author: HECHT, J.

text:
    Charles Dana DEPPE, Petitioner-Appellee/Cross-Appellant, v. IOWA DEPARTMENT OF TRANSPORTATION, MOTOR VEHICLE DIVISION, Respondent-Appellant/Cross-Appellee.
    No. 00-0993.
    Court of Appeals of Iowa.
    April 10, 2002.

      Thomas J. Miller, Attorney General, David A. Ferree, Special Assistant Attorney General,'and Mark'Hunacek, Assistant Attorney General, for appellant. -
    Douglas Cook of Brekken, Deppe, Wy-nia, Cook, Hyland, P.C., Jewell, for appel-lee.
    Heard by MAHAN, P.J., and MILLER and HECHT, JJ.
   HECHT, J.

The Iowa Department of Transportation (IDOT) appeals from the district court’s ruling on judiciál review holding Charles Deppe, whose license was revoked by the IDOT as a result of a deferred judgment for operating while intoxicated, is eligible to receive a temporary restricted license without installation ■of an ignition interlock device. Deppe cross-appeals from the district court’s ruling. sustaining the revocation . of his-driver’s license pursuant to Iowa .Code section 321J.4(3) (1999). We affirm.

I. Background Facts and Proceedings.

On February 5, 1999, Deppe was arrested for operating while intoxicated in violation of Iowa Code section 321J.2. The arresting officer requested that Deppe submit to a breath test. Deppe consented and the test revealed a blood alcohol concentration of 0.112. Pursuant to section 321J.12, the officer served Deppe with notice that his privilege to operate a motor vehicle in Iowa would be revoked for a period of 180 days, effective ten days from the- date of the notice. Deppe filed an appeal with the IDOT. The revocation was stayed pending the outcome of a hearing before an administrative law judge. The administrative law judge, and the IDOT on administrative appeal, ruled adversely to Deppe and sustained the revocation. The IDOT notified Deppe his license to operate would be revoked effective May 30,1999.

On May 27, 1999, the district court, in the parallel criminal prosecution for operating while intoxicated, issued an order suppressing chemical test evidence. Deppe filed a Petition to Reopen with the IDOT, citing the suppression of evidence in the criminal case. On June 21, 1999, the IDOT granted the petition and notified Deppe the revocation of his motor vehicle privileges had been rescinded.

On September 13, 1999, Deppe was granted a deferred judgment in the criminal case on his written plea of guilty. On October 4, 1999, the IDOT notified Deppe his license was revoked pursuant to Iowa Code section 321J.4(3) for a period of ninety days, effective ten days following receipt of the notice. The notice was amended to provide for revocation until December 27, 1999, reflecting credit for time served under the prior revocation. On November 8, 1999, Deppe filed a petition for judicial review. The district court sustained Deppe’s license revocation pursuant to section 321J.4(3) and determined he was eligible for a temporary restricted license without the installation of an ignition interlock device.

On appeal, the IDOT contends the district court erred in concluding Deppe is eligible for a temporary restricted license without the installation of an ignition interlock device. Deppe cross-appeals from the district court’s. ruling sustaining ■ the IDOT’s revocation under section 321J.4(3).

II. Scope of Review.

Judicial review of the actions of an administrative agency is governed by the standards of Iowa Code section 17A.19. Robbennolt v. Snap-On Tools Corp., 555 N.W.2d 229, 238 (Iowa 1996). The agency’s decision is final if it is supported by substantial evidence and is correct in its conclusions of law. Id. We review issues involving the interpretation of a statute for the correction of errors at law. Iowa R.App.. P. 6.4; State v. Schultz, 604 N.W.2d 60, 62 (Iowa 1999). We are not bound by the district court’s application of legal principles. Schultz, 604 N.W.2d at 62.

III. Discussion.

A. Revocation of Deppe’s License.

We begin our analysis with Deppe’s contention on cross-appeal that the district court erred by sustaining his driver’s license revocation.

Iowa Code section 321J.4(8) provides in pertinent part:

If the court defers judgment pursuant to section 907.3 for a violation of section 321J.2, and if the defendant’s driver’s license or nonresident operating privilege has not been revoked under section 321J.9 or 321J.12, or has not otherwise been revoked for the occurrence from which the arrest arose, the department shall revoke the defendant’s driver’s license or nonresident operating privilege for a period of not less than thirty days nor more than ninety days.

Iowa Code § 321J.4(3). Deppe argues section 321J.4(3) gives the IDOT authority to revoke a license, provided that the IDOT has not already revoked the defendant’s license under sections 321J.9 (refusal to submit to test) or 321J.12 (test result revocation). Deppe contends the IDOT revoked his driver’s license on May 30, 1999 for twenty-two days under section 321J.12, thereby precluding a subsequent revocation on the same offense. The IDOT argues the May 30, 1999 revocation was rescinded and did not preclude the agency from serving a subsequent notice of revocation after Deppe pled guilty to a violation of section 321 J.2.

Both parties rely on the Iowa Supreme Court’s decision in Pietig v. Iowa Dep’t of Transp., 385 N.W.2d 251 (Iowa 1986). In Pietig, the court considered the meaning of the word “revoked” in a statute comparable to section 321J.4(3). Id. at 252-53. The licensee, Pietig, was arrested for operating an automobile while intoxicated. Id. at 252. He relinquished his license to the arresting officer, who issued Pietig a temporary license permit. Id. The IDOT returned Pietig’s license when a representative of the agency failed to appear at the administrative hearing to contest, Pietig’s administrative appeal. Id.

Following a guilty plea in his criminal proceedings, the IDOT revoked Pietig’s license. Pietig, 385 N.W.2d at 252. Pietig petitioned for judicial review contending he had been previously revoked and was therefore exempt from a subsequent revocation for the ’ same offense. Id. The court disagreed and defined revocation as “the termination of the licensee’s authority to drive.” Id. at 253. The court held Pietig’s license was not revoked because he never lost his authority to drive under the administrative revocation due to the immediate issuance of the temporary license. Id.

In reaching its conclusion, our supreme court noted it must construe the operating while intoxicated statute “in a practical manner.” Pietig, 385 N.W.2d at 253. The court further noted the statutory purpose in requiring revocation of driving privileges for those convicted of drunk driving is to remove “from the highways ‘those drivers who have endangered life and property.’ ” Id. (quoting Crow v. Shaeffer, 19,9 N.W.2d 45, 47 (Iowa 1972)). Finally, the court emphasized it could “discern no legislative intent to allow drivers convicted [for driving while intoxicated] to escape revocation procedures.” Id.

Applying the court’s rationale' in Pietig, Deppe argues his license was “revoked” for purposes of section 321J.4(3) because he lost the authority to drive for twenty-two days prior to the IDOT’s rescission of the revocation. We disagree. We find Deppe’s argument at odds with our supreme court’s analysis in Pietig. Deppe’s interpretation of the statute would clearly permit some licensees to avoid the minimum period of revocation contemplated by section 321 J.4(3). In particular, a licensee whose driving privileges have been terminated for only one day before administrative rescission of the revocation would be immunized against future revocation based on a conviction for violation of section 321J.2 arising from the same transaction or occurrence.

We find the legislature, in an attempt to remove drunk drivers from the highways, intended a revocation for purposes of section 321J.4(3) to mean a termination of driving privileges for at least the minimum statutory period. We hold that a licensee who suffers a termination of driving privileges for less than the minimum statutory period has not suffered a revocation for the purposes of section 321J.4(3). Because Deppe’s driving privileges were terminated for only twenty-two days, his license was not “revoked” for purposes of the statute. Accordingly, the district court properly sustáined his revocation under section 321J.4(3).

B. Installation of Ignition Interlock Device.

The IDOT contends the district court erred in concluding Deppe is eligible for a temporary restricted license (“TRL”) without the installation of an ignition interlock device. Moreover, the IDOT contends a person convicted of a violation of section 321J.2 may not receive a TRL unless they install an ignition interlock device. Deppe asserts Chapter 321J mandates installation of an interlock as a condition of issuance of a TRL to repeat offenders; however, a licensee under revocation following imposition of a deferred judgment for his first violation of section 321J.2 is eligible to receive a TRL without installation of an interlock.

When confronted with an issue involving the interpretation of' a statute, we begin with the principles' of statutory construction. Doe v. Ray, 251 N.W.2d 496, 500 (Iowa 1977). The polestar of statutory interpretation is the intent of the legislature. Schultz, 604 N.W.2d at 62. We focus not only upon the language of the statute, but also its underlying 'purpose and the consequences stemming from different interpretations. State v. Carpenter, 616 N.W.2d 540, 542 (Iowa 2000). If more than one statute relating to the subject matter is relevant to our inquiry, we consider them together in an effort to harmonize them. Id. We will not construe the language of a statute in a manner that will produce an absurd or impractical result. Schultz, 604 N.W.2d at 62. We follow the rule that “legislative intent is ‘expressed by omission as well as by inclusion.’ ” Wiebenga v. Iowa Dep’t of Transp., 530 N.W.2d 732, 735 (Iowa 1995) (quoting Barnes v. Iowa Dep’t of Transp., 385 N.W.2d 260, 263 (Iowa 1986)). We presume the legislature intends a reasonable result when it enacts a statute. State v. Pace, 602 N.W.2d 764, 772 (Iowa 1999).

Iowa Code section 321J.20(6) provides: Following certain minimum periods of ineligibility, a temporary restricted license under this section shall not be issued until such time as the applicant installs an ignition interlock device ... in accordance with section 321J4.

Iowa Code § 321J.20(6) (emphasis added). Iowa Code section 321J.4 establishes minimum periods of license revocation for convictions under section 321J.2, provides minimum periods of ineligibility for temporary restricted licenses, and expressly mandates installation of an ignition interlock as a condition of issuance of a temporary restricted license to repeat offenders. See Iowa Code § 321J.4. Iowa Code section 321J.4(2) provides in relevant part:

If a defendant is convicted of a violation of section 321J.2 ... the department shall revoke the defendant’s driver’s license or nonresident operating privilege for two years if the defendant has had a previous conviction or revocation under this chapter. The defendant shall not be eligible for any temporary restricted license for one year after the effective date of revocation. The defendant shall be ordered to install an ignition interlock device of a type approved by the commissioner of public safety on all vehicles owned by the defendant if the defendant seeks a temporary restricted license at the end of the minimum period of ineligibility. A temporary restricted license shall not be granted by the department until the defendant installs the ignition interlock device.

Iowa Code § 321J.4(2) (emphasis added). Iowa Code section 312J.4(4) similarly provides:

Upon a plea or verdict of guilty of a third or subsequent violation of section 321J.2 ... [t]he defendant shall be ordered to install an ignition interlock device of a type approved by the commissioner of public safety on all vehicles owned by the defendant if the defendant seeks a temporary restricted license at the end of the minimum period of ineligibility. A temporary restricted license shall not be granted by the department until the defendant installs the ignition interlock device.

Iowa Code § 321J.4(4) (emphasis added).

Deppe was granted a deferred judgment. Accordingly, wé turn our attention to Iowa Code section 321J.4(3) which provides in relevant part:

If the court defers judgment pursuant to section 907.3 for a violation of section 321J.2 ... [t]he defendant shall not be eligible for any temporary restricted license for at least thirty days after the effective date of the revocation if a test was obtained and for at least ninety days if a test was refused. If the defendant is under the age of twenty-one, the defendant shall not be eligible for a temporary restricted license for at least sixty days after the effective date of the revocation.

Iowa Code § 321J.4(3). The IDOT argues the district court misunderstood this section to authorize the issuance of a TRL. The IDOT contends the statute does not grant authority to issue such licenses, but is intended only to preclude issuance of a TRL to an offender before the expiration of the minimum period of ineligibility after a deferred judgment is granted. The IDOT concedes Iowa Code section 321J.20 would entitle Deppe to a temporary restricted license after the minimum period of ineligibility, but only if he installs an ignition interlock device.

Deppe asserts the legislature intended to mandate the installation of an interlock device only for recidivists. He contrasts sections 321J.4(2) and (4), which expressly require an interlock as ■& condition of issuance of a TRL to repeat offenders, with section 321J.4(3), which makes no reference to the device for an offender who is granted a deferred judgment. Deppe contends the omission of an express requirement of an interlock device in section 321J.4(3) clearly demonstrates the legislature’s intent that a person who receives a deferred judgment for a violation of section 321J.2 is eligible for a temporary restricted license without installing an interlock device. We agree. We believe if the legislature had intended to require persons who receive deferred judgments to install interlocks, it would have specifically said so in section 321J.4(3), just as it did in sections 321J.4(2) and (4) when referring to repeat offenders.

Reading all relevant sections of Chapter 321J together, we conclude the legislature intended to only require the installation of interlocks for repeat offenders who seek a TRL. Section 321J.20 expressly prohibits issuance of a TRL “until ... the applicant installs an ignition interlock device ... in accordance with section S21J.4..” Iowa Code § 321J.20(6) (emphasis added). Section 321J.4 expressly requires interlocks for repeat offenders, but does not do so for defendants who rfeceive deferred judgments. It is reasonable to believe the legislature intended to more severely restrict repeat offenders’ access to temporary restricted licenses, not only by requiring longer periods of ineligibility, but also by requiring interlocks as a condition of issuance. Accordingly, we conclude the district court correctly ruled Deppe is eligible for a temporary restricted license without installation of an ignition interlock device.

AFFIRMED.

      . Although section 321 J.4(3) requires a revocation of at least 30 but not more than 90 days, the IDOT asserts it routinely imposes revocations of 90 days under this statutory authority.

      . Deppe’s eligibility for a deferred judgment confirms that (1) his alcohol concentration did not exceed .15; (2) he had no prior convictions, sentences or deferred judgments for violation of 321J.2 or similar statutes in other jurisdictions; (3) he did not refuse to submit to chemical testing in connection with the offense, and (4) his offense did not result in bodily injury to a third person. See Iowa Code § 321J.2 (3). The restrictions on access to a deferred judgment assure only the least culpable offenders will be eligible.


source: Caselaw Access Project

author: /s/ Paul H. Anderson Associate Justice

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Shirley A. DVORAK, an Attorney at Law of the State of Minnesota.
    No. C7-95-1179.
    Supreme Court of Minnesota.
    July 12, 2002.
   ORDER

On January 3, 2001, this court suspended respondent Shirley A. Dvorak from the practice of law for a period of one year. In re Dvorak, 620 N.W.2d 908 (Minn.2001). The order provided that respondent could petition for reinstatement by affidavit upon reinstatement to the practice of law in North Dakota.

The Director of the Office of Lawyers Professional Responsibility has filed an affidavit stating that respondent has been reinstated to the practice of law in North Dakota, that she has filed an affidavit for compliance and that she has complied with the terms of the suspension order.

IT IS HEREBY ORDERED that respondent Shirley A. Dvorak is reinstated to the practice of law in the State of Minnesota effective the date of this order.

BY THE COURT:

/s/ Paul H. Anderson Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Peter D. BERGSTROM, an Attorney at Law of the State of Minnesota.
    No. C2-96-886.
    Supreme Court of Minnesota.
    July 12, 2002.
   ORDER

On May 8, 1997, the court publicly reprimanded respondent Peter D. Bergstrom and stayed indefinite suspension subject to certain conditions. In re Bergstrom, 562 N.W.2d 674, 678 (Minn.1997). On July 11, 2001, the Director filed a motion for revocation of the stay and for immediate suspension. The matter was referred to a referee for findings of fact, conclusions of law, and a recommendation. The referee found that respondent failed to timely perform work for clients, failed to adequately communicate with clients, failed to cooperate with his probation supervisor and the Director, and failed to continue treatment with a mental health professional in violation of Minn. R. Prof. Conduct 1.3, 1.4, 8.1(a)(3), 8.4(c) and (d), Rule 25, Rules on Lawyers Professional Responsibility, and the conditions of the stay set forth in this court’s May 8, 1997 order.

The parties have entered into a stipulation in which they stipulate that the referee’s findings of fact and conclusions of law are conclusive and jointly recommend that respondent be publicly reprimanded and that the stay of the indefinite suspension remain in effect subject to the presently existing conditions, including the requirement that respondent continue treatment with his current or other appropriate mental health providers until such time as he is discharged as no longer in need of medication or treatment.

This court has independently reviewed the file and approves the jointly recommended disposition.

IT IS HEREBY ORDERED that respondent Peter D. Bergstrom is publicly reprimanded and that the stay of indefinite suspension remains in effect subject to the presently existing conditions set forth in the May 8,1997 order.

BY THE COURT:

/s/ Paul H. Anderson Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Vytas M. RIMAS, an Attorney at Law of the State of Minnesota.
    No. C8-01-1976.
    Supreme Court of Minnesota.
    July 12, 2002.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent has committed professional misconduct warranting public discipline. After conducting a hearing, the referee assigned to this matter recommended dismissal of the petition for disciplinary action.

Respondent and the Director jointly recommend that the appropriate disposition is dismissal as recommended by the referee.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the above-entitled matter be, and the same is, dismissed.

BY THE COURT:

/s/ Paul H. Anderson Associate Justice


author: ANDERSON, RUSSELL A., Justice.

text:
    CUNA MUTUAL INSURANCE SOCIETY, Relator, v. COMMISSIONER OF REVENUE, Respondent.
    No. C4-01-1859.
    Supreme Court of Minnesota.
    July 18, 2002.

      John W. Windhorst, # 117924, Dorsey & Whitney LLP, Minneapolis, MN, Relator’s Attorney.
    Mike Hatch, Minnesota Attorney General, Craig R. Anderson, # 1764, Assistant Attorney General, St. Paul, MN, Respondent’s Attorney.
    Heard, considered, and decided by the court en banc.
   OPINION

ANDERSON, RUSSELL A., Justice.

In this ease, we are asked whether an insurance company that sells life insurance and also disability insurance and health and accident insurance, qualifies as a “mutual property and casualty company” within the meaning of Minn.Stat. § 60A.15, subd. 1(e) (Supp.1995), which sets forth one tax rate, 2 percent, on life insurance premiums and another rate, 1.26 percent, on all other premiums for mutual property and casualty companies with certain total asset volumes. The Minnesota Tax Court held that in order to qualify as a mutual property and casualty company for purposes of section 60A.15, subdivision 1(e), a company must sell both property and casualty insurance. CUNA Mut. Ins. Soe’y v. Comm’r of Revenue, Nos. 7219, 7220, 7277, 2001 WL 1009290, at *4 (Minn. T.C. Aug. 31, 2001). We reverse.

Relator CUNA Mutual Insurance Society (CUNA) is a mutual insurance corporation organized and existing under the laws of Wisconsin with its principal place of business in Madison, Wisconsin. CUNA sells life insurance and also disability insurance and health and accident insurance, both within and outside of Minnesota, and is subject to the insurance premium tax imposed on insurance companies in Minnesota by statute, Minn.Stat. § 60A.15, subd. 1 (1998 & Supp.1995). Minnesota Statutes § 60A.15, subd. 1(a) (1998 & Supp.1995) imposes a 2 percent tax on annual Minnesota premium receipts of any insurance company, with certain exceptions. The exception at issue in this appeal is subdivision 1(e)(8), which reduces this tax rate to 1.26 percent for non-life premiums paid to mutual property and casualty insurance companies with assets greater than $5 million but less than or equal to $1.6 billion. The statute reduces the rate to 1 percent for non-life premiums paid to mutual property and casualty companies with total assets of $5 million or less. Minn.Stat. § 60A.15, subd. 1(e)(2) (Supp.1995). There is no dispute that CUNA’s asset volume is between $5 million and $1.6 billion and that the 1.26 percent rate is therefore the rate that applies to its non-life insurance premiums if CUNA is a mutual property and casualty company.

CUNA timely filed annual .premium tax returns with the Minnesota Department of Revenue for the . calendar years 1995 through 1999, paying insurance premium tax at the rate of 2 percent on all Minnesota premiums received. CUNA subsequently filed timely amended tax returns seeking partial refunds of insurance premium tax it paid at the rate of 2 percent on non-life premiums, arguing that it was entitled to the lower rate of 1.26 percent authorized by Minn.Stat. § 60A.15, subd. 1(e)(3) on non-life premiums received by mutual property and casualty companies with CUNA’s asset volume. Respondent Commissioner of Revenue denied CUNA’s refund claims. The commissioner concluded that CUNA is a life insurance company, not a mutual property and casualty company eligible under Minn.Stat. § 60A.15, subd. 1(e) for an insurance premium tax rate of 1.26 percent on non-life premiums.

CUNA appealed to the tax court and, on cross-motions for summary judgment on stipulated facts, the tax court concluded that CUNA is not entitled to the 1.26 percent rate on its non-life premiums because CUNA is not a “mutual property and casualty company.” CUNA Mut. Ins. Soc’y, 2001 WL 1009290, at *1, *4-*5. According to the tax court, the plain meaning of the term “mutual property and casualty company” indicates a company that sells property insurance, and CUNA does not sell property insurance. Id. at *4. CUNA also challenged the constitutionality of Minn.Stat. § 60A.15, subd. 1 if interpreted to preclude application of the 1.26 percent rate on its non-life premiums, arguing that the statute as interpreted violates the Equal Protection Clause of the U.S. Constitution and the Uniformity Clause of the Minnesota Constitution, but the tax court rejected CUNA’s constitutional argument as well. CUNA Mut. Ins. Soc’y, 2001 WL 1009290, at *1, *6.

We first address the rationale relied on by the tax court to conclude that CUNA does not qualify for the lower tax rate on its non-life premiums. The tax court held that CUNA does not qualify for the reduced tax rate on its non-life premiums because it is not a mutual property and casualty company, reasoning that an insurance company cannot be a mutual property and casualty company unless it sells both property and casualty insurance. CUNA Mut. Ins. Soc’y 2001 WL 1009290, at *4. The tax court cited no authority for that proposition, however, relying solely on the inclusion of “property” in the label “mutual property and casualty company.” See id. Moreover,' requiring an insurance company to sell both property and casualty insurance to qualify for the split-rate tax structure of' Minn.Stat. § 60A.15, subd. 1(e) as a mutual property and casualty company would be legally impossible to fulfill and would render the split-rate tax structure a nullity, as the following analysis shows.

In this case, the parties agree that in addition to life insurance, CUNA sells disability insurance and health and accident insurance, which is casualty insurance, but that it does not sell property insurance. The statute does not provide a definition of the term “mutual property and casualty company” that is helpful here, so we must determine whether CUNA qualifies as a mutual property and casualty company. We therefore begin by reviewing Minn.Stat. § 60A.15, subd. 1(e) to determine whether CUNA is a mutual property and casualty company even though it does not sell property insurance. Our review and construction of a statute is de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998).

CUNA argues that because it sells both life insurance and casualty insurance it qualifies for the split-rate tax structure of Minn.Stat. § 60A.15, subd. 1(e). CUNA argues that it sells every kind of insurance that an insurance company selling life insurance may sell under Minn.Stat. §§ 60A.06-.07 (2000 & Supp.2001), so it must be able to qualify as a mutual property and casualty company or no insurance company will ever qualify, and Minn.Stat. § 60A.15, subd. 1(e) is a nullity. We agree.

By statute, a company that sells life insurance in Minnesota may sell disability insurance and health and accident insurance as additional lines of insurance, but a life insurance company in Minnesota may not sell any other types of insurance, including property insurance. See Minn. Stat. §§ 60A.06-.07. Yet, in 'defining the tax rates for mutual property and casualty companies, Minn.Stat. § 60A.15, subd. 1(e) provides one rate “for all life insurance” and another rate on “all other coverages.” Because under Minnesota law a company that sells life insurance may only also sell disability insurance and health and accident insurance,-these are the only , other lines of insurance that could possibly qualify as “all other coverages” under Minn. Stat. § 60A.15, subd. l(e)(2)-(3). In other words, a company like CUNA that sells life insurance on the one hand and disability insurance and health and accident insurance on the other must be able to qualify for the split rate or no company will qualify and Minn.Stat. § 60A.15, subd. 1(e) is a nullity. We aré required to construe a law to give effect to all its provisions whenever possible. Minri.Stat. § 645.16 (2000). Moreover, we presume that the legislature intends an entire statute to be effective and certain. Minn.Stat. § 645.17(2) (2000). We must also presume that the legislature does not intend a result that is impossible of execution. . Minn.Stat. § 645.17(1) (2000). Consistent with our rules of statutory construction, we conclude that an insurance company with CUNA’s asset volume that sells both life insurance and also disability insurance and health and accident insurance need not also sell property insurance in order to qualify as a mutual property and casualty company entitled under the split-rate tax structure of Minn. Stat. § 60A.15, subd. 1(e) to a tax rate of 2 percent on its life insurance premiums and 1.26 percent on its non-life premiums.

The commissioner does not argue that the tax court was correct in concluding that to qualify-as-a mutual property and casualty company an insurance company must sell both property and casualty insurance. Rather, the commissioner contends that Minn.Stat. § • 60A.15, subd. 1(e) does not create a split-rate tax structure — that is, a company pays either the higher or the lower rate, but not both. The commissioner’s rationale for reaching this conclusion is less than clear. Without reference to. any authority other than the practice of the departments of revenue and commerce, the commissioner appears to be arguing that (1) a mutual property and casualty company cannot sell life insurance, making those categories of insurance companies mutually exclusive, or (2) the statute simply determines which single rate must be paid by each insurance company on all of its prémiums. With respect to the latter, the commissioner seems to argue that' MinmStat. § 60A.15, subd. 1(e) provides a lower tax rate on all premiums received by a mutual property and casualty company meeting the asset volume requirements if it sells only property and casualty 'insurance. But if the company also sells life insurance, as CUNA does, it will pay the higher tax rate of 2 percent on all of its insurance premiums. Under this interpretation, there would be no split rates; the statute would not entitle any insurance company to pay two different tax rates on its premiums.

The commissioner contends his single-rate interpretation is supported by legislative history indicating that the 1995 amendment of Minn.Stat. § 60A.15, subd. l, adopting the language applicable in this case, was intended to increase insurance premium taxes. Thus, the commissioner concludes, construing the statute to create a split-rate structure, which reduces the tax liability of a company like CUNA, is inconsistent with the purpose of the amendment and legislative intent.

We are not persuaded by the commissioner’s arguments. Both of the approaches that might support the commissioner’s conclusion are contradicted by applicable statutes.

The first rationale, that mutual property and casualty companies and life insurance companies are mutually exclusive categories of insurance companies, is belied by the statutes discussed above that expressly authorize a life insurance company to sell limited additional coverages, including casualty insurance. ■ See Minn.Stat. §§ 60A.06-.07; see also Minn.Stat. § 60A.02, subd. 4a. In addition, the legislature has indicated its clear acknowledgment that a mutual property and casualty company may sell life insurance in Minn. Stat. § 290.05, subd. 1(d) (2000), by conferring an income tax exemption on mutual property and casualty companies “other than those * * * writing life insurance.”

To the extent that the commissioner is arguing simply that MinmStat. • § 60A.15, subd. 1(e) does not provide a split rate for a mutual property and casualty company that also sells life insurance, his position is contrary to the structure and language of section 60A.15. Structurally, subdivision 1(a) of section 60A.15 establishes a 2 percent premium tax rate except as provided in paragraphs (d) and (e) of subdivision 1. Subdivision 1(e), which establishes tax rates on .premiums received by mutual property and casualty companies with certain asset volumes, therefore creates an exception to'the general rule of a 2 percent tax rate. Subparagraph (1) of subdivision 1(e) establishes a 2 percent tax rate on life insurance premiums, and subparagraphs (2) and (3) establish lower rates “on all other coverages.” Minn.Stat. § 60A.15, subd. l(e)(2)-(3) (emphasis added). The plain language of these provisions makes it clear that the legislature created a split-rate tax structure for the designated categories of insurance companies. To con-elude otherwise would render subdivision 1(e)(1), which imposes a 2 percent rate for life insurance premiums, redundant because subdivision 1(a) of section 60A.15 already mandates a tax rate of 2 percent unless an exception applies. Furthermore, in creating an exception to the generally applicable premium tax rate of 2 percent-established in subdivision 1(a), the legislature expressly provided different tax rates Within subdivision 1(e): the standard 2 percent for “all life insurance” and lower rates for “all other coverages.” MinmStat. § 60A.15, subd. l(e)(l)-(3).

The most direct and logical meaning of these provisions is that the legislature intended for the exception it was creating not to apply to life insurance premiums collected by mutual property and casualty companies, but only to the “other” coverages of those companies— thus creating a split-rate structure. Had the legislature intended, as the commissioner argues, to create an exception only for mutual property and casualty insurers who do not sell life insurance, it could easily have said so, far more clearly and directly. We further note that the 2000 recodification of MinmStat. § 60A.15, subd. 1(e) makes it very clear that the legislature intends one tax rate for premiums paid to a mutual property and casualty company for life insurance and a different rate for premiums on other lines. The amended language provides that a mutual property and casualty company shall pay a tax rate of:

(1) two- percent of gross premiums less return premiums on all direct business * * * for life insurance * * *; and
(2) 1.26- percent of gross premiums less return premiums on all other direct business * * *.

Minn.Stat. § 2971.05, subd. 4 (emphasis added).

Minnesota Statutes § 60A.15, subd. 1(e) therefore plainly and unambiguously sets forth a split-rate tax structure that establishes a 2 percent, tax rate on life insurance premiums and a lower rate on premiums for all other coverages for mutual property and casualty companies with certain asset volumes. We conclude that an insurance company with an asset volume between $5 million and $1.6 billion that sells life insurance and also disability insurance and health and accident insurance, is entitled as a mutual property and casualty company under the split-rate tax' structure of Minn.Stat. § 60A.15, subd. 1(e) to a tax rate of 2 percent on its life insurance premiums and 1.26 percent on its non-life premiums.

Reversed.

      . The legislature repealed Minn.Stat. § 60A.15 in 2000. Act of Apr. 14, 2000, ch. 394, art. 2, § 28, 2000 Minn. Laws 506, 542. However, the legislature recodified an amended version of Minn.Stat. § 60A.15, subd. 1, the relevant provision in this appeal, effective January 1, 2001. Act of Apr. 14, 2000, ch. 394, art. 1, § 2, 2000 Minn. Laws 506, 508-09 (amendment); Act of May 15, 2000, ch. 490, art. 13, § 20, 2000 Minn. Laws 2014, 2186 (recodified as amended at Minn. Stat. § 2971.05 (2000 & Supp.2001)) (recodi-fication).

      . Minnesota Statutes § 60A.15, subd. 1(a) was amended in 1997 in minor ways that do not affect our analysis in this appeal. See Act of June 2, 1997, ch. 225, art. 3, § 2, 1997 Minn. Laws 2267, 2315-16.

      . In accordance with Erie Mining Company v. Commissioner of Revenue, 343 N.W.2d 261, 264 (Minn.1984), the tax court transferred the constitutional issues to the Ramsey County District Court, and the district court transferred the issues back to the tax court for decision.

      . To be eligible for the split rate provided by Minn.Stat. § 60A.15, subd. 1(e), an insurance company must be either a town and farmers' mutual insurance company or a mutual property and casualty company. CUNA is not a town and farmers' mutual insurance'company. For subdivision 1(e) to apply, CUNA must qualify as a mutual property and casualty company.

      . That does not appear to be the position of the commissioner, nor is there any clear authority that has been cited that shows a mutual property and casualty company must sell both property and casualty insurance.

      . " ‘Casualty’ insurance has a well-defined meaning, as insurance against loss, through accidents or casualties resulting in bodily injury or death.” State ex rel. Clapp v. Fed. Inv. Co., 48 Minn. 110, 111, 50 N.W. 1028, 1028 (1892); see also 1 Lee R. Russ, Couch on Insurance § 1:28 (3d ed. 1995) ("As a general rule 'casualty insurance’ covers accidental injury both to persons and to property * *

      . There is a statutory definition set forth in Minn.Stat. § 60A.02, subd. 4a (2000), but the definition sheds little light on the issue before the court. The statute provides:
      "Mutual property and casualty insurance company” includes a property and casualty insurance company that was converted to a stock company after December 31, 1987, and before January 1, 1994, if the company was controlled on the date of "conversion by a mutual life insurance company and so long as the.company continues to be controlled by a mutual life insurance company.
      Minn.Stat. § .60A.02, subd. 4a.

      .Minnesota Statutes § 60A.15, subd. 1(e) provides:
      For purposes of computing installments for town and farmers’ mutual insurance companies and for mutual property casualty companies with total assets on December 31, 1989, of $1,600,000,000 or less, the following rates apply:
      (1) for all life insurance, two percent;
      (2) for town and farmers’ mutual insurance companies and for mutual property and casualty companies with total assets of $5,000,000 or less, on all other- coverages, one percent; and
      (3) for mutual property and casualty companies with total assets on December 31, 1989, of $1,600,000,000 or less, on all other coverages, 1.26 percent.
      Subdivision 1(e) remained unchanged throughout the taxable periods at issue in this appeal. The subdivision was repealed along with the rest of section 60A.15 in 2000, but was recodified at Minn.Stat. § 2971.05.

      . Minnesota law provides that "[cjorporations may be formed for carrying on any one branch of the business of insurance authorized by law, or any two or more branches thereof, which are permitted by law to be transacted by one company.” Minn.Stat. § 60A.07, subd. 2 (2000). Minnesota Statutes § 60A.07, subd. 5c (2000) provides that any insurance company authorized to transact the kinds of business specified in Minn.Stat. § 60A.06, subd. 1(4) (2000) (life insurance and disability insurance) may alsp transact the kinds of business specified in Minn.Stat. § 60A.06, subd. l(5)(a) (2000) (health and accident insurance) but does not authorize any other lines, and notably does not authorize property insurance.

      . Our conclusion that the term “mutual property and casualty company" does not require a company to sell property insurance is supported by CUNA's . federal income tax treatment. CUNA, although it does not sell property insurance, nevertheless uses a "U.S. Property and Casualty Insurance Company ' Income Tax Return” for federal income tax purposes: While CUNA's federal income tax treattoient is not dispositive of the issue before us, it does support the proposition that an insurer need not sell property insurance to qualify as a mutual property and casualty - company..

      . Prior to the 1995. amendment, a mutual property and casualty company was required to pay a rate of 2 percent on all premiums if the company sold life insurance and a rate of 0.5 percent on all premiums if it did not. Minn.Stat. § 60A.15, subd. 1 (1994). The 1995 amendment established the statutory scheme relevant to the taxable periods in this appeal: See Act of June 1, 1995, ch. 264, art. 9, § 3, 1995 Minn. Laws 2872, 3017-18. ■

      . The commissioner argues that the legislative history of the 1995 amendment supports the position that the amendment was intended to be a tax increase. The commissioner offers a May 8, 1995, memorandum prepared by a lobbyist and sent to two members of the Minnesota Legislature that proposes a compromise solution to the differences between the House and Senate versions of the bill, and an excerpt from a May 22, 1995, summary of the Omnibus Tax Bill Conference Committee Report prepared by staff of the senate tax committee, which reports that the tax bill "[(Increases the insurance gross premiums tax rates of certain mutual insurance companies.’' The available legislative history suggests only that one purpose of the proposed amendment in 1995 was to increase taxes and does not address whether the statute provides a split-rate tax structure nor whether a mutual property and casualty company may sell life insurance.

      .The tax court rejected the commissioner's position ás well. See CUNA Mut. Ins. Soc’y, 2001 WL 1009290, at *3 ("We find [Minn. Stat. § 60A.15, subd. 1(e)] to unambiguously grant mutual property and casualty companies a 2% tax rate on life insurance premiums and * * * a 1.26% tax on all other coverages.”)

      . The definition of mutual property and casualty insurance company set forth in Minn. Stat. § 60A.02, subd. 4a indicates that a life insurance company may control a mutual property and casualty company, supra note 7, which indicates that a mutual property and casualty company and a life insurance company are not mutually exclusive.

      . Minnesota Statutes § 290.05, subd. 1 was amended in 2001 to delete this statutory language, in favor of legislation exempting all insurance companies from income tax. Act of June 30, 2001, ch. 5, art. 9, § 9, 2001 Minn. Laws 1st Spec. Sess. 1411, 1634-35.

      . Subdivision 4 of the recodified version of the statute provides in full:
      A tax is imposed orí mutual property and casualty companies that had total assets greater than $5,000,000 at the end of the calendar year but that had total assets less than $1,600,000,000 on December 31, 1989. The rate of tax is equal to:
      (1) two percent of gross premiums less return premiums on all direct business received by the insurer or agents of the insurer in Minnesota for life insurance, in cash or otherwise, during the year; and
      (2) 1.26 percent of gross premiums less return premiums on all other direct business received by the insurer or agents of the insurer in Minnesota, in cash or otherwise, during the year.
      Minn.Stat. § 2971.05, subd. 4. , An amendment to a statute is normally presumed to change the law unless it appears that the legislature only intended to clarify the law. County of Washington v. Am. Fed’n of State, County, & Mun. Employees, Council No. 91, 262 N.W.2d 163, 168, 168 n. 5 (Minn.1978). Here, the amendment has been identified as a recodification and appears to be a clarification of the legislature’s intent. See Act of Apr. 14, 2000, ch. 394, art. 1, §§ 1-2, 2000 Minn. Laws 506, 506-14.

      . Because we decide that the statute entitles CUNA to a split tax rate on its insurance premiums, we need not reach- the constitutional issue.


author: HARTEN, Judge.

text:
    STATE of Minnesota, Respondent, v. Jela DeShaun JONES, Appellant.
    No. CX-01-1431.
    Court of Appeals of Minnesota.
    July 16, 2002.

      Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., Roseville, for appellant.
    Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, St. Paul, and Douglas J. Christian, Le Sueur County Attorney, Le Center, for respondent.
    Considered and decided by WILLIS, P.J., and HARTEN, and SHUMAKER, JJ.
   OPINION

HARTEN, Judge.

Appellant challenges his two convictions of third-degree criminal sexual conduct, arguing that the district court abused its discretion in denying his motion for a change of venue based on the minority status of appellant and his witnesses and the demographics of the county in which the offense occurred. Appellant also argues that the district court abused its discretion in ruling that uncharged Spreigl offenses could be used for impeachment purposes if appellant testified. Appellant also challenges his sentence on Count 2, arguing that the district court violated his right to due process when it imposed a ten-year conditional release term that, could make his prison time exceed the statutory maximum. Finally,- in his pro se brief, appellant argues, among other things, that there was insufficient evidence to support, the verdicts. We affirm the convictions, but remand Count 2 for resen-tencing in a manner not inconsistent with this opinion.

FACTS

On 9 August 2000, appellant Jela DeSh-aun Jones, then age 23, was charged in Le Sueur County with third-degree criminal sexual conduct in violation of Minn.Stat.’ § 609.344, subd. 1(b), sexual penetration of a person between 13 and 16 years of age (Count 1); and third-degree criminal sexual conduct for violating Minn.Stat. § 609.344, subd. 1(d), sexual penetration of a person he knew to be physically helpless (Count 2).

The complaint alleged that on 18 July 2000, A.G., then age 17, awoke to find appellant in her bed. A.G. told police that appellant had unbuttoned her pants and inserted his finger into her vagina. Her sister, S.G., then age 15, told police that she, S.G., had had sexual relations with appellant at least 10 times between March and July 2000.

A jury trial was held from 27 to 30 November 2000. After voir dire, appellant, an African-American, ■ moved for a • change of venue from Le Sueur County to a county with a higher percentage of racial minority residents. The district court denied appellant’s motion. Before its case in chief; the prosecution stated that it intended to question appellant about his previous sexual relationships with girls under the age of 16. Appellant generally objected..The district court decided to allow the evidence, but only if appellant testified. Under the circumstances, appellant elected not to testify.

The jury found appellant guilty on both counts. On Count 2, the district court sentenced appellant to the statutory maximum term, 15 years, as a patterned and predatory sex offender and also ordered 10 years of conditional release following the prison sentence. This áppéal followed.

ISSUES

1. Did the district court abuse its discretion in denying appellant’s motion for change of venue to a county with a higher percentage of minority residents?

2. Did the district court abuse its discretion in deciding that, if appellant testified, the prosecution could cross-examine appellant regarding-previous sexual relationships with girls under the age of 16?

' 3. Did the district court unconstitutionally sentence appellant to more than the statutory maximum for third-degree criminal sexual conduct?

4. Was the evidence sufficient to support the verdicts?

ANALYSIS

1. Motion for Change of Venue

A district court may transfer a case to another county “[i]f the court is satisfied that a fair and impartial trial cannot be had in the county in which the case is pending-.” Minn. R.Crim. P. 24.03, subd. 1(a). District courts have wide discretion in deciding motions for change of venue and such decisions will be sustained absent a clear abuse of that discretion. State v. Fratzke, 354 N.W.2d 402, 406 (Minn.1984). An abuse of discretion occurs where- the evidence is such that “a real possibility exists that a jury will not render an unprejudiced or unbiased verdict.” State v. Webber, 292 N.W.2d 5, 12 (Minn.1980) (quoting State v. Hogan, 297 Minn. 430, 437, 212 N.W.2d 664, 669 (1973)).

Appellant argues that the district court abused its discretion and violated his Fourteenth Amendment due process rights because he, an African-American, could not receive a fair trial by an impartial jury in Le Sueur County. See Groppi v. Wisconsin, 400 U.S. 505, 509, 91 S.Ct. 490, 492, 27 L.Ed.2d 571 (1971) (due process includes the right to an impartial jury). The jurors who heard this case were all Caucasian except for one alternate juror who was part Korean.

Although Minnesota courts have not addressed whether .the denial of a change of venue to a county with a greater percentage of minorities violates a minority defendant’s due process rights, other courts have. In Mallett v. Bowersox, 160 F.3d 456 (8th Cir.1998), the-federal, district court moved an African-American defendant’s trial from a county with a substantial number of minority residents to a county with no African-American residents. Stating that

a petitioner must show the actual existence of prejudice to prove he was de-ded the due process guarantee of a fundamentally fair trial[,]

the Eighth Circuit rejected Mallett’s claim that the change in venue violated due process. Id. at 460. The Eighth Circuit commented that

[t]o hold that prejudice may be inferred simply because the jury included no jurors of Mallett’s race — the predictable consequence of drawing a jury from a county without a substantial black population — would amount to a holding that Mallet is entitled to have members of his race on the jury.

Id. at 461 (citing Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) (holding that defendants are not entitled to a jury of a particular racial composition)). Similarly, the Supreme Court of Indiana rejected an African-American defendant’s argument that he could not receive a fair trial in a county with a small minority population because he had not shown any purposeful discrimination. James v. State, 613 N.E.2d 15, 29 (Ind.1993). We agree with the rationale of the Eighth Circuit and the Indiana Supreme Court. Accordingly, we conclude that appellant cannot show a violation of his due process rights without showing actual prejudice.

Claiming actual prejudice, appellant points to several statements by prospective jurors during voir dire. Prospective jurors numbers 8, 14, 16, and 18 admitted that appellant’s race might affect them; ■ they were all removed for cause. Prospective jurors numbers 6 and 13 made comments that suggested only that they were unfamiliar with minorities, and they both stated that appellant’s race would not affect their decisions.

Appellant also points to prospective juror number 27. When asked if he could be an impartial juror, he replied, “I have some prejudice, prejudgments against what they are going to say, some of them.” To clarify, the district court then asked,

Q. Let’s say you had a Hispanic witness and you had a Cauoasian witness. Are you telling me you are more likely to believe the Caucasian because they are white?
A. No, just some of the acts.. I don’t know, they tend to say a lot of things that they don’t mean.
Q. Do you think they are lying?
A. No, I think they just misunderstand the English and the interpreting

Prospective juror number 27 seemed concerned with a possible language barrier, not prejudice against minorities. Appellant did not ask that this juror be removed for cause.

Finally, appellant claims that he was prejudiced because several jurors knew one another and some knew an officer connected with the case. Except for one, the prospective jurors to whom appellant objects were excused for cause or removed by a peremptory challenge. The remaining juror had been represented by the prosecutor more than twenty years earlier and doubted that the prosecutor remembered him.

We discern no actual prejudice against appellant on this record. Because appellant has not shown that he suffered actual prejudice resulting from the jury’s racial composition, we conclude that the district court did not abuse its discretion in denying his motion for change of venue.

2. Evidentiary Ruling

Appellate courts largely defer to the district court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn.1989). At the beginning of the trial, the prosecution indicated its intent to question appellant (if he testified) about previous sexual relationships with girls who were under the age of 16. The prosecutor stated:

[I]f [appellant] takes the stand to testify then he leaves himself open for questioning on these other individuals for the purpose * * * of showing * * * intent or his modus operandi with young girls in the past. I believe that * * * does not come under the parameter of the Spreigl case. That is rather an eviden-tiary issue * * * since the State does not intend to bring these individuals into [sic] testify in its case in chief.

Appellant’s attorney responded that these past acts were not relevant because, in pleading not guilty,- appellant denied that he had sexual contact with either girl. Appellant’s attorney, also stated that allowing the inquiry would deny appellant his right to testify in his own defense. The district court decided to allow the evidence during cross-examination of appellant if he took the stand.

Under the Minnesota Rules of Evidence,

[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence a timely objection or motion to strike appear of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Minn. R. Evid. 103. The district court’s ruling may have functionally amounted to a conditional admission of Spreigl evidence in the guise of impeachment evidence under subdivision (1) above. And because the ruling was without proper Spreigl foundation and would have a chilling effect upon appellant’s decision to testify or not testify in his own behalf, it could have constituted prejudicial error. But “we cannot assume district court error.” In re Paternity of 573 N.W.2d 99, 102 (Minn.App.1998) (citing Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949)).

The problem is that we do not know the substance of appellant’s contemplated testimony. There was no offer of proof to accommodate our review. The prosecutor asserted that his contemplated cross-examination of appellant would not have generated Spreigl evidence.

There are a number of contexts in which the prosecutor could have cross-examined appellant regarding previous relationships. For example, had appellant testified that he had never had sexual relations with young girls, the prosecutor’s proposed inquiry likely would have been proper impeachment under Minn. R. Evid. 608(b), specific instances of conduct used to impeach a witness. See State v. Lavastida, 366 N.W.2d 677, 681 (Minn.App.1985) (proper to ask appellant about an earlier incident with a knife when appellant testified that he had never carried a knife). Or the evidence could have been admissible under Minn. R. Evid. 404(a)(1) to rebut a pertinent trait of character had appellant put his character in issue on direct examination.

It is unclear what rationale or rule of evidence the district court used to conditionally allow the prosecutor’s proposed cross-examination. Appellant argues that the district court abused its discretion by admitting the evidence without going through a Spreigl analysis. Appellant could be right. But appellant did not develop his objection in detail or provide foundation for his objection to the proposed inquiry (notwithstanding that the prosecutor specifically denied Spreigl involvement); the record is inadequate for us to effectively review this issue on appeal. See Roby v. State, 547 N.W.2d 354, 357 (Minn.1996) (courts generally do not review issues not raised before the district court). We cannot speculate about how the scope of appellant’s testimony on direct examination would have been limited or what appellant would have said. Accordingly, we conclude that the record does not show that the district court abused its discretion in conditionally allowing the prosecutor’s proposed cross-examination.

3. Sentencing

On count one, the district court sentenced appellant to 28 months’ imprisonment and stayed execution. On count two, the district court sentenced appellant to the statutory maximum, 15 years, as a patterned and predatory sex offender pursuant to Minn.Stat. § 609.108. See Minn. Stat. § 609.344, subd. 2. Appellant does not contest the district court’s finding that he is a patterned sex offender.

Appellant initially argues that he should have been sentenced to the presumptive sentence because the district court failed to make an additional finding of aggravating circumstances to justify a departure. But section 609.108 does not require that the court make any additional findings beyond those listed in the statute. And the supreme court has stated that the statute itself is a “statutorily created aggravating factor.” State v. Stirens, 506 N.W.2d 302, 305 (Minn.1993) (quotation omitted). Accordingly, the district court was not required to find an additional aggravating factor.

The district court also added ten years of conditional release under Minn. Stat. § 609.108, subd. 6, to the statutory maximum 15-year sentence. Appellant argues that in adding the conditional release term the district court unconstitutionally sentenced him to more than the maximum sentence for third degree criminal sexual conduct. He relies on a supreme court decision holding that:

Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000). Apprendi was applied to Minnesota’s patterned sex offender statute in State v. Grossman, 636 N.W.2d 545, 550 (Minn.2001). Apprendi does not limit its application to actual incarceration; rather, it applies to any increase in a defendant’s “penalty.” Id. at 551, 120 S.Ct. 2348. Conditional release is an obvious penalty that would allow appellant to invoke Apprendi. See State v. Calmes, 632 N.W.2d 641, 649 (Minn.2001) (recognizing that conditional release is aspect of punishment although not an additional punishment in violation of double jeopardy).

But Minn.Stat. § 609.108, subd. 6, states that

[a]t the time of sentencing, * * * the court shall provide that after the offender has completed the sentence imposed, * ⅝ *, the commissioner of corrections shall place. the offender on conditional release for the remainder of the statutory maximum period, or for ten years, whichever is longer.

Thus the relevant statutes allow for both the maximum sentence and a conditional release period beyond the maximum.

Although the supreme court has not addressed whether a conditional release period can extend a sentence beyond a statutory maximum, it has held, on relative issues, that imposition of a conditional release period beyond the prison time specified in a plea agreement was sufficient grounds to allow a defendant to withdraw a guilty plea. See, e.g., State v. Jumping Eagle, 620 N.W.2d 42, 44 (Minn.2000) (defendant “now faces a sentence that exceeds the upper limit of his court-accepted plea petition, thus violating that agreement”). As in Jumping Eagle, appellant’s sentence exceeds the statutory maximum when the conditional release term is considered.

Respondent contends that appellant’s argument is premature because it is unlikely that appellant will serve any more than his 15-year sentence. The supreme court, however, considered a related issue in Jumping Eagle, and held that the beginning of a sentence was the appropriate time to raise the issue. Id. at 44. We do not agree with the state that we should defer judgment on whether there is a violation until appellant actually serves prison time beyond the statutory maximum.

Conditional release is mandatory and cannot be waived by the sentencing court. State v. Humes, 581 N.W.2d 317, 320 (Minn.1998). However, in another parallel case we have held that the duration of conditional release is not mandatory. State v. Wukawitz, 644 N.W.2d 852, 856 (Minn.App.2002). We conclude that where application of the conditional release term and the rule forbidding imposition of prison time beyond the statutory maximum are in unresolvable conflict, to avoid unconstitutional application of law, the district court may reduce appellant’s conditional release time to less than ten years so that the conditional release time plus the incarceration time do not exceed the statutory maximum of 15 years. Accordingly, we reverse appellant’s sentence on Count 2 and remand for resentencing.

4. Sufficiency of the Evidence

In considering a claim of insufficient evidence, our review is limited to a painstaking analysis of 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 their verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). The reviewing court 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).

Appellant notes that his convictions rested on S.G.’s and A.G.’s testimony and that their testimony was not supported by physical evidence. But a criminal sexual conduct conviction can rest upon the testimony of a single credible witness. See Minn.Stat. § 609.347, subd. 1 (2000). Physical evidence is unnecessary.

Appellant also contends that neither S.G. nor A.G. was a credible witness because they gave inconsistent testimony and were contradicted by other witnesses. On appeal, we must assume that 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). Also, we note that appellant does not point to any specific inconsistencies in the victims’ testimony.

The record shows that A.G.’s statements to police were consistent with her testimony. S.G.’s testimony differed slightly from what she told police. But these differences concerned peripheral matters. Inconsistencies in the state’s evidence are not automatic grounds for reversal. State v. Robinson, 604 N.W.2d 355, 366 (Minn.2000). Moreover, S.G.’s testimony that she and appellant had sex in her father’s camper was corroborated by A.G.’s statement that she had seen appellant and S.G. enter the camper late one evening. S.G.’s testimony was also corroborated by a witness who testified that appellant sent him to buy a pregnancy test for S.G.

Appellant makes other evidentiary claims in his pro se brief. We have carefully considered all these evidentiary claims and find them to be without merit. We conclude that there was sufficient evidence to support the verdict.

DECISION

We affirm appellant’s third-degree criminal sexual conduct convictions, but reverse the sentence in Count 2 and remand for resentencing in a manner not inconsistent with this opinion.

Affirmed in part, reversed in part, and remanded.

      . Minnesota caselaw regarding changes of venue due to pretrial publicity and its effect on a fair hearing also requires that a defendant show actual prejudice. See State v. Everett, 472 N.W.2d 864, 866 (Minn.1991).

      . Spreigl evidence is evidence admitted under Minn. R. Evid. 404(b), other crimes, wrongs, or acts. It should not be admitted unless the state gives notice, the state clearly indicates why the evidence is being offered, there is clear and convincing evidence that the defendant participated in the act, the evidence is relevant and material to the state's case, and its probative value is not outweighed by the potential prejudice to the defendant. State v. Lynch, 590 N.W.2d 75, 80 (Minn.1999).


author: PORITSKY, Judge.

text:
    Stephen WOEHRLE, et al., Appellants, v. CITY OF MANKATO, et al., Respondents.
    No. C4-01-2123.
    Court of Appeals .of Minnesota.
    July 16, 2002.
    Sharon L. Van Dyck, Schwebel, Goetz & Sieben, P.A., Minneapolis, for appellants.
    Jon K. Iverson, Jason J. Kuboushek, Iverson Reuvers, LLC., Bloomington, for respondents.

      Considered and decided by SCHUMACHER, Presiding Judge, PETERSON, Judge, and PORITSKY, Judge.
   OPINION

PORITSKY, Judge.

This is an appeal from the district court’s determination that the City of Mankato' and its fire department were not liable in negligence for property damage suffered by appellant homeowners when firefighters responded to a fire in appellants’ building. Appellants contend that the court erred by (a) not finding that the failure to shut off a gas line fueling the fire was negligent as a matter of law; (b) failing to find causation once the court had found that the firefighters were negligent in failing either to shut off the water service or to warn appellants to do so; (c) concluding that appellants’ claims were barred by statutory discretionary immunity; and (d) concluding that the city was protected by vicarious official immunity. Because the city owed no duty to appellants with respect to the manner in which the firefighters fought the fire, and because appellants failed to prove any water damage caused by the firefighters’ failing to shut off the water, we affirm without reaching the immunity issues.

FACTS

Just after 3 p.m., on April 15, 1994, a fire began on the third floor of a Mankato apartment building owned by appellants Stephen and Avis Woehrle. The third-floor tenant informed the Woehrles, who lived on the first floor, that he had disconnected a natural gas line causing an explosion. Within minutes, Fire Commander Doug Berghorst and other city firefighters arrived and began to extinguish the fire. Based on his brief survey of the fire, Ber-ghorst directed the dispatcher to call all available firefighters as well as the gas and electrical utility companies.

Berghorst positioned the firefighting equipment at the front of the building despite the Woehrles’ request to fight the fire from the rear só as to protect their first-floor possessions from water damage. Pursuant to a department practice of having the utility company shut off gas lines, the firefighters did not shut off a gas line that was fueling the fire. At approximately 3:55 p.m., gas company employees shut off the gas. The firefighters did not help appellants cover their first-floor possessions. Firefighters did, however, permit Stephen to retrieve his six cars from the garage, and they retrieved items for a second-floor tenant. By approximately 8:20 p.m., the fire was extinguished. The third floor was destroyed, and approximately 150,000 gallons of water were “raining” down on the first - floor. The next day, appellants learned that more water from burst water pipes had continued to leak onto their possessions overnight. The firefighters had not shut off the water service or warned appellants to do so.

The Woehrles sued the city and its fire department for property damage. The city asserted, among other defenses, that the cause of action was barred by the public-duty doctrine. The parties agreed to a bench trial, and in July 2001, the court ruled that (1) the city was not negligent in fighting the fire; (2) the city was immune from suit; and (3) although the city was negligent in not turning off the water, the Woehrles did not prove that this caused any water damage that was distinct from the water damage caused by extinguishing the fire. The Woehrles moved for amended findings, a new trial, and JNOV, which the court denied.

ISSUE

Is the city liable-in negligence for the Woehrles’ property damage when firefighters failed to shut off a gas line and failed to shut off water service?

ANALYSIS

“Findings of fact * * * shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the [district] court to judge the credibility of the witnesses.” Minn. R. Civ. P. 52.01. A district court’s denial of a new-trial motion “must stand unless it is manifestly and palpably contrary to the evidence, viewed in the 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). The denial of a JNOY “must be affirmed, if, in the record, there is any competent evidence reasonably tending to sustain the verdict.” Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn.1998) (quotation omitted).

I.

To establish negligence, a party must prove (1) duty; (2) breach; (3) causation; and (4) damages. Schweich v. Ziegler, Inc., 463 N.W.2d 722, 729 (Minn.1990). The existence of a duty is a question of law. Lundman v. McKown, 530 N.W.2d 807, 820 (Minn.App.1995), review denied (Minn. May 31, 1995). Breach and causation are questions of fact. Id. at 828.

The Woehrles argue that the firefighters were negligent by not turning off the gas line when they arrived at the scene even though (1) the firefighters knew that the gas line was fueling the fire and where the gas line was located; (2) the gas line was in plain view and .easy to access; (3) the city admitted that it would have liked to fight the fire differently; and (4) the city’s firefighters currently shut off gas lines. The Woehrlés also argue that the firefighters were negligent in failing" to salvage any first-floor property, or refusing to let the Woehrles do so, even though the fire was isolated to the third floor. Finally, the Woehrles argue that whether it was water from the fire hoses or water from the pipes that caused their property damage- is a “-question of proof properly brought during the presentation of damages at the binding arbitration.”

In our view, however, the city owed no duty to the Woehrles concerning the manner in which the fire was fought. We have previously noted that

[t]he public duty doctrine * * * protects the City from liability. For over 100 years, Minnesota courts have recognized that firefighting is a general public duty, rather than a special duty owed to individuals.

Dahlheimer v. City of Dayton, 441 N.W.2d 534, 537 (Minn.App.1989) (citations omitted), review denied (Minn. Aug. 15, 1989). In Dahlheimer, we held that a city is not liable for failure to provide fire protection and that general allegations of negligent conduct by a fire department cannot support an action for negligent firefighting. Id. Nor is a city liable for its fire department’s tactical decisions in fighting a fire. Id. at 539. Specifically, in Dahlheimer, we held that the decision to let a barn burn and not salvage the lumber was a tactical, decision and was based on policies of resource use, risk to human life, and containment. Id. at 536. We also pointed to public policy, stating that

[i]t is inappropriate for a jury or court to second-guess a complicated decision made during. a fire because it would submit the tactical decisions of fire chiefs to the monetary and psychological threats of litigation. Such after-the-fact scrutiny would require that courts and juries dictate firefighting strategy, the. amount of equipment deployed, and ser^ vices offered by municipalities. This extensive interference could undermine, municipalities’ willingness to provide important public services.

Id. at 537. Finally, we noted that the abrogation of sovereign immunity did not create any new causes of action against a city and that to recover appellants must prove “a breach of some duty owed them in their individual capacities and not merely a breach of some obligation owed the general public.” Id. (quoting Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 803-04 (Minn.1979) (other citation omitted)). Finally, we explained that the discretionary-function exception to municipal liability protects policymaking decisions made at the planning level. Id. at 538.

The Woehrles rely on Invest Cast, Inc. v. City of Blaine, 471 N.W.2d 368, 371 (Minn.App.1991), review denied (Minn. Aug. 1, 1991) and argue that how firefighters fight a fire is not within the discretionary-function exception to municipal liability. In Invest Cast, this court reversed a summary-judgment ruling in favor of the fire department; we stated that “the implementation of an established policy in a particular fact situation is not within the discretionary function exception.” Id. (quotation omitted).

Invest Cast is distinguishable from the present case on various grounds, such as in Invest Cast (1) the firefighters actually caused the fire to spread, and (2) the firefighters exhausted their water supply; whereas here there is no claim (1) that the firefighters caused the fire to spread, or (2) that the firefighters exhausted their water supply. More to the point, however, is our observation that to the extent Invest Cast stands for the proposition that an action may lie against a municipality for negligence in fire fighting, it is contrary to “over 100 years” of Minnesota cases, referred to in Dahlheimer, above. For these reasons, we conclude that Invest Cast should be limited to its facts and does not control the present case.

The Woehrles also argue that Granite State Ins. Co. v. City of Minneapolis, No. C0-95-1671, 1996 WL 70009 (Minn.App. Feb.20, 1996), supports their position. In that ease, this court affirmed a summary-judgment ruling against the city. We note, however, that “[ujnpublished opinions of the court of appeals are not prece-dential.” Minn.Stat. § 480A.08, subd. 3 (2000). In any event, Granite State involved a claim that the city was negligent for failure to keep open a fire hydrant; it did not involve a claim of negligent firefighting. Id. at *3. That case did not specifically consider the public-duty doctrine.

We conclude that under the public-duty doctrine articulated in Dahlheimer, the Woehrles cannot sue the city for negligent firefighting. In responding to the fire, the city owed a general duty to the public and not an individual duty to the Woehrles.

At oral argument, the Woehrles cited Cracroft and contended that the city owed them a special duty with respect to the manner in which the fire was fought. However, the Woehrles did not plead a claim of special duty in their complaint, nor did they otherwise raise this claim in district court. The court did not rule on the issue of special duty. Moreover, the Woehrles did not argue this claim in their brief to this court. Therefore, we decline to address this issue. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988) (stating that this court will generally consider only those issues that were raised and argued in the court below).

II.

The Woehrles next argue that the district court erred when it failed to find causation after it found that the city was negligent in failing to turn off the water supply or instructing the Woehrles to do so. We agree with the district court that the firefighters had a duty either to shut off the water or to inform the Woehrles about the need to do so. But the court found no evidence that the firefighters’ actions in that respect caused any water damage that was distinct from the water damage that had already been caused in the course of fighting the fire. Because the firefighters used about 150,000 gallons of water to fight the fire, the record supports the district court’s finding that the Woehrles failed to prove additional damage caused by water from the burst pipes. Even the Woehrles’ expert testified that the property damage was caused by “firefighting efforts on the third floor second floor.”

DECISION

Under the public-duty doctrine, the City of Mankato did not owe the Woehrles any legal duty concerning the manner in which the firefighters fought the fire. Thus, the district court properly concluded that the city was not negligent with respect to the manner in which the fire was fought. And because the Woehrles offered no evidence as to what water damage was caused by the failure to shut off the water pipes, as opposed to what water damage was incurred in fighting the fire, the district court properly concluded that the firefighters’ negligence in that respect did not cause any damage to the Woehrles.

Affirmed.

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

      . From the record, it is not clear if the City of Mankato Fire Department is a separate legal entity subject to suit. In their complaint in district court appellants allege that respondents "were and are municipal corporations.” Respondents' answer denies that "the City of Mankato Fire Department is a legal entity subject to suit.” The district court refers to the respondents in the plural. We will refer to the respondents as “the city.”

      . At oral argument, appellant asserted the city has waived its public-duty defense. But the city asserted this defense in its answer, and because we review the existence of a legal duty de novo, it makes no difference that the district court did not address the public-duty doctrine. Moreover, because the city did not suffer an adverse ruling below, it had no obligation • to file a notice of review on this issue.

      . The parties, agreed to submit the damages determination to arbitration.