text:
    STATE of Minnesota, Petitioner, v. Shawnatee Marie TENNIN, Respondent.
    No. A03-1281.
    Supreme Court of Minnesota.
    Feb. 12, 2004.

      Mike Hatch, Minnesota Attorney General, Thomas R. Ragatz, Assistant Attorney General, St. Paul, for Appellant.
    Leonardo Castro, Chief Public Defender, Geoffrey Isaacman, Assistant State Public Defender, Minneapolis, for Respondent.
    Eric Lee Lipman, Minneapolis, for Ami-ci Legislators.
   OPINION

BLATZ, Chief Justice.

We are asked to determine whether the State of Minnesota’s imposition of a co-payment obligation on individuals who receive public defender services, in the manner prescribed by Minn.Stat. § 611.17, subd. 1(c) (Supp.2003), is constitutional. The district court declared section 611.17, subdivision 1(c) (Supp.2003), unconstitutional, enjoined further collection of co-payments, and certified the question to the court of appeals pursuant to Minn. R.Crim. P. 28.03. We granted accelerated review.

On August 26, 2003, respondent Shaw-natee Marie Tennin was charged with prostitution under Minn.Stat. § 609.324 (2002), and made her first appearance in district court shortly thereafter. Upon completing a public defender eligibility affidavit in which Tennin indicated that her entire income comprised $250 per month in public assistance, the district court determined that Tennin met the criteria for public defender eligibility. The co-payment statute, as amended in 2003, was applied and Tennin was obligated to pay a $50 co-payment for public defender assistance. Upon notification of her obligation to pay, Tennin declined representation, claiming that she could not afford the co-payment. Later, Tennin determined that she needed the assistance of counsel and paid the $50 co-payment. A public defender was subsequently appointed to assist her.

Through counsel, Tennin challenged the constitutionality of the 2003 co-payment statute, arguing that the statute violated her right to counsel under the Minnesota and United States Constitutions. On September 2, 2003, the district court found Minn.Stat. § 611.17, subd. 1(c) (Supp. 2003), unconstitutional. In arriving at its conclusion that the statute is unconstitutional, the court relied on State v. Cunningham, a Minnesota Court of Appeals decision that upheld Minn.Stat. § 611.17 (2002), which, unlike the amended statute, contained language allowing for judicial waiver of a co-payment. State v. Cunningham, 663 N.W.2d 7 (Minn.App.2003). In Cunningham, the court of appeals instructed district courts to exercise their discretion to waive co-payments in a manner consistent with the United States Supreme Court decision in Fuller v. Oregon and the Sixth Amendment of the United States Constitution. Cunningham, 663 N.W.2d at 11; Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974); U.S. Const. amend. VI.

Applying the reasoning of Cunningham to the present version of section 611.17, the district court in the instant case found that “[t]he very [waiver] language in which the Court of Appeals predicated its finding that the previous version of the statute was constitutional is completely absent in the 2003 version of [Minn.Stat.] § 611.17.” Further, the court noted that not only did the legislature eliminate the court’s authority to waive the co-payment, it also chose to levy a flat co-payment against all public defender clients without distinguishing between their financial circumstances.

Based on this ruling, the district court enjoined further collection of co-payments and certified the issue for appellate review pursuant to Minn. R.Crim. P. 28.03. The state, joined by amici Minnesota State legislators, challenges the district court’s findings and order that section 611.17 is unconstitutional. On September 24, 2003, we granted accelerated review.

“A certified question ‘should be carefully and precisely framed so as to present distinctly and clearly the question of law involved.’ ” State v. Larivee, 656 N.W.2d 226, 228 (Minn.2003) (quoting Thompson v. State, 284 Minn. 274, 277, 170 N.W.2d 101, 103 (1969)). Otherwise, the certified-question procedure runs the risk of seeking an impermissible advisory opinion. Jacka v. Coca-Cola Bottling Co., 580 N.W.2d 27, 30 (Minn.1998). While the district court did not precisely frame the certified question, the court’s order and memorandum make clear that the question of law presented may fairly be stated as follows:

Does Minn.Stat. § 611.17, subd. 1(c), as amended, violate the right to counsel under the United States and Minnesota Constitutions?

A certified question is a question of law which we review de novo. B.M.B. v. State Farm Fire & Cas. Co., 664 N.W.2d 817, 821 (Minn.2003). The constitutionality and the construction of a statute are also reviewed de novo. State v. Grossman, 636 N.W.2d 545, 548 (Minn.2001); State v. Colvin, 645 N.W.2d 449, 452 (Minn.2002).

Central to the issue raised in this case is the express statutory language set forth in section 611.17. The 2003 statute establishes co-payment fees to be paid by indigents who receive public defender services. Prior to amendment, the statute provided:

Upon disposition of the case, an individual who has received public defender services shall pay to the court a $28 co-payment for representation provided by a public defender, unless the co-payment is, or has been, waived by the court. The co-payment shall be deposited in the state general fund. If a term of probation is imposed as a part of an offenders sentence, the co-payment required by this section must not be made a condition of probation. The eo-payment required by this section is a civil obligation and must not be made a condition of a criminal sentence.

Minn.Stat. 611.17(c) (2002).

The 2003 amended version of section 611.17, subdivision 1(c), instituted three significant changes: (1) the statute created a co-payment obligation upon appointment of the public defender rather than at disposition of the case; (2) it deleted the express language establishing a judicial waiver of the co-payment; and (3) it increased the amount of the co-payment. As amended, the statute provides in relevant part:

Upon appointment of the public defender, an individual who receives public defender services shall be obligated to pay to the court a co-payment for representation provided by a public defender. The co-payment shall be according to the following schedule:
(1) if the person was charged with a felony, $200;
(2) if the person was charged with a gross misdemeanor, $100; or
(3) if the person was charged with a misdemeanor, $50.
⅜ ⅜ ⅜ ⅜
If a term of probation is imposed as a part of an offender’s sentence, the co-payment required by this section must not be made a condition of probation. The co-payment required by this section is a civil obligation and must not be made a condition of a criminal sentence. Collection of the co-payment may be made through the provisions of chapter 270A, the Revenue Recapture Act.

MinmStat. § 611.17, subd. 1(c) (Supp. 2003). It was this amended version of the co-payment statute that was applied to Tennin.

Statutes are presumed constitutional and will be declared unconstitutional “with extreme caution and only when absolutely necessary.” State v. Larsen, 650 N.W.2d 144, 147 (Minn.2002) (citation omitted). A statute is unconstitutional only if there is no reasonable alternative construction available. State v. Harris, 667 N.W.2d 911, 919 (Minn.2003). To successfully challenge the constitutionality of a statute, the challenger — here Tennin— must overcome the heavy burden of showing beyond a reasonable doubt that the statute is unconstitutional. State v. Merrill, 450 N.W.2d 318, 321 (Minn.1990).

The United States and Minnesota Constitutions contain nearly identical language concerning a criminal defendants right to counsel. “In all criminal prosecutions, the accused shall enjoy the right * * * to have the assistance of counsel for his defense.” U.S. Const, amend. VI; Minn. Const, art. I, 6. In support of this constitutional right to counsel, Minnesota law provides that a defendant who is financially unable to afford counsel is entitled to have a public defender appointed. .Minn. Stat. § 611.14 (2002); Minn. R.Crim. P. 5.02, subd. 1. The district court may require a defendant, to the extent able, to compensate the governmental unit which bore the cost of the appointed public defender. Minn. R.Crim. P. 5.02, subd. 5. The fact that an indigent who accepts state-appointed legal representation knows that he might someday be required to repay the cost of these services does not impair the defendant’s right to counsel. See Fuller, 417 U.S. at 53, 94 S.Ct. at 2124.

Nonetheless, the requirement to repay costs of counsel is not without limit. In analyzing a recoupment statute from the State of.Oregon, the United States Supreme Court held that Oregon’s statute requiring an individual to reimburse the state for the services of a public defender was in line with the Sixth Amendment where “[tjhose who remain indigent or for whom repayment would work ‘manifest hardship’ are forever exempt from any obligation to repay.” Id. The question thus arises, does Minn.Stat. § 611.17, subd. 1(c) (Supp.2003), which states that “[u]pon appointment of the public defender, an individual who receives public defender services shall be obligated to pay to the court a co-payment for representation provided by a public defender,” exempt persons who remain indigent or for whom repayment of the co-payment would work a manifest hardship? The answer to this question is critical to our analysis of the certified question.

While we acknowledge that state legislatures are free to draft the language of their own statutes within the dictates of the Constitution, we draw guidance from the United States Supreme Court’s review of the Oregon recoupment statute. Two particular components of that statute recognized by the Court are relevant to our analysis: (1) the Oregon statute’s express language that a court could not order a defendant to pay legal expenses unless the defendant is or will be able to pay them, or if hardship would result if repayment was ordered; and (2) the Oregon statute’s provision for a defendant to petition the court at any time for remission of the payment costs, which the court may grant if payment “will impose manifest hardship on the defendant or his immediate family.” Fuller, 417 U.S. at 45-46, 94 S.Ct. at 2121.

Because the Oregon statute was “quite clearly directed only at those convicted defendants who are indigent at the time of the criminal proceedings against them but who subsequently gain the ability to pay the expenses of legal representation,” the Court held that the statute did not deprive indigent defendants of the right to counsel. Id. at 46, 94 S.Ct. at 2121. “Defendants with no likelihood of having the means to repay are not put under even a conditional obligation to do so, and those upon whom a conditional obligation is imposed are not subjected to collection procedures until their indigency has ended and no ‘manifest hardship’ will result.” Id. In effect the statute provided two possibilities for indigent criminal defendants to be relieved of having to pay for legal services: “Oregon’s legislation is tailored to impose an obligation only upon those with a foreseeable ability to meet it, and to enforce that obligation only against those who actually become able to meet it without hardship.” Id. at 54, 94 S.Ct. at 2125 (emphasis added). Relying heavily on the Fuller opinion, Tennin argues it is the absence of statutory language similar to that adopted by the Oregon legislature that is fatal to the current Minnesota co-payment statute’s constitutionality. In Tennin’s view, the Minnesota statute’s requirement is non-waivable and must be imposed without regard to a defendant’s ability to pay or the hardship caused.

While emphasizing the heavy burden placed on the defendant to overcome the presumption of constitutionality, the state advances three principal arguments in its briefs, and yet another separate argument during oral arguments in support of section 611.17, subd. 1(c) (Supp.2003). We will address all four of the state’s arguments in turn, but before doing so we must dispel the assumption the state makes that, because the Revenue Recapture Act is the only collection mechanism mentioned in the statute, it excludes all other means of collection. The final sentence of section 611.17, subdivision 1(c) clearly provides otherwise: “Collection of the co-payment may be made through the provisions of chapter 270A, the Revenue Recapture Act.” Minn.Stat. § 611.17, subd. 1(c) (Supp.2003) (emphasis added). Under the canons of statutory construction, the word “may” is permissive and the word “shall” is mandatory. Minn.Stat. § 645.44, subds. 15, 16 (2002). Therefore, the final sentence of section 611.17, subdivision 1(c) makes collection under the provisions of the Revenue Recapture Act optional, not mandatory.

The state first argues that the current version of the statute grants judges the express power to waive the co-payment. To support its argument the state ignores the part of section 611.17, subdivision 1(c) which states, * * * [A]n individual who receives public defender services shall be obligated to pay * * and instead focuses on the final sentence of the same section: “Collection of the co-payment may be made through the provisions of chapter 270A, the Revenue Recapture Act.” Minn. Stat. § 611.17, subd. 1(c) (Supp.2003) (emphasis added). In the state’s view, inclusion of this sentence empowers judges tó make a finding on a particular defendant’s indigence and then determine whether to waive the co-payment. In light of our reading of the Revenue Recapture Act provision of section 611.17 above, we find the state’s argument unpersuasive. Further, prior to amendment, the previous version of section 611.17 contained an express judicial waiver provision, which was deleted by the legislature. Thus, the state’s contention that the legislature removed an express waiver provision and still intended that co-payments could be waived by the court due to statutory language referencing one collection mechanism is untenable. We conclude that section 611.17, as amended, does not provide for judicial waiver.

Second, the state argues that even if the statute does not grant express judicial waiver of co-payments, courts maintain an implied power to refrain from imposing co-payments through their authority over the collection process. As such, when a court determines that a defendant is indigent or that payment would work a manifest injustice, the court may simply decline to report a co-payment - debt to the commissioner of revenue. As an initial matter, this argument assumes that the Revenue Recapture Act is the exclusive means of collecting co-payments under section 611.17, a proposition we have already rejected above. Equally important, the argument overlooks language in the appropriations article of the same 2003 Act in which section 611.17 was amended. The appropriations article includes this provision:

The court administrator in each county shall make all reasonable and diligent efforts to promptly collect public defender co-payments. If the court administrator is unable to. collect the co-payment, the court administrator shall timely submit a claim for revenue recapture.

Act of May 28, 2003, ch. 2, art. 1 § 4 (2003 First Sp. Sess.), 2003 Minn. Laws 1387. The use of the word “shall” belies the state’s argument that collection is discretionary. . Therefore, we conclude that an implied judicial waiver does not exist in the statute.

Third, the state argues that the provisions of the Revenue Recapture Act offer indigent defendants sufficient protection from manifest hardship. The Revenue Recapture Act collects debts by withholding certain refunds, including income and property tax refunds as well as lottery prizes. The interpretation advanced by the state equates a taxpayer who receives a refund with one who is able to afford the co-payment without manifest hardship, a conclusion which does not comport with the reality of our tax system. Recognizing that marginally employed or low-income employees are usually entitled to tax refunds, the Revenue Recapture Act, left to itself, would collect co-payment debts from indigent defendants, an unconstitutional result under Fuller. Further, as illustrated by the facts of the present case, some indigent defendants manage to pay the co-payment at the time it is imposed and therefore, never receive the purported protections of the Revenue Recapture Act. For these reasons, the Revenue Recapture Act, by itself, offers insufficient protection against imposing co-payments on defendants who remain indigent and those for whom repayment would cause a manifest hardship.

Finally, during oral argument, the state appeared to reframe its briefed arguments by arguing that Minn.Stat. § 611.17, subd. 1(c) provides district courts with discretion and that it is the duty of this court to instruct judges to exercise this discretion consistent with Fuller. The state bases this argument on the statute’s use of the words “shall” and “may.” The state contends that these words, used in the same section, create ambiguity and, therefore, judicial discretion must be read into the statute. However, a reading of the express language of the statute does not support the conclusion that ambiguity can be found within section 611.17, subdivision 1(c).

Upon appointment of the public defender, an individual who receives public defender services shall be obligated to pay to the court a co-payment for representation provided by a public defender. * * * Collection of the co-payment may be made through the provisions of chapter 270A, the Revenue Recapture Act.

Id. (emphasis added). The co-payment statute clearly and unambiguously provides that a defendant shall pay a co-payment fee, which may be collected under the provisions of the Revenue Recapture Act. This construction does not give rise to ambiguity, much less discretion. To read discretion into the statute, as the state asks us to do, would infringe on the proper exercise of legislative authority. Such an interpretation would raise concerns about the separation of powers, as it essentially transforms the statute back into its unamended form and directly contradicts the express language of the amendments made by the legislature in 2003.

Given the clear language of the amended statute, we hold that Tennin has met the heavy burden of showing that Minn.Stat. § 611.17, subd. 1(c) (Supp.2003) is unconstitutional. While co-payment and recoupment may properly be required, the Sixth Amendment’s protections identified by the United States Supreme Court in its Fuller decision are absent in Minnesota’s co-payment statute. The Oregon statute essentially had the equivalent of two waiver provisions' — one which could be effected at imposition and another which could be effected at implementation. In contrast, the Minnesota co-payment statute has no similar protections for the indigent or for those for whom such a co-payment would impose a manifest hardship. Accordingly, we hold that Minn.Stat. § 611.17, subd. 1(e), as amended, violates the right to counsel un~ der the United States and Minnesota Constitutions.

Certified question answered in the affirmative.

      . State Representatives Steve Smith, Eric Lip-man, Doug Fuller, Dale Walz, and Steve Strachan submitted an amicus curiae brief, which concurred with the arguments advocated by the State.

      . Where the Sixth Amendment of the United States Constitution reads "for his defense,” the Minnesota Constitution, article I, section 6, reads, "in his defense.”

      . Even if section 611.17, subdivision 1(c) (Supp.2003) had expressly mandated exclusive use of the Revenue Recapture Act, the Act itself provides, "The collection remedy under this section is in addition to and not in substitution for any other remedy available by law.” Minn.Stat. § 270A.04, subd. 1 (2002).

      . The standards for public defense eligibility are set forth in Minn.Stat. § 611.17 (2002) and Minn. R.Crim. P. 5.02.

      . Under the Revenue Recapture Act the collection process is triggered once a claimant agency submits the debt to the commissioner of revenue. Minn.Stat. § 270A.07, subd. 1 (2002). Upon receipt, the commissioner initiates procedures to discover any refunds payable to the debtor. Minn.Stat. § 270A.07, subd. 2(a) (2002). Debts are deducted from refunds prior to distribution to the debtor. Minn.Stat. § 270A.07, subd. 2(b) (2002). The term "refund” includes individual income tax refunds, political contribution refunds, property tax credits or refunds, lottery prizes, and amounts granted to persons by the legislature on the recommendation of the joint subcommittee on claims. Minn.Stat. § 270A.03, subd. 7 (2002).


source: Caselaw Access Project

author: WRIGHT, Judge.

license: Public Domain

text:
    James A. HEINE, Appellant, v. Valerie SIMON, Respondent.
    No. A03-710.
    Court of Appeals of Minnesota.
    Jan. 27, 2004.

      DeAnna M. McCashin, Schoep & McCashin, Chartered, Alexandria, MN, for appellant.
    Emilio R. Giuliani, Jr., Vincent I. Breza, Labore, Giuliani, Cosgriff <& Viltoft, Limited, Hopkins, MN, for respondent.
    Considered and decided by LANSING, Presiding Judge; MINGE, Judge; and WRIGHT, Judge.
   OPINION

WRIGHT, Judge.

Appellant James Heine brought a lawsuit against State Farm Insurance Company and respondent Valerie Simon to recover damages for injuries arising from two automobile accidents occurring five months apart, in September 1993 and February 1994. The district court severed the claims against State Farm and Simon, reasoning that “the two accidents are not part of the same series of occurrences and are not factually connected to each other.” Separate jury trials were held, and a jury awarded Heine $16,900 for injuries from the 1994 accident.

On appeal from the district court’s denial of his motion for a new trial in the litigation arising from the 1994 accident, Heine argues that the district court erred in declining to instruct the jury in accordance with CIVJIG 91.40. Specifically, Heine maintains that the district court erroneously shifted the burden of establishing apportionment from Simon to Heine by failing to instruct that, if the jury “cannot separate damages caused by the pre-exist-ing disability or medical condition from those caused by the accident, then defendant is liable for all the damages.” Heine also argues that the district court abused its discretion in denying his motion for a new trial because (a) counsel for Simon committed misconduct during cross-examination and closing argument and (b) the jury’s damage award was insufficient and influenced by passion or prejudice. By notice of review, Simon challenges the denial of her motion for remittitur and additional collateral-source offsets, arguing that the district court (a) abused its discretion in declining to apply the doctrine of collateral estoppel to the issue of Heine’s lost wages and (b) improperly calculated the collateral-source offsets for past medical benefits received by Heine. We affirm.

FACTS

On September 23, 1993, appellant James Heine was stopped at a traffic light while performing a work-related service call when his vehicle was struck from behind by a vehicle driven by an uninsured motorist. Heine suffered injuries to his neck, back, and right shoulder. Treatment for these injuries began after the accident and was scheduled ■ to proceed through early February 1994. On February 8, 1994, respondent Valerie Simon was changing lanes in front of Heine on the highway when she lost control of her vehicle. Heine, who was on a service call for work, swerved to avoid a head-on collision with Simon and struck a pole. In this accident, Heine received injuries to his neck and lower back.

At the time of both accidents, Heine was working at Apple Automatic Food Service (Apple). His job duties included service calls to clients and office work. Heine filed a workers’ compensation action in February 2000, claiming that his injuries from the 1994 accident restricted him to part-time work, forcing him to terminate his employment at Apple in August 1994. Heine was granted workers’ compensation benefits for medical expenses and lost wages. But, based on a determination that the evidence presented in the workers’ compensation proceeding was insufficient to establish a causal relationship between the injuries sustained in the accidents and his loss of earnings ■ between September 1994, when he became self-employed, and December 2000, when the workers’ compensation hearing concluded, benefits were denied for wage loss during this period.

In his personal-injury action, Heine served a complaint seeking damages for the injuries caused by both car accidents, naming his insurer State Farm Insurance Company and Simon as defendants. The district court severed the claims against State Farm and Simon and sent them to nonbinding arbitration. The defendants objected to the arbitration decisions; and each case proceeded to trial. This appeal involves issues arising from the jury trial for the 1994 accident.

At trial on claims related to the 1994 accident, medical experts testified as to the extent of Heine’s injuries, including a herniated disc in the neck, that were attributable to each accident. Heine called three medical experts. Dr. Trobiani, a neurologist, testified that Heine sustained injuries to his neck and lower back in both accidents. In Dr. Trobiani’s opinion, the herniated disc in Heine’s neck, as well as a permanent injury to Heine’s right shoulder, were caused solely by the 1994 accident.

Dr. Engel, Heine’s treating physician, testified that after the 1993 accident, but before the 1994 accident, Heine was treated for injuries to his neck, lower back, and right shoulder. Dr. Engel opined that the 1993 accident was the primary cause of Heine’s injuries and the 1994 accident merely aggravated these injuries temporarily. Dr. Engel attributed 60 percent of Heine’s neck injury to the 1993 accident and 40 percent to the 1994 accident. Although Heine had a congenital, degenerative condition in his lower back that became symptomatic as a result of the 1993 accident, Dr. Engel opined that the 1994 accident caused 75 percent of Heine’s lower-back injury, and the remaining 25 percent was caused by the 1993 accident.

Dr. Seizert, who also treated Heine’s injuries, testified that Heme’s herniated disc became symptomatic after the 1993 accident. But she was unable to give an opinion as to what injuries, if any, were caused by the 1994 accident.

Dr. McPartlin, a neurologist called by Simon, testified that Heine did not suffer any injury to the right shoulder or any additional injury to his lower back as a result of the 1994 accident. Dr. McPartlin opined that, based on Heine’s described symptoms, the herniated disc predated the 1994 accident.

Heine also testified regarding his injuries and was impeached with admissions to unrelated false statements on his income tax returns.

Heine moved the district court to instruct the jury on aggravation of a preexisting injury using CIVJIG 91.40. The district court denied the motion and instead instructed the jury using CIVJIG 163. The jury awarded Heine $16,900 in damages caused by the 1994 accident.

Heine moved for a new trial on damages, or alternatively for a conditional ad-ditur. Simon moved for costs based on Minn. R. Civ. P. 68, collateral-source offsets, and remittitur. The district court denied all posttrial motions except Simon’s motion for collateral-source offsets, which it granted in part and denied in part. Heine appeals from the denial of his motion for a new trial. Simon filed a notice of review on the denial of her motions for remittitur and for additional collateral-source offsets.

ISSUES

I. Did the district court abuse its discretion in declining to use CIVJIG 91.40 when instructing the jury on aggravation of a preexisting injury?

II. Did the district court abuse its discretion in denying Heine’s motion for a new trial based on attorney misconduct and insufficient damages?

III. Did the district court abuse its discretion in concluding that the doctrine of collateral estoppel did not preclude Heine’s recovery for lost wages?

IV. Did the district court improperly calculate the collateral-source offsets to the jury’s damage award?

ANALYSIS

I.

The district court has broad latitude in selecting the language used to instruct the jury, as well as in determining the propriety of a specific instruction. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn.1986). We will not reverse the district court’s use of jury instructions absent an abuse of discretion. Hilligoss v. Cargill, Inc., 649 N.W.2d 142, 147 (Minn.2002). Jury instructions need only convey to the jury a “clear and correct understanding of the law.” Cameron v. Evans, 241 Minn. 200, 209, 62 N.W.2d 793, 798 (1954). To determine whether an instruction is erroneous, we read the instructions as a whole in light of the evidence of the case. Lindstrom v. Yellow Taxi Co. of Minneapolis, 298 Minn. 224, 229, 214 N.W.2d 672, 676 (1974). Where the instructions overall are a correct statement of the law, a new trial is not warranted. Hilligoss, 649 N.W.2d at 147.

Heine contends that, by declining to instruct the jury using CIVJIG 91.40, particularly its last sentence, the district court unfairly placed the burden of apportioning damages on him rather than on Simon. Civil Jury Instruction Guide 91.40, the instruction on aggravation of a preexisting condition, provides as follows:

There is evidence that (plaintiff) had a pre-existing disability or a medical condition at the time of the accident.
Defendant is liable only for any damages that you find to be directly caused by the accident.
If you cannot separate damages caused by the pre-existing disability or medical condition from those caused by the accident, then defendant is liable for all the damages.

4A Minnesota Practice, CIVJIG 91.40 (2002) (emphasis added). In denying Heine’s motion, the district court reasoned that CIVJIG 91.40 misstates Minnesota law. In accordance with CIVJIG 163, the predecessor to CIVJIG 91.40, the district court instructed the jury as follows:

A person who has a defect or disability at the time of an accident is nevertheless entitled to damages for any aggravation of such pre-existing condition, even though the particular results would not have followed if the injured person had not been subject to such pre-existing condition. Damages are limited, however, to those results which are over and above those which normally followed from' the pre-existing condition had there been no accident-in this cáse, had there been no second accident.

As a general matter, the plaintiff in a civil action bears the burden of proving by a preponderance of the evidence damages caused by th,e defendant. Canada by Landy v. McCarthy, 567 N.W.2d 496, 507 (Minn.1997). When a preexisting injury is aggravated by the negligence of another, the plaintiff has the burden of proving not only the injuries directly caused by the defendant, but also the extent to which the plaintiffs present condition was the result of the defendant’s conduct. Leubner v. Sterner, 493 N.W.2d 119, 122 (Minn.1992). The plaintiff’s recovery against the defendant who aggravated the injury is limited to the additional injury caused by this aggravation over and above the consequences that the preexisting injury would háve caused absent the aggravation. Nelson v. Twin City Motor Bus Co., 239 Minn. 276, 280, 58 N.W.2d 561, 563 (1953); see also Schore v. Mueller, 290 Minn. 186, 189, 186 N.W.2d 699, 701 (1971). “Put another way, damages for aggravation of a preexisting condition are simply a means to assure that the defendant pays only for the harm [the defendant] causes, not the harm plaintiff already had.” Leubner, 493 N.W.2d at 122.

But when two or more persons through consecutive, independent acts of negligence “closely related in point of time” cause a single indivisible injury that is incapable of apportionment, the negligent actors are jointly and severally liable for damages incurred. Mathews v. Mills, 288 Minn. 16, 23, 178 N.W.2d 841, 844 (1970). Whether defendants are subject to the single-indivisible-injury rule is a question of law. Canada, 567 N.W.2d at 507-08. To trigger joint and several liability for damages, the harm must be incapable of division. Id. at 508. In cases where the single-indivisible-injury rule arguably applies, the plaintiff has the burden of proving that the defendants caused the harm, but the burden of proving that damages can be apportioned rests with each defendant who contends that damages are divisible. Id. at 507. If the district court determines that the damages can be apportioned, the degree of actual apportionment is a question of fact for the jury’s determination. Mathews, 288 Minn. at 23, 178 N.W.2d at 845. Consistent with these principles, the notes regarding usage of CIVJIG 91.40 advise that, “[i]n cases where there is a sufficient factual basis for apportioning damages among the pre-ex-isting disability or medical condition, the first two sentences of the instruction should be given, but the last sentence should not be given (which is limited to cases where apportionment cannot be made).” 4A Minnesota Practice, CIVJIG 91.40 use note (2002).

The instruction given by the district court correctly states the law as to the measure for damages. See Nelson, 239 Minn. at 280, 58 N.W.2d at 563; Schore, 290 Minn. at 189, 186 N.W.2d at 701. And, contrary to Heine’s argument, the instruction does not address the burden of proof. The district court determined as a matter of law that the drivers in the 1993 and 1994 accidents were not joint tortfeasors and that Heine did not suffer a single indivisible injury from the accidents. As a result of this determination, the claims were severed. In the trial involving the 1994 accident, Heine’s theory of the case was that Simon aggravated Heine’s preexisting injuries from the 1993 accident and caused additional injuries. The jury instruction given as to aggravation of a preexisting condition is consistent with Heine’s theory and the evidence presented. We need not address the district court’s conclusion that CIVJIG 91.40 is not a correct statement of Minnesota law when, as here, there is a dearth of evidence warranting instruction of the jury regarding joint-and-several liability based on a single indivisible injury.

Heine’s argument for giving the joint- and-several-liability instruction in CIVJIG 91.40 fails for reasons addressed in Blatz v. Allina Health Sys., 622 N.W.2d 376, 390 (Minn.App.2001). Here, the aggravation of Heine’s preexisting injury is not an apportionable cause giving rise to joint and several liability. See id. at 391 (stating that “[w]e do not read Canada to extend a defendant’s burden of proof to apportionment between an at-fault defendant and an innocent or pre-existing cause”). Although the facts here are similar to those in Mathews in that they involve injuries from two tortfeasors, the 1994 accident arose from a distinct occurrence separated from the 1993 accident by months, rather than seconds, that aggravated the injuries from the 1993 accident, rather than producing a single indivisible injury. Thus, even though Heine’s preexisting injuries result from a tortfeasor as opposed to an innocent cause, Heine’s preexisting medical condition makes the facts at issue here akin to those in Blatz, not Mathews. See Bondy v. Allen, 635 N.W.2d 244, 250 (Minn.App.2001) (distinguishing between joint tortfeasors and independent or successive tortfeasors).

Accordingly, the district court did not err in instructing the jury on aggravation of preexisting injuries.

II.

The decision to deny a motion for a new trial rests within the district court’s discretion. Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn.1990). We will not disturb the district court’s decision in the absence of a clear abuse of discretion. Id. On appeal from the denial of a motion for a new trial, the verdict will not be set aside “unless it is manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict.” ZumBerge v. N. States Power Co., 481 N.W.2d 103, 110 (Minn.App.1992), review denied (Minn. Apr. 29, 1992).

A. Attorney Misconduct

Heine argues that the district court abused its discretion when it denied his motion for a new trial based on a claim of prejudicial attorney misconduct. Attorney misconduct warrants a new trial only when the misconduct clearly resulted in prejudice to the losing party. Eklund v. Lund, 301 Minn. 359, 362, 222 N.W.2d 348, 350 (1974). Having been present throughout the proceedings, the trial judge is in the best position to determine whether an attorney’s misconduct prejudiced the jury. Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn.1994). As a general matter, to obtain a new trial on appeal, the record must include an objection to improper remarks, a request for a curative instruction, and a refusal by the trial court to take corrective action. Hake v. Soo Line Ry., 258 N.W.2d 576, 582 (Minn.1977). An exception to this general rule exists when the misconduct is so flagrant as to require the district court to act sua sponte or is so extreme that a curative instruction would fail to mitigate the prejudice. Id.

Heine argues that Simon’s counsel committed misconduct by referring to the trial for the 1993 accident during cross-examination of Heine and his treating physicians, creating the prejudicial inference that Heine was attempting to recover twice for the same injuries. Prior to this questioning, the district court instructed Simon’s counsel to refer to the 1993 accident trial as a separate “claim” rather than a separate “lawsuit” to avoid undue prejudice to Heine. Several times during cross-examination, Simon’s counsel referred to evidence submitted in the other trial. But in each instance, Simon’s counsel referred to the trial related to the 1993 accident as a separate claim, as instructed by the district court. Heine did not object to the questions during cross-examination. Rather, prior to closing arguments, Heine moved to have the district court instruct the jury that the claims were severed over Heine’s objection. The district court denied the motion. Because Simon’s counsel complied with the district court’s instructions and because Heine did not object to the questions when they were posed, the district court properly denied Heine’s motion for a new trial on this ground.

Heine also argues that Simon’s counsel committed misconduct during closing argument by arguing that a negative inference could be drawn from Heine’s decision not to call a physician witness who had testified at the trial on the 1993 accident. The district court had previously denied Simon’s request for a negative-inference jury instruction relating to this witness. When Simon’s counsel proceeded to argue the negative inference, the district court sustained Heine’s objection. Shortly thereafter, during the final instructions, the jury was instructed that, when an objection has been sustained, the jury must disregard the question that draws the objection and any information elicited from that question.

Except in instances of the most extreme misconduct, prejudicial statements during closing argument can be corrected by a curative instruction. Bisbee v. Ruppert, 306 Minn. 39, 49, 235 N.W.2d 364, 370 (1975). “A request for such instruction!] is generally a prerequisite to obtaining a new trial on appeal.” Id. Heine did not request a curative instruction, and our review of the record establishes that the district court exercised sound discretion when it denied Heine’s motion for a new trial based on the negative-inference argument.

B. Jury’s Damage Award

Heine also argues that the district court erred in denying his motion for a new trial on damages. Heine contends that the jury’s damage award was based on passion or prejudice because the $16,900 found by the jury was significantly less than the $100,000 awarded in arbitration. A motion for a new trial based on insufficient damages may be granted when the evidence demonstrates that the damage award could have resulted only from passion or prejudice. Minn. R. Civ. P. 59.01(e); Gale v. Howard, 413 N.W.2d 234, 237 (Minn.App.1987); see also Flanagan v. Lindberg, 404 N.W.2d 799, 800 (Minn.1987). Speculation as to the influence of passion or prejudice is an insufficient basis to grant a new trial. Vadnais v. Am. Family Mut. Ins. Co., 309 Minn. 97, 104, 243 N.W.2d 45, 49 (1976) (reversing the district court’s order granting a new trial based on passion or prejudice where it appeared that the district court only speculated as to the possibility of prejudice because specific examples or instances of prejudice were not cited in the record). To determine whether an award of damages is “within the bounds of reason,” the district court must compare the verdict to the facts of the case. Kalpin v. Helgeson, 254 N.W.2d 378, 379 (Minn.1977).

The record provided by counsel is insufficient for us to determine the district court’s reasons for denying Heine’s new-trial motion based on the damage award. But the trial record establishes that there is sufficient evidence to support the jury’s damage award, thus refuting Heine’s claim that the jury’s award could have resulted only from passion or prejudice. Heine’s compensable damages were those damages he proved that Simon caused, over and above any preexisting medical condition. See Nelson, 239 Minn. at 280, 58 N.W.2d at 563. Finding that Heine suffered only a 60-day disability as a result of the 1994 accident, the jury did not award future damages.

Expert medical testimony in the record supports the jury’s determination of $16,900 in past damages, notwithstanding Heine’s claim of approximately $137,000 in past damages. Dr. Engel, Heine’s treating physician, testified that the injuries Heine received as a result of the 1994 accident were a temporary aggravation of the injuries from the 1993 accident, and he apportioned the percentage of injuries attributable to each accident. Similarly, Dr. McPartlin’s testimony supports a limited award of damages for the 1994 accident.

Viewing the evidence in the light most favorable to the verdict, we conclude that the district court did not abuse its discretion when it denied Heine’s motion for a new trial based on insufficient damages.

III.

Simon argues that the doctrine of collateral estoppel applies to a workers’ compensation determination that Heine’s wage loss was not caused by the 1994 accident, thus precluding him from recovering damages for wage loss in this case and entitling Simon to remittitur. The availability of collateral estoppel is a mixed question of law and fact, subject to de novo review. Falgren v. State, Bd. of Teaching, 545 N.W.2d 901, 905 (Minn.1996). If collateral estoppel is available, the decision to apply the doctrine is within the district court’s discretion. Saudi Am. Bank v. Azhari, 460 N.W.2d 90, 92 (Minn.App.1990). Likewise, whether to grant remitti-tur is within the district court’s discretion, and we will not reverse that determination absent a clear abuse of discretion. Myers v. Hearth Techs., Inc., 621 N.W.2d 787, 792 (Minn.App.2001), review denied (Minn. Mar. 13, 2001).

“Collateral estoppel bars the relitigation of issues which are both identical to those issues already litigated by the parties in a prior action and necessary and essential to the resulting judgment.” Clapper v. Budget Oil Co., 437 N.W.2d 722, 725 (Minn.App.1989) (stating that collateral estoppel is the issue preclusion branch of res judicata), review denied (Minn. June 9, 1989). Collateral estoppel is applicable when

(1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the es-topped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.

Schlichte v. Rielan, 599 N.W.2d 185, 187-88 (Minn.App.1999), revieiv denied (Minn. Nov. 17, 1999). The Minnesota Supreme Court has acknowledged that the principles of res judicata apply to decisions of the workers’ compensation court in certain instances. Westendorf v. Campbell Soup Co., 309 Minn. 550, 550, 243 N.W.2d 157, 158, (1976) (acknowledging that the principles of res judicata apply to workers’ compensation board decisions but declining to apply res judicata to claims not litigated in the prior hearing); Brix v. Gen. Accident & Assurance Corp., 254 Minn. 21, 26, 93 N.W.2d 542, 546 (1958) (applying res judi-cata to an action brought by the employee against employer’s workers’ compensation insurer where the issue of whether employee’s injuries arose during the course of employment was adjudicated in a previous workers’ compensation action against the employer).

As discussed above, the district court’s reasons for declining to apply the doctrine of collateral estoppel were not made available to us. See supra n. 3. But the record supports the district court’s decision not to apply collateral estoppel to the issues adjudicated in the workers’ compensation proceeding because the issues were not identical and the workers’ compensation proceeding did not afford Heine a full and fair opportunity to be heard on the wage-loss issue.

The issue of liability for damages, such as lost wages, is not litigated in workers’ compensation proceedings. See Katzenmaier v. Doeren, 150 Minn. 521, 522-23, 185 N.W. 938, 938 (1921). Workers’ compensation actions generally determine the amount of workers’ compensation benefits for which an employer is liable when an employee is injured during the scope of employment. See Minn.Stat. § 176.021, subd. 1 (2002). In Heine’s case, the workers’ compensation judge addressed the following issues: (1) the amount of Heine’s average weekly wage on the dates of injury, (2) the date when Heine was restricted to part-time work by his doctors, (3) whether Heine could claim 225 weeks of temporary partial disability for each injury, (4) whether Heine’s actual earnings after September 18, 1994, were a measure of his earning capacity, (5) whether Heine withdrew from the labor market to become self-employed in 1994, and (6) whether Heine made a diligent search for work after September 18, 1994. The workers’ compensation judge determined that, although the injuries Heine suffered after each accident caused some wage loss, the evidence presented in the workers’ compensation proceeding was insufficient to support a causal relationship between the injuries sustained in the 1993 and 1994 accidents and his loss of earnings between September 18, 1994, and December 4, 2000, when the workers’ compensation hearing concluded.

In contrast to the workers’ compensation proceeding that examined the combined injuries sustained in both accidents and the resulting wage loss, the issues before the jury were the nature of the injuries Heine received that are attributable solely to the 1994 accident and the amount of Heine’s lost wages attributable to this accident from the date of injury to the date of trial in September 2002. Thus, the issues adjudicated in the workers’ compensation action were factually dissimilar from those litigated in district court.

In addition, because Heine was unable to offer medical testimony at the workers’ compensation hearing and that proceeding allows evidence that is inadmissible in a jury trial to support the benefits decision, we also conclude that Heme’s opportunity to be heard in the workers’ compensation action is insufficient to satisfy the full-and-fair-opportunity criterion necessary to preclude litigation of the wage-loss issue at trial. Simon argues that the Minnesota Supreme Court’s decisions in Westendorf and Brix extend the doctrine of collateral estoppel to apply to other proceedings on the basis of the workers’ compensation decision. But Minnesota law establishes that agency hearings do not provide a full and fair opportunity to be heard unless elaborate procedural due-process safeguards are built into the proceedings. Cf. Graham v. Special Sch. Dist. No. 1, 472 N.W.2d 114, 118 (Minn.1991) (applying collateral estoppel where administrative hearing was presided over by an impartial hearing examiner, both parties were entitled to representation by counsel, the rules of evidence were followed, and findings had to be established by “substantial and competent evidence”).

Hearings before a department referee are informal in nature. The appeal tribunal is not bound by common law or statutory rules of evidence and procedure. Hearsay is admissible and may be sufficient to support the department’s decision. Representation of a claimant by an attorney, although permitted, is subject to the oversight of the department. There is no provision for juries. [And t]he emphasis at the hearing is on the speedy resolution of a claim.... [T]he nature of such a hearing does not constitute a full and fair opportunity to be heard for purposes of applying collateral estoppel to the resulting determination.

Clapper, 437 N.W.2d at 726 (citations omitted) (declining to apply collateral-estoppel effect to determination of Department of Jobs and Training that employee voluntarily resigned from his employment in employer’s subsequent wrongful-termination lawsuit).

Workers’ compensation hearings are not bound by common law or statutory rules of evidence, nor are the rules of pleading or procedure applicable. Minn. Stat. § 176.411 (2002). Reliable hearsay is admissible. Id. Additionally, there is no right to a jury trial on a workers’ compensation claim. Snesrud v. Instant Web, Inc., 484 N.W.2d 423, 426 (Minn.App.1992), revieiv denied (Minn. June 17, 1992). Based on the nature of the proceedings and the record before us, we conclude that the workers’ compensation hearing did not provide a full and fair opportunity to be heard for the purpose of applying the doctrine of collateral estoppel in Heine’s negligence action against a third-party tortfea-sor.

Because two of four criteria for applying the doctrine of collateral estoppel were not met, the district court did not abuse its discretion in declining to apply the doctrine to the issue of Heine’s past wage loss.

IV.

Simon argues that the jury’s award of $8,000 for past medical costs is subject to a collateral-source offset of $23,214.43, the amount paid by Heme’s workers’ compensation benefits for medical expenses. We disagree. Once damages have been awarded to compensate a plaintiff for losses available to the date of entry of the verdict by collateral sources, the district court shall reduce the award by the amount of collateral sources, including workers’ compensation benefits, that have been paid for the benefit of the plaintiff. Minn.Stat. § 548.36 (2002). Heine claimed medical expenses totaling $27,167.44 through the date of trial. The record establishes that his workers’ compensation benefits paid a total of $23,214.43 toward Heine’s medical expenses through the date of trial, leaving a total of $3,953.01 in unpaid medical expenses at the time of trial. The district court granted a collateral-source offset of $4,046.99 to the $8,000 awarded by the jury for Heine’s past medical expenses, thus limiting Heine’s recovery to those uncompensated medical expenses incurred by the date of the verdict. Accordingly, the district court correctly applied the collateral-source offset to the jury’s damage award.

DECISION

The district court exercised its sound discretion in instructing the jury as to aggravation of a preexisting injury and in denying Heine’s motion for a new trial. Additionally, the district court did not err in declining to apply the doctrine of collateral estoppel to preclude litigation of the issue of past wage loss following the workers’ compensation proceedings. Finally, the district court’s application of collateral-source offsets to the jury’s damage award is fully supported by the record.

Affirmed.

      . In a separate trial related to the 1993 accident, the jury awarded Heine $18,800 in damages.

      . The prototypical factual scenario involving a single indivisible injury is a multiple-car chain-reaction accident where multiple impacts over a short time period result in injuries incapable of apportionment. Mathews, 288 Minn. at 23, 178 N.W.2d at 845.

      . The parties failed to provide this court with the transcript from the posttrial proceedings, which the district court incorporated by reference into the findings of its order on the parties' posttrial motions.


author: WILLIS, Judge.

text:
    STATE of Minnesota, Respondent, v. Michael Montgomery PORTER, Appellant.
    No. C3-03-223.
    Court of Appeals of Minnesota.
    Feb. 4, 2004.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Minneapolis, MN, for respondent.
    John M. Stuart, State Public Defender, Theodora K. Gaitas, Assistant Public Defender, Minneapolis, MN; and Karl E. Robinson, Special Assistant State Public Defender, Winthrop & Weinstine, PA, Minneapolis, MN, for appellant.
    Considered and decided by WILLIS, Presiding Judge; KLAPHAKE, Judge; and ANDERSON, Judge.
   OPINION

WILLIS, Judge.

On appeal from his conviction of felon in possession of a firearm, appellant argues that there is insufficient evidence to support the conviction and that the jury instruction on that charge misstated the law. We conclude that the evidence was sufficient, but because we also conclude that the jury instruction materially and prejudi-cially misstated the law regarding constructive possession of a firearm, we reverse and remand for a new trial.

FACTS

On the morning of May 10, 2002, officers of the Minneapolis Police Department executed a search warrant at an apartment on Clinton Avenue South in Minneapolis. Upon entering, police met and detained appellant Michael Montgomery Porter and his girlfriend, Camille Alexander. In searching the apartment, the police found drug paraphernalia and 1.59 grams of crack cocaine in a kitchen cabinet. In a nearby kitchen closet, police -found 4.22 grams of powder cocaine and, within inches of the powder cocaine, a .38-caliber handgun. Because of a 1996 bank-robbery conviction, Porter was prohibited from possessing a firearm by Minn.Stat. § 624.713, subd. 1(b) (2000).

Porter admitted to the police that the crack cocaine belonged to him, but he denied any knowledge of either the handgun or the powder cocaine. The state charged Porter with third-degree possession of the powder cocaine, in violation of Minn.Stat. §§ 152.023, subds. 2(1), 3(a), 609.101, subd. 3, 609.11 (2000); fifth-degree possession of the crack cocaine, in violation of Minn.Stat. § 152.025, subd. 2(1) (2000); and prohibited person in possession of a firearm, in violation of Minn.Stat. §§ 624.713, subds. (l)(b), 2, 609.11 (2000).

A jury trial was held in September 2002. The court used CRIMJIG 20.20 as its proposed jury instruction on the charge of possession of the powder cocaine. That instruction provides that a defendant possessed a controlled substance if it was “in a place under the defendant’s exclusive control to which other people did not normally have access, or if the defendant knowingly exercised dominion and control over (the controlled substance).” 10A Minnesota Practice, CRIMJIG 20.20 (2000) (emphasis added). The court’s proposed jury instruction on the firearm-possession charge was a modified version of CRIMJIG 32.21 and provided that Porter possessed the firearm if he “knowingly ... exercised authority, dominion or control over the firearm. Possession may be sole or joint.” (Emphasis added.)

Before the district court instructed the jury, Porter requested that the court use the definition of “possessed” in CRIMJIG 20.20 for both the charge of possession of powder cocaine and the charge of possession of a firearm. Over Porter’s objection, the district court instructed the jury using the proposed instructions.

The jury found Porter guilty of possession of a firearm but not guilty of possession of powder cocaine. Porter moved the court for a judgment of acquittal on the firearm charge or, alternatively, for a new trial, arguing that the evidence was insufficient to support the conviction, that the jury instruction on the firearm-possession charge did not accurately state the law, and that the not-guilty verdict on the charge of possession of the powder cocaine was legally inconsistent with the guilty verdict on the firearm-possession charge. The district court denied the motion, concluding that the jury instructions accurately stated the law and that the different verdicts on the powder-cocaine and firearm-possession charges could be attributed either to jury lenity or to the fact that the instruction on the firearm-possession charge permitted a guilty verdict if the jury found joint possession. This appeal followed.

ISSUES

1. Was the evidence sufficient to support Porter’s conviction of felon in possession of a firearm?

2. Did the jury instruction on the firearm-possession charge against Porter materially and prejudicially misstate the law?

ANALYSIS

I.

Porter argues that the evidence at trial was insufficient to prove that he constructively possessed the firearm that the police found in the closet of the kitchen of the apartment Porter shared with his girlfriend.

In considering a claim of insufficient evidence, we analyze the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). We must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn.1989). We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn.1988).

To obtain a conviction under Minn.Stat. 624.713, subds. 1(b), 2, the state must establish either actual or constructive possession of a firearm. State v. Loyd, 321 N.W.2d 901, 902 (Minn.1982). Here, Porter did not have actual possession of the firearm, so the states burden was to prove constructive possession. To prove constructive possession, the state must prove that: (1) the police found the item in a place under the defendant’s exclusive control to which other people did not normally have access, or (2) if the police found it in a place to which others had access, that there is a strong probability, inferable from the evidence, that the defendant was, at the time, consciously exercising dominion and control over it. State v. Florine, 303 Minn. 103, 105, 226 N.W.2d 609, 611 (1975).

When a conviction is based on circumstantial evidence, that evidence must lead directly to the guilt of the accused so to exclude, beyond a reasonable doubt, any reasonable inference other than guilt. State v. Jones, 516 N.W.2d 545, 549 (Minn.1994). A jury is in the best position to evaluate circumstantial evidence, and its verdict is entitled to deference. State v. Morris, 606 N.W.2d 430, 437 (Minn.2000).

The circumstantial evidence against Porter is sufficient to support the guilty verdict. The state introduced utility bills and other mailings in Porter’s name that were delivered to the apartment, and one of the officers who executed the search warrant testified that Porter admitted to him that Porter lived in the apartment. Furthermore, Porter testified that he stayed at the apartment four or five nights a week, that he kept personal belongings there, and that the crack cocaine found in the kitchen, in a cabinet five to eight feet from the closet where the firearm was found, belonged to him. Viewing the evidence in a light most favorable to the conviction, we conclude that the evidence was sufficient to allow the jury to conclude that Porter constructively possessed the firearm. See Florine, 303 Minn. at 105, 226 N.W.2d at 611.

II.

Porter next argues that the jury instruction on the charge of felon in possession of a firearm materially and prejudicially misstated the law.

Initially, we address the state’s argument that Porter waived his claim that the firearm-possession jury instruction was erroneous because he consented to the instruction given by the court and he did not specifically object to its language. Generally, under Minnesota caselaw and Minn. R.Crim. P. 26.03, subd. 18(3), if a defendant fails to object to a jury instruction at trial, his right to contest it on appeal is waived. State v. LaForge, 347 N.W.2d 247, 251 (Minn.1984); see State v. Kelley, 295 N.W.2d 521, 522 (Minn.1980). But a defendant who has objected to the substance of a jury instruction at trial has preserved his right to seek a review of the instruction on appeal. State v. Kuhnau, 622 N.W.2d 552, 555 (Minn.2001). If a defendant’s trial objection embodies the arguments raised on appeal, the claim has been properly preserved, even if the defendant did not clearly articulate his objection to the instruction at trial. Id. A defendant does not have to argue to the district court the legality of each phrase of an instruction in order for the instruction as a whole to be attacked on appeal. LaForge, 347 N.W.2d at 251.

The record shows that, before the jury was instructed, Porter objected to the proposed instruction on possession of the firearm and requested that the court define “possessed” in that instruction as it was being defined in the instruction on the charge of possession of powder cocaine. The court responded that it would do so only if Porter would agree to the inclusion in both instructions of the statement that “possession may be sole or joint.” Porter declined the court’s offer, stating that he was choosing the “lesser of two evils.” He then specifically preserved his objection.

Porter’s objection in district court embodied the objection he raises on appeal. Specifically, he argued in the district court that the instruction on the charge of possession of powder cocaine incorporated the proper definition of “possessed” and that the court should use that definition in the instruction on the firearm charge. Because this is the substance of Porter’s argument on appeal, he properly preserved his claim.

Porter argues that, under Minnesota law, when police find a controlled substance or a firearm in a place that is not under a defendant’s exclusive control, the standards for proving constructive possession are identical: namely, the state must show, inter alia, that the defendant exercised “dominion and control” over the controlled substance or the firearm. Porter contends that, by instructing the jury that he possessed the firearm if he exercised “authority, dominion or control” over the firearm, the district court materially and prejudicially misstated the law. He further contends that, based on the disparate definitions of “possessed” in the two jury instructions, the jury “had to conclude” that different standards of “constructive possession” applied to the two charges. He argues that this is the only plausible explanation for the fact that the jury acquitted him of possession of the powder cocaine but found him guilty of possession of the firearm, although both were found under similar circumstances. The state contends that both instructions correctly stated the law and that the differences were too minor to affect the jury’s verdict, so that the error, if any, was harmless.

District courts are allowed “considerable latitude” in the selection of language for the jury instructions. State v. Baird, 654 N.W.2d 105, 113 (Minn.2002). The refusal to give a requested instruction lies within the discretion of the district court and will not be reversed absent an abuse of that discretion. State v. Cole, 542 N.W.2d 43, 50 (Minn.1996). Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn.1988). A jury instruction is in error if it materially misstates the law. Kuhnau, 622 N.W.2d at 556.

To prove constructive possession of an item, the state must show that: (1) the police found it in a place under the defendant’s exclusive control to which other people did not normally have access; or (2) if the police found it in a place to which others had access, that there is a strong probability, inferable from the evidence, that the defendant was, at the time, consciously exercising dominion and control over it. Florine, 303 Minn. at 105, 226 N.W.2d at 611. These standards apply both to constructive possession of firearms and to constructive possession of controlled substances. See State v. Willis, 320 N.W.2d 726, 728-29 (Minn.1982) (applying Florine constructive-possession standards to firearm charges); State v. Carr, 311 Minn. 161, 162-63, 249 N.W.2d 443, 444-45 (1976) (applying Florine constructive-possession standards to controlled-substance charges). Here, Porter did not have exclusive access to the apartment where the firearm and the powder cocaine were found, so the second of the Florine standards applies. This standard for constructive possession is properly described in the text of both CRIMJIG 20.20 and CRIMJIG 32.21, which require a determination that a defendant “exercised dominion and control” over the item in question.

The instruction given by the district court on the firearm-possession charge materially misstated the law. By using the disjunctive “or” in the firearm-possession instruction, the court described a standard for finding constructive possession different from that required by Florine. And, contrary to the state’s contention, we conclude that the error is not minor. Whether or not there is a substantive difference between “dominion” and “control,” the instructions suggested to the jury that the standard for showing constructive possession of a firearm is lower than the standard for showing constructive possession of powder cocaine.

But a misstatement of the law in a jury instruction requires reversal only if the error was prejudicial. Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 659-60 (Minn.1987). Such an error is prejudicial and a new trial is required only if it cannot be said beyond a reasonable doubt that the error had no significant impact on the verdict. State v. Olson, 482 N.W.2d 212, 216 (Minn.1992). Porter contends that the erroneous jury instruction is the only reasonable explanation for the jury’s apparently conflicting verdicts on the firearm-possession and powder-cocaine-possession charges. We cannot say beyond a reasonable doubt that the erroneous jury instruction was not a significant factor in Porter’s conviction of unlawful possession of a firearm. We conclude that the jury instruction prejudiced Porter and that he is entitled to a new trial.

DECISION

The district court’s jury instruction defining constructive possession of a firearm materially misstated the law. Because we cannot say that, beyond a reasonable doubt, the erroneous instruction did not affect the jury’s verdict, Porter is entitled to a new trial. See Olson, 482 N.W.2d at 216.

Reversed and remanded.

      . CRIMJIG 32.21 provides that a defendant possessed a firearm if he "knowingly possessed (the firearm) or consciously exercised dominion and control over it.” 10A Minnesota Practice, CRIMJIG 32.21 (2000) (emphasis added).


author: RANDALL, Judge.

text:
    STATE of Minnesota, Respondent, v. Joshua Lee BEARDEMPHL, Appellant.
    No. A03-449.
    Court of Appeals of Minnesota.
    Feb. 10, 2004.

      Mike Hatch, Attorney General, St. Paul, MN, and Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant Hennepin County Attorney, Minneapolis, MN, for respondent.
    John M. Stuart, State Public Defender, Theodora Gaitas, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by GORDON SHUMAKER, Presiding Judge, RANDALL, Judge, and ROBERT H. SCHUMACHER, Judge.
   OPINION

RANDALL, Judge.

After a court trial on stipulated facts, appellant was convicted of felon in possession of a firearm and of two counts of second-degree assault. He challenges the denial of his motion to suppress, arguing that his seizure was illegal and that evidence from that seizure should have been suppressed. We affirm.

FACTS

On September 19, 2002, at about 6:45 p.m., Officer Jeffrey Boeltl was on routine patrol with his partner, Officer Andrew Enriquez, in a marked squad car. Boeltl noticed a car with a loud muffler and a back end that was bouncing up and down, which he deemed a safety hazard. Boeltl decided to stop the vehicle, and he activated the emergency lights on his squad car. Appellant, the driver of the suspect vehicle, made a right turn into a parking lot of a water park. By the time that Boeltl, who had to wait for several pedestrians to pass by, entered the parking lot, appellant had left his vehicle and was running away through a grassy area in the park.

The officers pursued appellant in the squad car with the lights and siren activated. Boeltl saw appellant reach towards his waistband, throw something on the ground, and then reach back again to his waistband. Boeltl warned his partner and then saw something silver and black in appellant’s hand. Enriquez advised Boeltl that it appeared to be a gun.

The officers continued their pursuit on foot as appellant left the park and ran into an alley. Appellant jumped over a fence and then turned and pointed a gun at the officers. Enriquez fired his gun towards appellant and, in response, appellant began running again. After chasing him further, the officers apprehended him.

Appellant was arrested and charged with felon in possession of a firearm, Minn. Stat. § 624.713, subd. 1(b) (2002), and with two counts of assault in the second degree, Minn.Stat. § 609.222, subd. 1 (2002). The officers did not issue a citation to him for the equipment violations.

Appellant moved to suppress the evidence, arguing that his seizure was illegal. The district court denied the motion. Appellant waived his right to a jury trial and submitted the case to the court on stipulated facts. The court found him guilty as charged. This appeal followed.

ISSUE

When the officers stopped appellant’s vehicle upon reasonable suspicion of petty misdemeanor equipment violations and appellant then fled from the officers on foot, did the officers who were pursuing him in a squad car with lights and siren activated have reasonable suspicion to seize him?

ANALYSIS

In reviewing a district court order addressing a motion to suppress based on the legality of a search or seizure in a criminal proceeding, an appellate court will not reverse findings of fact unless clearly erroneous. State v. Pederson-Maxwell, 619 N.W.2d 777, 780 (Minn.App.2000). The appellate court will review undisputed facts independently to determine whether the district court erred as a matter of law. State v. Harris, 590 N.W.2d 90, 98 (Minn.1999).

A seizure occurs when, “under all the circumstances, a reasonable person would have believed that because of the conduct of the police he was not free to leave.” In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn.1993) (holding that seizure occurred once police directed defendant, who started walking away after seeing the police officers, to stop). “[T]he police must be able to articulate reasonable suspicion justifying the seizure, else any evidence that is the fruit of the seizure is suppressible.” Id. This requires only that the stop was “not the product of mere whim, caprice, or idle curiosity.” State v. Waddell, 655 N.W.2d 803, 809 (Minn.2003) (quotation omitted). Appellant was seized.

The grounds for the officers’ initial stop of appellant were a loud muffler and the apparent unsafe condition of the vehicle. “Ordinarily, if an officer observes a violation of a traffic law, however insignificant, the officer has an objective basis for stopping the vehicle.” State v. George, 557 N.W.2d 575, 578 (Minn.1997). Under Minnesota law, every vehicle must be equipped “with a muffler in good working order which blends the exhaust noise into the overall vehicle noise.” Minn.Stat. § 169.69 (2002). Further, it is unlawful to drive a vehicle “which is in such unsafe condition as to endanger any person.” Minn.Stat. § 169.47, subd. 1(a) (2002). Violations of these statutes are petty misdemeanors (not technically “crimes,” but it is accepted that “reasonable and articulable suspicion” of traffic violations, whether petty misdemeanors or misdemeanors, can justify a stop). MinmStat. § 169.89, subd. 1 (2002). As the district court held, the initial stop of appellant’s vehicle based on the equipment violations was lawful. See State v. Pierce, 347 N.W.2d 829, 833 (Minn.App.1984) (holding that stop based on noisy muffler was lawful). Appellant argues that he never received a citation for equipment violations. But “failure to issue a citation is not determinative of the validity of the stop.” Holm v. Comm’r of Pub. Safety, 416 N.W.2d 473, 475 (Minn.App.1987).

Appellant contends that the officers did not have reasonable suspicion to pursue him when he left his vehicle and fled after the stop. That argument of appellant is meritless. Appellant first argues that under the rules of criminal procedure, the officers could not lawfully make a custodial arrest for the equipment violations, because those offenses are only petty misdemeanors. Minn. R.Crim. P. 6.01, subd. l(l)(a). That rule provides that a custodial arrest is authorized for misdemeanors under limited circumstances and “... [ojrdi-narily, for misdemeanors not punishable by incarceration, a citation shall be issued.” Id. Appellant’s argument is not on point. The officers were not making a custodial arrest for a loud muffler and unsafe equipment. They were pursuing him after he fled following a valid traffic stop.

Appellant asserts that a stop for equipment violations plus fleeing from an officer together do not give rise to a reasonable, articulable suspicion that he was engaged in any criminal activity other than equipment violations. We disagree. If a defendant is stopped for equipment violations and has done absolutely nothing -wrong other than those possible equipment violations, that defendant cannot give a “reasonable and articulable explanation” for running away from the police on the basis that “I just decided the right thing for me to do was run from the cops rather than stay and discuss whether I needed a new muffler!”

Here, appellant, rather than stopping his vehicle and staying on the scene to discuss with the officers the reason for the stop (and possibly receive a citation), abandoned his vehicle and fled. At this point, as the district court found, the police had reasonable and articulable suspicion that additional criminal activity — at the very least, disobeying a lawful police order to stop and obstructing legal process — was “afoot.” Then, appellant “removed all doubt” as to whether he could be pursued and apprehended when, while fleeing, he took out a gun that both officers saw and pointed it at them. It is not difficult to find that officers had reasonable suspicion to seize appellant who, while fleeing from the police after a valid stop, pulled out a gun and pointed it at the officers.

Appellant, somehow, argues that the evidence seized after the police pursuit should be suppressed as fruit of the poisonous tree. He cites caselaw in which the original seizure was illegal, the defendant fled, and, as a result of a second encounter, police found contraband, which was suppressed as being an illegal search or seizure. State v. Hardy, 577 N.W.2d 212, 217 (Minn.1998). Hardy is not on point. Appellant’s argument is premised on the assumption that the officers’ actions in pursuing him as he fled were illegal. Unlike Hardy, the first seizure of appellant was lawful.

DECISION

The police officers had reasonable suspicion to seize appellant. The district court did not err in denying appellants motion to suppress evidence resulting from the seizure.

Affirmed.

      . "[N]ot punishable by incarceration" designates a petty misdemeanor for which jail time is never authorized, as opposed to a misdemeanor for which jail time, although not necessarily the norm, is always authorized and therefore always possible.


author: TOUSSAINT, Chief Judge.

text:
    Joanne FAY, petitioner, Respondent, v. ST. LOUIS COUNTY BOARD OF COMMISSIONERS, Appellant.
    No. A03-1443.
    Court of Appeals of Minnesota.
    Feb. 10, 2004.

      Kenneth D. Butler, Duluth, for respondent.
    Alan L. Mitchell, St. Louis County Attorney, Shaun R. Floerke, Amy H. Kuro-nen, Assistant County Attorneys, Duluth, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge; and STONEBURNER, Judge; and HUDSON, Judge.
   OPINION

TOUSSAINT, Chief Judge.

On appeal from the district court’s invalidation of the county board’s redistricting plan and subsequent appointment of a redistricting commission, appellant county board argues that a redistricting plan with a ten-percent-or-less-population deviation among districts is prima facie valid and may be implemented with no justification by the board. Because we find no error in the district court’s findings and conclusion that the board failed to satisfy the standards of the Minnesota county-redistricting statute, we affirm the court’s determination that the plan is invalid and a redistricting commission was required.

FACTS

Appellant St. Louis County Board of Commissioners (the board) is composed of seven commissioners, each representing one district. Respondent Joanne Fay is one of those commissioners. After the 2000 Federal Census showed a St. Louis County population of 200,528, the parties agreed that redistricting was necessary.

The board considered several proposed redistricting schemes. Pursuant to published notice, a public hearing was held on May 21, 2002. At the public hearing, the county auditor submitted three plans and a commissioner submitted two alternatives. The board then discussed the plans and referred three plans, Plan A, Alternate 1, and Alternate 2, to the next board meeting for final resolution. The minutes reflect that on May 28, the board, the auditor, and a resident addressed the plans. After motions to adopt Plan A failed and Alternate 2 died without support, Alternate 1 was adopted with two dissenters, Commissioners Fink and Fay.

On Juné 4, Commissioner Fay petitioned for a writ of mandamus. She claimed that adoption of Alternate 1 “was effected by the [board] without applying or adhering to the standards and criteria set forth in Minn.Stat. § 375.025, subd. 1,” specifically that (1) the population deviation exceeded ten percent and (2) the districts were not “as. nearly equal in population as possible.”

On July 1, the district court determined that the plan adopted at the May 28 meeting violated Minn.Stat. § 375.025 and the Minnesota and United States Constitutions. The court “respectfully commanded” that the board adopt a plan in compliance with the statute and the constitutions. Specifically, the court ordered that the plan was null and void and that the board must comply with the requirement that the districts “be as nearly equal in population as possible and vary in population no more than 10 percent from the average population for all such districts in the County.” The court set out the proper computation to determine compliance.

After the board heard the county attorney explain the court’s July 1 order, they moved the redistricting matter to a later meeting. The board reconvened on July 8. The county attorney detailed redistricting plans that would fall within the “ten percent deviation deemed acceptable by the court.” After a motion to approve Alternate 2 failed, two commissioners successfully moved to adopt a new alternate, Plan XI. The minutes of the meeting conclude with: “Commissioner Fay insisted the redistricting deviation could be closer than the 8.12% included in Plan XI. After further discussion, the plan was approved. (6-1, Commissioner Fay voting nay).”

The board then moved the district court to reconsider the court’s issuance of the writ. It argued that the court had exceeded its powers by declaring the plan null and void. The board also filed with the court its resolution adopting Plan XI, a copy of Plan XI, and an error-check report showing the percent deviations for each district.

Commissioner Fay submitted an affidavit on July 17, stating that Plan XI “does not advance the spirit and intent of [the] Court’s Order filed July 1, 2002 in that it does not create revised districts as nearly equal in population as possible required by MinmStat. § 375.025, subd. 1.” She stated that the total percent deviation of the districts from absolute parity was 8.26%, which was supported by the error-check report, but noted that two districts had much smaller population shifts than the others. She proposed her own plan with a total percent deviation of 1.6%. She argued that Plan XI also did not meet the one-person, one-vote precept. She noted several concerns raised by commissioners that were not addressed in Plan XI but were addressed in her plan. Finally, she argued that Plan XI was never published in the paper and no public hearing was held for consideration of Plan XI.

On July 24, the district court issued an order stating that “XI facially complies with the ten percent de minimus population deviation standard of Minn.Stat. § 375.025.” In a separate order, the court denied the board’s motion to reconsider the writ of mandamus, having found there was no compelling reason to do so.

One year later, on August 4, 2003, the district court heard Commissioner Fay’s challenge to Plan XI. On September 3, the district court concluded that the board had abused its discretion in its adoption of Plan XI. The court also appointed a redistricting commission to devise a new redistricting plan.

After the board filed its notice of appeal, it sought accelerated review by the supreme court, which was denied on November 18. This court denied a motion to stay the work of the redistricting commission. The redistricting commission then filed its own redistricting plan with the district court, which certified the plan on December 22, 2003. A subsequent motion to stay implementation of the commission’s plan was also denied by this court.

ISSUES

I. Did the district court err in requiring the board to provide justification for its choice of plan where the percent deviation of the adopted plan conformed with the federal constitutional de minimus standard?

II. Did the district court correctly determine that the board’s adoption of Plan XI did not satisfy MinmStat. § 375.025 (2002)?

ANALYSIS

An appellate court mil conduct a de novo review of a writ of mandamus. McIntosh v. Davis, 441 N.W.2d 115, 118 (Minn.1989).

I.

The St. Louis County Board of Commissioners contends that the only question before the district court was whether the board’s redistricting plan met the federal constitutional standard for population deviation among districts. Under that standard, if the population deviation among the districts was less than ten percent, the board need not justify the plan unless the respondent proved invidious discrimination. No one disputes that Plan XI has a population deviation less than ten percent and no one alleges invidious discrimination. Therefore, the board argues, the plan was valid and should have been implemented.

Unlike the board, Commissioner Fay and the district court proceeded to analyze the plan and its adoption under Minn.Stat. § 375.025. Under that statute, a county redistricting plan must establish districts that meet certain “standards,” not just pass a ten-percent-population-deviation standard. Under the recent decision Ziols v. Rice County Bd. of Comm’rs, 661 N.W.2d 283 (Minn.App.2003), Commissioner Fay argues, the board must show that it has separately considered the equal-population factor and the population-deviation standard, and must provide an explicit explanation for its choice of redistricting plan.

The board argues that this court would disregard decades of United States Supreme' Court precedent if it were to apply the Minnesota statute instead of the federal ten percent standard. We conclude that the state statute conforms with federal law and must be applied to county redistricting plans.

It is clear that our state statute is rooted in the same constitutional principle that gives rise to federal caselaw. The one-person, one-vote principle is grounded in the Equal Protection Clause, Reynolds v. Sims, 377 U.S. 533, 560-61, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506 (1964), and applies to state and local elections. Abate v. Mundt, 403 U.S. 182, 185, 91 S.Ct. 1904, 1906, 29 L.Ed.2d 399 (1971); Hanlon v. Towey, 274 Minn. 187, 196, 142 N.W.2d 741, 746 (1966) (holding that equality-of-voting-rights principle embodied in Equal Protection Clause of federal constitution applies to county governments). The state statute is “ultimately based on the right to vote, which is protected under the constitution ‘against dilution or debasement.’” Ziols, 661 N.W.2d at 288 (citing Hadley v. Junior Coll. Dist. of Metro. Kansas City, Mo., 397 U.S. 50, 54, 90 S.Ct. 791, 794, 25 L.Ed.2d 45 (1970)).

Decisions of the United States Supreme Court indicate that a state statutory plan for county redistricting deserves deference as long as the statute protects voters’ constitutional rights. “That the Equal Protection Clause requires that [apportionment] ... be ... on a population basis does not mean that States cannot adopt some reasonable plan for periodic revision of their apportionment schemes.” Reynolds, 377 U.S. at 583, 84 S.Ct. at 1392. When a state accepts responsibility for redistricting, “its decisions as to the most effective reconciling of traditional policies should not be restricted beyond the commands of the Equal Protection Clause.” Wise v. Lipscomb, 434 U.S. 1329, 1331-32, 98 S.Ct. 15, 17, 54 L.Ed.2d 41 (1977). “With respect to the operation of the Equal Protection Clause, it makes no difference whether a State’s apportionment scheme is embodied in its constitutional or in statutory provisions.” Reynolds, 377 U.S. at 584, 84 S.Ct. at 1393.

The Minnesota legislature’s standards for redistricting counties are set out in Minn.Stat. § 375.025, subd. 1 (2002). The redistricting standards mandate that each district shall be:

1. bounded by town, municipal, ward, or precinct lines,
2. composed of contiguous territory,
3. as regular and compact in form as practicable, depending upon the geography,
4. as nearly equal in population as possible, and
5. not varying in population more than ten percent from the average for all districts in the county.

Minn.Stat. § 375.025, subd. 1. These standards, requiring that the districts be “as nearly equal in population as possible,” extend beyond the population-deviation standard under federal constitutional law to ensure greater compliance with the one-person, one-vote principle in redistricting. Requiring districts to be “as nearly equal in population as possible” is a different and separate factor from population deviation when devising a redistricting plan. Ziols, 661 N.W.2d at 288.

While federal constitutional law is properly applied to challenge a state law as limiting a person’s fundamental rights, it does not follow that it applies to supersede a state law that conforms with the voting-rights protections recognized by the United States Supreme Court. Here, no one alleges that the state statute provides less protection of the one-person, one-vote principle than federal law. Therefore, the district court correctly analyzed Plan XI under the state statutory standards.

II.

A reviewing court “will be slow to exercise its jurisdiction to set aside the redistricting of a county where it appears that the board by any exercise of sound discretion has effected that reasonable approximation to equality which is required by the statutory command that the districts shall contain as nearly as practicable equal populations.” State ex. rel. So. St. Paul v. Hetherington, 240 Minn. 298, 302, 61 N.W.2d 737, 741 (1953). Furthermore, the board is presumed to have done its duty and acted within the limits of its statutory powers, and the burden to show otherwise is on the party contending to the contrary. Id. at 305, 61 N.W.2d at 742.

The district court found that the board’s adoption of Plan XI was not sufficiently diligent and was an abuse of discretion under Minn.Stat. § 375.025. It determined, as did the district court in Ziols, that the board did not provide any specifics that would explain why it chose a plan with a greater population deviation than others before the board. While the Ziols court clarified that the board “was not required to pick the plan with the lowest population deviation from the ideal, it must explicitly address all of the statutory factors, particularly equal population” to justify its choice. Ziols, 661 N.W.2d at 289. If the record before the district court does not establish that each proposed plan was analyzed but rejected due to the overall superiority of the chosen plan, there is no basis to conclude the board complied with statutory standards. Here, the board resolution included a statement that the board had considered the one-person, one-vote principle, but there was nothing in the record to show that the commissioners had evaluated the population-equality issue.

The district court properly appointed a redistricting commission due to this deficiency in Plan XI. Because the board failed to brief the issue of proper notice in the implementation of Plan XI and Commissioner Fay subsequently withdrew her notice of review, this court declines to reach the issue. See State, Dep’t of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn.1997) (declining to reach issue not adequately briefed).

DECISION

The district court order declaring Plan XI to be null and void and appointing a redistricting commission was correctly determined by application of the state’s county-redistricting statute. The court did not err in its conclusion that the board had not articulated its basis for choosing Plan XI over other proffered plans that provided for districts that were more nearly equal in population than the districts in Plan XI.

Affirmed.


text:
    Tina M. SORENSON, Relator, v. LIFE STYLE, INC., Commissioner of Employment and Economic Development, Respondents.
    No. A03-1505.
    Court of Appeals of Minnesota.
    Feb. 13, 2004.

      Peter B. Knapp, William Mitchell Law Clinic, St. Paul, MN, for relator.
    Mark R. Carver, Dow, Einhaus, Matti-son & Carver, P.A., Owatonna, MN, for respondent employer Life Style, Inc.
    Lee B. Nelson, St. Paul, MN, for respondent Commissioner of Employment and Economic Development.
    Considered at Special Term and decided by TOUSSAINT, Chief Judge, KLAPHAKE, Judge, and G. BARRY ANDERSON, Judge.
   SPECIAL TERM OPINION

TOUSSAINT, Chief Judge.

Relator Tina M. Sorenson filed an administrative appeal of the denial of her claim for unemployment benefits. Both Sorenson and respondent-employer Life Style, Inc. were represented by counsel at the July 23, 2003 hearing before an unemployment law judge. In a July 25, 2003 decision, the unemployment law judge affirmed the denial of Sorensen’s claim for benefits. Sorenson appealed the decision to the Commissioner of Employment and Economic Development. Life Style’s counsel submitted a written response opposing the appeal. The commissioner’s representative ruled that Sorenson was disqualified from receiving benefits on September 2, 2003.

On October 9, 2003, Sorenson filed this certiorari appeal with the clerk of the appellate courts. On October 9, Sorenson served by mail copies of the petition for the writ of certiorari and the other appeal papers on the commissioner and on counsel for Life Style. Life Style now moves to dismiss the appeal on the ground of lack of jurisdiction, arguing that Sorenson was required to serve the petition for certiorari directly on Life Style and that service of the petition on Life Style’s counsel was ineffective.

DECISION

This court shall, by writ of cer-tiorari to the commissioner, review the commissioner’s decision provided that a petition for the writ is filed with the court and a copy is served on the commissioner and any other “involved party” within 30 calendar days after the mailing of the commissioner’s decision. Minn.Stat. § 268.105, subd. 7(a) (Supp. 2003). Three days are added to the statutory period to allow for mailing of the commissioner’s decision. Kenzie v. Dalco Corp., 309 Minn. 495, 497, 245 N.W.2d 207, 208 (1976).

The appeal period and the acts required to invoke appellate jurisdiction are governed by the applicable certiorari statute. Minn. R. Civ.App. P. 115.01. When a certiorari statute does not prescribe how service is to be effected, the appellate rules prescribing the manner of service apply. Savre v. Indep. Sch. Dist. No. 283, 642 N.W.2d 467, 470 (Minn.App.2002). In unemployment appeals, the appellate rules govern the method of service of the petition because Minn.Stat. § 268.105, subd. 7(a), does not specify how service is to be effected.

The appellate rules provide that “[s]er-vice on a party represented by counsel shall be made on the attorney.” Minn. R. Civ.App. P. 125.02. Service may be personal or by mail, and service by mail is complete on mailing. Minn. R. Civ.App. P. 125.03. Sorenson’s service of the petition for certiorari on Life Style’s counsel by mail on October 9 was timely and proper.

In support of its argument that Soren-son’s service of the petition on counsel was ineffective, Life Style relies on King v. Univ. of Minn., 387 N.W.2d 675 (Minn.App.1986), review denied (Minn. Aug. 13, 1986). In King, this court dismissed the certiorari appeal as untimely, holding that the 30-day statutory appeal period was triggered by the mailing of the commissioner’s decision to relator personally, rather than the subsequent mailing of the decision to relator’s counsel. Id. at 676-77. While acknowledging that the question was close, this court adopted the reasoning of State v. Scientific Computers, Inc., 384 N.W.2d 560 (Minn.App.1986). King, 387 N.W.2d at 677. In Scientific Computers, this court discharged a writ of certiorari because the petition was served on the respondent agency’s counsel rather than the respondent agency itself. 384 N.W.2d at 561. In Scientific Computers, this court refused to apply Minn. R. Civ. App. P. 125.02 and held that because statutes prescribing the procedures for filing and serving appeals are strictly construed, service on counsel representing the agency did not constitute service on the agency. Scientific Computers, 384 N.W.2d at 561.

The supreme court implicitly rejected this court’s reasoning in Scientific Computers. In a published order, the supreme court reversed this court’s decision discharging the writ and remanded the matter to this court for disposition of the appeal on the merits. State by Johnson v. Scientific Computers, 388 N.W.2d 748, 748 (Minn.1986). In a later case, based on the supreme court’s disposition in Scientific Computers, this court held that service of the petition on the attorney general representing the state agency satisfied the requirement that the petition for certiorari be served on the agency. In re Minor Modification to Solid Waste Permit SW-61, 448 N.W.2d 877, 877 (Minn.App.1989). Similarly, Sorenson’s service of the petition on the attorney representing Life Style satisfies the requirement of Minn. Stat. § 268.105, subd. 7(a) that the petition for certiorari be served on any other involved party.

Motion to dismiss denied.