author: STRINGER, Justice. PAGE, Justice PAUL H. ANDERSON, Justice

text:
    Douglas Wade KAISER, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. C5-00-807.
    Supreme Court of Minnesota.
    April 18, 2002.

      Deborah K. Ellis, St. Paul, Lisa Lodin Peralta, Minneapolis, for appellant.
    Mike A. Hatch, Minnesota Attorney General, St. Paul, James C. Backstrom, Dakota County Attorney, Phillip D. Proko-powicz, Assistant County Attorney, Hastings, for respondent.
   OPINION

STRINGER, Justice.

Appellant pleaded guilty to a gross misdemeanor offense without being advised that as a consequence of the plea he was statutorily required to register as a predatory offender. Appellant moved to withdraw his guilty plea and the court denied the motion, concluding that the plea was “accurate, voluntary and intelligent.” Appellant then petitioned the court for post-conviction relief arguing inter aha that he would not have pleaded guilty if he had been advised of his duty to register as a predatory offender. The district court denied the petition holding that appellant was not entitled to withdraw his guilty plea because the registration requirement was a collateral, and not a direct, consequence of his guilty plea. The court of appeals agreed, holding that the registration requirement constituted a collateral consequence. We affirm.

Appellant Douglas Wade Kaiser was charged with use of minors in a sexual performance, possession of pictorial representations of minors, providing alcohol to minors, and contributing to the delinquency of a minor. Pursuant to an agreement, he pleaded guilty to gross misdemeanor possession of pictorial representations of minors as defined by Minn.Stat. § 617.247, subd. 4 (1996). At the plea hearing the court stayed imposition of sentence and placed appellant on supervised probation for two years with conditions that included a $1,000 fine and no unsupervised contact with juvenile females. When appellant entered his plea, neither the court nor defense counsel advised him of the duty to register as a predatory offender pursuant to Minn.Stat. § 243.166 (1998), and it was not until a court appearance about two months later that a prosecutor advised appellant and the court that registration was a requirement.

Appellant moved to withdraw his plea pursuant to Minn. R.Crim. P. 15.05 claiming manifest injustice because his attorney had not fully advised him of his rights and had told him he had 90 days to withdraw a guilty plea once made. The district court denied his motion, finding that proper care was taken to ensure that appellant understood his plea and therefore his plea was accurate, voluntary and intelligent.

Appellant then petitioned the district court for postconviction relief arguing that his guilty plea and conviction should be set aside because he was not advised of his duty to register as a predatory offender, which he characterized as the “most onerous, most serious” consequence of the plea, that he received ineffective assistance of counsel, and that there was no factual basis to support his plea. The district court denied relief on all grounds concluding that the registration requirement “is not punishment for a crime, but is merely a safeguard for the community; thus, it is a collateral and not a direct consequence to a plea of ‘guilty.’ ”

The court of appeals affirmed the post-conviction order on each issue, holding that the registration requirement is a collateral consequence of a guilty plea because an intervening act of discretion is required to determine whether to prosecute for failure to register and because the requirement to register is primarily regulatory rather than punitive. Kaiser v. State, 621 N.W.2d 49, 54-55 (Minn.App.), rev. granted (Minn. Mar. 13, 2001). We granted review only on the issue of whether the predatory offender registration requirement is a direct or collateral consequence of a guilty plea.

Appellant contends that the registration requirement is a direct consequence of a guilty plea because the duty to register flows definitely, immediately and automatically from the guilty plea. Further, appellant argues that direct consequences need not relate only to the maximum sentence or fine imposed on a defendant and that whether a sanction is punitive or regulatory in nature is separate from whether it is a direct or collateral consequence. The state responds that because prosecution for failure to register depends on prosecutorial discretion, the consequence does not flow definitely, immediately or automatically from a guilty plea and sentence, and because the duty to register does not constitute punishment, it is not a direct consequence of a guilty plea.

We begin our analysis recognizing that a defendant does not have an absolute right to withdraw a guilty plea. Shorter v. State, 511 N.W.2d 743, 746 (Minn.1994). Public policy favors the finality of judgments and courts “ ‘are not disposed to encourage accused persons to “play games” with the courts’ ” by setting aside judgments of conviction based upon pleas made with deliberation and accepted by the court with caution. Chapman v. State, 282 Minn. 13, 16, 162 N.W.2d 698, 700 (1968) (quoting Everett v. United States, 336 F.2d 979, 984 (D.C.Cir.1964)). The Minnesota Rules of Criminal Procedure provide however, that a plea of guilty may be withdrawn “upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.” Minn. R.Crim. P. 15.05, subd. 1.

A valid guilty plea must meet three requirements: it must be accurate, voluntary, and intelligent. Perkins v. State, 559 N.W.2d 678, 688 (Minn.1997). Manifest injustice occurs if any of these three requirements have not been met. Id. Appellant’s claim here is that because he was not informed of the duty to register as a predatory offender, his plea was not intelligent. We held in State v. Trott that “[t]he purpose of the requirement that the plea be intelligent is to insure that the defendant understands the charges, understands the rights he is waiving by pleading guilty, and understands the consequences of his plea.” 338 N.W.2d 248, 251 (Minn.1983). A defendant need not be advised of every consequence for his plea to be intelligent, however. We held in Alanis v. State that “it is the direct consequences of the guilty plea to which we refer” and ruled that deportation was not a direct consequence. 583 N.W.2d 573, 578 (Minn.1998). Therefore failure of the court to advise the defendant of deportation consequences was not grounds for withdrawal of his plea: “[ilgnorance of a collateral consequence does not entitle a criminal defendant to withdraw a guilty plea.” Id. We elaborated on the reasoning behind our holding:

It makes sense that direct consequences are those which flow definitely, immediately, and automatically from the guilty plea — the maximum sentence and any fine to be imposed. Further, it makes sense that deportation is not a direct consequence of the guilty plea because deportation is neither definite, immediate, nor automatic.

Id. (footnote omitted).

Here the court of appeals interpreted this language to mean that “[t]he distinction between direct and collateral consequences * * * turns on whether the result adds a definite, immediate, and automatic effect to the defendant’s punishment.” Kaiser, 621 N.W.2d at 53. Since, in its view, the predatory offender registration requirement did not add to appellant’s punishment, and the consequences were not definite, immediate, and automatic, the consequence was collateral. Id. at 54. We disagree with the ruling of the court of appeals that the duty to register as a predatory offender is not definite, immediate and automatic because the offender is required to register immediately, definitely and automatically upon entering a guilty plea. The court of appeals was correct however, in concluding that because the predatory offender registration is not a punitive consequence, it is collateral in nature.

In Alanis we held that direct consequences are those related to punishment that flow definitely, immediately and automatically from the plea, and that direct consequences were the maximum sentence and fine, as they flow definitely, immediately and automatically from the punishment to be imposed. 583 N.W.2d at 578-79 (“[D]irect consequences of making the plea, that being the maximum sentence and the amount of any fine to be imposed.”). They are the consequences the defendant must face for his criminal conduct.

The dissent of Justice Page argues that this case is governed by our decisions in State v. Jumping Eagle, 620 N.W.2d 42 (Minn.2000); State v. Brown, 606 N.W.2d 670 (Minn.2000); and State v. Garcia, 582 N.W.2d 879 (Minn.1998). In these cases, we held that when a trial court accepts a guilty plea without informing a defendant that his sentence is subject to a mandatory conditional release term that would have the effect of increasing his sentence beyond the upper limit of his court — accepted plea agreement, the sentencing court must choose either to modify the defendant’s sentence so that it does not exceed the upper limit of the plea agreement or to allow the defendant to withdraw his guilty plea. See Jumping Eagle, 620 N.W.2d at 44-45. In those cases the consequence at issue was the length of actual incarceration the defendant faced — the essence of an offender’s punishment. This case is fundamentally different. Here, the consequence of registering as a predatory offender involves no additional incarceration and has no relation to appellant’s punishment.

Consequences flowing from the plea that are not punishment serve a substantially different purpose than those that serve to punish, as they are civil and regulatory in nature and are imposed in the interest of public safety. Consequences such as the revocation of driving privileges following a conviction for driving under the influence, or loss of the right to possess a firearm following the conviction of violent felonies, serve to protect the public from a potentially dangerous class of persons and are collateral, not direct, consequences of the sentences imposed.

With regard to the predatory offender registration statute, in Boutin v. LaFleur, 591 N.W.2d 711 (Minn.1999), we held that the statute was civil and regulatory, and not penal, because it did not have the fundamental characteristics of punishment set out by the United States Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). Boutin, 591 N.W.2d at 717. Applying the Kennedy analysis in Boutin we noted that the predatory offender statute does not require an affirmative restraint, that historically similar registration statutes have not been regarded as punishment, that it does not promote the traditional aims of punishment because it does not involve confinement and is not intended to exact retribution, and that the primary purpose of the statute is to create an offender registry to assist in law enforcement investigations. Boutin, 591 N.W.2d at 717. It is an expression of a policy statement — “society has the right to know of [predatory offenders’] presence not in order to punish them, but in order to protect itself.” Doe v. Poritz, 142 N.J. 1, 662 A.2d 367, 373 (1995). As statutes criminalizing the possession of firearms by-convicted felons, or revoking driving privileges after a conviction for driving under the influence, require offenders to obey special regulations, the predatory offender law seeks to increase public safety by requiring a specific class of offenders to provide information to law enforcement authorities to assist in keeping track of them.

The argument in the dissent of Justice Page that the sentence was unauthorized by law and illegal is incorrect. Section 248.166, subd. 2 provides that when an offender is sentenced for an enumerated offense he must be notified of his duty to register, and while notice “shall” be provided by the sentencing court advising the person of his duty to register, the statute also provides that if the court does not notify the defendant, “the assigned corrections agent shall notify the person of the requirements of [the registration statute].” Id Clearly the legislature was less concerned that the court provide the registration advisory than it was that the offender receive some advisory of his duty. But given the alternative method of notification under the statute, it can hardly be concluded that failure of the court to advise the offender infringes on his rights and most certainly does not render the sentence illegal, as the dissent of Justice Page argues.

It is also significant that notice can be provided by an employee of the Department of Corrections, an executive branch agency, if the court fails to do so, because if notice were a direct consequence of the offense, it would be the responsibility of the court to advise the offender of the duty to register. Imposition of a sentence rests solely with the trial court. See State v. Olson, 325 N.W.2d 13, 18 (Minn.1982).

The regulatory non-punitive nature of the statute is further reflected in its clear purpose — to keep law enforcement informed as to a predatory offender’s whereabouts. The offender must comply with three requirements: first, the offender must submit a fingerprint card and a photograph to his assigned corrections agent or law enforcement authority and must submit a signed registration form providing information about the offender’s whereabouts. Minn.Stat. § 243.166, subd. 4 (1998). Second, the offender must timely sign and return an information verification form, either annually or quarterly, depending on the nature of the offense. Id., subd. 4(c)(l). Finally, the offender must notify law enforcement officials in writing at least five days prior to any change of address. Id., subd. 3(b). Registration for appellant was imposed for ten years.

We hold that definite, immediate and automatic consequences must be punitive and a part of a defendant’s sentence in order to constitute direct consequences for purposes of establishing manifest injustice to withdraw a guilty plea. The duty to register as a predatory offender is a regulatory rather than punitive consequence and therefore is a collateral consequence of appellant’s guilty plea. Failure to advise appellant of the registration requirement does not make the plea unintelligent, and does not constitute a manifest injustice that mandates the withdrawal of his plea.

Affirmed.

PAGE, Justice

(dissenting).

I respectfully dissent.

I.

Because Kaiser’s sentence was induced by the promise of a sentence unauthorized by law, I believe the voluntariness of his plea of guilty was compromised. See State v. Jumping Eagle, 620 N.W.2d 42, 43 (Minn.2000) (stating that “ ‘[t]he voluntariness requirement insures that the guilty plea is not in response to improper pressures or inducements’ ”) (citation omitted); State v. Brown, 606 N.W.2d 670, 674 (Minn.2000) (“Where a sentence is illegal and therefore invalidly imposed, the volun-tariness of the plea is drawn into question.”). Minnesota Statutes § 243.166, subd. 2 (1998), provides:

When a person who is required to register under subdivision 1, paragraph (a), is sentenced ⅜ * *, the court shall tell the person of the duty to register under this section. The court shall require the person to read and sign a form stating that the duty of the person to register under this section has been explained. If a person required to register under subdivision 1, paragraph (a), was not notified by the court of the registration requirement at the time of sentencing or disposition, the assigned corrections agent shall notify the person of the requirements of this section. When a person who is required to register under subdivision 1, paragraph (c), is released from commitment, the treatment facility shall notify the person of the requirements of this section.

Id. Based on the statute’s repeated use of the directive “shall,” the plain language of the statute indicates clearly that sex offender registration must be included in the sentence of every sex offender covered by Minn.Stat. § 243.166, subd. 2. Therefore, like the statutory provisions requiring a conditional release term for certain sex offenders, see generally State v. Humes, 581 N.W.2d 317 (Minn.1998), the statutory provisions requiring registration of sex offenders are mandatory and nonwaivable. It is this mandatory and nonwaivable character of the requirement to register as a sex offender that calls into question the validity of guilty pleas made without mention of that requirement at the time pleas are entered. See Brown, 606 N.W.2d at 674 (addressing the mandatory character of conditional release terms).

In State v. Garcia, 582 N.W.2d 879 (Minn.1998), we recognized that sentences that fail to contain terms that the legislature has mandated are illegal. Id. at 881. Although we cannot uphold, through the remedy of specific performance, a sentence that a court had no authority to impose in the first place, we may allow withdrawal of the plea if appropriate. See Brown, 606 N.W.2d at 674. The withdrawal of a guilty plea is permissible when part of the inducement or consideration for the defendant’s guilty plea was the very absence of the mandatory and nonwaivable term. See id.; Jumping Eagle, 620 N.W.2d at 44-45.

In this case, Kaiser was promised a particular sentence, including certain conditions, in exchange for a plea of guilty to possession of pictorial representations of minors in violation of Minn.Stat. § 617.247, subd. 4 (1996). Missing from those conditions was the sex offender registration requirement of Minn.Stat. § 243.166, subd. 2. Moreover, at Kaiser’s sentencing hearing, the district court in violation of that section failed to include the sex offender registration requirement. This modification of his sentence was illegal.

Kaiser asserts that he was not informed of the registration requirement before he entered the guilty plea and that, had he known of the requirement, he would not have entered the plea. Thus, this court should not presume that Kaiser would have considered the requirement insignificant in the negotiation of his plea. See Jumping Eagle, 620 N.W.2d at 44 (concluding that, because the defendant in that case appeared to have considered the maximum executed sentence significant in the negotiation of his plea, the addition of a conditional release term, which would have then exceeded the upper limit of his court-accepted plea petition, violated his plea agreement).

As in Garcia, the unqualified promise that Kaiser received and consequently accepted was unauthorized by law, and Kaiser must be allowed to withdraw from the plea agreement if he so chooses. If he does not so choose, Kaiser should be permitted to continue to be bound by the original plea agreement, as amended to include sex offender registration required by law.

II.

In concluding that sex offender registration is not a direct consequence of a guilty plea, the court relies heavily on language from our decision in Alanis v. State, 583 N.W.2d 573 (Minn.1998). In doing so, the court misapplies what we said in Alanis concerning direct consequences, while at the same time misconstruing the character of the sex offender registration statute. As the court notes, Kaiser’s claim here is that his plea of guilty was not intelligent because, when he entered his plea, neither the court nor defense counsel informed him that he would have to register as a sex offender. For a guilty plea to be intelligent, a criminal defendant must be aware of the direct consequences of pleading guilty. Id. at 578. Direct consequences are those that flow definitely, immediately, and automatically from the criminal defendant’s plea of guilty. Id. Interestingly, the court concedes that the requirement that Kaiser register as a sex offender flows definitely, immediately, and automatically from his guilty plea: “We disagree with the ruling of the court of appeals that the duty to register as a predatory offender is not definite, immediate and automatic because the offender is required to register immediately, definitely and automatically upon entering a guilty plea.”

Having reached that conclusion, the court then curiously goes on to conclude that sex offender registration is not a direct consequence of Kaiser’s guilty plea because the only direct consequences are those that flow from the punishment to be imposed. That is not, however, what Alanis says. Alanis says that “[i]t makes sense that direct consequences are those which flow definitely, immediately, and automatically from the guilty plea — the maximum sentence and any fine to be imposed.” 583 N.W.2d at 578. The quoted statement plainly provides that direct consequences flow from the guilty plea, not the punishment. The factual detail of that statement cannot be read to limit direct consequences to the punishment to be imposed. Had it been intended, as the court now suggests, to limit what constitutes a direct consequence, there would have been no need in Alanis to go on to analyze whether deportation — being neither sentence nor fine — was a definite, immediate, and automatic consequence of Alanis’s plea of guilty. We proceeded to go through that analysis, however, because we were focused not on the aspects of punishment, but on whether the consequences were indeed definite, immediate, and automatic.

Sex offender registration is a direct consequence of the offender’s guilty plea if for no other reason than Minn.Stat. § 243.166, subd. 2, makes it so. As discussed above, that section makes registration mandatory in all cases without exception. It also makes clear that the requirement may not be modified. As a mandatory and non-waivable requirement of section 243.166, subdivision 2, sex offender registration becomes a direct consequence once a plea is entered, irrespective of its nonpunitive nature.

Further, the fact that the legislature has made sex offender registration mandatory and non-waivable and tied that requirement directly to the offender’s sentence makes it different in character from non-punitive consequences such as deportation, revocation of driving privileges, and loss of the right to possess a firearm, which have been held to be collateral. Those consequences are not necessarily definite, immediate, or automatic. See Alanis, 583 N.W.2d at 578-79 (concluding that deportation is not a direct consequence because, before deportation can occur, the INS must exercise discretion to commence deportation proceedings and must follow various administrative procedures); State v. Rodriguez, 590 N.W.2d 823, 825 (Minn.App.), rev. denied (Minn. May, 26 1999) (concluding that loss of the right to possess a firearm is collateral because the federal government’s decision to prosecute for felon in possession is independent of anything a state court does); State v. Washburn, 602 N.W.2d 244, 246 (Minn.App.1999) (concluding that revocation of driving privileges is collateral because such revocation depends on an action by the Minnesota Department of Public Safety). Nor do nonpunitive consequences such as deportation, revocation of driving privileges, and the loss of the right to possess a firearm require affirmative acts as sex offender registration does.

Sex offender registration is also different in character because it can have a direct impact on daily life in ways that even incarceration does not. Sex offender registration obligates the offender to inform state authorities of address changes for at least ten years and may include mandatory community notification. The court ignores the fact that community notification is mandatory for Level III offenders, Minn.Stat. § 244.052, subd. 4, subd. 4b (2000), and may be required for Level I offenders, Minn.Stat. § 243.166, subd. 7a (2000) (allowing community notification for Level I offenders who fail to register or maintain their registration as required by law). It goes without saying that community notification can take the sex offender registrant “out of the ordinary relations with humanity” by adversely affecting his or her personal and professional life, em-ployability, associations with neighbors, and choice of housing. Nathaniel Hawthorne, The Scarlet Letter 44 (Courage Books 1991) (1850); see Artway v. Attorney General of N.J., 876 F.Supp. 666, 686-87 (D.N.J.1995), aff'd in part and vacated in part, 81 F.3d 1235 (3d Cir.), reh’g denied, 83 F.3d 594 (1996) (employability and associations with neighbors); Rowe v. Burton, 884 F.Supp. 1372, 1378 (D.Alaska 1994), appeal dismissed, 85 F.3d 635 (9th Cir.1996) (personal and professional lives); State v. Myers, 260 Kan. 669, 923 P.2d 1024, 1041 (1996), cert. denied, 521 U.S. 1118, 117 S.Ct. 2508, 138 L.Ed.2d 1012 (1997); Noble v. Bd. of Parole & Post-Prison Supervision, 327 Or. 485, 964 P.2d 990, 995-96 (1998). As a result of community notification, a sex offender registrant also may be the target of vigilantism and possible physical violence. See Noble, 964 P.2d at 995-96; see, e.g., Doe v. Pataki, 940 F.Supp. 603, 608-11 (S.D.N.Y.1996), aff'd in part, rev’d in part, 120 F.3d 1263 (2d Cir.1997), cert. denied, 522 U.S. 1122, 118 S.Ct. 1066, 140 L.Ed.2d 126 (1998); Doe v. Poritz, 142 N.J. 1, 662 A.2d 367, 430-31 (1995) (Stein, J., dissenting). Therefore, although a direct consequence need not be punitive, the implications and magnitude of sex offender registration are on par with the court’s unduly narrow view of the term punishment.

Sex offender registration is a direct consequence of a plea of guilty and, as such, Kaiser should have been informed of the duty to register. As the court itself states, “If a defendant is advised of the price he must pay for his criminal conduct, his plea cannot be said to be unintelligent and cannot be withdrawn.” Because Kaiser was not advised of the price he must pay for his criminal conduct as required by Minn. Stat. § 243.166, his plea of guilty was not intelligent. Therefore, I would reverse the court of appeals and remand to the district court for further proceedings.

PAUL H. ANDERSON, Justice

(dissenting).

I respectfully dissent. I write separately because I conclude that both the majority opinion and Justice Page’s dissent miss the mark in their respective interpretations of the sex offender registration statute.

While I agree with much of what Justice Page says in his separate dissent, I do not join Justice Page because I conclude that in Part I he has gone too far in interpreting the sex offender registration notice requirement. I do not believe that it is necessary to reach this issue in order to decide the case before us. But even if we were required to reach this issue, I do not agree that the plain language of Minn.Stat. § 243.166, subd. 2 (1998), clearly indicates that the sex offender registration requirement must be included in the sentence of every sex offender.

Similarly, I cannot agree with the majority’s interpretation of the notice requirement because its interpretation goes too far in the other direction. Inexplicably, the majority concludes that the sentencing court is not required to notify a sex offender of his or her duty to register even though the statute explicitly states that “the court shall tell the [sex offender] of the duty to register.” MinmStat. § 243.166, subd. 2 (emphasis added). The plain language of the statute absolutely requires that the sentencing court notify a sex offender of the registration requirement. However, I find nothing in that statute that requires this notice to be part of the sentence itself.

I also write separately to emphasize my disagreement with the majority regarding the nature of the sex offender registration requirement. As I have noted in the past, sex offender registration is a serious consequence that should not be imposed without strict adherence to the procedural requirements of the law. Boutin v. LaFleur, 591 N.W.2d 711, 720 (Minn.1999) (Anderson, Paul H., J., dissenting). Further, we have held that an important procedural requirement under the laws of this state is that a guilty plea must be accurate, voluntary, and intelligent. Perkins v. State, 559 N.W.2d 678, 688 (Minn.1997). For a guilty plea to be intelligent, a defendant must be advised of the direct consequences of his plea. Alanis v. State, 583 N.W.2d 573, 578 (Minn.1998). I agree with Justice Page’s interpretation of Alan-is and his conclusion that the registration requirement is a definite, immediate, and automatic consequence of pleading guilty to Minn.Stat. § 617.247, subd. 4 (1996). Accordingly, Kaiser’s guilty plea was not intelligent and he should be allowed to withdraw the plea. Therefore, I would reverse the court of appeals and remand to the district court for further proceedings. Furthermore, in light of the conclusion reached by the majority today, I strongly urge that the court direct the Advisory Committee on the Rules of Criminal Procedure to consider a proposal to amend the criminal rules to provide that a sentencing court “shall” notify a sex offender of the registration requirement.

      . Imposition of sentence was initially stayed, but after probation violations the district court sentenced appellant to 91 days in the county jail. Appellant challenged his sentence on due process and abuse of discretion grounds in an appeal separate from this appeal. The sentence was affirmed by the court of appeals in an unpublished opinion. State v. Kaiser, No. C8-99-406, 1999 WL 993998, at *1 (Minn.App. Nov.2, 1999).

      . Minnesota Statutes § 243.166, subd. 1(a) (1998) provides:
      A person shall register under this section if: * * * (2) the person was charged with or petitioned for ⅜ * * possessing pictorial representations of minors in violation of section 617.247, and convicted of or adjudicated delinquent for that offense or another offense arising out of the same set of circumstances * * *.
      In 1998, gross misdemeanor possession of pictorial representations of minors was one of the enumerated offenses listed in the predatory offender statute, Minn.Stat. § 243.166. A subsequent amendment made possession of child pornography a felony. Act of May 24, 1999, ch. 217, § 9, 1999 Minn. Laws 1368, 1371 (codified as amended at Minn.Stat. § 617.247, subd. 4 (2000)). Appellant’s guilty plea triggered a duty to register as a predatory offender with law enforcement.

      .Appellant stated in an affidavit that had he been advised of the registration duty before entering a plea he would not have pleaded guilty.

      . After holding in Alanis that deportation consequences are collateral to a guilty plea, we amended Minn. R.Crim. P. 15.01, which enumerates the questions a pleading defendant is to be asked before a court accepts a guilty plea, to include whether the defendant understands the possible deportation consequences.

      . The dissent of Justice Paul H. Anderson concludes without elaboration that appellant's guilty plea was unintelligent because the duty to register is a "direct, immediate, and automatic” consequence of the plea. In doing so the dissent mistakes both the language of and the principle underlying Alanis, where we held that direct consequences are those related to punishment that flow definitely, immediately and automatically from the plea. See Alanis, 583 N.W.2d at 578-79.

      .Numerous decisions from state and federal courts establish that a direct consequence is one that has a definite, immediate and automatic effect on the range of a defendant’s punishment. See, e.g., Parry v. Rosemeyer, 64 F.3d 110, 114 (3rd Cir.1995); Cuthrell v. Dir., Patuxent Inst., 475 F.2d 1364, 1366 (4th Cir.1973), State v. Andrews, 253 Conn. 497, 752 A.2d 49, 55 (2000); see also State v. Young, 112 Ariz. 361, 542 P.2d 20, 22 (1975); Ray v. State, 133 Idaho 96, 982 P.2d 931, 935 (1999); State v. Pickens, 558 N.W.2d 396, 400 (Iowa 1997).

      . See, e.g., State v. Washburn, 602 N.W.2d 244, 246 (Minn.App.1999).

      . See, e.g., State v. Rodriguez, 590 N.W.2d 823, 825 (1999), rev. denied (Minn. May 26, 1999).

      . Kennedy established an analytical framework for determining whether a statute is penal or regulatory and outlined the factors to be considered, such as whether (1) it involves an affirmative disability or restraint, (2) it has historically been regarded as a punishment, (3) it comes into play only on a finding of scienter, (4) its operation will promote the traditional aims of punishment — retribution and deterrence, (5) the behavior to which it applies is already a crime, (6) an alternative purpose to which it may rationally be connected is assignable for it, and (7) it appears excessive in relation to the alternative purpose assigned. Kennedy, 372 U.S. at 168-69, 83 S.Ct. 554.

      .The Poritz court elaborated:
      [A] statute that can fairly be characterized as remedial, both in its purpose and implementing provisions, does not constitute punishment even though its remedial provisions have some inevitable deterrent impact, and even though it may indirectly and adversely affect, potentially severely, some of those subject to its provisions. Such a law does not become punitive simply because its impact, in part, may be punitive unless the only explanation for that impact is a punitive purpose: an intent to punish.

        Poritz, 662 A.2d at 388.

      . Many courts in other jurisdictions have concluded that restriction of the right of convicted felons to possess firearms is a legitimate exercise of police power rationally related to governmental interest in securing public safety. See, e.g., United States v. Huss, 7 F.3d 1444, 1448 (9th Cir.1993), overruled on other grounds by United States v. Sanchez-Rodriguez, 161 F.3d 556, 564 (9th Cir.1998); State v. Olvera, 191 Ariz. 75, 952 P.2d 313, 315 (1997); People v. Tice, 220 Mich.App. 47, 558 N.W.2d 245, 247 (1996); State v. Peters, 261 Neb. 416, 622 N.W.2d 918, 924 (2001); State v. Thiel, 188 Wis.2d 695, 524 N.W.2d 641, 645 (1994);

      . Of the states that have addressed whether sex offender registration is a direct or collateral consequence of a plea, many have reasoned that the registration is a collateral consequence because it is not part of the defendant’s punishment. See, e.g., Ray, 982 P.2d at 935, State v. Ward, 123 Wash.2d 488, 869 P.2d 1062, 1076 (1994); State v. Bollig, 232 Wis.2d 561, 605 N.W.2d 199, 206 (2000); Johnson v. State, 922 P.2d 1384, 1387 (Wyo.1996); cf. Peterson v. State, 988 P.2d 109, 115 (Alaska Ct.App.1999); In re Birch, 10 Cal.3d 314, 110 Cal.Rptr. 212, 515 P.2d 12, 16-17 (1973).
      Rule 11 of the Federal Rules of Criminal Procedure mandates that before accepting a plea of guilty, a federal district court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands:
      [T]he nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penally provided by law, including the effect of any special parole or supervised release term, the fact that the court is required to consider any applicable sentencing guidelines but may depart from those guidelines under some circumstances, and, when applicable, that the court may also order the defendant to make restitution to any victim of the offense.
      Fed R.Crim. P. 11(c)(1). The rule notably does not require the court to inform the defendant of any criminal registration requirement. Few federal courts have ruled on whether sex offender registration is a direct or collateral consequence. See, e.g., Roe v. Farwell, 999 F.Supp. 174, 182-83 (D.Mass.1998) (finding Massachusetts’ sex offender registration provision to be a collateral consequence of guilty plea).

      .The dissent of Justice Paul Anderson also emphasizes the mandatory "shall” reference in Minn.Stat. § 243.166, subd. 2, but fails to address the significance of the corrections agent as an alternative source of notification under the statute.

      . Under the current statute, an offender must also provide the addresses of all property owned, leased or rented by the offender, the addresses of the offender's places of employment, and a description of all motor vehicles owned or driven by the offender. See Minn.Stat. § 243.166, subd. 4a (Supp.2001).

      . When compared with the prospect of deportation and other consequences that have been held collateral in Minnesota courts, see, e.g., Kim v. State, 434 N.W.2d 263, 264-66 (Minn.1989) (concluding that forced resignation from a position as officer of a corporation is a collateral consequence of a guilty plea); Rodriguez, 590 N.W.2d at 825 (concluding that loss of right to possess a firearm is a collateral consequence of a guilty plea); Washburn, 602 N.W.2d at 246 (concluding that revocation of driving privileges is a collateral consequence of a guilty plea), we question how onerous the duty to keep the police informed of one's address by returning a postcard once a year is on appellant. We note, and appellant concedes, that the community notification aspects of the sexual offender scheme do not apply to this case. As the dissent notes, under the current statute information about level I offenders like appellant is made public only if the offender fails to register as a predatory offender. See Minn. Stat. § 243.166, subd. 7a (2000).

      . Although there was no fine in Alanis, the opinion refers to a fine as a type of direct consequence because a fine was involved in Barragan v. State, 583 N.W.2d 571 (1998) (relying on Alanis), a case decided on the same day as Alanis. Barragan, 583 N.W.2d at 571, 573 n. 4. Therefore, this reference to fines cannot be interpreted as limiting the scope of what constitutes a direct consequence.


source: Caselaw Access Project

author: PAUL H. ANDERSON, Justice.

license: Public Domain

text:
    Toby Earl JOHNSON, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. C0-01-1597.
    Supreme Court of Minnesota.
    April 18, 2002.

      Bradford Colbert, St. Paul, for Appellant.
    Mike Hatch, Minnesota State Attorney General, St. PaulN, Michael K. Junge, McLeod County Attorney, Glencoe, for Respondent.
   OPINION

PAUL H. ANDERSON, Justice.

Randy Pool was kidnapped and murdered in McLeod County in July 1999. Following the murder, petitioner Toby Earl Johnson was arrested and indicted for first-degree intentional murder while committing a kidnapping, second-degree intentional murder, and kidnapping. Pursuant to a plea agreement, the state amended the first count of the indictment to aiding and abetting a premeditated intentional murder. Johnson then pleaded guilty to both the amended first count and to the second count of second-degree intentional murder. According to the plea agreement, if Johnson provided “useful” information to the state, he would be sentenced on the second count, but if he failed to provide such information, he would be sentenced on the amended first count. Ultimately, the district court accepted the plea agreement, convicted Johnson on the amended first count, and sentenced him to a mandatory life sentence. Johnson petitioned for postconviction relief, arguing that the plea agreement violated separation of powers because the agreement provided that the state had the “sole discretion” to determine (a) whether Johnson would be convicted of the amended first count or the second count, and (b) the actual length of imprisonment. The post-conviction court denied Johnson’s petition. We affirm.

The facts giving rise to Johnson’s conviction are as follows. On July 14, 1999, Jason Caldwell and Salem Bernhardt were arrested at Randy Pool’s house on outstanding warrants. Berhnardt had been living with Pool and sold methamphetamine from Pool’s house. Caldwell came from out of state to visit Bernhardt.

Four days after the arrests, Heather Ecklund visited Bernhardt in jail. Bernhardt asked Ecklund to find out who had turned him and Caldwell in to the police. That evening, Ecklund and Tanya Caldwell went to Pool’s house and questioned Pool about Bernhardt’s and Jason Caldwell’s arrests and about some missing money and drugs. The questioning turned violent and Pool was beaten by Ecklund, Shawn McCollum, and Richard Ligenza. After trying to escape, Pool’s assailants restrained him by taping his arms and legs. Between July 18 and July 20, Pool was tortured and beaten by Ecklund, McCol-lum, Johnson, Isaac Engstrom, and Scott Bernhardt. During much of this time, Pool was kept in a fruit cellar. On the night of July 20, Pool was placed in a duffel bag and beaten until he died. Eck-lund, McCollum, Johnson, and Engstrom were present when Pool died. Ecklund, McCollum, and Engstrom subsequently dumped Pool’s body into the Clearwater River in Wright County.

Hutchinson police took Johnson into custody on August 9, 1999, at which time Johnson gave a statement to the police in which he admitted that he had beaten and watched over Pool. Johnson also admitted that he was present when Pool was killed and that he stayed behind to clean up Pool’s house while the others dumped the body. On September 2, 1999, a McLeod County grand jury indicted Johnson, along with Ecklund, McCollum, and Engstrom, for first-degree intentional murder while committing a kidnapping in violation of Minn.Stat. § 609.185(3) (1998), second-degree intentional murder in violation of Minn.Stat. § 609.19, subd. 1(1) (2000), and kidnapping in violation of Minn.Stat. § 609.25, subd. 1(3) (2000).

On April 10, 2000, one day before the commencement of Johnson’s trial, Johnson entered into a plea agreement with the state. Johnson’s signed plea petition described the substance of the agreement as follows:

The State will amend Count One to aiding and abetting Murder in the First Degree (609.185(1)). I will plead guilty to amended Count One (aiding and abetting Murder in the First Degree— 609.185 (1)) and to Count Two (Murder in the Second Degree — 609.19 Subd[.]l(l)). I ultimately will be convicted on only one of these two.
If I choose to eo[o]peraté with the authorities and if in the sole discretion of McLeod County Attorney Michael Junge I have information that he deems useful then I will be convicted on Count Two. As part of that deal I agree to an upward durational departure from State Guidelines. I will receive an executed sentence of between 30 to 36 years. As before, Mr. Junge would have the sole discretion as to the actual length of imprisonment.
If I choose not to cooperate with the authorities or in the alternative I do not possess information that Mr. Junge in his sole discretion deems to be useful, then I will be sentenced on the amended Count One.
In either event the remai[ni]ng Count would be dismissed at the time of sentencing. I understand that a PSI mil be done prior to the actual date of sentencing.

At the hearing on the plea petition, the state moved to amend the first count of the indictment to aiding and abetting premeditated intentional murder in violation of Minn.Stat. §§ 609.05 (2000) and 609.185(1) (1998). By amending the indictment in this manner, the state was permitting Johnson, even if he did not provide useful information, to receive a more favorable sentence of life imprisonment with the possibility of release after serving 30 years rather than a term of life imprisonment without the possibility of release. The state described the plea agreement’s terms to the court in the following manner:

Your Honor, it’s my understanding that if the defendant is able to provide useful information which can be verified about which person directed the murder of Randy Pool and if we are able to corroborate that, and at my discretion solely, then at the time of sentencing I will dismiss Count 1 the First Degree Murder charge and he will be sentenced on Count 2 to a period of somewhere between 30 and 36 years in prison.
It’s my understanding that if he chooses not to provide any information or if the information cannot be corroborated, again based upon my discretion, that he would be sentenced on the Murder I charge and he would receive a life sentence, which means he would be eligible for parole after 30 years.

Following the state’s description of the plea agreement, Johnson’s attorney stated to the court that the description provided by the state was a correct summation of the proposed agreement. The court then granted the state’s motion to amend the indictment, after which Johnson pleaded guilty to amended count one and count two. Following his plea, Johnson testified to the facts surrounding his role in Pool’s kidnapping and murder. More specifically, Johnson admitted that he hit Pool a few times and that he had watched over Pool when he was in the cellar. Johnson also admitted that after Pool’s body was removed from the house, he assisted in cleaning up the house and disposing of Pool’s car.

Johnson also testified that he understood that even though he had just pleaded guilty to amended count one and count two, he would be convicted on only one of those counts. Johnson stated that he understood that if he chose not to cooperate with the state, then the court would convict Mm on amended count one and dismiss count two. He also stated that he understood that if he did cooperate, it would be in the state’s sole discretion to determine whether any information provided by him was useful. Johnson said he understood that if the state determined that information provided by him was not useful, he would be convicted on amended count one; but if the state, in its sole discretion, determined that he provided useful information, then he would be convicted on count two. On cross-examination, the state asked Johnson if he understood that the Mnd of information the state would view as useful was information supporting the state’s belief “that there may have been somebody incarcerated in the McLeod County Jail” who directed Pool’s death. Johnson responded that he understood this to be true.

Johnson was sentenced about six weeks later on May 26, 2000. At that time, the state moved for sentencing on amended count one. The court then heard arguments on whether Johnson had cooperated. Johnson’s attorney asserted that Johnson had met with authorities and told them what he knew about the involvement of the various individuals in Pool’s murder. The attorney stated that Johnson had cooperated sufficiently to receive the conviction on count two. However, without explaining its ruling, the court accepted Johnson’s guilty plea to amended count one and sentenced Johnson to a mandatory life sentence with a minimum term of imprisonment of 30 years.

Approximately one year later, on May 2, 2001, Johnson filed a postconviction petition, asking the court to vacate his conviction and permit him to withdraw his guilty plea. He challenged the plea on the grounds that he was denied effective assistance of counsel and that the plea agreement was illegal for a number of reasons, including that it violated separation of powers. Johnson argued that the plea agreement gave the state the power to determine his conviction and sentence and therefore improperly invaded the province of the judiciary. Johnson contended that under the Minnesota Constitution, the final disposition of a criminal case is ultimately a matter for the judiciary, not the executive branch. In addition, he asserted that sentencing is also within the sole province of the judiciary. However, according to Johnson, his plea agreement gave the state the sole discretion to determine whether he would be convicted of first-degree or second-degree murder and the sole discretion to determine the actual length of imprisonment.

The state opposed the postconviction petition. The state began its analysis by noting that the plea agreement gave the state the sole discretion to decide whether to move to dismiss amended count one and proceed with sentencing on count two. This discretion was based on the state’s determination of whether Johnson provided useful information. The state also noted that the constitutionality of such discretion under the separation of powers doctrine had never been addressed by the Minnesota courts. The state then pointed to State v. Carriere, 290 N.W.2d 618 (Minn.1980), for guidance.

Carriere involved a situation where the defendant was charged with first-degree murder and the state objected to the defendant’s plea to second-degree murder. Id. at 619. In Carriere, we held that a court does not have the authority to accept a defendant’s plea to a lesser charge unless it is satisfied that the state could not withstand a motion to dismiss the first-degree murder charge at the close of the state’s case-in-chief. Id. at 620. Applying the holding of Carriere to Johnson’s plea agreement, the state argued that Johnson’s statements clearly implicated him on the first-degree murder charge; thus, if the state objected, the court would not have had the authority to dismiss either the original count one of the indictment or the amended count one of the indictment. Accordingly, no constitutional violation occurred when the district court convicted and sentenced Johnson on amended count one.

The postconviction court denied Johnson’s petition on the grounds that the final disposition of the case was not in the hands of the state. The court concluded that the district court did not abrogate its sentencing authority because the court rather than the state dictated the actual length of the imprisonment on amended count one. In support of its argument, the court quoted from the sentencing transcript, where the district court had stated, “[a]nd as for sentence, I am going to sentence you to a mandatory life sentence with a minimum term of imprisonment of 30 years.” The postconviction court then stated that “[o]nly if [defendant had been sentenced on Count 2 would the possible issue of separation of powers arise.” According to the postconviction court, the district court performed its required function of approving a plea agreement and would not have approved the agreement if it was not in the interests of justice or contrary to Johnson’s rights. Finally, the court noted that the plea agreement did not cause Johnson any manifest injustice because the agreement had a significant benefit for Johnson. Under the most severe application of the agreement, Johnson was sentenced to life imprisonment and was eligible for release after serving 30 years. Had Johnson been convicted of the original count one, he faced a mandatory life sentence without the possibility of release.

To evaluate whether Johnson’s plea agreement violates separation of powers, it is necessary to explain in broad terms the functions of the executive and judicial branches of the Minnesota government. We begin with Article III, Section 1 of the Minnesota Constitution, which provides that:

The powers of government shall be divided into three distinct departments: legislative, executive and judicial. No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this constitution.

Under our separation of powers doctrine, the power to decide whom to prosecute and what charge to file resides with the executive branch. See Carriere, 290 N.W.2d at 620 n. 3. However, under that same doctrine, the final disposition of a criminal case is ultimately a matter for the judiciary. State v. Krotzer, 548 N.W.2d 252, 254 (Minn.1996); State v. Olson, 325 N.W.2d 13, 18 (Minn.1982) (stating that the imposition of a sentence within the limits prescribed by the legislature is purely a judicial function). Once the legislature has defined the range of punishments for a particular offense, the legislature cannot “condition the imposition of the sentence by the court upon the prior approval of the prosecutor.” Id. (citing Minn. Const. art. III, § 1). In the context of plea agreements, the separation of powers doctrine gives the state the authority to enter into plea agreements with a defendant. See State v. Johnson, 279 Minn. 209, 214-15, 156 N.W.2d 218, 222-23 (1968). However, a district court may, in its discretion, refuse to accept a plea agreement and is not bound by a plea agreement as to any sentence to be imposed. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); State v. Pero, 590 N.W.2d 319, 323-24 (Minn.1999). See also Minn. R.Crim. P. 15.04, subd. 3.

Johnson’s plea agreement comports with these broad principles. Here, the facts do not suggest that the state invaded the province of the judiciary. The state, by amending count one, exercised its authority to decide what charges to bring. The state, by entering into a plea agreement with Johnson, exercised its authority to enter into an agreement with a defendant. The district court accepted Johnson’s guilty plea, heard argument on whether he had cooperated, convicted him of amended count one, and sentenced him. In doing so, the court exercised its authority to make the final disposition of Johnson’s case.

Johnson’s argument that the plea agreement violates separation of powers focuses on the words in the agreement giving the state the “sole discretion” to decide what Johnson would be convicted of and what sentence he would receive. However, this language does not automatically mean that the state has invaded the province of the judiciary. A plea agreement is merely an executory agreement until embodied in the judgment of a court. Mabry v. Johnson, 467 U.S. 504, 507, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984). There is no indication that the court failed to exercise its own discretion in convicting and sentencing Johnson. As noted, the court heard argument on whether Johnson had cooperated, presumably to ensure that a conviction on the amended first count was in the interests of justice. Had the court, as Johnson suggests, abdicated its authority to the state’s sole discretion, the court would not have even heard argument regarding Johnson’s level of cooperation. Thus, the facts do not indicate that the court failed to make the final disposition of Johnson’s case. Although it would make our task easier if the district court explained why it was convicting Johnson on amended count one and why it was giving Johnson this particular sentence, we cannot assume from the court’s silence that it was following the state’s recommendation without independently exercising judgment and authority. In short, there is no evidence that the plea agreement bound the court’s decision-making authority in any way. Further, Johnson benefited from the plea agreement even though he was sentenced on amended count one because if Johnson had been convicted on the original count one, he would have faced life in prison without the possibility of release. There is no evidence that the court was bound by the plea agreement’s terms such that it did not exercise its authority to make the final disposition of Johnson’s case. Therefore, we hold that Johnson’s plea agreement did not violate separation of powers.

Although we conclude that the plea agreement did not violate our constitution, we note that the language in the agreement referring to “the sole discretion” of the state “as to the actual length of imprisonment” has the potential to raise separation of powers concerns. Not only is this language inaccurate regarding the sentencing authority of the state vis-á-vis the court, but it also invites overreaching by the state during the plea agreement process. For these reasons, we discourage the use of similar language in future plea agreements.

Affirmed.

      . The factual record in this case is not well-developed because Johnson pleaded guilty and consequently never went to trial. However, to provide additional factual context for the procedural posture of this case, we restate some of the relevant facts from McCollum v. State, 640 N.W.2d 610 (Minn.2002). In McCollum, we detail the facts surrounding the kidnapping and murder of Randy Pool from the trial record of Johnson’s co-defendant Shawn McCollum. Id.

      . If Johnson were sentenced on count one, first-degree murder while committing a kidnapping, in violation of Minn.Stat. § 609.185(3), he would receive a sentence of life without the possibility of release under Minn.Stat. § 609.106, subd. 2(2) (2000). If Johnson were sentenced on amended count one, aiding and abetting first-degree murder in violation of Minn.Stat. §§ 609.05 and 609.185(1), he would serve an automatic life sentence and would not be eligible for release for at least 30 years under Minn.Stat. § 244.05, subd. 4 (1998). Finally, if Johnson were sentenced on count two, second-degree murder in violation of Minn.Stat. § 609.19, subd. 1(1), the maximum sentence he could receive is 40 years under Minn.Stat. § 609.19, subd. 1 (2000). But if sentenced under count two, he would be eligible for release after serving two-thirds of the sentence under Minn.Stat. §§ 244.01, subd. 8 (2000), and 244.05 (1998 and Supp.1999). By agreeing that a sentence under count two would be between 30 and 36 years, Johnson was agreeing to a sentence under which he would be eligible for release after between 20 and 24 years. Thus, if Johnson was sentenced under count two or amended count one, he would serve less time in prison than he would if he were sentenced on count one.


text:
    STATE of Minnesota, Respondent, v. Kenneth James BUDREAU, Appellant.
    No. C0-01-112.
    Supreme Court of Minnesota.
    April 18, 2002.

      John M. Stuart, Minnesota State Public Defender, Theodora Gaitas, Assistant State Public Defender, Minneapolis, MN, Attorneys for Appellant.
    Kenneth James Budreau, North Stillwa-ter, MN, Pro Se.
    Mike Hatch, Minnesota Attorney General, Thomas R. Ragatz, Assistant Attorney General, St. Paul, MN, Alan L. Mitchell, St. Louis County Attorney, Duluth, MN, Attorneys for Respondent.
   OPINION

PAUL H. ANDERSON, Justice.

A St. Louis County jury found appellant Kenneth James Budreau guilty of first-degree premeditated murder and first-degree murder while committing kidnapping. The district court then convicted Budreau of both counts and sentenced him to life imprisonment without possibility of release on the conviction for murder while committing kidnapping. On direct appeal as a matter of right, Budreau alleges that his conviction should be reversed for the following reasons: (1) he was deprived of his right to a fair trial by references at trial to his possible involvement in another homicide; and (2) there was insufficient evidence for the jury to find he committed a kidnapping. We affirm.

On March 14, 1999, the body of Faye Annette Wennell was discovered at a construction site near the shore of Lake Superior in Duluth, Minnesota. Wennell’s body had sustained multiple blunt trauma injuries and several stab wounds. The blunt trauma injuries covered Wennell’s scalp, face, torso, arms, and legs, and stab wounds were found in Wennell’s scalp, face, and neck. Dr. Michael McGee, the medical examiner, determined the cause of death as exsanguination resulting from the blunt trauma injuries and stab wounds. Following an investigation, the police arrested three suspects for Wennell’s murder: Daniel Deegan, Stacey Mullen, and appellant James Budreau. The St. Louis County grand jury indicted all three suspects for first-degree murder.

Mullen pleaded guilty to second-degree murder and kidnapping and subsequently testified at Budreau’s trial. In her testimony, Mullen described what happened on the evening of March 13, 1999, and the early morning hours of March 14. Bu-dreau, Deegan, Mullen, and Wennell were all present at the Red Lion Bar in Duluth. Mullen and Deegan knew each other and had planned to meet at the bar that evening. They were already there when Wennell arrived. Mullen recognized Wen-nell because the two women had recently been in the county jail together. Wennell approached Mullen at some point in the evening and bought her a beer. Mullen believed Wennell had some money and asked Wennell if she would be interested in buying some crack cocaine together. Mullen testified that she had attempted to purchase some crack cocaine herself earlier that evening, but had been unsuccessful and lost her money in the attempt.

Following this conversation, Wennell left Mullen to socialize with other persons at the bar, while Mullen introduced herself to Budreau, whom she recognized but did not know. The two then discussed a way to have Wennell buy crack cocaine for them. They next approached Deegan to join them in their scheme because he had a car. Because Mullen knew that Wennell “liked women,” the plan was that Mullen would drink beer and flirt with Wennell, and then the group would leave the bar together to buy drugs.

At some point after Mullen, Deegan, and Budreau made their plan and when all the parties were still at the bar, Wennell and Budreau had an argument. Mullen did not hear the argument and did not know what the two argued about, but after the argument, Budreau told Mullen “I’m going to get that bitch.” Despite the argument and Budreau’s comment, Mullen continued with her part of the plan by sitting with Wennell at the bar. At closing time, Mullen invited Wennell to leave the bar with her, stating that ,they were “going to go get high.” Deegán left the bar first, followed by Mullen and Wennell. Budreau left last, but before he left the bar he picked up a pool cue and brought it with him.

The four left the bar through the back door and got into a car owned by Deegan’s girlfriend. Deegan drove the car, with Budreau seated in the front passenger seat and the two women in the back seat, with Wennell sitting behind Budreau. Deegan first drove to the apartment where Mullen had been staying, and Mullen went into the apartment to get some stolen clothing that she planned to exchange for drugs. On her return to the car, Mullen testified that she expected Deegan to drive toward a certain neighborhood where drugs could be bought, but instead Deegan drove in the opposite direction toward Lake Superi- or. Mullen asked where they were going and Deegan told her to keep her mouth shut. Wennell then asked Mullen where they were headed, and Mullen said she did not know. Wennell again asked where they were going, and, according to Mullen, Budreau responded, “We’re going to take you down here and kill you.” Mullen testified that neither woman took Budreau seriously' — 'they both laughed it off and Wen-nell said, “[y]eah right.”

Deegan stopped the car near Lake Superior, and Budreau turned around and punched Wennell in the face with his fist multiple times. Budreau then got out of the front seat of the car, opened Wennell’s door, and continued hitting her while she was still in the car. Deegan locked the car doors after Budreau got out of the car, and Mullen yelled at Deegan to open the door, which Deegan eventually did. At some point during the assault, Wennell grabbed Budreau by his hair and fought back. Deegan also began hitting Wennell, and then held her face and arms down. Mullen observed that during the time when Wennell was fighting back, Budreau was hitting Wennell with his fist as well as a broken pool cue. Mullen also stated that she got into the front seat of the car and reached into Wennell’s pocket and grabbed her money.

While the two men continued to assault Wennell, Mullen walked behind the car and urinated. When she returned, Mullen saw that Wennell was now on the ground next to the car. Mullen testified that she observed Budreau kicking Wennell and stomping on her head. According to Mullen, Budreau said “[w]e all have to be a part of this” and instructed Mullen to kick Wennell’s head. Mullen complied and kicked Wennell, but Budreau objected, saying “[n]ot like that, like this,” demonstrating by stomping on Wennell’s head. Mullen admitted that she then stomped on Wennell’s head. Budreau also continued kicking Wennell. Mullen next observed Budreau hitting Wennell with a big sharp object, later identified as a fence post. At this point, Deegan turned the car headlights off because he did not want to be seen from the nearby freeway. Mullen stated that she did not know how the assault ended. She testified that she, Dee-gan, and Budreau eventually got into the car and drove away. After driving a short distance, Budreau said they had to drive back to get Wennell’s jacket, “because my hair is all over that jacket.”

On returning to the place where they had left Wennell’s body, all three got out of the car. Mullen noted that Wennell was breathing and making a gurgling sound. Deegan went over to Wennell and removed her shoes, Budreau took her jacket, and Mullen, following Budreau’s instruction, cleaned under Wennell’s fingernails. Bu-dreau then told Mullen to turn around, and as she complied with his direction she saw Budreau lean over Wennell, but she did not see what he did. After that, the gurgling sound Wennell had been making stopped.

Budreau, Mullen, and Deegan then drove approximately five minutes to the home of Budreau’s sister Penny Budreau. Penny Budreau, her boyfriend Gregory Wind, and Penny Budreau’s daughter were at home and awake when the three arrived. On entering the home, Budreau immediately went into the bathroom while Mullen and Deegan stayed in the front room with Wind and Penny Budreau. Penny Budreau asked Mullen about the “red stuff’ on her pants and shoes. Mullen told Penny Budreau it was paint, but Budreau came out of the bathroom and interrupted, stating they had hit a deer. Mullen was holding Wennell’s jacket, which was dripping with blood, and someone gave her a plastic bag for the jacket. At some point, Mullen followed Budreau into the bathroom where he was washing blood off his shoes. Penny Budreau also came into the bathroom, became very upset, and asked the group to leave her home. Mullen testified that she and Dee-gan left together in Deegan’s car, and that Budreau was still in Penny Budreau’s home when they drove away.

Penny Budreau and Wind testified at trial. They stated that they spent the evening of Wennell’s murder with Budreau at a casino in Duluth. Late in the evening, Budreau decided to walk to the Red Lion Bar for a drink before the bar closed, planning to return to the casino so that the three could drive to Penny Budreau’s home together. When Budreau did not return to the casino, Penny Budreau and Wind drove home. Penny Budreau and Wind both testified that at approximately 3:00 a.m. on March 14, Mullen, Deegan, and Budreau arrived at their home. Their testimony corroborated Mullen’s testimony regarding the events at Penny Budreau’s home.

James Thibault, a prisoner with Bu-dreau at the St. Louis County jail in March 1999, also testified. Thibault testified that he and Budreau talked about their cases, and that Budreau told him about Wennell’s murder. Thibault testified that Budreau stated he “stuck the bitch in the throat” with a knife, broke a pool cue the night of the murder, and hit Wennell in the head with a fence post. Dr. McGee, the medical examiner, also testified at trial. He stated that Wennell had numerous injuries, including stab wounds, bruising consistent with having been caused by part of a pool cue, and other injuries consistent with having been caused by a fence post.

Physical evidence presented at trial included part of a pool cue found behind a gas station, which fit together with the broken end of a pool cue found at the Red Lion Bar and with pieces found at the crime scene. A DNA expert also testified at trial. DNA testing matched Wennell’s blood with the blood on the pool cue piece found behind the gas station. The car driven by Deegan on the night of Wen-nell’s murder was recovered, and DNA testing matched Wennell’s blood with blood samples found in the car. DNA testing also matched hairs found in the back seat of the car with Wennell’s hair. Finally, DNA testing confirmed that a hair found on Wennell’s hand matched Bu-dreau’s DNA profile. The expert testified that Budreau’s DNA profile would not be expected to occur more than once among unrelated individuals in the world population.

Budreau elected not to testify at trial and presented only one witness, Margaret Campbell, who testified that Budreau was staying with her in March 1999. Campbell stated that on the night of March 13, 1999, she went to bed after 11:00 p.m. and that at some point she was awakened by knocking on the door, which she did not answer. Later in the night, she was awakened by Budreau' throwing rocks at her window. He had forgotten his keys so she let him in. Campbell testified that she thought the time was around 1:00 a.m., but also stated that she was “just kind of guessing.” Campbell testified that she noticed nothing unusual about Budreau’s appearance except that he appeared to have been drinking, but that he did not look like he had been in a fight. Campbell testified that the first thing Budreau said to her was that he needed to talk to her boyfriend, Eric Williams, because “Something bad happened.” Campbell refused to wake Williams up. She then talked with Budreau while he drank a beer, but she did not ask about the bad thing that happened.

Four statements were made by witnesses at the trial referencing Budreau’s possible involvement in another homicide. First, Wind testified that when Budreau, Mullen, and Deegan came to the home at approximately 3:00 a.m. on the morning of the murder, Budreau “said there was another body.” Wind stated that he did not ask Budreau any questions on hearing this statement. Budreau did not object to this statement at trial, and he did not ask for it to be struck from the record.

The other three statements which Bu-dreau challenges were made by Mullen. Mullen testified that during the assault, Budreau told her she had to participate in kicking Wennell. She stated that Budreau said:

“You know how we do this?’ Um, he said he already killed a man. He said, T already killed a man.’

Budreau objected to this statement and the district court sustained Budreau’s objection and instructed the jury to disregard the statement. Later in her testimony, Mullen stated:

[Penny Budreau] was all right when we first got there, but once she seen the blood, she just got kind of hysterical. Wanted us to get out of the house, but didn’t want Ken [Budreau] to leave. Didn’t want him to come with us. And that’s when he was trying — Ken was trying to calm her down. And that’s when he said that I did it. He said, “She just killed a woman and I killed a man.
* * ⅜ “And the bodies are hid.”

Budreau objected to the statement, and the court sustained the objection and ordered the jury to disregard the testimony. The court also gave the jury a detailed cautionary instruction following a bench conference.

Finally, Mullen testified that she met with Budreau the day after the murder, and that he told her not to worry and to stop looking so scared. She also stated: “He told me that everything was going to be all right. That this wasn’t the first time.” Mullen did not explain what Bu-dreau meant by this statement. Budreau did not object to this testimony.

On October 11, 2000, a jury found Bu-dreau guilty of both counts of first-degree murder' — premeditated murder under Minn.Stat. § 169.185, subd. 1, and murder while committing kidnapping under Minn. Stat. § 609.185, subd. 3. The district court convicted Budreau on both counts. Over Budreau’s objection, the court sentenced him for first-degree murder while committing kidnapping, imposing the mandatory sentence of life imprisonment without possibility of release. See Minn.Stat. § 609.106, subd. 2 (1998). On appeal, Bu-dreau argues he is entitled to a new trial because: (1) four statements at trial referencing his possible involvement in another homicide deprived him of his right to a fair trial; and (2) there was insufficient evidence to support the jury’s verdict of guilty of murder while committing a kidnapping.

I.

Budreau asserts he should be granted a new trial because of four witness statements made during his trial referencing his possible involvement in another homicide. Budreau contends that the statements were Spreigl evidence inadmissible under Minn. R. Evid. 404(b). He also contends that the statements were inadmissible under Minn. R. Evid. 403 because the probative value of the statements was substantially outweighed by the danger of unfair prejudice. In essence, Budreau argues that the jury’s exposure to repeated references to his involvement in another homicide deprived him of his due process right to a fair trial.

At trial, Budreau objected to two of the four statements that he now asserts are prejudicial. These two statements were “I already killed a man” and “She just killed a woman and I killed a man.” Budreau’s two objections were sustained. The district court then ordered the statements struck from the record and instructed the jury to disregard each statement. Bu-dreau did not object to the court’s cautionary instructions at trial, nor did he argue that the instructions were inadequate or request a mistrial. The other two witness statements referencing Budreau’s involvement in another homicide were “there was another body” and “this wasn’t the first time.” At trial Budreau did not object to either statement, and so they became part of the record. Because the first two statements were struck from the record and the second two statements were not objected to, the primary question on appeal is whether the court erred in admitting the statements or in giving proper curative instructions.

We review Budreau’s argument with respect to the four statements alleged to be prejudicial for plain error affecting substantial rights. A reviewing court has the discretion to consider an unobjected-to error on appeal if it is plain error affecting substantial rights. State v. Griller, 583 N.W.2d 736, 740 & n. 7 (Minn.1998) (citing Minn. R.Crim. P. 31.02). For there to be plain error, there must be: (1) error; (2) that is plain; and (3) the error must have affected substantial rights. Id. at 740. When these three prongs are met, a reviewing court “then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings.” Id.

Under a plain error analysis, we first determine whether error occurred. Here, Budreau objected to two of the four statements heard by the jury; following Budreau’s objections to these statements, the court ordered the statements struck from the record and gave the jury a cautionary instruction after each objection. Budreau contends that the prejudicial effect of the statements could not be overcome by the court’s cautionary instructions. In support, Budreau cites State v. Caldwell, in which we acknowledged the futility of cautionary instructions in some cases. 322 N.W.2d 574, 590-91 (Minn.1982). But we presume that jurors follow the court’s instructions. State v. Shoen, 578 N.W.2d 708, 718 (Minn.1998); see also Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987).

It was not error for the district court to sustain Budreau’s objections and give the cautionary instructions. After the two statements were each struck from the record and the cautionary instructions given, the statements were not highlighted or referred to in any way, either by the state or through witness statements. Nothing indicates that the jury did not follow the court’s instructions or otherwise considered testimony that was not properly before it. We conclude that there was no error when the court struck the two statements from the record, and that the court’s cautionary instructions cured any prejudicial effect. Accordingly, we are not required to inquire further into the impact of these statements. See Griller, 583 N.W.2d at 740 (stating that before appellate court should engage in plain error analysis, it must first detect an error and that error must be plain).

The other two statements admitted without objection also fail the first prong of the plain error analysis. The statements were “there’s another body” and “this wasn’t the first time.” The statements were brief, lacking in detail, and present only an imprecise suggestion of any prior bad acts by Budreau. The fact that the statements were never referred to again further supports our determination that it was not error to admit these unob-jected — to statements at trial. See State v. Ferguson, 581 N.W.2d 824, 833 (Minn.1998) (stating that this court looks to manner in which improperly admitted evidence was presented and whether the evidence was used in closing argument).

Budreau emphasizes, and we agree, that “[s]trong evidence of guilt does not — cannot—deprive a defendant of the right to a fair trial.” State v. Harris, 521 N.W.2d 348, 355 (Minn.1994). Yet even if we had determined that the district court erred, which we do not, such a determination does not automatically result in a reversal of Budreau’s conviction and granting of a new trial. In order to satisfy the third prong of the plain error test, the defendant bears the heavy burden of showing that the error affected substantial rights. Griller, 583 N.W.2d at 741. A plain error affects substantial rights if the error was prejudicial and affected the outcome of the case. Id. & n. 14 (citing United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). An error is prejudicial if there is a “reasonable likelihood the error had a significant' effect on the verdict.” State v. Patterson, 587 N.W.2d 45, 52 (Minn.1998) (quoting Griller, 583 N.W.2d at 740).

Strong evidence of a defendant’s guilt for the charged crime can support the conclusion that the jury rested its verdict on properly admitted evidence and that it was unlikely that the error had a significant effect on the verdict. See id. Here, we look to the record as a whole when making our analysis. The four statements referencing Budreau’s involvement in another homicide were brief and lacking in detail. In fact, two of the four statements, the unobjected-to statements, were ambiguous and nonspecific. In contrast, the evidence supporting Budreau’s culpability for Wennell’s murder is specific, detailed, and well-corroborated. Mullen, Budreau’s accomplice and an eyewitness to the murder, testified against Budreau. Mullen’s unre-butted testimony established that, while at the bar, Budreau said, “I’m going to get that bitch,” and he made a plan with Mullen and Deegan to have Wennell leave the bar with them under the ruse of “going to go get high.” He took a pool cue with him when he left the bar. Then, while in the car, Budreau stated, “We’re going to take you down here and kill you.” Mullen also testified that Budreau hit Wennell in the face while he was in the car and that he continued hitting her from a position outside the car. Mullen further testified that at some point Wennell moved or was removed from the car to the ground outside the car, that Budreau continued kicking her, and also that Budreau hit her repeatedly with a broken pool cue and a fence post.

Mullen also testified that she, Budreau, and Deegan left the scene of the assault, that at Budreau’s insistence they drove back to Wennell’s body and took Wennell’s jacket and shoes, and that Mullen cleaned underneath Wennell’s fingernails at Bu-dreau’s insistence. According to Mullen, Wennell was breathing and making a gurgling sound when they returned, but the gurgling sound stopped after Budreau leaned over Wennell.

Penny Budreau and Gregory Wind testified that Budreau, Mullen, and Deegan came to their home at 3:00 a.m. the morning of Wennell’s murder, covered in blood and carrying a bloody jacket. Wennell’s body was found without a jacket or shoes. James Thibault, who was in the St. Louis County jail with Budreau, testified that he had several conversations with Budreau about Budreau’s case and that Budreau stated that “he stuck the bitch in the throat,” and hit her in the head with a fence post.

Budreau’s alibi for the time of Wennell’s murder was refuted multiple times at trial. Penny Budreau and Wind testified that Budreau spent the evening of the murder with them at a casino two blocks from the Red Lion Bar, and that Budreau left them to go to “last call” at the Red Lion Bar. Mullen also testified that Budreau was at the bar at closing time, around 1:00 a.m. In fact, Budreau’s alibi witness, Margaret Campbell, conceded that she was “just kind of guessing” that Budreau arrived at her home around 1:00 that morning. Finally, DNA testing matched a hair found on Wennell’s hand with Budreau’s DNA profile, further refuting Budreau’s defense that he was not present at Wennell’s murder.

The combined effect of this evidence supports the jury verdict of guilty. Any prejudice resulting from the four statements at trial referencing Budreau’s possible involvement in another homicide was minimized, first because two of the four statements were ambiguous and nonspecific, and second because the district court ordered the other two statements struck from the record and directed the jury to disregard them. In contrast, the evidence implicating Budreau in Wennell’s murder is specific, detailed, and corroborated. Accordingly, we conclude that the record demonstrates there is no reasonable likelihood that the four statements significantly affected the jury’s verdict.

At this point, we note that Budreau’s argument focuses on review of the four statements under a harmless error analysis. He makes this argument despite the fact that (1) the two objected — to statements were followed by unobjected — to curative jury instructions, and (2) the other two statements were unobjected to. In essence, by failing to make proper objections, Budreau has waived what could provide the grounds that lead to a harmless error analysis. Nonetheless, Budreau argues that even if the admission of each statement standing alone was not error, the cumulative prejudicial effect of the admission of the four statements was error. We disagree. Further, even if we were to conclude that there was error and that objections to any error were not waived, a harmless error analysis does not lead to the conclusion that Budreau is entitled to a new trial.

Budreau is entitled to a new trial only if the admission of the statements was not harmless beyond a reasonable doubt. State v. Juarez, 572 N.W.2d 286, 292 (Minn.1997). In applying harmless error impact analysis, we ask, “What effect did the jury’s hearing [these statements] actually have on the guilty verdict rendered?,” id,., and whether the verdict was “surely unattributable” to the error. Id. (quoting State v. Jones, 556 N.W.2d 903, 910 (Minn.1996)). As stated above, the two statements admitted into evidence were ambiguous and nonspecific, and the other two statements were struck from the record and the jury was instructed to disregard those statements. We conclude that the verdict rendered was surely unattributable to any error that may have occurred from the jury’s exposure to the four statements referencing Budreau’s involvement in another homicide.

Our conclusion that Budreau is not entitled to a new trial due to references to his possible involvement in another homicide is not inconsistent with State v. Olson, on which Budreau also relies. 279 Minn. 166, 156 N.W.2d 89 (1968). In Olson, the court, using a harmless error analysis, granted a new trial because a police officer testified that the defendant had said “he was mixed up in something like this before * * Id. at 168, 156 N.W.2d at 90. The state later cross-examined the defendant on the prior conviction in a manner that the court concluded was intended to “suggest to a local jury that [their] * * * community would be more secure if defendant was convicted regardless of whether he was guilty of the [charged] crime.” Id. at 169, 156 N.W.2d at 91. The case at hand differs from Olson in several respects.

First, in Olson the court found the evidence supporting the verdict “was sufficiently marginal” to require careful examination of alleged errors at trial. Id. at 166, 156 N.W.2d at 90. In contrast, the evidence supporting Budreau’s conviction is overwhelming. Further, the state in Olson deliberately highlighted the initial prejudicial statement, compounding the initial error for an improper purpose. See id. at 167-69, 156 N.W.2d at 90-91. Here, no evidence suggests, nor does Budreau allege, that the state or its witnesses improperly sought to elicit the four statements. Indeed, the record suggests that the statements came into the case by inadvertence and the inexperience of the witnesses, not through deliberate effort by the state. A further distinction is that Olson made the statement to a police offi-eer, id. at 168, 156 N.W.2d at 90, while Budreau made three of the four statements during the murder or shortly thereafter. On these facts, we conclude that Olson does not support Budreau’s request for a new trial.

In sum, the jury’s exposure to the four statements did not deprive Budreau of a fair trial. We hold that no plain error occurred, but even if plain error did occur, then the error did not affect substantial rights and does not provide grounds for reversal. Further, we hold that Budreau was not prejudiced by the cumulative effect of the admission of the four statements.

II.

Budreau also challenges the sufficiency of the evidence. He asserts that, on the charge of murder while committing kidnapping, the state produced insufficient evidence that a kidnapping occurred during the course of events leading to Wennell’s death. We disagree.

In analyzing a challenge to the sufficiency of the evidence supporting a conviction, a reviewing court looks at the record “to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). In doing so, a reviewing court must recognize that “all inconsistencies in the evidence are * ⅜ * resolved in favor of the state.” State v. Bergeron, 452 N.W.2d 918, 924 (Minn. 1990). A jury’s verdict will be upheld under this standard if, giving due regard to the presumption of innocence and to the state’s burden of proving guilt beyond a reasonable doubt, the jury could reasonably have found the defendant guilty. See, e.g., State v. Johnson, 568 N.W.2d 426, 435 (Minn.1997); State v. Norgaard, 272 Minn. 48, 52, 136 N.W.2d 628, 632 (1965).

A person is guilty of kidnapping if he “confines or removes from one place to another, any person without the person’s consent” for any of the purposes enumerated by the statute, including “[t]o facilitate commission of any felony or flight” or “[t]o commit great bodily harm or to terrorize the victim or another * * *.” Minn. Stat. § 609.25, subd. 1 (2000). In Minnesota, there is no requirement that the person be detained for a “substantial” period of time or transported a “substantial” distance. See State v. Morris, 281 Minn. 119, 122-23, 160 N.W.2d 715, 717-18 (1968) (holding that limited confinement or removal of a short distance can constitute kidnapping).

In State v. Crocker, we expressed our concern that a kidnapping conviction based on minimal acts of confinement or removal might result in a particularly harsh sentence. 409 N.W.2d 840, 845 (Minn.1987). We noted that when Morris was decided, a separate sentence for kidnapping was not imposed on the defendant. Id. We went on to note that when the legislature amended Minn.Stat. § 609.035 to allow a separate sentence for kidnapping, the effect of that amendment was limited because sentences were presumptively concurrent and the defendant received only one criminal history point for the combined offenses. Id. In part, because of the minimal practical effect a kidnapping conviction would have on a defendant’s sentence, we declined to reevaluate the holding from Morris that a kidnapping conviction could be based on limited restraint or confinement. Id. However, in Crocker we expressed concern about “unfair exaggeration of the criminality of a defendant’s conduct in those cases where the confinement was completely incidental to the crime committed during the course of the kidnapping.” Id. (emphasis added).

In 1998 the legislature passed a new provision for heinous crimes. Minn.Stat. § 609.106, subd. 2. The statute now requires a mandatory sentence of life imprisonment without possibility of release for certain convictions, including a conviction for first-degree murder in the course of a kidnapping. Id. at subd. 2(2). This is the provision of the statute under which Bu-dreau was sentenced to life imprisonment without possibility of release. We recognize there is now a significantly different implication to a kidnapping conviction. Under the analysis in Crocker, the effect of the 1998 legislation on Budreau’s sentence provides a basis on which we might reevaluate our holdings in Morris and Crocker. See Crocker, 409 N.W.2d at 845. However, we conclude that under the circumstances of this case there is no such basis to reevaluate our prior decisions. While we remain concerned about the possibility of unfair exaggeration of the criminality of a defendant’s conduct, the evidence in this case does not raise such concerns.

The evidence establishes, and the state concedes, that Wennell voluntarily consented to leave the bar with Mullen, Dee-gan, and Budreau in Deegan’s car. Nonetheless, the evidence also indicates that Budreau, Deegan, and Mullen misrepresented their intentions to buy drugs with Wennell in order to deceive Wennell and to obtain her agreement to come with them. Mullen testified that she and Bu-dreau planned that Mullen would drink beer and flirt with Wennell, that they enlisted Deegan into their plan because Dee-gan had a car, and that they planned to leave the bar together with Wennell. While Mullen’s testimony suggests she may not have intended anything other than buying drugs or perhaps robbing Wennell, her testimony indicates that Bu-dreau and Deegan planned something more. Specifically, Mullen testified that Budreau argued with Wennell at the bar and later told Mullen, “I’m going to get that bitch.” Mullen also testified that on leaving the bar Budreau took a pool cue with him.

The evidence also established that the group did not drive to where Wennell had agreed to go, that is, to buy drugs. Instead, Deegan drove to a construction site away from the neighborhood where drugs were sold. While in the car, Deegan told Mullen to keep her mouth shut when Mullen asked where they were going and when Wennell asked the same question, Budreau stated, “We’re going to take you down here and kill you.”

We conclude that Budreau’s conduct did not involve only minimal acts of confinement or removal, nor were his actions “completely incidental” to the murder committed in the course of the kidnapping. There is sufficient evidence in this record to support the guilty verdict on murder while committing a kidnapping. Based on this evidence, we conclude that the jury reasonably could have found that Budreau and his accomplices removed Wennell from the Red Lion Bar to the construction site where the murder occurred. Although no force or threat of force was used to remove Wennell from the bar, the testimony shows that Wennell only consented to go to a place where they could buy drugs, but did not consent to be taken to the isolated construction site where the assault and murder occurred.

Affirmed.

      . After Budreau's first objection, the district court sustained the objection and stated: "The last portion of her answer will be stricken. The jury is instructed to disregard.” After the second objection, the court gave a similar instruction, and then, following a bench conference, gave the following instruction:
      Number 1, there is no evidence of any kind to suggest that Kenneth Budreau has been involved in any killing of a man. You have heard some reference in Ms. Mullen’s testimony to that.
      Number 2, there’s no evidence of any death of any man during this immediate or relevant time period.
      Number 3, there has never been any allegation or any evidence to suggest that Kenneth Budreau was involved in any homicide prior to March 13 th or March 14th or since that date.
      And you are specifically instructed to disregard any testimony to the contrary from this witness or any other witness, okay?