author: TERNUS, Justice.

text:
    STATE of Iowa, Appellee, v. Lee Allen EMERY, Appellant.
    No. 99-1957.
    Supreme Court of Iowa.
    Nov. 15, 2001.

      Linda Del Gallo, State Appellate Defender, and John P. Messina and Theresa R. Wilson, Assistant State Appellate Defenders, for appellant.
    Thomas J. Miller, Attorney General, Sharon K Hall, Assistant Attorney General, John P. Sarcone, Polk County Attorney, and Daniel C. Voogt, Assistant Polk County Attorney, for appellee.
   TERNUS, Justice.

The juvenile appellant, Lee Emery, pled guilty in district court to two weapons charges and a charge of possession of methamphetamine with intent to deliver. He now appeals the judgment of conviction and sentence entered on his guilty plea, alleging (1) the district court did not have subject matter jurisdiction of the weapons charges; and (2) the mandatory minimum' sentence of Iowa Code section 124.413 (1999) does not apply to his drug conviction. The appeal was transferred to the Iowa Court of Appeals, where the defendant’s guilty plea was set aside, the district court judgment was reversed, and the case was remanded to juvenile court for further proceedings. Upon our further review, we vacate the court of appeals’ decision and affirm the judgment of the district court.

I. Background Facts and Proceedings.

The underlying facts in this case are simple and undisputed. The defendant, age seventeen, was a juvenile at the time of the alleged crimes. See Iowa Code § 232.2(5) (defining “child” as “a person under eighteen years of age”), (29) (defining “juvenile ” “the same as ‘child ’ ”). Emery was formally charged by trial information with the following crimes: (1) possession of methamphetamine with intent to deliver in violation of Iowa Code section 124.401(1)(& )(7); (2) a tax stamp offense in violation of Iowa Code section 453B.3; (3) two counts of carrying weapons in violation of Iowa Code section 724.4; and (4) possession of marijuana in violation of Iowa Code section 124.401(5). In addition, the trial information alleged facts that would subject the defendant to the enhancement provisions of Iowa Code sections 124.401(l)(e) and 124.401A. All charges were filed in district court, presumably under the authority of Iowa Code section 232.8(l)(c), which exempts certain offenses from the jurisdiction of juvenile court.

The State and Emery entered into plea negotiations. On November 9, 1999, the defendant appeared in open court with counsel, withdrew his prior not-guilty plea, and pled guilty to three of the five charges: possession of methamphetamine with intent to deliver and the two carrying-weapons offenses. In exchange for the guilty plea, the State agreed not to seek the applicable sentencing enhancements.

Emery requested immediate sentencing. The court thereupon sentenced the defendant to a mandatory twenty-five-year indeterminate term of incarceration on the methamphetamine charge and a two-year indeterminate term on each weapons charge, all sentences to run concurrently. In addition, the court informed Emery that he was subject to serving the mandatory one-third minimum sentence imposed by section 124.413 with respect to his drug conviction. The court did, however, reduce the mandatory minimum by one-third based on the defendant’s guilty plea and by an additional ten percent based upon his cooperation with law enforcement. See Iowa Code § 901.10 (allowing court to reduce mandatory minimum under specified circumstances). At no time prior to or during the guilty plea and sentencing proceeding did the defendant challenge the jurisdiction or authority of the district court to accept his plea or to impose sentence.

The defendant appealed. He claims on appeal that the district court lacked subject matter jurisdiction over the weapons charges because the State failed to obtain a waiver or transfer of juvenile court jurisdiction as required by Iotya Code section 232.45. In addition, he asserts that, as a juvenile, he is not subject to the mandatory minimum sentence specified in section 124.413. The court of appeals, although rejecting Emery’s argument concerning the applicability of section 124.413, ruled that the district court did not have subject matter jurisdiction of the weapons charges. Concluding that this defect rendered the judgment void, the court of appeals set aside the plea agreement, reversed the judgment of conviction and sentence, and remanded the case to juvenile court for further proceedings. We granted further review.

II. Scope ofRevieiv.

Challenges to the court’s subject matter jurisdiction are reviewed for correction of errors at law. State v. Oetken, 613 N.W.2d 679, 686 (Iowa 2000). We employ the same standard of review with respect to the court’s application of the minimum sentence statute. State v. Edgington, 601 N.W.2d 31, 32 (Iowa 1999).

III. Error Preservation.

As we noted earlier, the defendant did not make the objection now urged on appeal as to the district court’s power to adjudicate the weapons offenses. Both parties agree, however, that a court’s subject matter jurisdiction may be challenged at any time. Linn County Sheriff v. Iowa Dist. Ct., 545 N.W.2d 296, 299 (Iowa 1996). Nevertheless, the State contends that the issue here is not one of subject matter jurisdiction, but rather is an issue of the court’s authority.

It is helpful at this juncture to point out the difference between a court’s subject matter jurisdiction and its authority:

Subject matter jurisdiction is the power of a court “to hear and determine cases of the general class to which the proceedings in question belong, not merely the particular case then occupying the court’s attention.” Such jurisdiction flows from the constitution or from statutes and cannot be conferred by consent, waiver, or estoppel.
As we pointed out in [State v. Mandicino, 509 N.W.2d 481, 482 (Iowa 1993)],
[sjubject matter jurisdiction should not be confused with authority. “A court may have subject matter jurisdiction but for one reason or another may not be able to entertain a particular case. In such a situation we say the court lacks authority to hear that particular case.”

State v. Yodprasit, 564 N.W.2d 383, 385 (Iowa 1997) (citations omitted). A court may lack authority to hear a particular ease “where a party fails to follow the statutory procedures for invoking the court’s authority.” Schrier v. State, 573 N.W.2d 242, 244-45 (Iowa 1997).

Applying these principles to the present case, the State asserts that compliance with the requirements of section 232.45 for transfer of jurisdiction from the juvenile court to the district court merely establishes the district court’s authority over the particular case that is the subject of the transfer. Section 232.45 does not, argues the State, affect the district court’s subject matter jurisdiction over criminal offenses, including delinquent acts by a juvenile. Thus, according to the State, the district court has subject matter jurisdiction of juvenile eases even when the transfer procedures of section 232.45 have been ignored.

The State makes this distinction because a defect in the court’s authority to hear a particular case may be waived, whereas any defect in its subject matter jurisdiction is not subject to waiver. Man-dicino, 509 N.W.2d at 483. Thus, an objection to a court’s authority to hear a particular case must be raised in that court in order to preserve error on this issue. See id. (stating that “an impediment to a court’s authority can be obviated by consent, waiver, or estoppel”). Even when an objection is made, a subsequent guilty plea waives all objections, including any objection to the court’s authority to hear the case. Yodprasit, 564 N.W.2d at 385.

The question facing this court, then, is whether section 232.45 is a statutory procedure for invoking the court’s authority over a particular case or whether it establishes a process that is necessary to bestow subject matter jurisdiction on the district court. We turn now to an analysis of the relevant statutes.

. IV. Is Compliance with Section 232.15 Necessary to Confer Subject Matter Jurisdiction on the District Court or is it a Prerequsite to Exercise of its Authority to Hear a Pariicular Case?

Iowa Code section 232.8 states that “[t]he juvenile court has exclusive original jurisdiction in proceedings concerning a child who is alleged to have committed a delinquent act unless otherwise' provided by law.” Iowa Code § 232.8(l)(a) (emphasis added). See generally id. § 232.2(12)(a) (defining a “delinquent act” as “[t]he violation of any state law or local ordinance which would constitute a public offense if committed by an adult....”). One statute that provides otherwise is section 232.8(l)(c):

Violations by a child, age sixteen or older, which subject the child to the provisions of section 124.401, subsection 1, paragraph “e ” or ... are excluded from the jurisdiction of the juvenile court and shall be prosecuted as otherwise provided by law unless the court transfers jurisdiction of the child to the juvenile court upon motion and for good cause....

Id. § 232.8(l)(c) (emphasis added).

It is undisputed that the first charge brought against Emery, possession of methamphetamine with intent to deliver, enhanced by his possession of a firearm, was an offense subject to the provisions of section 124.401(l)(e) and, as such, was excluded from the jurisdiction of the juvenile court. In contrast, the two weapons charges do not fall within the express terms of section 232.8(l)(c) and, therefore, are not automatically excluded from juvenile court jurisdiction.

Nonetheless, there is a mechanism for the juvenile court to transfer charges over which it has “exclusive original jurisdiction” to the district court. Section 232.45 provides in pertinent part:

After the filing of a petition which alleges that a child has committed a delinquent act on the basis of an alleged commission of a public offense ..., the county attorney or the child may file a motion requesting the court to waive its jurisdiction over the child for the alleged commission of the public offense or for the purpose of prosecution of the child as an adult or a youthful offender.

Iowa Code § 232.45(1) (emphasis added). This statute goes on to establish certain procedures to effect a transfer of the juvenile matter to the district court for prosecution of the juvenile as an adult. It is undisputed that this procedure was not followed here. In fact, as noted earlier, the weapons charges were not even filed in juvenile court; rather, they were initiated in district court.

We now come to the disputed point in this case: Are the references to “jurisdiction” in sections 232.8 and 232.45 meant to address the issue of subject matter jurisdiction or the issue of authority? Although the legislature’s use of the term “jurisdiction” may at first seem to indicate its intent to address subject matter jurisdiction, such a conclusion is not justified. In the past a court’s authority to hear a particular case was sometimes labeled its “jurisdiction of the case.” Christie v. Rolscreen Co., 448 N.W.2d 447, 450 (Iowa 1989) (noting “we have referred to ‘lack of authority to hear the particular case’ as lack of jurisdiction of the case”). Thus, it is important to look beyond the particular terminology and consider the statute in the context of pertinent constitutional and statutory provisions. We undertook just such an analysis in our Yodprasit case.

In Yodprasit, a juvenile was charged with various delinquent acts in juvenile court. 564 N.W.2d at 384. The State successfully petitioned, pursuant to section 232.45, to transfer the case to district court for adjudication of the charges as adult offenses. Id. The juvenile ultimately entered into a plea agreement that resulted in his pleading guilty to the charges in exchange for dismissal of a pending complaint of another criminal act. Id. On appeal, he claimed that errors in the transfer proceeding conducted in juvenile court “deprived the district court of subject matter jurisdiction to conduct criminal proceedings, accept his guilty plea, and enter the convictions and sentences.” Id. at 385. The State argued that the juvenile’s guilty plea waived any objections. Id.

In resolving this issue, we started with the general proposition that the district court is empowered by the Iowa Constitution to hear all criminal matters. Id. at 386 (citing Iowa Constitution article Y, section 6, which states that district courts shall “have jurisdiction in civil and criminal matters arising in their respective districts, in such manner as shall be prescribed by law”); accord Schrier, 573 N.W.2d at 244 (stating that “[t]he Iowa district court is a court of general jurisdiction”). We held that section 232.8(l)(a), which gives the juvenile court “exclusive original jurisdiction” over proceedings involving delinquent acts, did not “deprive the district court of its criminal jurisdiction.” Yodprasit, 564 N.W.2d at 386. Our reference to the district court’s “criminal jurisdiction” was clearly a reference to its subject matter jurisdiction, as evidenced by our ultimate holding:

We now hold that irregularities in a waiver proceeding are impediments to the district court’s authority that (1) do not deprive the district court of subject matter jurisdiction over criminal proceedings involving the juvenile and (2) can be waived if the juvenile pleads guilty.

Id. at 387.

The import of our holding in Yod-prasit — that “irregularities in a waiver proceeding are impediments to the district court’s authority,” id. (emphasis added)— is that the “jurisdiction” addressed by the legislature in sections 232.8 and 232.45 concern the district court’s authority to hear a particular juvenile matter, not its subject matter jurisdiction. Therefore, a failure to comply with these statutes does not deprive the district court of subject matter jurisdiction, despite the legislature’s grant of “exclusive original jurisdiction” over such matters to the juvenile court.

This interpretation of chapter 232 is consistent with the principle that “[subject matter jurisdiction is conferred upon our district courts by our constitution.” In re Guardianship of Matejski, 419 N.W.2d 576, 577 (Iowa 1988). Thus, although the legislature may prescribe regulations for the manner in which the district court exercises its jurisdiction, it cannot eliminate the court’s constitutionally-based subject matter jurisdiction. Schrier, 573 N.W.2d at 244.

Our decision is also consistent with prior case law. In Woodbury County Attorney v. Iowa District Court, 448 N.W.2d 20 (Iowa 1989), we stated that “Iowa has only one court of original jurisdiction, the district court,” which “has separate dockets for civil, criminal, juvenile, probate, small claims, and simple misdemeanor cases.” 448 N.W.2d at 21. We held that the county attorney’s error in filing a case in the wrong docket merely affected the district court’s “authority.” Id. at 22.

A Florida District Court of Appeal applied similar reasoning in a case bearing a striking resemblance to the matter before us. In Turner v. State, 769 So.2d 1108 (Fla.Dist.Ct.App.2000), the Florida court of appeals considered the effect of a prosecution decision to charge a juvenile as an adult instead of filing the charge in juvenile court as required by the applicable Florida statute. 769 So.2d at 1108. The court held “that the fact the case should have been filed in juvenile court did not involve a failure of subject matter jurisdiction ‘because the juvenile court and the criminal court are divisions of the circuit court.’ ” Id.

As a final matter, we note that the Arizona Court of Appeals has interpreted statutory language identical to section 232.8(l)(a) as referring to the court’s authority, not its subject matter jurisdiction. In State v. Marks, 186 Ariz. 139, 920 P.2d 19 (1996), the Arizona appellate court held that the juvenile court’s “exclusive original jurisdiction” did not deprive Arizona’s court of general jurisdiction, the superior court, of subject matter jurisdiction over juvenile crime. 920 P.2d at 22. In that case a juvenile was convicted in adult court after his case had been transferred from juvenile court. Id. at 21. On appeal, he challenged the adult court’s subject matter jurisdiction, claiming errors in the transfer proceeding precluded the adult court from obtaining jurisdiction. Id. The Arizona court rejected this contention, in part, on the following ground:

[The Arizona statute granting the juvenile court “exclusive original jurisdiction” over certain proceedings concerning juveniles] defines the point of origin within the superior court for the prosecution of a juvenile felony. Such a prosecution must commence in a juvenile division, which must make the threshold determination whether the prosecution should proceed as a delinquency in a juvenile division or be transferred to an adult division and proceed as a crime.
What then is the consequence when, as here, the transfer proceedings are flawed? The consequence is to deprive the adult division of personal jurisdiction over an improperly transferred defendant. Specifically, the faulty transfer does not deprive the superior court of subject matter jurisdiction over the crime....

Id. at 22 (citations omitted).

On close inspection, our transfer provisions, sections 232.8 and 232.45, likewise appeal1 to concern what the Arizona court termed “personal jurisdiction.” In section 232.8(3), the legislature provided that “[t]he juvenile court, after a hearing and in accordance with the provisions of section 232.45, may waive jurisdiction of a child alleged to have committed a public offense so that the child may be prosecuted as an adult.” Iowa Code § 232.8(3) (emphasis added). Similarly, in section 232.45 the legislature refers to the filing of a “motion requesting the court to waive its jurisdiction over the child for the alleged commission of the public offense.” Id. § 232.45 (emphasis added). These statutes clearly focus on jurisdiction of the child, i.e., jurisdiction over a particular case, rather than subject matter jurisdiction.

In summary, we confirm what we held in Yodprasit: sections 232.8 and 232.45 address the authority of the district court to adjudicate charges of delinquent acts, not its subject matter jurisdiction over such cases. Consequently, any failure to comply with the transfer procedure merely affects the authority of the district court to hear the case. Whether noncompliance takes the form of faulty proceedings, as in Yodprasit, or the form of a total absence of such proceedings, as occurred here, makes no difference. In both instances the district court’s subject matter jurisdiction over such cases, as granted by the Iowa Constitution, is unaffected. Thus, the lack of a proper transfer from juvenile court is simply a defect in the district court’s authority that can be waived.

That is what happened here. Even if an appropriate transfer of “jurisdiction of the child” — Emery—was not accomplished, the district court had subject matter jurisdiction. Any deficiency in the district court’s authority was waived when the defendant failed to object to the district court’s adjudication of his case. The court of appeals erred in concluding otherwise.

Y. Does the Mandatory Minimum Sentence of Section 121413 Apply to the Defendant’s Drug Conviction?

A. Application of section 124.413. Emery argues the district court erred in sentencing him to the mandatory minimum one-third sentence required by section 124.413 because section 124.413 does not apply to juveniles subject to section 232.8(l)(c). This argument rests on the fact that section 232.8(l)(c) does not specifically mention the mandatory minimum sentencing provisions of section 124.413. We find no merit in the defendant’s contention.

Section 232.8(l)(c) states: “A child ... [,] who is convicted of a violation excluded from the jurisdiction of the juvenile court under this paragraph, shall be sentenced pursuant to section 124.401B, 902.9, or 903.1.” This court has previously held that the legislature’s reference in section 232.8(l)(e) to the general sentencing statutes for adult felons and misdemeanants— sections 902.9 and 903.1 — indicates an intent that these statutes “be applied in conjunction with the other relevant statutes that modify and supplement these general sentencing provisions.” State v. Iowa Dist. Ct. for Black Hawk County, 616 N.W.2d 575, 581 (Iowa 2000). In the State v. District CouH case, the juvenile offender argued that, because section 232.8(l)(c) did not specifically refer to the statutes requiring defendants committing certain offenses to serve eighty-five percent of their sentence, these sentencing statutes did not apply to juveniles excluded from the jurisdiction of the juvenile court under section 232.8(l)(c). Id. In dismissing this contention, we held that “ ‘[njothing in the language of section 232.8(l)(c) suggests that juveniles who commit forcible felonies and are automatically subject to prosecution as adults are to be subject to sentencing limits any different than those imposed upon similarly-situated adults.’ ” Id. (quoting Edgington, 601 N.W.2d at 34).

The same reasoning applies here. Nothing in section 232.8(l)(c) suggests that juveniles who commit one of the specified drug offenses and are prosecuted as adults are to be sentenced any differently than similarly situated adults. We conclude, therefore, that absent an applicable exemption, Emery is subject to the mandatory minimum sentence imposed by section 124.413.

B. Section 2§245(W exemption. The defendant claims that even if the adult sentencing statutes apply to juveniles falling within section 232.8(l)(c), he is exempted from the mandatory minimum sentencing provision by Iowa Code section 232.45(14). Section 232.45(14) provides in relevant part:

If a child who is alleged to have delivered, manufactured, or possessed with intent to deliver or manufacture, a controlled substance except marijuana, as defined in chapter 124, is waived to district court for prosecution, the mandatory minimum sentence provided in section 124.413 shall not be imposed if a conviction is had....

Iowa Code § 232.45(14) (emphasis added).

It cannot be disputed that the defendant was not literally “waived” to district court for prosecution of his drug offense. Rather, as we have already observed, his drug offense was excluded from the jurisdiction of the juvenile court by section 232.8(l)(c), and consequently, that charge was filed initially in district court. The defendant argues, however, that it should make no difference whether he was transferred into adult court or whether the charges were originally filed there. Because he is a “child,” he asserts, he should not be subject to the mandatory minimum sentence of section 124.413.

The problem with the defendant’s argument is that the legislature did not state that children in general were not subject to the mandatory minimum. The legislature only exempted children “waived to district court.” We have previously held that juveniles waived to district court do not encompass juveniles subject initially to the authority of the district court. State v. Gilliland, 604 N.W.2d 666, 667 (Iowa 2000); Edgington, 601 N.W.2d at 33.

In Edgington, we interpreted section 232.8(3), which permits the juvenile court to “waive jurisdiction of a child alleged to have committed a public offense so that the child may be prosecuted as an adult.” Iowa Code § 232.8(3). That statute provides that if the child pleads guilty or is found guilty, the court may grant a deferred judgment. Id. The juvenile in Edg-ington, like the juvenile here, had committed a crime that was excluded from the jurisdiction of the juvenile court pursuant to section 232.8(l)(c). Edgington, 601 N.W.2d at 31-32. In holding that the defendant had not been waived to district court when he was excluded from the juvenile court’s jurisdiction under section 232.8(l)(c), we stated:

The defendant initially mischaracter-izes his situation as one is which he was “automatically waived” or “previously waived” to adult court. It is evident from the express language of Iowa Code section 232.8(l)(c) that his violation was excluded from the jurisdiction of the juvenile court and he was subject to the “initial, direct jurisdiction of the district court.” Neither the record nor the applicable law support the conclusion that the defendant was ever “waived” to adult court.

Id. at 33 (citation omitted). This court concluded “the authority to grant a deferred judgment under section 232.8(3) is limited to cases in which juvenile court jurisdiction has been waived. It has no application to a case which was excluded from the juvenile court’s jurisdiction.” Id. (emphasis omitted).

The same reasoning applies to the present case. Section 232.45(14) deals with children who are “waived to district court for prosecution.” That is not the situation here. Emery’s drug offense was excluded from the juvenile court’s jurisdiction and consequently was never filed in juvenile court. Therefore, he was not “waived to district court for prosecution.”

The defendant points out that section 232.45(14), exempting waived children from the mandatory minimum, predates section 232.8(l)(c), excluding certain children from the jurisdiction of the juvenile court. He claims that if section 232.45(14) reached all juvenile drug offenders in adult court prior to the adoption of section 232.8(l)(c), “it probably was intended to reach them after adoption of [section 232.8(l)(c) ], absent some express indication of a contrary legislative intent.” We think there is an expression of contrary legislative intent. If the legislature had wanted section 232.45(14) to apply to children falling under section 232.8(l)(c), it could have amended section 232.45(14) to say so. Because it did not, this court is not at liberty to read such an amendment into the statute. See Eaton v. Iowa Employment Appeal Bd., 602 N.W.2d 553, 556 (Iowa 1999).

C. Equal protection. Finally, we reject the defendant’s contention that our interpretation of the relevant statutes results in a violation of his rights to equal protection. See U.S. Const, amend XIV, § 1. Emery argues that it is a violation of the Equal Protection Clause to impose the mandatory minimum sentence on juveniles who are subject to prosecution as adults under section 232.8(l)(c), but not impose the mandatory minimum sentence on juveniles who are waived to the district court pursuant to section 232.45(1). He contends there is no reason to treat such children differently since they both “fac[e] adult sentencing.”

This court has already rejected an identical equal protection challenge to section 232.8(1)(c) in State v. Mann, 602 N.W.2d 785, 791-93 (Iowa 1999). In Mann, we held that the legislature could constitutionally distinguish between those juveniles waived into district court and older juveniles automatically within the jurisdiction of the district court. 602 N.W.2d at 793. Our decision in Mann disposes of any equal protection claim here.

VI. Summary.

The State’s failure to follow the transfer procedures of section 232.45 with respect to the weapons charges filed against the defendant did not deprive the district court of subject matter jurisdiction. Even if the absence of a proper transfer impacted the district court’s authority to adjudicate these offenses, the defendant’s guilty plea waived any objections. We vacate the court of appeals’ contrary decision.

Because Emery was subject to the initial jurisdiction and authority of the district court with respect to his drug offense, he is subject to sentencing as an adult, absent an express exemption. Adult sentencing provisions include the mandatory minimum sentence of section 124.413 required for certain drug convictions. The section 232.45(14) exemption of juveniles waived to district court does not apply because the defendant was not waived to district court. The different treatment of juveniles transferred to district court and juveniles excluded from juvenile court jurisdiction does not violate the Equal Protection Clause.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

All justices concur, except STREIT, J., who takes no part.

      . Emery also tries to characterize his claim of error with respect to the weapons charges as being a challenge to an illegal sentence. The defendant makes no claim, however, that'the sentences imposed on the weapons convictions would be illegal as to a defendant properly before the district court. Rather, his claim of illegality rests on the premise that he should have been prosecuted in juvenile court, not district court. Thus, the issue is one of the jurisdiction or authority of the district court, not the legality of the sentence.

        . The Stale argues that because the weapons offenses were factually related to the drug charge, section 232.8(l)(c) excluded these related charges, as well as the drug charge, from the jurisdiction of the juvenile court. We need not determine the reach of section 232.8(l)(c), however, because we conclude that the defendant did not preserve error on the issue of whether the weapons charges were properly before the district court.

      . In pertinent part section 124.413 provides that a person sentenced pursuant to section 124.401(l)(fc) "shall not be eligible for parole until the person has served a minimum period of confinement of one-third of the maximum indeterminale sentence prescribed by law.” Iowa Code § 124.413. It is undisputed that Emery was sentenced pursuant to section 124.401(l)(fc) on the possession-of-methamphetamine-with-intent-to-deliver conviction.


source: Caselaw Access Project

author: PAUL H. ANDERSON, Associate Justice.

license: Public Domain

text:
    In Re PETITION FOR DISCIPLINARY ACTION AGAINST Don L. BYE, an Attorney at Law of the State of Minnesota.
    No. C7-01-1225.
    Supreme Court of Minnesota.
    Nov. 28, 2001.
   ORDER

PAUL H. ANDERSON, Associate Justice.

The Director of the Office of Lawyers Professional Responsibility has filed a petition for revocation of probation and for further disciplinary action alleging that respondent Don L. Bye has committed professional misconduct warranting public discipline, namely, respondent violated the terms of his private supervised probation by failing to maintain total abstinence from alcohol in violation of Minn. R. Prof. Conduct 8.4(d).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is a public reprimand and supervised probation for a period of two years subject to the following conditions:

a. Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
b. Respondent shall abide by the Minnesota Rules of Professional Conduct.
c. Respondent shall continue to be supervised by Harold Frederick or another licensed Minnesota attorney appointed by the Director to monitor compliance with the terms of this probation.
d. Respondent shall cooperate fully with the supervisor in his efforts to monitor compliance with this probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall submit to the supervisor an inventory of all active client files by the first day of each month during the probation. With respect to each active file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
e. Respondent shall maintain office procedures which ensure that there are prompt responses to correspondence, telephone calls, and other important communications from clients, courts and other persons interested in matters which respondent is handling, and which will ensure that respondent regularly reviews each and every file and completes legal matters on a timely basis.
f. Respondent shall maintain total abstinence from alcohol and other mood-altering chemicals, except that respondent may use prescription drugs in accordance with the directions of a prescribing physician who is fully advised of respondent’s chemical dependency before issuing the prescription.
g. Respondent shall, at his own expense, up to four times per month, submit to random urinalysis for drug screening at a facility approved by the Director and shall direct the drug screening facility to provide the results of all urinalysis testing to the Director’s Office. If, after six months, all such tests have been valid (non-dilute) and negative, then the frequency of the random tests may be reduced. Respondent shall cooperate with the phone-in program established by the Director for the random tests. Any failure to phone-in in accordance with the random test program shall be considered the same as receipt of a positive test result. Any positive test result will be immediate grounds for revocation of this probation.
h. Respondent shall attend weekly meetings of Alcoholics Anonymous (AA). Respondent shall, by the tenth of each month, without a specific reminder or request, submit to the Director an attendance verification on a form which provides the date and place of the meeting and name of the person personally verifying the attendance. Upon the Director’s request, respondent shall provide the address and phone number of each person verifying his AA attendance. Such attendance verification shall also, upon request, be provided to the respondent’s supervisor.
i. Respondent shall continue treatment by a licensed mental health professional acceptable to the Director regarding his depression. Before ceasing treatment, respondent shall complete all therapy programs recommended by the doctor or mental health professional and provide the Director with a written discharge summary from his physician or therapist. Respondent shall instruct his mental health provider to send status reports regarding his depression to the Director’s Office semi-annually, or at such more frequent intervals as may be appropriate and requested by the Director.
j. Respondent shall pay $900 in costs and disbursements pursuant to Rule 24, RLPR.

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

IT IS HEREBY ORDERED that respondent Don L. Bye is publicly reprimanded and placed on public probation for a period of two years from the date of this order subject to the agreed-upon conditions set forth above. Respondent shall pay $900 in costs and disbursements.


text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST Steven T. APPELGET, an Attorney at Law of the State of Minnesota.
    No. C9-99-2181.
    Supreme Court of Minnesota.
    Nov. 30, 2001.
   ORDER

PAUL H. ANDERSON, Associate Justice.

The Director of the Office of Lawyers Professional Responsibility has filed a petition for extension of probation alleging that respondent Steven T. Appelget has committed professional misconduct warranting public discipline, namely, that the respondent failed to cooperate with the Director’s Office in monitoring his probation, failed to maintain required trust account books and records, and failed to rectify shortages in his attorney trust account, in violation of the terms of his January 10, 2000, court-ordered probation and Minn. R. Prof. Conduct 1.15 and 3.4(c).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is extension of respondent’s current supervised probation for a period of two additional years subject to the following conditions:

1. Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
2. Respondent shall promptly respond to the Director’s correspondence. All correspondence shall be sent to the respondent by certified mail. In addition,, respondent shall receive a copy of all correspondence by regular United States mail. Respondent shall have seven business days by which to respond to the Director’s correspondence unless otherwise specified by letter.
3. Respondent shall abide by the Minnesota Rules of Professional Conduct.
4. Respondent shall be supervised by John M. Koneck, or [anjother licensed Minnesota attorney approved by the Director, to monitor compliance with the terms of this probation.
5. Respondent shall cooperate fully with the supervisor in his efforts to monitor compliance with this probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall submit to the supervisor an inventory of all active client files by the first day of each month during the probation. With respect to each active file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
6. Respondent shall have seven business days by which to respond to correspondence from his supervisor that requests information or scheduling of an appointment.
7. Respondent shall initiate and maintain office procedures which ensure that there are prompt responses to correspondence, telephone calls, and other important communications from clients, courts and other persons interested in matters which respondent is handling, and which will ensure that respondent regularly reviews each and every file and completes legal matters on a timely basis.
8. Within thirty days from the execution of this stipulation, respondent shall provide to the Director and to the probation supervisor a current written plan outlining office procedures designed to ensure that respondent is in compliance with probation requirements. Respondent shall provide progress reports as requested.
9.Respondent shall maintain law office and trust account books and records in compliance with Minn. R. Prof. Conduct 1.15 and Lawyers Professional Responsibility Board Opinion No. 9. In particular, respondent shall not use his trust account as a business account; shall have an operating business account and will use it appropriately; and shall not use his trust account for any purposes other than those stated in the above-referenced rule and opinion. These books and records include the following: client subsidiary ledger, checkbook register, monthly trial balances, monthly trust account reconciliation, bank statements, canceled checks, duplicate deposit slips and bank reports of interest, service charges and interest payments to the Lawyer Trust Account Board. Such books and records shall be made available to the Director regularly on a quarterly basis, or at more frequent intervals as may be reasonably requested by the Director.

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

IT IS HEREBY ORDERED that respondent Steven T. Appelget is placed on supervised probation for an additional two years subject to the agreed-upon terms set forth above.


author: DANIEL F. FOLEY, Judge.

text:
    Raymond L. HAMBLIN, Appellant, v. ALLIANT TECHSYSTEMS, INC., a Delaware corporation, Respondent.
    No. C9-01-562.
    Court of Appeals of Minnesota.
    Nov. 27, 2001.

      Thomas P. Malone,. Malcolm P. Terry, Barna, Guzy & Steffen, Ltd., Minneapolis, for appellant.
    Roy A. Ginsburg, Clifford S. Anderson, Dorsey & Whitney, LLP, Minneapolis, for respondent.
    Considered and decided by HANSON, Presiding Judge, RANDALL, Judge, and FOLEY, Judge.
   OPINION

DANIEL F. FOLEY, Judge.

In this age discrimination case, appellant challenges the district court’s grant of summary judgment in favor of respondent, arguing that issues of material fact exist as to disparate treatment and disparate impact. We reverse as to disparate treatment, affirm as to disparate impact, and remand.

FACTS

Respondent Alliant Techsystems designs, manufactures, and sells defense-related products and services. Due to decreased military spending in the late 1980s, Honeywell, the predecessor corporation to Alliant, and then Alliant carried out a series of workforce reductions in the 1990s. Alliant accomplished the workforce reductions through voluntary retirements, attrition, and involuntary layoffs. The downsizing resulted in a 62% reduction of Alliant’s salaried workforce over a five-year period. In the same five-year period, Alliant’s revenues dropped by approximately $458 million.

Appellant Raymond Hamblin was a long-time Honeywell employee before Honeywell’s defense-related business became Affiant. Hamblin was 56 years old and a senior product support engineer when his employment was terminated in 1994.

Hamblin offered evidence that, preceding the reduction in workforce, Toby War-son, President of Defense and Marine Systems at Honeywell, stated that he wanted “the older employees targeted because that’s the only way to maximize cost reduction.” After that statement, Honeywell began implementing new workforce reduction guidelines in which seniority was no longer a critical positive factor.

Between 1990 and 1995, Affiant changed the specific ranking criteria used to select employees for termination. For instance, before Affiant’s spin-off from Honeywell, “seniority” was considered a “critical factor.” After Affiant was formed, seniority and longevity of service were no longer considered except as a “tiebreaker.” In addition, Affiant later employed a “snapshot” approach to employee evaluations. That is, instead of applying a historical perspective, Affiant would look only at an employee’s performance since the last review. Under these new criteria, Hamblin was terminated when his ranking dropped from 13th to 29th in his department.

Shortly after Hamblin’s termination, the human resources department at Affiant released a document called’ the “White Paper.” The “White Paper” examined issues raised by a possible retirement incentive program. In the section entitled “Buyout into Retirement,” the document stated that such a retirement incentive program “Hargets older, possibly higher paid employees.”

Nearly a year later after Hamblin’s termination, Richard Schwartz, CEO of Affi-ant, issued a memorandum (Schwartz memo) discussing a meeting of Minneapolis managers. Under the section entitled, “Management Actions,” the memo states, “Hire some new people — additional talent — [y]ounger talent that can be trained.” In a deposition, an attendee at the May 3 meeting attributed that statement to Randy Scheistl, Vice President of Tank Ammunitions.

Hamblin filed a lawsuit alleging age discrimination under the Minnesota Human Rights Act. The district court granted Al-liant’s motion for summary judgment, concluding that Hamblin had failed to establish either disparate treatment or disparate impact.

ISSUES

I. Did appellant establish a genuine issue of material fact as to his claim of disparate treatment on the basis of age?

II. Did appellant establish a genuine issue of material fact as to his claim of disparate impact on the basis of age?

ANALYSIS

On appeal from summary judgment, we ask whether any genuine issues of material fact exist and whether the district court erred in applying the law. Cummings v. Koehnen, 568 N.W.2d 418, 420 (Minn.1997). This court views evidence in the light most favorable to the non-moving party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

I.

It is an unfair labor practice under the Minnesota Human Rights Act (MHRA) for an employer, except when based on a bona fide occupational qualification, to discriminate as to terms and conditions of employment on the basis of age. Minn. Stat. § 363.03, subd. 1(2) (2000). When there is no direct evidence of discrimination, we analyze age discrimination claims using the burden shifting analysis of McDonnell Douglas. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Dietrich v. Canadian Pac. Ltd., 636 N.W.2d 319, 323 (Minn.1995) (applying McDonnell Douglas test to claim under MHRA). To successfully proceed under the MHRA, (1) the plaintiff must establish a prima facie case of discrimination; (2) the burden then shifts to the employer to articulate a nondiscriminatory reason for its action; and (3) the plaintiff must then prove by a preponderance of the evidence that the reason is merely a pretext for discrimination. Dietrich, 536 N.W.2d at 323.

The requirements for establishing a prima facie case, however, vary depending on the circumstances involved. McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13. In cases involving employee layoffs, the analysis requires a showing that age was a factor in the termination. See Dietrich, 536 N.W.2d at 324 (adopting modification of McDonnell Douglas analysis set forth in Holley v. Sanyo Mfg., 771 F.2d 1161,1165-66 (8th Cir.1985) for reduction in force cases).

Here, the district court found that the circumstantial and statistical evidence offered by Hamblin satisfied the requirements to establish a prima facie ease. The burden then shifted to Alliant, which met its burden by offering legitimate, nondiscriminatory reasons for Hamblin’s dismissal, including economic decline and Hamblin’s low competitive ranking scores. Under McDonnell Douglas, the burden then shifted back to Hamblin to establish pretext. The district court found that Hamblin failed to meet his burden to establish pretext and granted summary judgment to Alliant.

In Minnesota, a plaintiff may sustain the burden to establish pretext “either directly by persuading the court that a discriminatory reason likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn.1986) (citation omitted).

Hamblin argues that pretext as to disparate treatment is established by: (1) statistical analysis by Hamblin’s expert; (2) a series of ageist comments made by executives within Honeywell and Alliant; and (3) the lack of uniformity in Alliant’s application of the alleged nondiscriminatory ranking criteria. Taken together, we hold that these offerings establish a material fact issue as to pretext.

Statistical Analysis

Courts have held that statistical evidence regarding employees in the department where a terminated plaintiff formerly worked may support a finding of pretext. See, e.g., MacDissi v. Valmont Indus., Inc., 856 F.2d 1054, 1058 (8th Cir.1988). Hamblin offered the expert testimony of Dr. David Peterson, whose report stated that, when employees were grouped by facility, grade, and work assignment, the standard deviation from nondiscriminatory terminations ranged from 4.40 to 6.23. Al-liant’s experts and the district court rejected Dr. Peterson’s study. When taken in the light most favorable to Hamblin, however, this statistical evidence is probative of Hamblin’s assertion of pretext.

Ageist Comments

Hamblin offers ageist comments made by executives of Honeywell and Affi-ant as evidence of discriminatory corporate culture. Whether evidence of corporate culture showing bias to older employees is admissible to establish pretext in a disparate treatment case appears to be a case of first impression in Minnesota. Hamblin argues that the Warson comment, the “White Paper,” and the Schwartz memo establish bias of the employer. Other courts have held that evidence of ageist corporate atmosphere, along with other evidence, is sufficient to support a reasonable inference of discrimination. Madel v. FCI Mktg., Inc., 116 F.3d 1247, 1252 (8th Cir.1997); see also Lam v. Univ. of Hawaii, 164 F.3d 1186, 1188 (9th Cir.1998). We hold that such evidence is admissible as to the issue of disparate treatment at trial.

Discrimination is often the result of subtle, unconscious predispositions. Corporate discrimination does not occur in a vacuum. Discrimination feeds on the actions and statements of those involved in that corporate culture.

[N]umerous circuit courts have acknowledged that “age discrimination may simply arise from an unconscious application or stereotyped notions of ability rather than from deliberate desire to remove older employees from the workforce” and on that basis have ruled in the plaintiffs favor.

Rebecca H. White & Linda H. Krieger, Whose Motive Matters?: Discrimination in Multi Actor Employment Decision Making, 61 La. L.Rev. 495, 509 (2001) (citations omitted).

In Reeves v. Sanderson Plumbing Prods., Inc., the Supreme Court found that the age-based recommendation to fire Reeves was the functional equivalent of an age-based termination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 152-53, 120 S.Ct. 2097, 2111-12, 147 L.Ed.2d 105 (2000). The analysis focused on age as the motivation for the termination, rather than on the discriminatory intent of the direct firing agent. Id. In other words, the correct issue is not whether the firing agent had discriminatory intent, but whether the firing corporation had discriminatory intent. Under this rationale, a prejudiced corporation' cannot insulate itself by using front-end managers subject to executive pressures.

Here, there is evidence that Toby War-son, Honeywell’s President of Defense and Marine Systems, made an ageist remark. Because Warson himself did not actually terminate Hamblin, the remark is not direct evidence of disparate treatment or pretext. See Diez v. Minn. Mining & Mfg., 564 N.W.2d 575, 579 (Minn.App.1997) (statements made by individuals who do not take part in discharge cannot be direct evidence of discrimination), review denied (Minn. Aug. 21, 1997). The fact that the comment was made by a top executive, however, is significant because “when a major company executive speaks, ‘everybody listens’ in the corporate hierarchy.” Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 54 (3d Cir.1989) rev’d on other grounds, Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089 (3d Cir.1995). While a single remark may be insignificant in itself, the echoing of this remark in a human resources memorandum and at a managers’ meeting creates a question as to whether a discriminatory corporate culture existed.

Lack of Uniformity in Application of Ranking Criteria

Finally, Hamblin points out that Alliant cannot show that any of its managers actually applied its ranking criteria to him before his termination. Testimony of an Alliant manager involved in Alliant’s ranking process states, “I do not recall ever being given or using any written ranking criteria or directives[.]” The eighth circuit indicated that lack of uniformity in the ranking process is evidence of pretext. Nitschke v. McDonnell Douglas Corp., 68 F.3d 249, 252 n. 3 (8th Cir.1995). Thus, a lack of uniformity in applying ranking criteria is fact evidence as to pretext.

The combination of statistical evidence, evidence of discriminatory corporate culture, and lack of uniformity in Affiant's ranking process, along with Hamblin’s sharp drop in ranking, is evidence sufficient to raise an issue of fact as to pretext when the evidence is viewed in the light most favorable to Hamblin. Therefore, we reverse the district court’s summary judgment as to Hamblin’s claim of disparate treatment.

II.

Additionally, Hamblin argues that he has produced sufficient evidence of disparate impact on the basis of age to preclude summary judgment. Disparate impact claims are expressly recognized under the Minnesota Human Rights Act. Minn. Stat. § 363.03, subd. 11 (2000).

To establish a prima facie ease, the plaintiff must prove “that an employment practice is responsible for a statistically significant adverse impact on a particular class of persons protected by § 363.03, subd. 1(2).” Minn.Stat. § 363.03, subd. 11. Once this burden is met, “an employer must justify that practice by demonstrating that the practice is manifestly related to the job or significantly furthers an important business purpose.” Id. If the practice is justified, the plaintiff must demonstrate “the existence of a comparably effective practice that the court finds would cause a significantly lessor adverse impact on the identified protected class.” Id.

Alliant has cited its decline in revenue prompting reductions in workforce as a business justification- Hamblin has offered no evidence of any alternatives that would result in less discriminatory costj savings comparable to reductions in workforce. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994, 108 S.Ct. 2777, 2788-89, 101 L.Ed.2d 827 (1988) (plaintiff is responsible for isolating and identifying specific employment practices that are allegedly responsible for any observed statistical disparities). Hamblin has failed to demonstrate the existence of a comparably effective practice that would cause a significantly lessened adverse effect on older employees as required by Minn.Stat. § 363.03, subd. 11. We agree with the district court that Hamblin failed to meet his burden of establishing a claim for disparate impact age discrimination as a matter of law.

DECISION

We affirm summary judgment on Ham-blin’s claim of disparate impact, conclude that evidence of disparate treatment was sufficient to withstand summary judgment, and we reverse and remand on that claim.

Affirmed in part, reversed in part, and remanded.

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


author: PETERSON, Judge.

text:
    In the Matter of the WELFARE OF B.J.M., Child.
    No. C1-01-376.
    Court of Appeals of Minnesota.
    Dec. 4, 2001.

      John Stuart, State Public Defender, Charlann Winking, Assistant Public Defender, for appellant.
    Mike Hatch, Attorney General and Charles Maclean, Winona County Attorney, for respondent State of Minnesota.
    Considered and decided by ANDERSON, Presiding Judge, PETERSON, Judge, and AMUNDSON, Judge.
   OPINION

PETERSON, Judge.

This appeal is from a judgment entered pursuant to a juvenile-delinquency disposition order requiring appellant B.J.M. to pay restitution. B.J.M. argues that the juvenile court lost jurisdiction to impose the disposition because he turned age 19 before the adjudicatory and disposition hearings were held. B.J.M. argues that his failure to appear for the disposition hearing and for a hearing prior to the adjudicatory hearing did not justify extension of jurisdiction. We vacate the judgment.

FACTS

In March 1998, a petition was filed alleging that B.J.M. had committed first-degree arson in violation of Minn.Stat. § 609.561, subd. 1 (1996). Trial was scheduled for June 23, 1998, but B.J.M. failed to appear. Court minutes show that the prosecutor advised the juvenile court that B.J.M. had fled from detention. The court issued an order for apprehension, detention, and custody.

On April 8, 1999, B.J.M. turned age 19. On September 13, 1999, based on information that B.J.M. was living in Iowa, the juvenile court issued a warrant for his arrest. B.J.M. was arrested in April 2000 and on April 13, 2000, appeared in juvenile court for a detention hearing.

The case was tried to the court on May 31, 2000. On September 13, 2000, the juvenile court issued an order determining that B.J.M. had committed first-degree arson and was, therefore, delinquent. B.J.M. appeared at a disposition hearing on October 25, 2000. The court continued the disposition pending a restitution hearing. B.J.M. did not appear at the continued disposition hearing on January 11, 2001. The juvenile court issued a final order requiring B.J.M. to pay restitution, and judgment was entered accordingly.

ISSUE

Did the juvenile court have jurisdiction to impose a juvenile disposition after B.J.M.’s 19th birthday?

ANALYSIS

When statutorily based, the existence of jurisdiction is a question of law subject to de novo review. State v. Behl, 564 N.W.2d 560, 563 (Minn.1997). Generally, the juvenile court has original and exclusive jurisdiction over proceedings concerning anyone alleged to have been a delinquent prior to becoming 18 years old. Minn.Stat. § 260B.101, subd. 1 (2000). Unless the person falls under a statutory exception, juvenile court jurisdiction terminates when the person becomes 19 years old. Minn.Stat. § 260B.193, subd. 5(a) (2000); In re Welfare of K.A.S., 585 N.W.2d 71, 75 (Minn.App.1998). B.J.M. was age 20 when the juvenile court determined him to be delinquent and imposed disposition.

Minn.Stat. § 260B.193, subd. 5, sets forth three exceptions extending juvenile jurisdiction until a person reaches age 21. The first exception, set forth in Minn.Stat. § 260B.193, subd. 5(b), applies to an extended-jurisdiction juvenile (EJJ) with respect to an offense of which the individual was convicted as an EJJ. That exception does not apply here because this case was not designated as an EJJ prosecution. See Minn.Stat. § 260B.130, subd. 1 (2000) (procedure for designating proceeding as an EJJ proceeding).

B.J.M. concedes that the juvenile court had jurisdiction to conduct a trial and determine his guilt under the second exception, set forth • in Minn.Stat. § 260B.193, subd. 5(c). But Minn.Stat. § 260B.193, subd. 5(c), only permits the court to impose a disposition under Minn. Stat. § 260B.130, subd. 4, which applies only to an EJJ prosecution. Therefore, because this case was not designated as an EJJ prosecution, the juvenile court lacked jurisdiction to impose a disposition under Minn.Stat. § 260B.193, subd. 5(c).

The third exception to the general rule that juvenile court jurisdiction terminates when a person becomes 19 years old is set forth in Minn.Stat. § 260B.193, subd. 5(e), which states:

The juvenile court has jurisdiction over a person who has been adjudicated delinquent until the person’s 21st birthday if the person fails to appear at any juvenile court hearing or fails to appear at or absconds from any placement' under a juvenile court order.

Minn.Stat. § 260B.193, subd. 5(e), expressly provides for the extension of juvenile jurisdiction for failure to appear at a juvenile court hearing only when the person “has been adjudicated delinquent.” A statute should be construed so that no phrase is “superfluous, void, or insignificant.” Boutin v. LaFleur, 591 N.W.2d 711, 716 (Minn.1999) (citation omitted); see also Wynkoop v. Carpenter, 574 N.W.2d 422, 425 (Minn.1998) (when statutory language is plain and unambiguous, the court must give effect to its plain meaning). Construing Minn.Stat. § 260B.193, subd. 5(e), as providing for a general extension of jurisdiction for any person who misses a court hearing at any stage in a juvenile proceeding would render superfluous the phrase “who has been adjudicated delinquent” and would be contrary to the plain and unambiguous statutory language. We hold that Minn.Stat. § 260B.193, subd. 5(e), extends jurisdiction only when a person who has already been adjudicated delinquent fails to appear at a hearing or fails to appear at or absconds from a court-ordered placement.

B.J.M. failed to appear for two hearings, a scheduled trial on June 23, 1998, and the disposition hearing on January 11, 2001. But when B.J.M. failed to appear for trial, he had not yet been adjudicated delinquent.

The juvenile court’s jurisdiction to impose a disposition ended by law in April 1999 when B.J.M. turned 19. The adjudication of delinquency did not occur until several months later. Thus, if B.J.M. had appeared at the January 2001 disposition hearing, the court would have lacked jurisdiction to impose a disposition against him. Given the limited extension of jurisdiction provided for by Minn.Stat. § 260B.193, subd. 5(d), we decline to hold that B.J.M.’s failure to appear for the January 2001 hearing resurrected the juvenile court’s jurisdiction to impose a disposition.

DECISION

Because the juvenile court lacked jurisdiction to impose a disposition against B.J.M., we vacate the judgment requiring B.J.M. to pay restitution.

Judgment vacated.

      . To prevent separate appeals from adjudication and disposition orders, Minn. R. Juv. P. 21.03, subd. 1, precludes the juvenile court from adjudicating delinquency until the time of disposition. See In re Welfare of G. (NMN) M„ 533 N.W.2d 883, 884 (Minn.App.1995) (construing predecessor to Minn. R. Juv. P. 21.03, subd. 1). Because B.J.M. does not dispute that the September 13, 2000, order constituted an adjudication of guilt, we assume, without deciding, that it did.


author: G. BARRY ANDERSON, Judge.

text:
    STATE of Minnesota, Respondent, v. Herbert Lee HENDRY II, Appellant.
    No. C7-00-2008.
    Court of Appeals of Minnesota.
    Dec. 4, 2001.
    Review Denied Jan. 29, 2002.

      Mike Hatch, Attorney General; and Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, for respondent.
    John Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, for appellant.
    Considered and decided by ANDERSON, Presiding Judge, PETERSON, Judge, and AMUNDSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Appellant Herbert Hendry was charged and convicted, after a three-day jury trial, of felon in possession of a firearm, a violation of Minn.Stat. § 624.713, subds. 1(b), 2 (1998). The district court sentenced appellant to the mandatory minimum sentence of 60 months in prison. Appellant challenges his conviction on four grounds: (1) that the reconstructed record does not allow for adequate appellate review and fair process; (2) that the district court erred by failing to notify the attorneys of a jury question during deliberations, by failing to respond to the question, and by failing to maintain a record of the question; (3) that the verdict was attributable to the court’s error in handling the question; and (4) that the evidence is not sufficient to support the jury’s verdict.

We conclude that the district court record, as supplemented, affords appellant adequate appellate review and fair process. We also conclude that the district court did not err when it failed to contact the attorneys when the jury asked a question, when it failed to respond to the question, and when it failed to maintain a record of the question. Finally, we conclude that the jury’s verdict was surely unattributable to any error by the district court and the evidence was sufficient for the jury to find appellant guilty of felon in possession of a firearm and we therefore affirm.

FACTS

On the evening of May 23, 1999, Dwayne Champion heard gunshots in his North Minneapolis neighborhood. Champion looked out his second-floor window, across an alley, and observed a man standing on the back porch of a nearby house. Champion called 911 and told the operator that a man was firing a gun and described the shooter as a black male with dreadlocks. Based on Champion’s description of the shooter and the location of the shots fired, Minneapolis police officers proceeded to the nearby house and knocked on the. door. Appellant answered the door and the officers asked if they could enter the dwelling. Appellant refused to open the door and said he would get the tenant. Sandra Warren came downstairs and opened the door to speak with the officers. The officers asked Warren, a tenant of the house, if they could enter. Warren consented to their entry. The officers immediately took appellant into custody because he matched Champion’s description of the shooter. Champion positively identified appellant as the shooter while appellant was in custody at the scene.

The state charged appellant with felon in possession of a firearm, a violation of Minn.Stat. §§ 624.713, subds. 1(b), 2; 609.11 (1998), and reckless discharge of a firearm, a violation of Minn.Stat. § 609.66, subds. la(2), (b)(1) (1998). At trial, Carla Pemberton, a friend of Warren’s who was consuming alcohol in a bedroom of the house, testified that she witnessed appellant assist another individual, Tony (also known as “Payroll”), load a malfunctioning sawed-off firearm. Pemberton testified that after appellant loaded the gun, he “pretended to point it out the bedroom window, and everybody in the room just kind of freaked and laughed and told him he was crazy and ran out of the room, and he did not shoot it out the window.” She testified that the two men left the upstairs of the house and went downstairs. She could not confirm, however, that the two men actually went outside because she remained in the upstairs living room.

Subsequently, Pemberton testified that she heard gunfire in rapid succession, but could not identify the shooter because she was inside the house. After the gunfire ceased, appellant and Tony re-entered the upstairs of the house laughing. After the police came upstairs to search for the weapon, Pemberton told police she believed the gun was in the basement of the house. Police searched the basement and discovered a sawed-off .22 caliber semiautomatic rifle and .22 caliber ammunition; the police also found several spent .22 caliber bullet casings in the backyard. The state was unable to show at trial that the sawed-off .22 caliber rifle discharged these particular casings; but it showed that the rifle could have discharged the casings. Champion also testified that appellant was the man he observed discharging the firearm.

At the close of the trial, the presiding judge gave final jury instructions; the jury retired to deliberate at 10:18 a.m. Because the presiding judge was unable to remain in the courtroom, a substitute judge agreed to handle the remaining judicial responsibilities, including receipt of the verdict. At some undetermined time during its deliberations, the jury delivered a message to the bailiff addressed to the presiding judge. The note read: “If we do not reach a consensus by the end of the day, what happens?”

What happened next is subject to considerable dispute. It is undisputed that (1) the attorneys were neither notified of the question nor consulted regarding a response to the question; and (2) the original record did not include the question or any answer to the question. The jury returned a guilty verdict at 3:22 p.m.

In preparing his appeal, appellant discovered the written jury question in the district court file. On appeal, appellant first asked this court to remand the matter to the district court to reconstruct the record and conform the record to reflect the substitute judge’s handling, if any, of the question. This court granted appellant’s motion and the presiding judge, based on an affidavit made by a law clerk, made additional findings and ordered that the record be supplemented to conform to his findings.

The presiding judge found that he “was not advised of the question at the time [it was made], and [that he] has no independent knowledge regarding the question or the actions taken in response to the question.” He also found that the substitute judge “does not recall the substance of the question or the actions taken in response to the question.” Based on the law clerk’s affidavit, however, the presiding judge found that the substitute judge “did not write an answer to the jury’s question, or instruct [the law clerk] to deliver an answer to the jury through the bailiff.” He added, “[The law clerk] informed the bailiff that she did not have an answer from [the substitute judge] to be delivered to the jury.” He concluded by noting that “[a] record of the question, and the response to the question, if any, was not made.” This appeal followed.

ISSUES

I. “Whether the district court record, as reconstructed, allows for adequate appellate review and fair process?

II. Whether the district court erred by not notifying the attorneys of the jury’s question during deliberations, by not responding to the question, and by not making a record of the question?

III. Wlhether the verdict was surely unattributable to any error by the district court?

IV. Wfhether the evidence was sufficient for the jury to find appellant guilty of felon in possession of a firearm?

ANALYSIS

I. Whether the district court record, as reconstructed, allows for adequate appellate review and fair process?

Appellant’s threshold argument is that the record, even as supplemented by the district court, does not afford appellant “adequate appellate review and a fair process.” Appellant argues that the reconstructed record still does not answer the specific question whether the substitute judge responded (or did not respond) to the jury’s question. Appellant notes the discrepancy between the law clerk’s sworn affidavit and his attorney’s conversation with the law clerk during which the law clerk allegedly remarked that the substitute judge “responded to the jury and told it to ‘keep deliberating.’ ” Because of this factual ambiguity, according to appellant, “[tjhis court simply cannot conclude, based on the reconstructed record, that appellant was not prejudiced.” Appellant argues he must be granted a new trial “[bjecause this court cannot conclude, beyond a reasonable doubt, that the verdict was ‘surely unattributable to the error.’ ”

In evaluating communications between a court and a jury during deliberations, the supreme court has cautioned that “[a] record is critical to ensure adequate appellate review and a fair process.” State v. Sessions, 621 N.W.2d 751, 756 (Minn.2001); see also State v. Charles, 634 N.W.2d 425, 433 (Minn.App.2001). A district “court’s factual findings are subject to a clearly erroneous standard of review[.j” State v. Williams, 535 N.W.2d 277, 286 (Minn.1995).

Because the record, as supplemented by the district court order, clearly suggests that a response was not given to the jury’s question, we conclude that the reconstructed record is not clearly erroneous and is sufficient to afford appellant adequate appellate review and fair process.

Appellant’s argument rests on the district court’s last finding that “[a] record of the question, and the response to the question, if any, was not made.” (emphasis added). Viewing the district court order in its entirety, the presiding judge made three primary factual findings: (1) neither judge had knowledge of either the question or any response; (2) the law clerk was the only individual who recalled the circumstances of the question, and she recalled that the substitute judge did not respond to the question; (3) in any case, no record was made of the question.

The district court’s last finding, therefore, must be construed along with the findings that immediately precede it. It is clear that the district court adopted the law clerk’s recollection of the events when reconstructing the record and did not adopt the hearsay assertions found in appellant’s counsel’s affidavit, which stated that the law clerk told appellant’s counsel that the substitute judge told the jury to “keep deliberating.” Although the last finding, taken by itself, could be construed to contemplate that possibility, such a construction is not compelled by the other findings.

Because the district court’s order supplementing the record is based on the recollection of the only individual who remembered the circumstances surrounding the jury’s question, the district court’s factual findings are not clearly erroneous. Therefore, we conclude the record is sufficient to afford appellant adequate appellate review and fair process.

II. Whether the district court erred by not notifying the attorneys of the jury’s question during deliberations, by not responding to the question, and by not making a record of the question?

Appellant argues in the alternative that if the court did not respond to the jury’s question, the court erred because it did not notify the attorneys of the question, did not respond to the question, and did not make a record of the question.

Minn. R.Crim. P. 26.03 generally governs a court’s procedures during a criminal trial and Minn. R.Crim. P. 26.03, subd. 19 specifically governs jury deliberation and the verdict. The interpretation of the rules of criminal procedure is a question of law subject to de novo review. State v. Nerz, 587 N.W.2d 23, 24-25 (Minn.1998).

A. Failure to notify the attorneys.

Appellant argues that the district court erred by not notifying the attorneys of the jury question when it was asked. The court’s error, appellant argues, prevented the attorneys from consulting with the court as to a proper response, and denied appellant his right to be present at every stage of the trial in violation of his constitutional rights.

Absent waiver, a “defendant shall be present * * * at every stage of the trial.” Minn. R.Crim. P. 26.03, subd. 1(1). The right to be present under the rule is broader than the federal constitutional right, which is grounded in the Sixth Amendment to the United States Constitution. See State v. Ware, 498 N.W.2d 454, 457 (Minn.1993). “Responding to a deliberating jury’s question is a stage of trial.” Sessions, 621 N.W.2d at 755 (citing State v. Hudspeth, 535 N.W.2d 292, 295 (Minn.1995)). There are specific procedures for handling jury questions:

1. If the jury, after retiring for deliberation, desires to be informed on any point of law, the jurors, after notice to the prosecutor and defense counsel, shall be conducted to the courtroom. The court shall give appropriate additional instructions in response to the jury’s request unless: (a) the jury may be adequately informed by directing their attention to some portion of the original instructions; (b) the request concerns matters not in evidence or questions which do not pertain to the law of the case; or (c) the request would call upon the judge to express an opinion upon factual matters that the jury should determine.
2. The court need not give additional instructions beyond those specifically requested by the jury, but in its discretion the court may also give or repeat other instructions to avoid giving undue prominence to the requested instructions.
3.The court after notice to the prosecutor and defense counsel may recall the jury after it has retired and give any additional instructions as the court deems appropriate.

Minn. R.Crim. P. 26.03, subd. 19(3); see also Sessions, 621 N.W.2d at 756.

It is a question of first impression whether this procedure requires a court to notify the attorneys, and permit them to consult with the court as to a proper response, when a jury’s question does not concern the facts or law of the case, but, rather, arguably concerns a housekeeping question. See State v. Kelley, 517 N.W.2d 905, 908 (Minn.1994) (attorneys need not be notified about questions regarding “physical comforts and the like”) (quoting ABA Standards for Criminal Justice § 15-3.7(b) (1986)). Under the rule, however, jury questions concerning “any point of law,” require notification and perhaps additional jury instructions. See Minn. R.Crim. P. 26.03, subd. 19(3)(1) (stating that during deliberations, “[i]f the jury * * * desires to be informed on any point of law, the jurors, after notice to the prosecutor and defense counsel, shall be conducted to the courtroom” and “[t]he court shall give appropriate additional instructions * * (emphasis added)); Sessions, 621 N.W.2d at 756 (stating that instruction is mandatory, regardless of the form or substance of the court’s response). Nevertheless, a district court is not required to give additional instructions if the jury’s “request concerns matters not in evidence or questions which do not pertain to the law of the case.” Minn. R.Crim. P. 26.03, subd. 19(3)(l)(b) (emphasis added).

Moreover, most case law addressing similar procedural questions involves cases where there was an answer to the jury’s question, and the failure to notify the attorneys or permit defendant to be present in open court was error. This court, however, has suggested in dictum that “[djefense counsel and prosecutor should ahvays be notified whenever the jury returns with a question or a request to review testimony or other evidence.” Farr, 357 N.W.2d at 167 (citing Minn. R.Crim. P. 26.03, subd. 19(2)) (emphasis added).

We conclude that the mere failure to notify the attorneys when a jury asks a question is not error as a matter of law, however advisable it might be as a matter of practice. Rather, the attorneys must be notified when the jury asks for a review of testimony or other evidence, Minn. R.Crim. P. 26.03, subd. 19(2)(1.), or when the jury desires to be informed on a point of law. Minn. R.Crim. P. 26.03, subd. 19(3)(1.). Because the jury did not ask for a review of testimony or other evidence, or ask to be informed on a point of law, the district court did not err as a matter of law by failing to contact the attorneys when the question was asked.

B. Failure to respond.

Appellant also argues that the district court erred by failing to respond to the jury’s question. As articulated above, the rules of criminal procedure do not require a response to every question; instead, the rules require attorney notification, an open court proceeding, the defendant’s presence, and perhaps additional appropriate instructions when the jury “requests a review of certain testimony or other evidence,” Minn. R.Crim. P. 26.03, subd. 19(2)(1.), or when the jury “desires to be informed on any point of law.” Minn. R.Crim. P. 26.03, subd. 19(3)(1.). The rules are also clear that additional instructions need not be given if “the request concerns matters not in evidence or questions which do not pertain to the law of the case.” Minn. R.Crim. P. 26.03, subd. 19(3)(l.)(b); see also State v. Murphy, 380 N.W.2d 766, 772 (Minn.1986) (“The court has the discretion to decide whether to amplify previous instructions, reread previous instructions, or give no response at all.” (citation omitted)).

The jury asked, “If we do not reach a consensus by the end of the day, what happens?” This question concerns the procedures employed by the district court if, and when, a jury fails to render its verdict by the end of the day; the question does not implicate factual or legal questions to be decided by the jury during its deliberations.

Because we conclude the question was housekeeping in nature and not a request to review testimony or other evidence, or an inquiry on a “point of law,” neither an answer nor additional instructions were required.

C. Failure to make a record.

Appellant argues that the district court erred by not making a record of the question. The district court found that “[a] record of the question, and the response to the question, if any, was not made.”

Although the supreme court has cautioned that reconstructing a record is problematic for ensuring adequate appellate review, we conclude that a reconstructed record, made through additional findings, may in some cases cure an initial failure to make a record of communications between a judge and a jury. Sessions, 621 N.W.2d at 756; cf. Charles, 634 N.W.2d at 433 (noting that a “district court should * * ⅜ createf 1 a contemporaneous record of its discussions with the attorneys during jury deliberations” (emphasis added)).

Here, the presiding judge made findings that supplemented the record. These findings explained the circumstances surrounding the jury’s question and the absence of a response to the question. Therefore, we conclude that the district court did not err as a matter of law by originally failing to make a record of the jury’s question.

III. Whether the verdict was surely unattributable to any error by the district court?

We have already concluded that the district court did not err when it failed to notify the attorneys, when it failed to answer the question, and when it failed to make a record because of the housekeeping nature of the question. We also conclude that even if the court did err in any of these respects, the verdict was surely unattributable to any error.

Appellant correctly recognizes that error, by itself, does not necessarily mean that a new trial should be granted. Even where there is error, “a new trial is warranted only if the error was not harmless.” Sessions, 621 N.W.2d at 756 (citation omitted). “If the verdict was surely unattributable to the error, the error is harmless beyond a reasonable doubt.” Id. (citation omitted); Ware, 498 N.W.2d at 457-58. The supreme court has explained,

Harmless error analysis is better la-belled as “harmless error impact analysis,” because it is the impact of that error that the appellate court must consider. The overwhelming evidence of guilt is a factor, often a very important one, in determining whether, beyond a reasonable doubt, the error has no impact on the verdict.

State v. Juarez, 572 N.W.2d 286, 291 (Minn.1997). In performing harmless error analysis, this court “look[s] to the record as a whole.” Id. at 292. “[W]here the record is silent as to the possibility of harm, a presumption generally favors the defendant and a new trial is granted.” Sckifsky, 69 N.W.2d at 97.

The supreme court has also articulated a more particular standard where the alleged error is the defendant’s exclusion from a judge-jury communication. Under this standard, we examine the context of the judge-jury communication and the strength of the evidence against the defendant. Sessions, 621 N.W.2d at 756. Where a district court’s communications with a jury are “neutral and nonsubstan-tive and could not have played a significant role in the verdict” the error is harmless beyond a reasonable doubt. Hudspeth, 535 N.W.2d at 295; see also Kindem, 338 N.W.2d at 17 (error not prejudicial where the “court’s answer to the question presumably would have been the same even if defendant and attorneys had been consulted”); State v. Danforth, 573 N.W.2d 369, 373 (Minn.App.1997) (“Contact between the judge and jury on matters not substantively relating to the case (such as matters relating to physical comfort and the like), however, is not necessarily error * * (citation omitted)), review denied (Minn. Feb. 19, 1998). In the absence of the attorneys and the defendant, however, an instruction that the jury must reach a verdict is coercive. See Kelley, 517 N.W.2d at 908; Petrich, 494 N.W.2d at 300.

Appellant argues that because the question was never answered, “the jury may have been compelled to rush to judgment” and the failure to answer the question “may well have forced the jury to return a verdict in haste.” In sum, appellant argues that the court’s silence was tantamount to a response and that its response by silence prejudiced appellant. Consequently, because the district court failed to answer the question, appellant argues, “this court cannot conclude, beyond a reasonable doubt, that the verdict was ‘surely unattributable to the error.’ ”

A. Context of the judge-jury communication

It is difficult to apply the supreme court’s test to the facts in this case because there was no bilateral judge-jury communication in the defendant’s absence. Assuming, though, that appellant properly characterizes the court’s silence as a response, the question then becomes: What was the response?

A likely response to the question would have informed the jury that it was not sequestered and that it would have been allowed to go home if it failed to reach a verdict by the end of the day. Cf. Kelley, 517 N.W.2d at 910 (‘While some ex parte communications may indeed be harmless * * * where the jury [is] left virtually without guidance on the critical issue of how to handle a deadlock, * * * a new trial is warranted.”). The effect of the court’s failure to respond, however, is inherently speculative; in fact, it is not surprising that appellant and respondent reach different conclusions about the potential effect the failure to respond may-have had on the jury. Appellant speculates that the failure to respond may have led the jury to reach a verdict in haste and rush to judgment; respondent counters that there is no evidence that the verdict was reached in haste because the verdict was rendered at 3:22 p.m., well before the end of the day, after the jury deliberated for only four hours over a relatively simple issue: whether appellant was in possession of a firearm.

Because there is no indication in the record, or in appellant’s subsequent investigation into the circumstances surrounding the question, we cannot reach into the minds of the jurors and divine the effect the failure to respond had on the jurors under the circumstances. Moreover, because the jury reached a verdict at 8:22 p.m., this fact supports our conclusion that the jury did not reach a verdict in haste or rush to judgment because of the district court’s failure to respond to the question.

B. Strength of the evidence

, In addition to examining the context of the judge-jury communication, we must also examine the strength of the evidence against appellant. Sessions, 621 N.W.2d at 756. Appellant asserts that the state should have dusted his hands for gunpowder residue and that the .22 casings found outside the home should have been tested for his fingerprints. Appellant also challenges Champion’s testimony, arguing that Champion could not have seen through foliage, which appellant says obstructed Champion’s view that night. Appellant also argues that he should not have been charged with felon in possession; rather, he should have been charged with constructive possession because he did not live in the house where he was arrested.

We must examine the record and the evidence presented at trial to assess the strength of the evidence against the appellant. Id.; State v. Breaux, 620 N.W.2d 326, 333 (Minn.App.2001) (noting that this court looks to the “record as a whole” (quotation omitted)).

The state offered testimonial evidence from two eyewitnesses placing appellant at the scene possessing a sawed-off .22 caliber rifle, which was also found at the scene. Although appellant attempted to impeach Champion’s eyewitness testimony by questioning his ability to see through foliage at nighttime, appellant failed to impeach Carla Pemberton’s testimony that appellant helped load the rifle in the house and then point it out a window, before going downstairs with Tony. The state also offered police testimony that the .22 casings (found outside the house) could have been fired by the sawed off .22 caliber rifle found at the scene, although the state was unable to show with any certainty that the casings came from that rifle. The only defense witness testified that he had taken pictures of the area in question, which purportedly showed the amount of foliage that would have been present, and, according to appellant, would have prevented Champion from recognizing the shooter.

We conclude that the state’s evidence against appellant is strong. See Sessions, 621 N.W.2d at 756. Therefore, because there is no evidence in the record that the jury considered the district court’s failure to respond as a response one way or another, and because the state’s evidence in this case is strong, any error by the district court in failing to notify, respond, or make a record of the question, is harmless and the verdict is surely unattributable to any error by the district court in handling the question.

IV. Whether the evidence was sufficient for the jury to find appellant guilty of felon in possession of a firearm?

Appellant asserts in his pro se brief that he should be granted a new trial because the evidence was insufficient to prove that he illegally possessed a firearm beyond a reasonable doubt. Appellant’s evidentiary arguments are stated elsewhere and are not repeated here.

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 the verdict 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 the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn.1988).

Here, as stated above, the state’s case is strong. Two eyewitnesses corroborate important details about the sequence of events that night. Physical evidence corroborates the eyewitness testimony. Therefore, based on the evidence presented at trial, the jury could have reasonably concluded that the defendant was guilty of felon in possession.

DECISION

The district court’s ability to supplement the record ensured appellant adequate appellate review and fair process, even if the jury’s question was not part of the original record. Although the district court, after receipt of a jury question, failed to notify the attorneys, failed to respond to the question, and failed to make a record of the question, it did not err because the question was housekeeping in nature. Moreover, any error by the district court in handling the jury’s question did not prejudice appellant; examining the context of the judge-jury communication and the strength of the evidence against appellant, the verdict was surely unattributable to any error in handling the jury’s question. Finally, the evidence is sufficient to sustain the jury’s verdict finding appellant guilty of felon in possession of a firearm.

Affirmed.

      . Respondent correctly points out that Pem-berton did not admit to smoking crack cocaine that night, as appellant alleges in his brief. Instead, Pemberton’s cross-examination revealed that she may have used crack cocaine that night.

      . These instructions included the charge: "If you wish to communicate with the Court while you are deliberating, please have your foreperson write a note and deliver it to the deputy.”

      . After the jury retired, the presiding judge requested that the attorneys give their telephone numbers to the court so they could be reached "in case there's a question or a verdict.”

      . Sessions, 621 N.W.2d at 756 (error where answer was given outside of open court even where counsel authorized the answer); Hud-speth, 535 N.W.2d at 295 (error where answer was given "in open court, in the presence of the attorneys but in defendant’s absence”); Kelley, 517 N.W.2d at 908 (error for “court to communicate with the jury without notice to and outside the presence of the defendant and his counsel”); State v. Kindam, 338 N.W.2d 9, 17 (Minn. 1983) (court's response to two questions without notifying the attorneys or permitting the defendant to be present when answering the questions was error); State v. Richardson, 332 N.W.2d 912 (Minn. 1983) (error for court to respond to questions "without notifying counsel or allowing counsel to be present”); State v. Schifsky, 243 Minn. 533, 69 N.W.2d 89, 97-98 (1955) (error for court to answer jury's questions in open court, but without counsel or defendant present); Charles, 634 N.W.2d at 433 (error for court and attorneys to discuss the court's responses to jury requests without the defendant present); State v. Patrick, 494 N.W.2d 298, 300 (Minn.App. 1992) (error for court to answer jury’s questions in the absence of defense counsel and defendant), review denied (Minn. Feb. 23, 1993); State v. Farr, 357 N.W.2d 163, 167 (Minn.App.1984) (error for court to answer jury’s questions without contacting defense counsel); cf. State v. Mims, 306 Minn. 159, 235 N.W.2d 381, 385 (1975) (error for judge to enter jury room and confer with jurors about their deliberations).

      . Farr cited Minn. R.Crim. P. 26.03, subd. 19(2)(1.), which provides:
      If the jury, after retiring for deliberation, requests a review of certain testimony or other evidence, the jurors shall be conducted to the courtroom. The court, after notice to the prosecutor and defense counsel, may have the requested parts of the testimony read to the jury and permit the jury to re-examine the requested materials admitted into evidence.

      . We should also emphasize that the facts of this case are distinguishable from those cases where a district court commits reversible error by forcing a jury to reach a verdict when the jury is deadlocked. See, e.g., State v. Jones, 556 N.W.2d 903, 912 (Minn.1996); Petrich, 494 N.W.2d at 300. When a jury is deadlocked, and is subsequently instructed that it may not deadlock and that it must reach a verdict, this may constitute reversible error. See, e.g., State v. Peterson, 530 N.W.2d 843, 846 (Minn.App.1995). Here, however, the jury asked a vague question about the district court's sequestration procedures; it did not indicate that it was deadlocked or that it could not reach a verdict by the end of the day.

      . The proper inquiry here is what was the actual "response by silence,” instead of what would have been the response if the court had responded to the question. There is little doubt that the court would have notified the jury that it would have been able to return home, because appellant waived his right to sequester the jury.

      . Appellant asserts that the jury rendered its verdict at 4:15 p.m. The jury verdict form, contained in the district record on appeal, was signed al 3:22 p.m. Absent contrary evidence, we must assume that 3:22 p.m. was the time the verdict was rendered.