de novo review by this court. Jostens, 612 N.W.2d at 883.

In determining if a question is important, we balance a number of factors. Id. at 884. A question is increasingly important if it has statewide impact, reversal is likely, lengthy proceedings will be terminated, and a district court’s incorrect ruling will inflict substantial harm on the parties. Id. A question is decreasingly important if it will be affirmed, a trial will moot the issue, reversal will not terminate the action, and reversal would not relieve the parties of a significant burden. Id. But each factor does not warrant equal consideration. Id. “[A] great deal of importance should be placed on whether reversal of the question will terminate the proceedings.” Id.

Here, while our decision on the three certified questions presented does not terminate the proceedings, our application of the six-year statute of limitations invokes a number of the balancing factors that favor a finding of increasing importance. By reversing the district court and applying the statute of limitations, 15 of the 16 distributions will no longer be part of this litigation. This will greatly reduce the length and complexity of the proceedings and substantially reduce the burden appellants would otherwise face of defending distributions that took place over a 30-year period. We thus conclude the issues presented here are important.

“A question is properly certified as doubtful if there is no controlling precedent.” Id. at 884-85 (citation omitted).

That the question is one of first impression is not, however, of itself sufficient to justify certification as doubtful; the question should be one on which there is substantial ground for a difference of opinion.

Id. (quotation omitted). Applying this standard, the questions presented are doubtful.

The first question involves the applicability of repealed Minn.Stat. § 50.12 (repealed 1995). There are no cases discussing section 50.12, and the statutory language was not written to deal with the unique situation presented here. The second and third questions deal with the application of the continuing violation doctrine and equitable estoppel. Although there are cases discussing the application of both doctrines, no case is controlling, and their applicability to the facts here is in doubt. Thus, we conclude that all three questions raise issues of first impression, the resolution of which is subject to a difference of opinion.

II.

Appellants contend the district court erred in finding that Minn.Stat. § 50.12, repealed in 1995, is a bar to their statute-of-limitations defense. Application of a statute to the undisputed facts of a case involves a question of law, and the district court’s decision is not binding on this court. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998) (holding that this court reviews de novo the district court’s decision on summary judgment based on the application of a statute).

The former section 50.12 stated:

The statutes limiting the time for the commencement of actions shall have no application to actions brought by depositors, their representatives, or assigns against savings banks for deposits therein.

This statute specifically references savings banks. And while respondents meet the statutory definition of depositors by virtue of their accounts with funds on deposit with WPSA, it is not clear that West qualifies as a “savings bank.” But even if West comes under the statute because of the actions of WPSA, respondent’s lawsuit does not seek to recover deposits, and therefore section 50.12 does not apply. The plain language of Minn.Stat. § 50.12 indicates a legislative intent to assure that depositors not be deprived of money they deposited in a savings bank as a result of the application of a statute of limitations. Here, it is undisputed that all persons who deposited money with WPSA, regardless of whether they remained employees of West, received all money they deposited, plus the agreed-upon interest on their deposits. This action involves respondents’ claim for surplus money, resulting from investments, that exceeded the guaranteed interest returned on deposits. Because we conclude that respondents’ claim for this surplus money is not an action “for deposits therein,” Minn.Stat. § 50.12 does not apply.

III.

Appellants argue that the district court erred in finding that the 16 distributions paid by WPSA were part of a continuing course of conduct, thereby tolling the statute of limitations. The application of law to stipulated facts is a question of law, which this court reviews de novo. Morton Bldgs., Inc. v. Commissioner of Revenue, 488 N.W.2d 254, 257 (Minn.1992).

The continuing violation doctrine is most commonly applied in discrimination cases involving wrongful acts that manifest over a period of time, rather than in a series of discrete acts. See Sigurdson v. Isanti County, 448 N.W.2d 62, 66-67 (Minn.1989); Giuliani v. Stuart Corp., 512 N.W.2d 589, 595 (Minn.App.1994). Contrary to appellants’ assertion, the doctrine has been applied outside the employment discrimination context. Northern States Power Co. v. Franklin, 265 Minn. 391, 397, 122 N.W.2d 26, 28-29 (1963) (trespass); State Dep’t of Labor & Indus. v. Wintz Parcel Drivers, Inc., 555 N.W.2d 908, 912 (Minn.App.1996) (workers’ compensation coverage), review granted in part, decision modified, 558 N.W.2d 480 (Minn.1997). When the doctrine is applied, the final act is used to determine when the statute-of-limitations period begins for the entire course of conduct. Sigurdson, 448 N.W.2d at 66.

No case has applied the continuing violation doctrine to a fact situation at all similar to this case. Moreover, appellant contends that because respondents allege a breach of fiduciary duty, this action sounds "in contract rather than tort, and the doctrine has no application. But even if we were inclined to extend application of the doctrine to a claimed breach of fiduciary duty, we conclude that the alleged wrongful acts here are not a course of continuing conduct, but rather 16 separate actions each of which allegedly damaged respondents.

We find instructive the supreme court’s application of the statute of limitations in Toombs v. Daniels, 361 N.W.2d 801 (Minn.1985). Toombs involved an adopted child’s claims concerning income distributions she did not receive from a family trust. Id. at 803. In Toombs, the Minnesota Supreme Court held that

the statute of limitations as to the various income distributions over the years began to run as to each distribution when the right to receive the particular payment [was not contested].

Id. at 810.

Here, as in Toombs, distributions were paid out over a period of years and WPSA depositors did not contest those distributions at the time they were made. Moreover, because WPSA’s surplus was distributed over 30 years, in 16 separate and distinct payments, it cannot be characterized as continuous. A letter explaining that distributions were not guaranteed in the future accompanied each distribution. The distributions were not paid out according to a set time schedule, and the decision to make each distribution was made separately by the WPSA governing board. In addition, the decision to pay the distributions was contingent on unpredictable variables, including the amounts of anticipated withdrawals and deposits and the success of WPSA investments. We conclude that even if the continuing violation doctrine could apply here, because each distribution was a separate and distinct act that could have been challenged by'respondents, the doctrine does not toll application of the six-year statute of limitations.

IV.

At issue with regard to the third certified question is the doctrine that a party may be barred from asserting a statute of limitations defense if its conduct satisfies the elements of equitable estop-pel. Rhee v. Golden Home Builders, 617 N.W.2d 618, 621 (Minn.App.2000). Generally, estoppel presents a question of fact for the jury unless only one inference can be made from the facts. Drake v. Reile’s Transfer & Delivery, Inc., 613 N.W.2d 428, 434 (Minn.App.2000). Here, appellants contend the district court erred in failing to hold that the doctrine of equitable es-toppel does not apply as a matter of law because respondents failed to present facts to prove the necessary elements. We agree.

One of the elements necessary to establish equitable estoppel is a misrepresentation. Transamerica Ins. Group v. Paul, 267 N.W.2d 180, 183 (Minn.1978); see Rhee, 617 N.W.2d at 621 (holding that misrepresentation can include silence or failure to disclose material fact). Here, we conclude there are no facts in the record to establish a misrepresentation with regard to WPSA’s distribution of surplus funds. The record indicates that all WPSA depositors received letters with each distribution, informing them that (1) the distributions were being paid out of money earned from successful investment of WPSA funds; (2) all full-time West employees were members of WPSA; and (3) the same distribution amount was being paid to all WPSA members. Thus, all members of respondent class had notice that all full-time West employees were receiving the same amount of money, earned from WPSA investments, regardless of whether they had deposited money with WPSA. These undisputed facts lead us to conclude as a matter of law that there was no actionable misrepresentation regarding the nature or source of the challenged distributions. Therefore, the doctrine of equitable estoppel does not apply to toll the statute of limitations.

DECISION

The three questions presented by the district court pursuant to Minn. R. Civ. P. 103.03(h) are important and doubtful. Our answers to the certified questions are: (1) repealed Minn.Stat. § 50.12, which barred the application of a statute of limitations to actions “for deposits therein,” does not apply to an action by depositors who received all the funds they deposited plus interest and are only claiming a right to additional funds generated by investments that exceeded the guaranteed interest on their deposits; (2) the continuing violation doctrine does not apply to toll the statute of limitations for an action challenging distributions paid out over 30 years, in 16 separate transactions, where the distributions, which were never contested, were neither promised, guaranteed, nor made at regular time intervals, and where the decision to distribute was made based on a number of variable criteria; and (3) the doctrine of equitable estoppel does not apply as a matter of law where there is no evidence of misrepresentation.

Certified questions answered in the negative.

RANDALL, Judge

(dissenting)

I respectfully dissent. I agree with the certification, but I also agree with the district court’s finding that defendant/appellant’s statute of limitations defense is inapplicable.

In its May 1, 2000, order, the district court’s accompanying memorandum stated in relevant part:

The Court rules that Defendants’ statute of limitations defense is inapplicable. The Court makes this ruling on two alternative theories 1) Former Minn. Stat. § 50.12 is applicable here and serves to bar the statute of limitations defense; and alternatively, 2) Minn.Stat. § 541.05 may apply, however, * *⅜ * because Defendants’ actions constitute a continuing course of action, the six year period did not start to run until the last distribution made in 1998.

Addressing Minn.Stat. § 541.05, the district court said in relevant part:

Second, this Court finds that WPSA’s manner of operation throughout the approximately 30 years of its existence where it made pro-rata distributions to all employees, may be characterized as a continual, fluid process of non-disclosure to its depositors. The Court finds that the series of distributions of moneys from the WPSA fund constitute a continuing course of conduct, rather than an isolated series of events. Improper distributions continued in a systematic, periodic pattern from 1967 until the last distribution approximately 30 years later in 1996. The Court agrees that Minnesota recognizes a “continuing torts doctrine” under which a tort is deemed continuous as opposed to a one-time event, and the limitations period does not begin to run until the date the tor-tious conduct ends. Hence, here since the 16 all-employee distributions started in 1967 and ended in 1996, no statute of limitations can run until the date of the last distribution, which was on November 29,1996.

The district court correctly noted that the statute of limitations could not begin to run until November 1996, and because the plaintiffs brought their action in 1999, it was easily within the six-year limit.

The majority acknowledges that the continuing violation doctrine is not confined (although commonly applied) to discrimination cases. I find nothing negative in the Minnesota Supreme Court case of Toombs v. Daniels, 361 N.W.2d 801 (Minn.1985), because Toombs was not a continuing violation case. There is no indication in the record that the plaintiff sought application of the doctrine. Toombs, actually, is an excellent example of the potentially harsh results of not applying the doctrine; it is not authority for failing to do so.

Toombs examined two separate limitations, neither relevant to the instant case. Under Minn.Stat. § 541.05, subd. 1(6), which limits fraud claims, the plaintiff could only reach trust distributions that occurred in the six years prior to the claim. Toombs, 361 N.W.2d at 810. It is 'precisely because the continuing violation doctrine was not argued or applied that the plaintiff could not reach earlier fraudulent distributions. The other limitation considered in Toombs was § 541.05, subd. 1(7), which involves trusts. The majority cites language considering when the clock starts ticking for such claims. These citations are not “instructive” because the statute of limitations has certainly run in the case at bar (assuming § 50.12 is inapplicable). Respondent admits this. This is why he asserts (as the plaintiff in Toombs should have) the continuing violation doctrine. Citations concerning when a clock starts ticking are of no use when everyone agrees time is up.

In the final analysis, I conclude, as the district court did, that nonstop conduct occurring over “x” years, comprising “x” payments is, as a matter of law, continuous.

I dissent and would remand this case to the district court for further proceedings.


author: CRIPPEN, Judge.

text:
    Travis Scott SCHUSTER, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
    No. C0-00-1203.
    Court of Appeals of Minnesota.
    March 13, 2001.

      Barry L. Hogen, Golden Valley, MN, for appellant.
    Mike Hatch, Attorney General, Joel A. Watne, Michael R. Pahl, Assistant Attorneys General, St. Paul, MN, for respondent.
    Considered and decided by CRIPPEN,, Presiding Judge, RANDALL, Judge, and FOLEY, Judge.

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

   OPINION

CRIPPEN, Judge.

Questioning the trial court decision to sustain revocation of his drivers’ license, appellant Travis Schuster contends that the revocation rests on incriminating evidence obtained as a result of an unlawful stop of his vehicle. Because the circumstances of the case show a lawful police stop, notwithstanding the fact that a criminal offense was not occurring at the time appellant was stopped, we affirm. On the present record, we also affirm the trial court’s approval of the use the Intoxilyzer 5000, Series 68, machine.

FACTS

Late one evening in January 2000, Freeborn County Deputy Sheriff Charles Ma-lepsy responded to a harassment report by Matt Springsteel. Springsteel complained of two separate incidents of harassment by appellant Travis Schuster earlier that evening — that appellant had stopped his vehicle, a yellow Dodge Dakota pickup truck, yelled at Springsteel and his friends to get out of the road, and exchanged obscenities; and that appellant threatened he would physically hurt Springsteel. Deputy Ma-lepsy was informed earlier that there was an ongoing problem between appellant and Springsteel because Springsteel had a habit of playing music too loudly late at night.

After speaking with Springsteel, Malep-sy located appellant’s vehicle, drove up directly behind the moving vehicle, and activated .his red lights. Appellant turned into a gas station and stopped. The deputy testified that his intentions for the stop were to talk to appellant about the harassment and to ask him not to approach Springsteel directly regarding the loud music. Malepsy testified that he never ticketed or arrested appellant for harassment or disorderly behavior and had no intention to do so.

Having discovered indications of appellant’s intoxication after approaching him, Malepsy arrested appellant for driving under the influence of alcohol.

ISSUES

1. Did the trial court err in determining that the police officer had a lawful reason to stop appellant’s vehicle?

2. Did the court err in permitting the test results of the Intoxilyzer 5000, Series 68, machine?

ANALYSIS

1. Stop

When there is no dispute on the facts, the determination of whether a stop is valid is a legal issue for this court. Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn.1985). In reviewing the legality of a stop, this court must review “the events surrounding the stop and consider the totality of the circumstances” to determine whether the police had a reasonable and objective basis for the stop. State v. Britton, 604 N.W.2d 84, 87 (Minn.2000).

Appellant argues that the trial court erred in admitting evidence of his intoxication because it failed to determine whether Malepsy had a reasonable, articu-lable suspicion that appellant was involved or about to be involved in criminal activity, and that the court improperly created its own standard in determining that the stop was legal. Based upon our review of the record, we conclude that the trial court did hot create a separate test but made a proper determination within the Terry standard.

A stop is lawful if police officers can articulate objective and specific facts that led them, during the course of their investigation, to reasonably suspect the particular person stopped was engaging in criminal activity. Terry v. State of Ohio, 392 U.S. 1, 21-22, 30, 88 S.Ct. 1868, 1880, 1884, 20 L.Ed.2d 889 (1968). Officers, .however, cannot stop a person based on a mere whim or hunch. State v. George, 557 N.W.2d 575, 578 (Minn.1997). But they may make inferences based on their training and experience that would otherwise escape an untrained individual. State v. Cripps, 533 N.W.2d 388, 391 (Minn.1995).

In this case, where a police officer stopped a moving vehicle driven by an individual suspected of an ongoing activity that the officer is expected to investigate in the course of his duties, we rely on Terry. Terry raised the issue of the legality of stopping a person based on a police officer’s investigatory observations and suspicions that the person was planning to commit a crime. Terry, 392 U.S. at 4-5, 88 S.Ct. at 1871. Although most stops involve ongoing criminal activity, nothing in Terry suggests that such circumstances must exist for a stop to be valid. In Terry, a police officer observed several men acting as if they were performing reconnaissance of a certain store for a burglary. Id. at 5-6, 88 S.Ct. at 1871-72. Without any other information as to ongoing criminal activity except for his knowledge and experience of patrolling that particular area, the police officer stopped the men to investigate their purpose for being in the area. Id. at 7, 88 S.Ct. at 1872.' The stop and subsequent frisk were held to be lawful because the officer had objective and articulable suspicions of potential criminal wrongdoing based on his investigatory observations. Id. at 30, 88 S.Ct. at 1884-85.

Likewise, Deputy Malepsy articulated a particular and objective basis for stopping appellant. Appellant was suspected of having engaged in harassing behavior, resulting in a call to police. Appellant and his vehicle were specifically identified. Malepsy stopped appellant’s vehicle in the course of investigating a reported wrongdoing, and he wanted to prevent the occurrence of future misconduct. Malepsy had a particular and objective basis to suspect that appellant had acted wrongfully and that the conduct might be repeated if the officer did not deter a future occurrence. Although it does not specify a particular crime, a harassment complaint does state an activity that could be threatening to the public and that a police officer is and should be expected to investigate. We conclude that the trial court did not create a new standard but made a proper determination within the Terry standard.

2. Intoxilyzer

Appellant argues that the commissioner did not properly approve the Intoxi-lyzer 5000, Series 68, machine because he failed to adopt a formal rule. The Intoxi-lyzer 5000 machine is an “infrared breath testing instrument” that was originally approved by rule in 1985. Minn. R. 7502.0420, subp. 2 (1985). In 1999, the commissioner issued Order No. 101b clarifying that the rule approving the original machine extended to the Intoxilyzer 5000, Series 68, including software upgrades and changes. Both instruments use the same method of infrared spectrometry, and the record includes no evidence demonstrating significant differences between the instruments.

The Minnesota legislature has empowered the commissioner with great flexibility in developing his own rules and programs in order to meet his regulatory objectives. Minn.Stat. § 14.002 (2000). And we defer to an agency’s construction of its own regulations. St. Otto’s Home v. Minnesota Dep’t of Human Servs., 437 N.W.2d 35, 39-40 (Minn.1989). By reason of these matters of law, and in light of the absence of any record to demonstrate the materiality of alterations to the device that have occurred since 1985, we defer to the commissioner’s construction of the original rule in the form of his Order 101b, and as a result, to the commissioner’s conclusion that the content of the order could be determined without employing the formal rulemaking process.

DECISION

The trial court did not err in denying appellant’s request to rescind the revocation of his driving privileges, and the court properly determined the absence of cause shown to subject the commissioner’s Order 101b to the formal rulemaking process.

Affirmed.