author: CADY, Justice.

text:
    In the Matter of the ESTATE OF Roy N. JOHNSON, Deceased, William H. Johnson, Executor of the Estate of Emogene F. Johnson, Appellant.
    No. 05-1965.
    Supreme Court of Iowa.
    Sept. 28, 2007.

      Thomas P. Lenihan, West Des Moines, for appellant.
    John E. Casper of Flander, Casper & Rosien, P.C., Winterset, for appellee Beverly Johnson Algoe, as executor for Roy N. Johnson’s estate.
    Jerrold B. Oliver of Jordan, Oliver & Walters, P.C., Winterset, for appellee individually.
   CADY, Justice.

The right of survivorship makes joint tenancies a popular form of property ownership. Yet, the concomitant right of each joint tenant to destroy the joint tenancy, and thus the right of survivorship, is not always popular, particularly for the surviving joint tenant. As Hamlet observed in a different context, “ay, there’s the rub” and, in this case, the seeds of the issue presented. A district court decision found a joint tenant successfully exercised his right to destroy the right of survivorship prior to his death, and the surviving joint tenant appeals. We agree with the surviving joint tenant, now the executor of the surviving joint tenant’s estate, and find the property remained in joint tenancy until the death of the joint tenant, at which time full title vested in the survivor. We reverse the district court’s decision and remand.

I. Background Facts and Proceedings.

Roy and Emogene Johnson purchased a home in Van Meter, Iowa, in 1963. They were married and took title to the home as joint tenants with the right of survivorship. They continued to live in their Van Meter home for over thirty-five years, where they raised a family and established the property as their homestead. See Iowa Code § 561.1 (2007) (defining homestead).

In the fall of 1998 Emogene suffered a severe stroke. The prognosis for her recovery was bleak, and she required intensive medical attention. Roy and the children felt Emogene would not live long, and they assumed Roy would survive her. Because of these circumstances, the family decided Emogene should transfer title in her automobile to Roy, as well as her interest in the homestead.

On November 24, 1998, Emogene purportedly executed a power of attorney in her hospital room. This document designated her daughters, Janice Johnson and Beverly Johnson Algoe, as attorneys-in-fact. The power of attorney authorized Janice and Beverly to sell Emogene’s property, but not her homestead. On December 21,1998, Janice and Beverly transferred the title for Emogene’s car to Roy.

On that same day a quitclaim deed was drafted to convey Emogene and Roy’s interest in their homestead solely to Roy. The deed stated “ROY N. JOHNSON and EMOGENE F. JOHNSON, husband and wife[,] do hereby Quit Claim to ROY N. JOHNSON all our right, title, interest, estate, claim and demand in the [homestead].” Roy signed the deed on December 21, and his signature was notarized. Emogene (or an agent for her), however, did not sign the deed that day, perhaps because the power of attorney did not authorize Emogene’s agents to sell or encumber the homestead.

On January 4, 1999, Emogene purportedly executed another power of attorney. This power of attorney specified the legal description of the homestead and authorized Janice to convey or encumber Emo-gene’s interest in the homestead. Then on January 6, 1999, Janice signed the quitclaim deed on behalf of Emogene, as indicated by the notary’s seal. The deed was recorded the same day.

The earlier assumptions made by the family that gave rise to the transfers of property were proven wrong when Roy suddenly passed away on December 17, 1999, survived by his ailing wife Emogene and the three children, Janice, Beverly, and William. Roy left a will that gave all of his property to his three children in equal shares, although he did not specifically disinherit Emogene. Janice was named executor of Roy’s estate in his will, but Beverly took her place after Janice’s death in June of 2004.

Beverly filed the final report in Roy’s estate in June of 2005. Emogene remained the surviving spouse and elected to take against the will. She also objected to the final report filed by Beverly. Emo-gene claimed the transfers of her ear and her interest in the homestead were illegal because she was incompetent when the powers of attorney were executed.

The district court found Emogene was clearly incompetent at the time she signed the powers of attorney, which invalidated the transfer of her interest in the property to Roy under the deed. Nevertheless, the court held Roy unilaterally terminated the joint tenancy in the homestead by his act of conveying his interest to himself in fee simple because the deed constituted an expression of his intent to destroy the joint tenancy. The court further held that Em-ogene’s statutory homestead rights to the property did not prevent Roy from destroying the joint tenancy because the effect of Roy’s self-conveyance of his interest only created a tenancy in common, which meant Emogene still maintained her homestead rights to possess the property.

As a result, the district court concluded title to the homestead was split between Emogene and Roy’s estate as tenants in common in “undivided one-half’ shares. It also held Roy’s estate was to pay $1200 to Emogene for the proceeds from the sale of Emogene’s automobile. Emogene appealed the district court ruling concerning the title to the homestead.

Emogene died in March of 2007, during the pendency of this appeal. As a result, Emogene’s son and executor of her estate, William Johnson, is the named appellant.

II. Issue & Standard of Review.

The question presented is whether the joint tenancy in the parties’ homestead was severed under the circumstances of this case. The parties agree that because this is an equitable proceeding our review is de novo. See In re Roehlke’s Estate, 231 N.W.2d 26, 27 (Iowa 1975) (citing Iowa Code § 633.33 (1975); In re Estate of Cory, 184 N.W.2d 693, 696-97 (Iowa 1971)). We give deference to the factual findings of the court but are not bound by them. Id. Of course, under a de novo review we will make our own legal conclusions, as we are not bound by and give no deference to the trial court’s con-elusions of law. Rouse v. Union Twp., 530 N.W.2d 714, 716 (Iowa 1995).

III. Determining the Existence of Joint Tenancies in Iowa.

Traditionally, questions concerning the existence of joint tenancies were answered by resorting to the “four unities” of interest, title, time, and possession. See, e.g., 48A C.J.S. Joint Tenancy § 8, at 240 (2004) (“[I]n order that a joint tenancy may exist, there must coexist four unities: unity of interest, unity of title, unity of time, and unity of possession.”). To create a joint tenancy the four unities had to be present — “[t]hat is, one and the same interest arising by the same conveyance, commencing at the same time and held by the one and the same undivided possession.” Switzer v. Pratt, 237 Iowa 788, 791, 23 N.W.2d 837, 839 (1946). To sever or terminate a joint tenancy, a joint tenant simply had to destroy one of the unities. See Stuehm v. Mikulski, 139 Neb. 374, 297 N.W. 595, 597 (1941) (“The four unities heretofore listed must not only come into being with the creation of such an estate, but must also continue to exist while the estate exists, and the destruction of any one of them as to all holders will destroy the estate.... ”).

This common-law approach to the existence of joint tenancies began losing steam over fifty years ago. See R.H. Helmholz, Realism & Formalism in the Severance of Joint Tenancies, 77 Neb. L.Rev. 1, 1-2 (1998) [hereinafter Helmholz, Severance of Joint Tenancies ]. Critics derided the approach as too formalistic, and declared it to be outdated. See Paul Basye, Joint Tenancy: A Reappraisal, 30 Cal. St. B.J. 504, 507 (1955) (describing the four unities as “an outstanding example of persisting medieval formalism”); Robert W. Swenson & Ronan E. Degnan, Severance of Joint Tenancies, 38 Minn. L.Rev. 466, 503 (1954) (describing the four unities as “useless concepts today”). Moreover, critics recognized the four unities often worked, typically in conjunction with the common-law rule that a grantor could not also be a grantee, see Riddle v. Harmon, 102 Cal.App.3d 524, 162 Cal.Rptr. 530, 531-34 (1980) (recognizing how the four unities operate in conjunction with the “two-to-transfer” rule, and refusing to “adher[e] to [these] cumbersome feudal law requirements”), to “frustrate the legitimate expectations of too many joint tenants [or would-be joint tenants], and for no discernable purpose,” Helmholz, Severance of Joint Tenancies, 77 Neb. L.Rev. at 2.

As a result, courts began adopting an alternative intent-based approach to determine the existence of joint tenancies. Id. at 9, 162 Cal.Rptr. 530. We recognized this approach many years ago and have gravitated towards it since that time. See, e.g., In re Baker’s Estate, 247 Iowa 1380, 1384, 78 N.W.2d 863, 865 (1956) (noting cases in which we primarily relied on the intention of the parties rather than the four unities to determine the existence of a joint tenancy). Today, the approach generally enjoys favorable acceptance among other courts and scholars as the more appropriate and realistic means for determining the existence of joint tenancies. See Taylor v. Canterbury, 92 P.3d 961, 966 (Colo.2004) (“Thus, in determining whether a joint tenancy has been created or severed, we look not to the four unities, but rather to the intent of the parties.”); Nicholas v. Nicholas, 277 Kan. 171, 83 P.3d 214, 225 (2004) (recognizing “the modern trend of looking to the parties’ intent as the operative test of whether a joint tenancy has been severed rather than depending upon the traditional doctrine of the four unities”); In re Estate of Knickerbocker, 912 P.2d 969, 975 (Utah 1996) (“There is substantial support for the concept that it is the intent of the parties, not the destruction of one of the four unities, that should govern.”); Helmholz, Severance of Joint Tenancies, 77 Neb. L.Rev. at 9 (“A survey of the decisions on the subject during the past forty years ... leaves one with the distinct sense of the traditional approach’s substantive irrelevance.”).

While we have not formally and expressly adopted the intent-based approach, we do so today. Our review of the case law and commentary confirms our position that strict reliance on the four unities is not the proper test for determining the existence of joint tenancies in Iowa. Instead, the intent of the parties should prevail when possible. See In re Estate of Bates, 492 N.W.2d 704, 706 (Iowa Ct.App.1992) (stating “Iowa does not follow the ‘four unities’ common law rule,” because “[i]n Iowa the intent of the parties prevails”). In addition, we see no reason to distinguish our approach based on whether the joint tenancy is sought to be created, severed, or terminated. But see Hyland v. Standiford, 253 Iowa 294, 299, 111 N.W.2d 260, 264 (1961) (“The common law unities of interest, title, time and possession necessary for the creation or determination of joint tenancies have lost their importance. There has been no comparable diminution of importance in questions of termination or severance.” (Emphasis added.)). The modern case law clearly suggests uniformity under an intent-based approach. See, e.g., Chrystyan v. Feinberg, 156 Ill.App.3d 781, 109 Ill.Dec. 412, 510 N.E.2d 33, 36 (1987) (“Severance should not be governed more strictly than the creation of joint tenancies.”).

Although an intent-based test is the best and more realistic approach, we recognize it is not without its own difficulties, as this case illustrates. When and under what circumstances a joint tenancy can be created, severed, or terminated remains a subject of great debate, and we must enter this discourse to consider the extent to which the intent-based analysis may alter the resolution of these questions provided under the common law. See Helmholz, Severance of Joint Tenancies, 77 Neb. L.Rev. at 24. Indeed, abandonment of the theoretical litmus test provided by the four unities may sacrifice some of the clarity it presumably provided. Clarity in the law is necessary, but we see no reason why it cannot be achieved under an intent-based approach when proper attention is paid to the individual facts and circumstances of each case. Yet, this goal also requires us to properly frame the intent-based concept, something we have not fully accomplished in the past.

In drawing the contours of the intent-based test, it is important to recognize this approach does not simply permit a court to determine the intent of a party under the facts and then fulfill it. See Nicholas, 83 P.3d at 225 (“[Ijntent alone will not sever the joint tenancy. Sheryl’s intent is irrelevant if he took no effective action.”). In fact, we know of no court that has ever held intent alone is enough to determine the existence of a joint tenancy. Instead, it seems fundamental that intent must be derived from an instrument effectuating the intent to sever the joint tenancy. Thus, we begin with the premise that intent unaccompanied by some action or instrument sufficient to corroborate and give effect to that intent will not create, sever, or terminate a joint tenancy. This approach, of course, leads us back to the district court holding that derived intent to sever from a deed characterized as a self-conveyance of one joint tenant.

IV. Was the Joint Tenancy Severed in this Case?

The surrounding circumstances in this case inevitably point to a void deed. Under the common law, a void deed could not work a severance, but only because a failed conveyance could not disturb the original unities of time, title, interest and possession. See Helmholz, Severance of Joint Tenancies, 71 Neb. L.Rev. at 9 (recognizing that in cases of void deeds the conclusion that there is no severance “follows as a matter of course” under the common law). Of course, we must decide if this same result occurs under an intent-based approach.

Emogene’s incompetence rendered the conveyance of her interest invalid. See 23 Am.Jur.2d Deeds § 23, at 89-90 (2d ed. 2002) (“A competent grantor is essential for a proper deed.”). Additionally, the homestead nature of the property rendered the conveyance of Roy’s interest invalid because Emogene did not provide her competent approval. Normally, Emo-gene’s incompetence would not prohibit Roy from conveying his own property interest held in joint tenancy with her. However, the interest of a spouse in homestead property is protected by statute. Iowa Code section 561.13 provides “[a] conveyance ... of ... the homestead, if the owner is married, is not valid, unless and until the spouse of the owner executes the same or a like instrument, or a power of attorney for the execution of the same or a like instrument.” Iowa Code § 561.13 (2005). Roy was clearly attempting to convey the homestead, albeit his own interest to himself. Thus, the plain language of the statute prohibited Roy from doing so unless Emogene joined in the pursuit pursuant to the statute. The deed was totally void.

Notwithstanding, Roy’s estate argues, as the district court held, a deed that is void or ineffective as a conveyance may nevertheless remain a viable source of intent to sever a joint tenancy with a spouse in homestead property because mere severance of the joint tenancy in homestead property only creates a tenancy in common and does not jeopardize or destroy the statutory homestead rights of the spouse. Instead, severance would only change the form of ownership without compromising the spouse’s right of possession provided under the homestead statute. Roy’s estate claims the application of the intent-based test in this manner is consistent with the proposition we recognized over a century ago that a spouse may unilaterally contract with another person for a right-of-way across homestead property without the consent of the other spouse because the right-of-way is not “a destruction of the homestead, [n]or [did it] defeat[] its occupancy as such.” Ottuma, Cedar Falls & St. Paul Ry. v. McWilliams, 71 Iowa 164, 169, 32 N.W. 315, 318 (1887). We reject this application of the intent-based test for two core reasons.

First, it is obvious that Roy’s intent under the deed in this case was to take sole title to the homestead, and the joint tenancy would have been destroyed, not severed, as a consequence of that intent. Under an intent-based test, it is fundamental that the underlying instrument must effectuate the intent to sever. At least one other court has found this distinction significant. See Hayes v. Lewis, 338 N.E.2d 102, 105 (Ill. Ct. App. 1975) (“The purpose of this attempt on behalf of defendant was not to sever the joint tenancy relationship so as to make the parties tenants in common. It was rather an attempt to eliminate entirely any interest on the part of plaintiff by vesting the entire ownership of the stock in defendant.”); see also Nelson v. Albrechtson, 93 Wis.2d 552, 287 N.W.2d 811, 817 (1980) (“Joint tenants do have the right to sell their individual interest and thereby sever the joint tenancy. However, it is clear here that no such partial sale was contemplated.” (Citation omitted.)). We conclude it would be inappropriate to utilize an intent-based approach to achieve a result the parties never intended. As a result, Roy’s lack of intent to sever the joint tenancy to create a tenancy in common with Emogene makes it unnecessary for us in this case to decide whether a spouse can unilaterally sever a joint tenancy in homestead property by means of a proper self-conveyance. See Taylor, 92 P.3d at 967 (permitting a unilateral severance by self-conveyance); Knickerbocker, 912 P.2d at 976 (same). The deed relied upon to supply intent did not express an intent to sever the joint tenancy.

Secondly, we are convinced an intent to sever a joint tenancy under the intent-based test must normally, if not in every instance, be derived from an instrument that is legally effective to carry out the intent. While we have always recognized a conveyance will sever or terminate a joint tenancy, see Baker’s Estate, 247 Iowa at 1385, 78 N.W.2d at 866, we have never recognized an invalid conveyance, i.e., a void deed, will do so. A relatively recent law review article stated that, even under an intent-based approach when the joint tenant’s intent is- clear, if the deed is void, “[t]he law has long been, and still is, that there is no severance.” Helmholz, Severance of Joint Tenancies, 77 Neb. L.Rev. at 27-28. We find ample support for this statement from other jurisdictions. See Chrystyan, 109 Ill.Dec. 412, 510 N.E.2d at 36 (holding an invalid deed could not be used to establish intent to sever because the intent was not exercised in a way consistent with the law); McBee v. Crosby, 632 P.2d 1059, 1061 (Colo.Ct.App.1981) (holding the court’s intent in dissolution decree that required parties to hold home in joint tenancy trumped joint tenant’s attempt to quitclaim his interest to family and sever the joint tenancy, as quitclaim deed was a nullity in light of decree); cf. Hockett v. Larson, 742 F.2d 1123, 1125-26 (8th Cir. 1984) (declaring a deed partially valid, and holding that the transfer under the valid part of the deed effectively severed the joint interest, but the attempted transfer under the invalid part of the deed could not work a severance). But see In re Baumann, 201 Cal.App.3d 927, 247 Cal.Rptr. 532, 536-37 (1988) (holding a quitclaim deed was void as it related to a third-party creditor because the joint tenant grantor fraudulently attempted to protect the property from his creditors, but that it nevertheless severed the joint tenancy between the joint tenants). We also find support for the proposition that an attempted conveyance by a void instrument, not necessarily a void deed, will not sever the joint tenancy despite an intent to do so. See Hayes, 338 N.E.2d at 105-07 (holding that invalid transfers of stock in joint tenancy and other indications that joint tenant wished to depart with property in joint tenancy did not sever joint tenancy).

The requirement for the intent under an intent-based analysis to be derived from a valid deed or similar instrument adds symmetry to the law and is consistent with our general principles governing property rights. In particular, we have never allowed a tenancy of any kind to be created without a valid deed or similar instrument. The same should hold true for the severance of a joint tenancy. See, e.g., Bates, 492 N.W.2d at 707 (permitting a severance under a valid but unexecuted mutual agreement); Hendrickson, 161 N.W.2d at 691 (permitting a “duly executed Declaration of Election to Sever Survivorship of Joint Tenancy” to sever the joint tenancy).

V. Conclusion.

In the final analysis, we think the circumstances of this case do not support a conclusion that the joint tenancy was severed. Not only was Roy’s intent not aligned with the objective his estate seeks to accomplish in this proceeding, but it was accompanied by a void deed concerning homestead property. The district court erroneously determined the joint tenancy was severed. As a result, the property remained in joint tenancy, and Emogene’s right of survivorship took effect upon Roy’s death. The property should now be distributed in accordance with Emogene’s will. We remand this case to the district court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . William Shakespeare, Hamlet act 3, sc. 1, line 64.

      . The record suggests the family made these decisions to help Emogene qualify for Medicaid, although the decisions were likely based on erroneous assumptions.

      . The power of attorney contained the typical boilerplate language, "This includes the right to convey or encumber my homestead legally described as follows,” but it did not include the legal description of the homestead. Thus, it did not allow the agents to sell the homestead. Recent legislation, however, has deleted the requirement that "the instrument or power of attorney set[ ] out the legal description of the homestead.” 2007 Iowa Legis. Serv. 221 (West).

      . It is admittedly a paradox, and perhaps an oxymoron, to state property could be divided in undivided one-half shares or interests. But it is consistently referred to in this manner, and the reason for doing so is that the individual tenants are entitled to possess the whole of the property while they remain co-tenants (therefore their possession is undivided), but should they choose to alienate the property, they only have a proportional interest (which could be a one-half interest depending on the circumstances) to alienate. See, e.g., In re Estate of Lamoureux, 412 N.W.2d 628, 629 (Iowa 1987) (referring to the interests of joint tenants); In re Allen’s Estate, 239 N.W.2d 163, 166 (Iowa 1976) (referring to the interests of tenants in common).

      . Unfortunately, the words "sever” and "terminate” often appear side by side without any attempt to distinguish them. See, e.g., 20 Am.Jur.2d Cotenancy & Joint Ownership § 22, at 150-52 (2005) (discussing "Severance and Termination” without distinguishing between the two). It inevitably gives rise to the question of whether the terms are interchangeable or have different meanings. The case law and commentary are less than clear on this point, but it is evident the terms are not perfectly synonymous.
      Black’s Law Dictionary defines "severance” as "[t]he termination of a joint tenancy, usu[ally] by converting it into a tenancy in common.” Black’s Law Dictionary 1406 (8th ed.2004). A court has defined severance as the "separation of the interests of the joint tenants, a vesting of the interest of one, separated from the interest of the other, in some third person.” Tindall v. Yeats, 392 Ill. 502, 64 N.E.2d 903, 906 (1946). At least one commentator has recognized what a severance is not. See Frank A. Reichelderfer, Severance of Joint Interests, 1959 Ill. L. Forum 932, 932 ("It has been said that any type of destruction of a unity is a severance. However, ... Oloint interests may be terminated other than by severance. All joint interests may, for example, convey their entire interests to a third party. This certainly terminates their joint relationship but is not a severance.”). Termination, on the other hand, is not usually defined, which can give rise to the belief that any destruction of a joint tenancy that is not a severance must be a termination, or that a severance is a special kind of termination.
      This case highlights the need for clear terminology: the deed originally attempted to destroy the joint tenancy in favor of sole ownership in one party, and now one of the joint tenants alleges the attempted conveyance by deed operated to destroy the joint tenancy in favor of a tenancy in common among the former joint tenants. If either attempt prevailed, the joint tenancy would be destroyed, but the resulting ownership would be different in both how the property is held and by whom.
      While we acknowledge the two terms are not synonymous, we make no attempt to define the terms any further than describing the latter case as a severance, and the former as a termination. Clearer definitions would be preferable, as the law regarding "severance and termination” may differ depending on the object to be accomplished.

      . The four unities were not a litmus test in practice. See John Mann, Joint Tenancies Today, 1956 Ill. L. Forum 48, 75 (“[T]he joint tenancy is in truth one of our most technical estates, capable of producing problems sufficient to challenge the ingenuity of even the trained and experienced attorney.''); George W. Marti, Real Property — Joint Tenancy — Effect of Contract to Convey by Joint Tenants of Entire Interest in Property as a Severance of the Joint Tenancy, 55 Mich. L.Rev. 1194, 1196 (1957) (criticizing the result in Baker’s Estate, 247 Iowa at 1380, 78 N.W.2d at 863, under a four unities analysis). Nevertheless, in theory the common-law approach under the four unities provides a bright line test for the determination of joint tenancies.

      . The “intent of the parties” typically refers to the intent of the joint tenants — i.e., whether the alleged joint tenants intended to create a joint tenancy or if the actual joint tenants intended to sever or terminate the joint tenancy. See, e.g., Baker's Estate, 247 Iowa at 1385-88, 78 N.W.2d at 866-68 (discussing the creation and severance of joint tenancies, and examining the intent of the joint tenants). However, in cases of unilateral action, the "intent of the parties” really refers to just one joint tenant. See, e.g., Keokuk Sav. Bank & Trust Co. v. Desvaux, 259 Iowa 387, 392, 143 N.W.2d 296, 299 (1966) (recognizing a joint tenant may unilaterally sever a joint tenancy). Thus, in cases of unilateral severance, the question would be what the singular joint tenant's, or party’s, intent was, rather than the parties’ intent.

      .It appears from our review of the case law the closest a court came to relying solely on the party's intent was in Hendrickson v. Minneapolis Fed. Sav. & Loan Ass’n, 281 Minn. 462, 161 N.W.2d 688 (1968); but even in Hendrickson, the tenant's intent was accompanied by a "duly ... executed Declaration of Election to Sever Survivorship of Joint Tenancy.” 161 N.W.2d at 689.

      . Of course, under the common law the conveyance of Roy's interest to himself would be invalid because it would violate the "two-to-transfer” rule. See Riddle, 162 Cal.Rptr. at 533. Iowa has, like most states, largely abandoned the common-law rule that prohibited conveyances between one person as grantor and grantee. See Fay v. Smiley, 201 Iowa 1290, 1297, 207 N.W. 369, 372 (1926) ("It is urged herein that one cannot be grantor and grantee in the same deed, and therefore the conveyance to himself amounts to nothing, and the other grantee in the deed takes the whole title. With this contention we do not agree.”); Switzer, 237 Iowa at 790-92, 23 N.W.2d at 839-40 (permitting a husband to deed his own land to himself and his wife as joint tenants). There is no doubt courts have recently permitted such a conveyance even when the grantor was the sole grantee. See Taylor, 92 P.3d at 967; Knickerbocker, 912 P.2d at 975.

      . We recognize a joint tenancy may be severed even when the joint tenant did not intend to create a tenancy in common. Such a result, however, is usually the inescapable conclusion of involuntary conveyances, seizures, or severances under the law. See In re Estate of Thomann, 649 N.W.2d 1, 7 (Iowa 2002) (“[W]e think the legislature must have intended that one joint tenant’s murder of the other joint tenant severs the joint tenancy and creates a tenancy in common.”); Frederick v. Shorman, 259 Iowa 1050, 1059-60, 147 N.W.2d 478, 484 (1966) (recognizing a joint tenancy may be involuntarily severed). It seems to us that in a voluntary situation such as this, when a joint tenant's intent is not to create a tenancy in common, but to obtain sole legal title, such intent is not a basis for severing the joint tenancy under a void deed.

      . The district court found Emogene’s incompetence only voided her transfer of her interest to Roy under the deed, yet the deed remained valid as a transfer by Roy of his interest to himself, which had the effect of severing the joint tenancy and creating a tenancy in common. The district court further found that the homestead statute did not stand as an impediment to the unilateral severance by Roy of the joint tenancy in homestead property because the severance of the joint tenancy by self-conveyance merely created a tenancy in common and did not jeopardize the purposes behind the homestead statute. The district court also found a contrary conclusion would have the effect of creating a tenancy in the entirety, a form of ownership we have refused to recognize in prior cases. See, e.g., Fay, 201 Iowa at 1294, 207 N.W. at 370-71; see also 13 Iowa Practice: Probate § 13:111, at 741 (2006) ("In Iowa, tenancy by the entirety is not recognized.”). These are questions we need not decide because the deed executed by Roy did not express an intent for the joint tenancy to be severed.

      . In addition, such an agreement or instrument should be recorded or otherwise public so as to allay the possibility of fraud. See Knickerbocker, 912 P.2d at 976 (noting "an unrecorded and unwitnessed unilateral transaction may allow one joint tenant to defraud the other”).


source: Caselaw Access Project

license: Public Domain

text:
    Pierre LaMont LEAKE, petitioner, Appellant v. STATE of Minnesota, Respondent.
    No. A06-1357.
    Supreme Court of Minnesota.
    Sept. 13, 2007.
   ORDER

In our opinion in this case filed August 16, 2007, we remanded to the postconviction court for an evidentiary hearing on appellant Pierre LaMont Leake’s claim of ineffective assistance of appellate counsel. Leake v. State, 737 N.W.2d 531 (Minn.2007).

Respondent State of Minnesota has filed a petition requesting that this court withdraw its opinion and allow respondent to file a responsive brief on the ineffective assistance of appellate counsel issue on the grounds that pro se appellant Leake failed to serve respondent with a copy of his appellate brief. In the alternative, respondent requests that this court strike from its opinion the sentence, “[t]he state did not file a brief opposing Leake’s appeal.”

Appellant has filed a separate petition for rehearing on the issue of judicial bias due to jury instructions that were allegedly prejudicial and unconstitutional. He argues that because this issue was raised in his direct appeal, it is not barred by State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED THAT:

1.The petition of respondent State of Minnesota requesting that this court withdraw its opinion and allow respondent to file a responsive brief be, and the same is, denied.

2. In light of the unique circumstances of this case, if there is an appeal from the order of the postconviction court after the evidentiary hearing, the law-of-the-case doctrine will not bar respondent from arguing any issues related to appellant’s ineffective assistance of appellate counsel claim.

3. The motion of respondent State of Minnesota requesting that this court strike the sentence, “[t]he state did not file a brief opposing Leake’s appeal,” be, and the same is, denied.

4. The petition of appellant Pierre La-Mont Leake for rehearing be, and the same is, denied.

BY THE COURT:

/s/ Alan C. Page Alan C. Page Associate Justice


author: /s/ Russell A. Anderson Chief Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Patricia G. MATTOS, a Minnesota Attorney, Registration No. 143698.
    No. A06-1931.
    Supreme Court of Minnesota.
    Oct. 10, 2007.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Patricia G. Mattos committed professional misconduct warranting public discipline, namely, neglect of two client matters, lack of candor toward a tribunal in one of those matters, and failure to communicate with the client in the other matter, in violation of Minn. R. Prof. Conduct 1.3 and 3.3.

Respondent has unconditionally admitted the allegations of the petition and with the Director recommends that the appropriate discipline is a public reprimand and two years of supervised probation.

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

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent Patricia G. Mattos is publicly reprimanded and placed on supervised probation for a period of two years from the date of entry of this order, 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 shall promptly respond to the Director’s correspondence by its due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct that 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 be supervised by a licensed Minnesota attorney, appointed by the Director to monitor compliance with the terms of this probation. Respondent shall provide to the Director the names of four attorneys who have agreed to be nominated as respondent’s supervisor. If, after diligent effort, respondent is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Until a supervisor has signed a consent to supervise, respondent shall on the first day of each month provide the Director with an inventory of active client files described in paragraph (d) below. Respondent shall make active client files available to the Director upon request.
(d) Respondent shall cooperate fully with the supervisor in his or her 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 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 initiate and maintain office procedures that ensure that there are prompt responses to correspondence, telephone calls, and other important communications from clients, courts and other persons interested in matters that respondent is handling, and that will ensure that respondent regularly reviews each and every file and completes legal matters on a timely basis.

Respondent shall pay $900 in costs pursuant to Rule 24(a), Rules on Lawyers Professional Responsibility.

BY THE COURT:

/s/ Russell A. Anderson Chief Justice


author: ANDERSON, RUSSELL A, Chief Justice. MEYER, Justice ANDERSON, PAUL H., Justice HANSON, Justice

text:
    STATE of Minnesota, Respondent, v. Trevor Anthony BROWN, Appellant.
    No. A06-1038.
    Supreme Court of Minnesota.
    Oct. 11, 2007.

      John Stuart, State Public Defender, Sara Lynne Martin, Asst. State Public Defender, for appellant.
    Lori Swanson, Atty. Gen., James Back-strom, Dakota County Atty., Nicole E. Nee, Asst. County Atty., for respondent.
   OPINION

ANDERSON, RUSSELL A, Chief Justice.

In the fall of 1999, appellant Trevor Anthony Brown was convicted and sentenced in Dakota County for the crime of aiding and abetting first-degree felony murder, in violation of Minn.Stat. § 609.185(3) (1998), for the death of Tucker Calvin Wilson. On appeal, we reversed and remanded for a new trial, enforcing the strict rule prohibiting trial-court entry into the jury room to communicate with a deliberating jury. Brown v. State, 682 N.W.2d 162, 168 (Minn.2004). On remand, Brown was again convicted and sentenced for first-degree felony murder. In this appeal, Brown asserts that he was deprived of a fair trial by erroneous and prejudicial evidentiary rulings and by prosecutorial misconduct in cross-examination. We affirm.

On Sunday, December 13, 1998, Wilson’s body was found under the Mendota Bridge. Autopsy results indicated that he died of multiple blunt force head and neck injuries. Wilson, approximately 24 years old, grew up in Liberia and arrived in the United States around 1997. He lived with his cousin, Bayogar McCritty, in an apartment in Wayzata. Because McCritty’s driver’s license had been suspended, Wilson drove McCritty and himself to and from work in McCritty’s 1992 Mazda 929. The Mazda 929 had leather seats, a power sunroof, a six-disc CD changer, CDs, and a silver tire gauge kept in the glove compartment.

In the early morning hours of December 14, 1998, investigators found papers at Wilson’s apartment with Brown’s and Michelle Young’s names and phone numbers. Investigators located and spoke with Brown and Young, each age 18 at the time. They denied any knowledge of Wilson’s death. At about 9:00 p.m., law enforcement found the Mazda 929 parked in Minneapolis. The Mazda was “unusually clean,” with no floor mats, no CD changer, and nothing in the glove compartment. The Mazda was transported to the Bureau of Criminal Apprehension (BCA). Only

one latent fingerprint was detected in the Mazda. Young was identified as the source of the print.

Wilson’s cell phone was found in a pawnshop in Minneapolis. There was a voice-mail message from Young, left at 9:21 p.m. on December 12, 1998, telling Wilson that “we want to meet you at Conoco.” Investigators learned that at around 9:30 p.m. on December 12, Brown, Young, and a third person, Allen Jamal Robinson, were at a Conoco gas station in Apple Valley; that at 10:56 p.m. McCritty spoke with Wilson by cell phone and confirmed that Wilson would pick McCritty up at 12:30 a.m.; and that McCritty had no further contact with Wilson even though McCritty left several voice-mail messages. Investigators also learned that Robinson was staying in an apartment at the Mount Airy complex in St. Paul. They obtained surveillance tape from the Mount Airy complex that recorded Brown, Young, and Robinson entering the complex at 12:52 a.m. on December 13, 1998, and leaving at 1:18 a.m.

Brown was indicted by grand jury for first-degree felony murder and second-degree murder. At trial, both Young and Robinson were called as witnesses for the State. They testified that after Brown and Robinson had been drinking for several hours, Young drove them to a gas station to meet Wilson. They decided that Wilson should drive, so they returned to Young’s residence to drop off her car. From there, Wilson drove the group to a church near the Mendota Bridge. They then proceeded down the embankment under the bridge, where young people gathered for drinking parties.

Young testified that at some point, Robinson punched Wilson, who fell to the ground. Brown and Robinson began kicking and throwing rocks at Wilson. When Young tried to leave, Robinson grabbed her and told her to check Wilson’s pockets for keys and money. Young said that after Brown rolled Wilson over, he kicked Wilson as Young searched through Wilson’s pockets. Young found the keys and money and gave the money to Brown. Young and Robinson then walked up the embankment, and Brown joined them about 15 minutes later. Young drove them in “Calvin’s car” to the Mount Airy apartment complex. Young testified that Brown changed his pants, socks, and boots in Robinson’s apartment. There was “blood all over his pant leg,” and when Young rinsed out Brown’s boots, “there was a lot of blood that was coming out.” Brown and Young left the apartment and drove “Calvin’s car” to Young’s residence. Brown cleaned the car and left.

Robinson testified that as they walked down the embankment under the Mendota Bridge, someone pushed him down. After he hit the bottom, he jumped up and punched the closest person, Wilson. He testified that he then climbed up the embankment, and as he was walking away, he heard male voices arguing below and a fight. He said that he did not go back down the embankment and denied making Young go through Wilson’s pockets. He said he called for Young to drive him home. Robinson, Young, and Brown returned to the Mount Airy apartment, and after Young and Brown left, Robinson also left, carrying a bag of clothes that he placed in a garbage dumpster.

Other evidence at trial included the testimony of Richard Propps, who was in the Mount Airy apartment when the three arrived and saw blood on Brown’s clothes and shoes; the Mount Airy surveillance tape that showed Brown wearing light-colored pants as he entered the complex and dark-colored pants as he left; testimony that a silver tire gauge, burned plastic, and other burned debris were found in a fire pit behind Young’s residence; and testimony that sometime during the week after the homicide, Brown bragged about beating and kicking “this guy.”

Brown testified on his own behalf, explaining that as the group was driving to the Mendota Bridge, Wilson and Robinson began bickering over Young. He had trouble making it down the embankment and sat down on a ledge because he was intoxicated and feeling ill. He could hear Robinson and Wilson continue bickering and then saw Wilson push Robinson down the embankment. He testified that he heard Robinson and Wilson fighting for “[a] few minutes” and Young “telling them to break it up.” Robinson and Young walked back up the embankment, and the three returned to the Mount Airy complex. During the drive, Brown asked about Wilson and Robinson replied, “f* ⅜ ⅜ Calvin.” Brown explained that he changed pants because he had soiled his own earlier in the evening when he vomited due to drinking. He said that he and Young returned to her residence where he passed out on the couch. He said that Young drove him home later that day.

The jury found Brown guilty as charged, and he was committed to the custody of the Commissioner of Corrections for the mandatory life term.

I.

Brown initially challenges the limitation on cross-examination of a State’s witness to show bias through common gang membership and the admission of a digital copy of the analog surveillance tape. He argues that the evidentiary rulings were erroneous and that the individual and cumulative effects of these errors deprived him of a fair trial.

Generally, “the decision to admit or exclude evidence is committed to the district court’s discretion and will not be reversed absent a clear abuse of that discretion.” State v. Harris, 713 N.W.2d 844, 847 (Minn.2006). We turn to the specific claims.

Limitation on Inquiry to Show Bias. On the eighth day of trial, defense counsel gave notice that he intended to cross-examine Propps about his membership in the same gang as Robinson. Concluding that inquiry into the topic of gang membership would be “very prejudicial,” the trial court ruled preliminarily to disallow the inquiry, subject to a request for reconsideration upon defense counsel’s showing that the inquiry would have the requisite probative value under Minn. R. Evid. 403 (stating that “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice”).

In criminal cases, the defendant’s right to cross-examine witnesses for bias is secured by the Sixth Amendment. Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); id. at 316-17, 94 S.Ct. 1105 (“We have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.”). Nevertheless, trial courts “retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).

Inquiry on cross-examination into common gang membership may be sufficiently probative to show bias if the attributes of the gang have a direct bearing on the fact of bias and the source and strengths of the witness’s bias. See United States v. Abel, 469 U.S. 45, 47-49, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984) (holding that evidence showing defense witness’s and defendant’s membership in secret prison gang sworn to perjury and self-protection was sufficiently probative of defense witness’s bias to warrant admission). But common membership in a “loosely knit group having nothing to do with the subject matter of the litigation” may offer little, if any, inference of bias. Id. at 54, 105 S.Ct. 465. Further, for gang membership evidence to be admissible to show bias, the proponent of the evidence must establish a foundation showing common membership. United States v. Keys, 899 F.2d 983, 986 (10th Cir.1990). Here, defense counsel laid no foundation of common gang membership, either by extrinsic evidence or by offer of proof; moreover, membership in a gang, by itself, does not necessarily have a direct bearing on the fact of bias or the source and strengths of the witness’s bias. We therefore conclude that the limitation on cross-examination of the State’s witness neither abridged Brown’s Sixth Amendment rights nor constituted an abuse of discretion.

Admission of Digital Copy of Surveillance Videotape. The original Mount Airy complex surveillance videotape was admitted as evidence at Brown’s first trial in 1999 and had been retained since that time. Mount Airy used a time-lapse surveillance system that, in essence, compressed 48 hours of surveillance onto a 2-hour VHS tape. A time-lapse VCR would slow the tape down so that the frames could be seen, slowed down, and stopped frame by frame.

At Brown’s first trial, a slowed-down copy of the original tape was played in the courtroom. In this trial, the State was unable to locate a time-lapse VCR to play the original, and on February 21, 2006, the tenth day of trial, the State moved for the release of the tape so that a “real time” copy could be made. By order the same date, the court granted the motion. The tape was then delivered to the BCA where the relevant content was digitized and copied to another VHS tape. Copies were given to defense counsel and the trial court the following day.

After viewing the digital copy, defense counsel objected to the admission of “this new evidence this late in the game,” explaining that at the time the State sought the release of the original tape, he understood that the purpose was simply to “slow it down” so that the jury could better view the images. He raised concerns as to the accuracy and reliability of the digital copy. In the alternative, defense counsel requested a 2-day delay to retain an independent expert. The court ruled that the digital copy was admissible, subject to foundation and an explanation of how the copy was produced and/or how the original was altered, and allowed defense counsel until Monday, February 27, to contact an expert.

Prior to admission of the tape, the resident caretaker of the Mount Airy complex testified about the building’s surveillance system. The State then established the chain of possession of the original surveillance tape from the caretaker to the BCA agent, Janet Nelson, who produced the digital copy for this trial. Nelson, a 25-year certified police officer with expertise in forensic video, testified about her video and software training. She explained that the system used for video processing in this case was used by various government and business entities, including the FBI, ATF, CIA, IRS, and Target Corporation.

Nelson testified that when she received the original videotape, the first thing she did was to just look at it to make sure that it was not damaged and that the record tab had been removed. After winding the tape to the beginning, she checked the timecode to find the areas identified as relevant to this case. She then digitized the relevant content from the original into her computer system. She explained that when she played the tape in the VCR connected to her computer, the signal ran through an analog-to-digital converter, changing the analog signal, without altering its essential content, into a digital signal. The record indicates that Nelson put on a short demonstration of the digitizing process for the jury. She further explained that the software she used allowed her to adjust the brightness and contrast as the video came into the computer, but she did not do that here because the original “was a very good tape.” She “brought it in as it was recorded,” meaning “that it was brought in at the default instead of my adjusting it manually.”

Nelson testified that the digitized content was then copied to the VHS tape that was played for the jury, in three segments: at the speed the content was captured from the original tape, at 15 percent of the original speed, and then at 5 percent of the original speed. Nelson also made some still prints from the digitized video using Photoshop to adjust the contrast and brightness. Defense counsel offered two still prints during cross-examination of Nelson. On redirect, two other still prints were admitted without objection. At the conclusion of both the State’s and Brown’s evidence, defense counsel advised that they had determined an independent expert was not needed.

Brown’s appellate counsel asserts reversible error in the admission of the digital copy of the original tape in the absence of a Frye/Mack hearing. We are aware of no authority, and counsel cites none, for the proposition that the conversion process in which an analog signal is changed, without altering its content, into a digital signal implicates concerns related to novel scientific evidence. Digital copies may qualify as duplicates of the original. 2 McCormick on Evidence § 236, at 100 (Kenneth S. Broun ed., 6th ed.2006). As with other pieces of evidence, the proponent of a digital copy of analog video must lay proper foundation.

A duplicate recording “is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.” Minn. R. Evid. 1003. The term “duplicate” includes mechanical or electronic re-recordings. Minn. R. Evid. 1001(4). “Re-recordings of audio tapes or videotapes should be accepted as duplicates when shown to have been made by a technique designed to ensure accurate reproduction of the original.” 6 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 1001.09[8][a] (Joseph M. McLaughlin ed., 2d ed.2007). Composite tapes made from re-recordings of originals may be received as duplicates. 5 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 10:15, at 717 (3d ed.2007).

Unless there is a genuine question as to the authenticity of the original recording or unfairness in the admission of the digital copy that qualifies as a duplicate, the properly authenticated digital copy is generally admissible. E.g., United States v. Savarese, 404 F.3d 651, 656 (2d Cir.2005) (concluding that digital copy of recording qualified as duplicate); United States v. Stewart, 420 F.3d 1007, 1021 n. 13 (9th Cir.2005) (concluding there was no error in the admission of a disk made from a digital recording device). Here, the testimonial record was sufficient to support admission of the digital re-recording as a duplicate.

Despite the requirement that the duplicate be produced by a technique designed to accurately reproduce the original, we understand that there is the risk of manipulation or distortion, particularly with digitization, and “commentators have properly urged courts to exercise greater care * * * for photographic evidence * * * Mueller & Kirkpatrick, supra, § 9:23, at 509. In addition, “[t]he danger of fraudulent and inaccurate editing of the tapes can be minimized by giving the other side notice, or by having the court arrange for supervision of the editing.” Weinstein, supra, § 1001.09[8][a]. “The trial judge has broad discretion to make a finding of unfairness.” Id. § 1003.04[1].

The record in this ease reflects that the State’s notice and motion seeking to make a “real time” copy of the original videotape, made 10 days into trial, was wholly inadequate to convey to defense counsel and the trial court that the State contemplated reproduction by digitization. Nevertheless, we conclude that the admission of the digital copy was not an abuse of the trial court’s discretion under the circumstances in this case. But prosecutors should be on notice that the trial court has broad discretion to exclude digital copies if defense counsel is not provided with adequate notice and opportunity either to observe the conversion process or retain an independent expert to make a similar conversion or, in the alternative, to allow the court to arrange for supervision of the process.

II.

Brown also asserts serious prosecu-torial misconduct warranting a new trial. Apparently because of the difficulty in connecting bloody footprints found at the crime scene with footwear found during the criminal investigation, there was an understanding that shoes and footprints would not be placed in issue. In cross-examining Brown, however, the prosecutor attempted to connect the crime-scene footprints to boots allegedly purchased by Brown. The trial court sustained defense counsel’s objection, ordered that the questions and answers regarding boots be stricken, and instructed the jury to disregard that inquiry. The court, in its final instructions, told the jurors: “You are to disregard all evidence I have ordered stricken or have told you to disregard.”

“It is improper for a prosecutor to ask questions that are calculated to elicit or insinuate an inadmissible and highly prejudicial answer.” State v. Henderson, 620 N.W.2d 688, 702 (Minn.2001). “Any time a prosecutor desires to make an inquiry of doubtful propriety, the prosecutor should seek permission from the trial court in chambers before asking the question.” State v. McRae, 494 N.W.2d 252, 259 (Minn.1992). Prosecuto-rial error, however, may be cured by court instructions unless the error imparts substantial prejudice into the case. State v. Pendleton, 706 N.W.2d 500, 509 (Minn.2005). While the questions here were improper, the court’s ruling and instructions adequately addressed the matter.

Affirmed.

CONCURRENCE

MEYER, Justice

(concurring).

I write separately to note my disagreement with the majority’s conclusion that the limitation on cross-examination of Propps did not abridge Brown’s Confrontation Clause rights. I would conclude that the district court erred when it permitted Brown on cross-examination to only establish that Propps grew up in the same neighborhood with Robinson, had a longstanding relationship with Robinson, and frequently socialized with Robinson. Evidence that Propps and Robinson were members of the same gang was important to establish Propps’s bias in favor of Robinson and against Brown. Brown was prevented from fully exploring Propps’s bias in favor of Robinson and, therefore, his right to confront the witnesses against him was violated. Nevertheless, I would conclude that the refusal to allow cross-examination on gang membership was harmless error, and, therefore, I concur in the result.

The Confrontation Clause guarantees criminal defendants the right to be confronted with the witnesses against them. U.S. Const. amend. VI. “The main and essential purpose of confrontation is to secure * * * the opportunity of cross-examination.” Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (quotation marks omitted) (emphasis omitted). Exposure of a witness’s bias or motivation in testifying is an important function of the right to cross-examination. Id. at 316-17, 94 S.Ct. 1105. It is error to prohibit a criminal defendant from conducting cross-examination “designed to expose a prosecution witness’ bias or motivation in testifying.” State v. Pride, 528 N.W.2d 862, 866 (Minn.1995) (citing Delaware v. Van Arsdall, 475 U.S. 673, 677-78, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)).

The U.S. Supreme Court has said that “[a] witness’ and a party’s common membership in an organization, even without proof that the witness or party has personally adopted its tenets, is certainly probative of bias.” United States v. Abel, 469 U.S. 45, 52, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984). The Court found that evidence of common membership in a prison gang had probative value outweighing the risk of undue prejudice and held that there was no abuse of discretion in admitting the testimony. Id. at 54-55, 105 S.Ct. 465. The Court recognized that the evidence would be prejudicial, but noted that the witness being impeached would suffer “no sanction other than that he might be disbelieved.” Id. at 53, 105 S.Ct. 465.

Although the victim’s death in this case did not appear to have been gang-related, Propps’s gang membership in common with Robinson, an admitted participant in the events leading to the victim’s death, was potentially probative of Propps’s bias in favor of Robinson and against Brown. The Abel Court noted that evidence of membership in an “organization,” without information about the type of organization, would not bear on the source and strength of the bias, and would thus not be a satisfactory substitute. 469 U.S. at 54, 105 S.Ct. 465. Similarly, evidence that Propps and Robinson grew up in the same neighborhood, sometimes stayed in the same apartment, and socialized frequently, without calling one another “friend,” might not convey the strength of bias that can exist among co-members of a gang.

Any potential prejudice from allowing the defense to question Propps about his gang affiliation was to Propps and Robinson. Robinson had already pleaded guilty and been sentenced; Propps was not on trial. As in Abel, the only real risk to either was that his testimony might be disbelieved. The risk to the court was that the trial might take longer. These risks of prejudice do not rise to the level of overwhelming the potential probative value of information about Propps’s and Robinson’s common gang membership, especially in light of the constitutional guarantee of a criminal defendant’s confrontation rights. I would hold that the district court erred in limiting Brown’s cross-examination of Propps.

Violations of the Confrontation Clause are subject to harmless error analysis. State v. Wright, 726 N.W.2d 464, 476 (Minn.2007). A new trial is not warranted when the error is harmless beyond a reasonable doubt. Id. A Confrontation Clause error is harmless beyond a reasonable doubt if “the guilty verdict actually rendered was ‘surely unattributable’ to the error.” Id. If there is a reasonable possibility that the verdict would have been different if the evidence had been admitted, then the error is not harmless. State v. Quick, 659 N.W.2d 701, 716 (Minn.2003).

Here, even without evidence of common gang membership, Propps’s testimony did suggest that he had a bias toward Robinson and might be changing his story to benefit Robinson. Propps admitted that he hardly knew Brown, but that he and Robinson often stayed in the same apartment and socialized frequently. Propps recognized that Robinson was an “associate” (not liking to use the word “friend” because he does not believe in friends), whereas Brown was not.

Propps’s credibility was impeached in other ways as well. Propps admitted that he was intoxicated on the evening in question. Propps also admitted he had originally told police that Robinson had blood on his clothing. While Propps offered testimony that he had heard Brown say “they had to handle their business with that mother f* * *er,” cross-examination revealed that when he spoke to the police less than a week after the murder, he may have told them that Robinson made the statement. In other words, the jury heard about Propps’s conflicting versions of what he saw on the night of the murder.

The jury does not appear to have been convinced by Propps’s efforts to exonerate Robinson. It found Brown guilty of aiding and abetting Robinson in the murder. Given that the district court admitted ample evidence of Propps’s lack of credibility and that the jury clearly believed Robinson was involved in the murder, the error was harmless beyond a reasonable doubt.

I would hold that the district court erred in denying Brown the opportunity to cross-examine Propps about his gang membership, but because the error was harmless, I agree with the majority’s conclusion that Brown’s conviction should be upheld.

ANDERSON, PAUL H., Justice

(concurring).

I join in the concurrence of Justice Meyer.

HANSON, Justice

(concurring).

I join in the concurrence of Justice Meyer.

      . In return for a statement about his and Brown’s involvement in Wilson’s death, Robinson was permitted to enter a guilty plea on June 14, 1999, for the lesser offense of aiding and abetting second-degree intentional murder. On April 22, 2002, Young entered a guilty plea to aiding an offender after the fact.

      . To the extent that laying foundation of common gang membership might imperil the confidentiality of the lawyer-client relationship, as defense counsel indicated in this case, defense counsel could request, with notice to the adverse party, permission for a showing in camera.

      . See State v. Mack, 292 N.W.2d 764, 768 (Minn.1980).

      . Minn. R. Evid. 1001 provides:
      For purposes of this article the following definitions are applicable:
      (1) Writings and recordings. "Writings” and "recordings” consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, pho-tostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.
      (2) Photographs. "Photographs” include still photographs, X-ray films, video tapes, and motion pictures.
      (3) Original. An "original” of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original” of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original".
      (4)Duplicate. A "duplicate” is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic rerecording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original.

      .The admission of a composite tape would be "subject to the limits in” Minn. R. Evid. 1003, and because a "composite tape amounts to a 'summary' under” Minn. R. Evid. 1006, "the other side should have access to uncut originals.” Mueller & Kirkpatrick, supra, § 10:15, at 717.

      . Brown’s appellate counsel used the terms "manipulated” and "altered” in referring to the digital copy played for the jury, but the evidence at trial was that there was neither manipulation nor alteration in the analog-to-digital conversion of the original.


author: WILLIS, Judge.

text:
    C & M REAL ESTATE SERVICES, INC., Respondent v. Ganesh THONDIKULAM, Appellant.
    No. A06-1459.
    Court of Appeals of Minnesota.
    Oct. 2, 2007.

      Matthew A. Anderson, Andrew J. Hip-pert, Babcock Neilson Mannella & Klint, P.L.L.P., Anoka, MN, for respondent.
    Darrell A. Jensen, Susan E. Sheely, Barna, Guzy & Steffen, Ltd., Coon Rapids, MN, for appellant.
    Considered and decided by WILLIS, Presiding Judge; MINGE, Judge; and HUDSON, Judge.
   OPINION

WILLIS, Judge.

In this appeal from summary judgment in an ejectment action involving a priority dispute, appellant is the assignee of a creditor who attempted to redeem the property from foreclosure. Appellant argues that the district court misapplied the law by concluding that appellant’s assignor was not a judgment-lien creditor when it filed its notice of intent to redeem. Because the district court did not misapply the law, we affirm.

FACTS

On May 27, 2004, the Anoka County Sheriff sold at a foreclosure sale a four-bedroom home in Lexington, Minnesota, after Daniel Landon, the owner and mortgagor, defaulted on the mortgage. US Bank National Association, ND (U.S. Bank), the mortgagee, purchased the sheriffs certificate of sale at the foreclosure, subject to a six-month redemption period.

In September 2003, Sheri Welch obtained a conciliation-court judgment against Landon. On November 10, 2004, Welch assigned the judgment to Omega Financial, LLC, and on the same day, Omega tendered for filing in Anoka County District Court a copy of the conciliation-court transcript of judgment, the' assignment of judgment, and an affidavit of identification of judgment debtor.

On November 17, 2004, U.S. Bank assigned the sheriffs certificate of sale to respondent C & M Real Estate Services, Inc. Landon did not redeem the property by November 29, 2004, the last day of the redemption period. On November 29, 2004, at 10:20 a.m., Omega filed with the Anoka County Recorder a notice of intent to redeem the property from foreclosure based on Omega’s asserted status as a junior lien creditor. But the conciliation-court judgment on which the purported lien was based was not docketed by the district-court administrator until 11:37 a.m. on November 29, about an hour and a half after Omega filed its notice of intent to redeem.

On December 3, 2004, Omega tendered to the Anoka County Sheriff certified funds to redeem the property. The sheriff issued a certificate of redemption, which Omega recorded. The sheriff also forwarded a copy of the certificate of redemption and the certified funds to C & M. But on December 9, C & M returned the funds to the sheriff, objecting to the redemption on the ground that the judgment that was the claimed basis for Omega’s lien had not yet been docketed when Omega filed its notice of intent to redeem, so that Omega was not a lien creditor at that time and was not entitled to redeem.

On January 5, 2005, Omega conveyed the property by warranty deed to appellant Ganesh Thondikulam, a real-estate investor. Thondikulam received keys to the property after Omega changed the locks without C & M’s permission. On October 12, 2005, C & M filed a district-court action seeking (1) a determination that C & M owned the property, (2) possession of the property, and (3) damages for unlawful entry and possession.

C & M moved for summary judgment, arguing that Thondikulam did not have good title to the property. The parties did not dispute that Omega’s notice of intent to redeem was filed an hour and a half before the docketing of the judgment that was the basis for Omega’s claimed lien. After a hearing, the district court granted summary judgment to C & M on the ownership and possession issues and ordered Thondikulam to vacate the property. The district court denied summary judgment on C & M’s claim that it was entitled to “mesne profts” as damages and determined that the issue of “breaking and entering” was not properly before the court. Judgment was entered under Minn. R. Civ. P. 54.02, and this appeal follows.

ISSUE

Did the district court err by concluding that Omega had no right to redeem because the judgment on which its purported lien was based had not yet been docketed when it filed its notice of intent to redeem?

ANALYSIS

In reviewing an appeal from summary judgment, this court determines whether there are any genuine issues of material fact and whether the district court erred in its application of the law. Cummings v. Koehnen, 568 N.W.2d 418, 420 (Minn.1997). We review de novo the district court’s determination of a purely legal question. Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984).

As a preliminary matter, C & M argues that Thondikulam misrepresents the record on appeal. C & M claims that the record shows that Omega did not tender for filing all of the documents necessary to docket the judgment until November 29, 2004. But C & M’s counsel acknowledged at the summary-judgment hearing that Omega tendered the affidavit of judgment debtor to the district-court administrator for filing on November 10, even though the judgment was not docketed until November 29. And the record does not refute Thondikulam’s claim that Omega also tendered for filing on November 10 the transcript of judgment and the assignment of judgment. We therefore reject C & M’s argument.

Minn.Stat. § 548.09, subd. 1 (2006), provides, with certain exceptions not applicable here, that “every judgment ... shall be entered by the court administrator when ordered by the court and will be docketed by the court administrator upon the filing of an affidavit [of a judgment creditor].... From the time of docketing the judgment is a lien ... upon all real property in the county then or thereafter owned by the judgment debtor.” Thus, by statute, a judgment becomes a lien against a debtor’s property when the judgment is docketed. Nussbaumer v. Fetrow, 556 N.W.2d 595, 598 (Minn.App.1996), review denied (Minn. Feb. 26, 1997). Because a judgment lien provides the legal basis for a judgment creditor to proceed against a judgment debtor, until the judgment is docketed, no lien exists against the debtor’s property, and a right of action to collect the debt secured by that lien has not accrued. See Lowe v. Reierson, 201 Minn. 280, 284, 276 N.W. 224, 226 (1937) (stating that “[t]he right to proceed against the debtor accrues immediately upon entry and docketing of judgment”) (emphasis added).

Thondikulam argues that because the statute provides that judgment “will be docketed” when the judgment creditor’s affidavit is filed, the district court erred by failing to determine that a lien was created when the affidavit was filed on November 10, 2004. But Minnesota appellate courts have strictly construed the docketing requirement. See Brady v. Gilman, 96 Minn. 234, 236, 104 N.W. 897, 897 (1905) (holding that attempted redemption from foreclosure sale was invalid when notice of intent to redeem was filed before docketing of judgment on which lien was based); see also Oldewurtel v. Redding, 421 N.W.2d 722, 727 (Minn.1988) (holding that when a judgment was not docketed, even “for reasons not apparent from the record,” a judgment lien did not exist).

The district court relied on Brady in determining that Omega did not have a lien on the property when it filed its notice of intent to redeem. In Brady, the plaintiff obtained from a defaulting mortgagor a confession of judgment on a mortgage, which was delivered to the clerk of court before 12:20 p.m. on a certain day, with a request for docketing. 96 Minn. at 235, 104 N.W. at 897. At 1 p.m. the same day, the plaintiff filed a notice of intent to redeem the premises from a foreclosure sale. Id. The judgment, however, was not docketed until 5 p.m. that day. Id. The Minnesota Supreme Court held that the attempted redemption was not valid because it had occurred before the plaintiff was, in fact, a lien creditor. Id. at 236, 104 N.W. at 897. The supreme court stated:

It is a condition precedent to the exercise of the right of [a] creditor to redeem that he file a notice of his intention to do so, and to entitle him to give the notice he must have a lien on the premises at the time he files his notice. Therefore a notice of an intention to so redeem, filed by an intended redemp-tioner before he is in fact a lien creditor, is void, even though by the docketing of his judgment he afterwards becomes such creditor....

Id.

Thondikulam attempts to distinguish Brady, in which the docketing request occurred only four hours before the judgment was docketed, from this case, in which the docketing request occurred 19 days earlier. But the same legal principle applies: because the docketing of a judgment is necessary to create a judgment lien, a notice of intent to redeem that is filed before docketing is void.

Thondikulam argues that the $5 in nominal damages provided by Minn.Stat. § 548.09, subd. 3 (2006), for failure to docket a judgment is insufficient to compensate a judgment creditor for the value of a lost lien. See id. (stating that “[i]f the court administrator violates [section 548.09], neither the judgment nor the docketing is invalid, but the court administrator shall be liable to a person damaged by the violation in the sum of $5.”). But the district court correctly determined that subdivision 3 “does not provide that if court administration mistakenly delays docketing, then the filing will nonetheless be considered docketed.” When the language of a statute is plain, we will not amend it by supplying language that the legislature omitted. See Tracy State Bank v. Tracy-Garvin Coop., 573 N.W.2d 393, 395 (Minn.App.1998) (stating that “when a statutory question involves the failure of expression rather than the ambiguity of expression, this court is not free to substitute amendment for construction and thereby supply the omissions of the legislature”).

Thondikulam also maintains that public policy supports his argument because bureaucratic backlogs may unreasonably delay docketing and deny judgment creditors the right to recover. We disagree. Public policy requires consistency in determining lien priority among judgment creditors. See Nussbaumer, 556 N.W.2d at 599 (stating that judgment creditors, as a matter of public policy, must be able to rely on public records).

Thondikulam additionally maintains that C & M lacks standing to challenge Omega’s redemption of the property, citing Remole v. Jonathan Dev. Corp., 277 N.W.2d 362 (Minn.1979). In Remole, the Minnesota Supreme Court held that the assignee of a mortgagee’s interest in a sheriffs certificate of sale lacked standing to complain when a junior lienholder filed a notice of intent to redeem foreclosed property after the redemption period expired. Id. at 363. But the district court properly rejected this argument because, unlike the lienholder in Remole, Omega had no lien on the property when it filed its notice of intent to redeem because its judgment had not yet been docketed. And because Omega lacked a lien, it lacked a right to redeem the property from foreclosure. See Minn.Stat. § 580.24 (2006) (discussing redemption by creditors). Thus C & M, as the assignee of the sheriffs certificate, became the owner of the property when the property was not redeemed.

Thondikulam argues finally that Omega substantially complied with the requirements for redeeming from a foreclosure sale. See Sieve v. Rosar, 613 N.W.2d 789, 793 (Minn.App.2000) (stating that strict construction of statutory redemption procedures does not preclude redemption when formal defects do not prejudice the rights of junior lienors). But to redeem a property from foreclosure, a lienholder must produce “a copy of the docket of the judgment” that evidences the lien. Minn.Stat. § 580.25(1). The requirement of producing proof of a docketed judgment that supports a notice of redemption is an “essential element[ ] of the statute [that] must be strictly adhered to.” Sieve, 613 N.W.2d at 793; see also Graybow-Daniels Co. v. Pinotti 255 N.W.2d 405, 407 (Minn.1977).

DECISION

The district court did not err by concluding that Omega’s attempt to redeem the property failed because Omega was not a lien creditor when it filed its notice of intent to redeem.

Affirmed.

      . The Minnesota legislature amended Minn.Stat. §§ 580.24, .25 in 2004, effective January 1, 2005. See 2004 Minn. Laws ch. 234, §§ 4-6, at 724-26. We apply the current statutory version because the record does not show that the parties had vested rights that were affected by the amendment. See Interstate Power Co. v. Nobles County Bd. of Comm’rs, 617 N.W.2d 566, 575 (Minn.2000).


author: WRIGHT, Judge.

text:
    STATE of Minnesota, Respondent, v. William LOSH, Appellant.
    No. A06-1910.
    Court of Appeals of Minnesota.
    Oct. 9, 2007.

      John M. Stuart, State Public Defender, Theodora K. Gaitas, Assistant State Public Defender, Minneapolis, MN; and John J. Brogan, Special Assistant State Public Defender, Dorsey & Whitney, Minneapolis, MN, for appellant.
    Lori Swanson, Attorney General, St. Paul, MN; and John J. Muhar, Itasca County Attorney, Heidi M. Chandler, Assistant County Attorney, Grand Rapids, MN, for respondent.
    Considered and decided by SHUMAKER, Presiding Judge; STONEBURNER, Judge; and WRIGHT, Judge.
   OPINION

WRIGHT, Judge.

In this appeal from a conviction of driving after revocation, appellant, a member of a band of the Minnesota Chippewa Tribe, argues that the district court did not have subject-matter jurisdiction over the offense, which occurred on the reservation of a different band of the Minnesota Chippewa Tribe. We affirm.

FACTS

Appellant William Losh is enrolled in the Mille Lacs Band of Ojibwe, a band of the Minnesota Chippewa Tribe. On December 14, 2005, while driving on the reservation of the Leech Lake Band of Ojibwe, another band of the Minnesota Chippewa Tribe, Losh was cited for driving after revocation, a violation of Minn.Stat. § 171.24, subd. 2 (2004). The parties stipulated that Losh’s driver’s license was revoked on or about October 14, 2000, based on the alcohol-related driving offense of driving while impaired.

Losh moved to remove this matter to tribal court, arguing that the district court lacks subject-matter jurisdiction over offenses committed by Indians in Indian country. In an order filed June 15, 2006, the district court denied this motion. Quoting State v. R.M.H., 617 N.W.2d 55, 63 (Minn.2000), the district court held that Losh, a nonmember of the Leech Lake Band of Ojibwe, “is not entitled to the same ‘insulation from state government authority’ on the Leech Lake Reservation because the Leech Lake Band’s sovereign interest is not as strongly implicated as it would be with an enrolled member.”

Losh submitted the case to the district court for a trial on stipulated facts, which preserved this jurisdictional issue for appeal. The district court found Losh guilty of the charged offense, and this appeal followed.

ISSUE

If the predicate driver’s-license revocation is based on an alcohol-related driving offense, does the district court have subject-matter jurisdiction over a charge of driving after revocation, a violation of Minn.Stat. § 171.24, subd. 5 (2004), against an enrolled member of a band of the Minnesota Chippewa Tribe when the charged offense occurred on the reservation of another band of the tribe?

ANALYSIS

Subject-matter jurisdiction presents a question of law, which we review de novo. State v. R.M.H., 617 N.W.2d 55, 58 (Minn.2000). Whether and under what circumstances Minnesota has jurisdiction over Indians in Indian country is governed by federal law. See Act of Aug. 15, 1953, Pub.L. No. 280, 67 Stat. 588 (partially codified at 18 U.S.C. § 1162 (2000)); see also 617 N.W.2d at 58 (“State jurisdiction over Indians is governed by federal statutes or case law.”). Generally, state law may not be applied to Indians in Indian country unless federal law expressly so provides. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 214, 107 S.Ct. 1083, 1091, 94 L.Ed.2d 244 (1987); R.M.H., 617 N.W.2d at 58; see also State v. Stone, 572 N.W.2d 725, 728 (Minn.1997) (“[I]t is established that state laws may be applied to tribal Indians on their reservations if Congress has expressly so provided.”). Absent an express provision, state law may be applied to Indians in Indian country only if “exceptional circumstances” warranting such an application exist. Stone, 572 N.W.2d at 731 (citing Cabazon, 480 U.S. at 215, 107 S.Ct. at 1091).

Public Law 280 expressly grants Minnesota “broad criminal and limited civil jurisdiction over all Indian country within the state, except for the Red Lake Reservation.” State v. Jones, 729 N.W.2d 1, 4 (Minn.2007) (quotation omitted); 18 U.S.C. § 1162(a); see also Act of May 23, 1973, ch. 625, 1973 Minn. Laws 1500 (retroceding criminal jurisdiction for Bois Forte Indian Reservation at Nett Lake back to federal government under authority of 25 U.S.C. § 1323 (2000)). In California v. Cabazon Band of Mission Indians, the United States Supreme Court held that the enforcement of criminal statutes, which are those statutes that are generally intended to prohibit certain conduct, falls within this express grant of jurisdiction. 480 U.S. at 209-10, 107 S.Ct. at 1088. Conversely, the enforcement of civil/regulatory statutes, which are those statutes that generally permit the conduct at issue subject to certain exceptions and regulations, falls outside of Public Law 280’s express grant of jurisdiction. Id.; Stone, 572 N.W.2d at 730.

In Stone, the Minnesota Supreme Court adopted a two-step approach for determining whether a statute is criminal or civil/regulatory. 572 N.W.2d at 730. The first step requires courts to determine “the focus of the Cabazon analysis.” Id. The Stone court held that the broad conduct that is the subject of the statute is the “focus,” unless the narrow conduct regulated by the statute presents “substantially different or heightened public policy concerns.” Id. To assist courts in determining whether substantially different or heightened public-policy concerns are presented, the Stone court identified the following factors for consideration:

(1) the extent to which the [conduct] directly threatens physical harm to persons or property or invades the rights of others; (2) the extent to which the law allows for exceptions and exemptions; (3) the blameworthiness of the actor; [and] (4) the nature and severity of the potential penalties for a violation of the law.

Id.

After determining whether the focus of the Cabazon analysis is the broad or narrow conduct regulated, the second step requires courts to determine whether that focused-on conduct is generally prohibited or generally permitted, subject to exceptions. Id. If the conduct is generally prohibited, then the statute that regulates that conduct is criminal. Id. If it is generally permitted, subject to exceptions, then the statute is civil/regulatory. Id.

The Stone court considered whether several statutes were criminal or civil/regulatory, including Minn.Stat. § 171.02 (1996) (prohibiting driving without driver’s license) and Minn.Stat. § 171.27 (1996) (prohibiting driving with expired driver’s license). Id. at 728. In applying the first step, the Stone court observed that the policy underlying the general scheme of traffic and driving laws — protecting] the safety of persons and property on the roadways — is “mirrored by the policies behind the [statutory] requirement of a valid [driver’s] license,” namely, ensuring the competency of drivers. Id. at 730. Therefore, it concluded that, because the statutes that prohibit driving without a valid driver’s license or driving with an expired driver’s license do not raise public policy concerns that are “substantially different or heightened from the general public policy behind the driving laws,” those statutes “are properly analyzed as part of the broad conduct of driving.” Id. at 731.

Having determined that the broad conduct of driving is the focus of the Cabazon analysis, the Stone court applied the second step and concluded that the focused-on conduct of driving is generally permitted, subject to regulation. Id. Therefore, it held that the statutes that make it unlawful to drive without a driver’s license or with an expired driver’s license are civil/regulatory and, consequently, are outside the express grant of jurisdiction of Public Law 280. Id.

The statute at issue in this case, Minn.Stat. § 171.24, subd. 2 (2004), prohibits a person from driving after his or her driver’s license was revoked. In State v. Johnson, the supreme court applied Stone’s two-step approach to determine whether that statutory provision is criminal or civil/regulatory. 598 N.W.2d 680, 684 (Minn.1999). There, the defendant, an enrolled member of the Leech Lake Band of Ojibwe, was driving on the Leech Lake Band of Ojibwe’s reservation when she was issued a citation for driving after her driver’s license was revoked for failure to provide proof of insurance. Id. at 681. The Johnson court observed that there is “[a] fundamental difference between the offense of driving after revocation and other traffic offenses,” namely, that “driving after revocation is a subsequent violation committed only after a driver’s license has been revoked because of a prior offense.” Id. at 684. Nevertheless, it concluded that it would be inconsistent with Stone’s holding that driving without a valid driver’s license does not raise public policy concerns that are substantially different or heightened from the general policy of public safety to now conclude that driving after revocation is an offense that “rises to the level of a ‘heightened public policy’ concern.” Id. (quoting Stone, 572 N.W.2d at 730). Thus, the Johnson court held that “driving after revocation in violation of Minn.Stat. § 171.24, subd. 2, is ... a civil/regulatory traffic violation as to which the [state] court[s] ha[ve] no jurisdiction when committed by tribal members on tribal land.” Id.

Less than three years later, the supreme court clarified its holding in Johnson. In State v. Busse, a member of the White Earth Band of Ojibwe was driving on the White Earth Band of Ojibwe’s reservation when he was cited for driving after cancellation as inimical to public safety in violation of Minn.Stat. § 171.24, subd. 5 (1998). 644 N.W.2d 79, 80-81 (Minn.2002). His driver’s license was cancelled as inimical to public safety based on his four prior driving-under-the-influence convictions. Id. at 80. On appeal, the state argued that the offense of driving after cancellation as inimical to public safety is distinguishable from the driving-after-revocation offense at issue in Johnson because “driving after cancellation as inimical to public safety is one of the state’s mechanisms to enforce driving under the influence violations and therefore raises heightened public policy concerns.” Id. at 82. The Busse court agreed. Id. at 87-88. It held that “it is not only the fact of revocation, suspension, cancellation, or other administrative action with respect to a [driver’s] license that is significant for purposes of determining heightened public policy.” Id. at 87. Rather, courts must consider whether the revocation, suspension, cancellation, or other administrative action reflects the existence of a particularly severe threat to safety. Id. The Busse court held that the offense of driving after cancellation as inimical to public safety reflects such a threat, and, consequently, is distinguishable from Johnson’s offense of driving after a revocation based on a failure to provide proof of insurance. Id. at 87-88. In reaching this holding, however, the Busse court observed that Johnson does not preclude a determination that section 171.24, subdivision 2, is a criminal statute when the circumstances surrounding the defendant’s revocation reflect heightened public policy concerns, such as “a revocation ... based on prior alcohol-related offenses.” Id. at 87.

Here, the stipulated facts and evidence in the record establish that Losh’s driver’s license revocation was the result of his prior alcohol-related driving offense of driving under the influence. Therefore, as in Busse, Losh’s offense of driving after revocation is “inextricably linked to [his] driving under the influence conviction[] and the state’s efforts to halt further driving by those who disregard the state’s driving under the influence laws.” Id. As the Busse court has held, the public policy underlying laws that are intended to halt further driving by those who disregard the laws that prohibit persons from driving under the influence “ ‘is substantially heightened in comparison to the general scheme of driving laws.’ ” Id. at 85 (quoting Stone, 572 N.W.2d at 731).

A consideration of the factors the Busse court identified as useful for determining whether the narrow conduct regulated by a statute presents heightened public policy concerns also establishes that the narrow conduct of driving after a revocation based on an alcohol-related driving offense implicates heightened public policy concerns. See Stone, 572 N.W.2d at 730((1) extent to which conduct directly threatens physical harm or invades others’ rights; (2) extent to which law allows for exceptions and exemptions; (3) actor’s blameworthiness; (4) nature and severity of potential penalties for violation of law). First, the Stone court has held that violations of laws that are intended to combat driving under the influence “create[ ] a greater risk of direct injury to persons and property on the roadways.” Id. at 731. Second, Minnesota law does not provide for exceptions to or exemptions from the prohibition against driving after revocation. See Minn.Stat. § 169A.55, subd. 2 (2006) (“[I]f driving is resumed without reinstatement of driving privileges, ... the person will be subject to criminal penalties.”). Third, a person who continues to drive after being revoked is blameworthy because that person is engaging in this conduct despite receiving written notice that it is illegal. See id. (requiring commissioner to send written notice that driving before reinstatement carries criminal penalties); see also Minn.Stat. § 171.17, subd. 3 (2006) (requiring driver to be provided with written notice immediately upon revocation). And here, Losh admitted during trial that he knew or should have known that his driving privileges were revoked. Finally, the legislature has determined that continuing to drive after revocation warrants a criminal sanction. See Minn.Stat. § 169A.55, subd. 2.

Because Losh’s offense of driving after revocation based on a prior alcohol-related driving offense implicates heightened public policy concerns, the first step in Stone’s two-step approach establishes that the focus of the Cabazon analysis is Losh’s narrow conduct of driving after revocation. The second step requires us to determine whether that focused-on conduct is generally prohibited or generally permitted, subject to exceptions. Busse, 644 N.W.2d at 88; Stone, 572 N.W.2d at 730. In Minnesota, the conduct of driving after revocation is strictly prohibited. Minn.Stat. § 171.24, subd. 2 (making it unlawful for person who knows or has reason to know that his or her driver’s license was revoked to drive). Thus, under these circumstances, the statute that regulates this conduct, Minn.Stat. § 171.24, subd. 2, is a criminal statute. And because it is a criminal statute, it is within Public Law 280’s express grant of subject-matter jurisdiction to Minnesota’s state courts. 18 U.S.C. § 1162(a); see Cabazon, 480 U.S. at 209, 107 S.Ct. at 1088; R.M.H., 617 N.W.2d at 59. Accordingly, the district court correctly concluded that it had subject-matter jurisdiction over Losh’s driving-after-revocation offense.

Because we conclude that Losh’s offense falls within Public Law 280’s express grant of subject-matter jurisdiction to the district court, we need not reach the state’s argument that, in the absence of an express grant, exceptional circumstances warrant the district court’s exercise of subject-matter jurisdiction over this offense. See Stone, 572 N.W.2d at 731 (holding that absent express grant of jurisdiction, state law may be applied to Indians in Indian country if “exceptional circumstances” exist).

DECISION

Federal law expressly grants the district court subject-matter jurisdiction over appellant’s offense of driving after revocation based on a prior alcohol-related offense because, under these circumstances, the statute that regulates that offense is a criminal statute. Therefore, the district court correctly concluded that it had subject-matter jurisdiction. Because subject-matter jurisdiction is the sole issue in this appeal from Losh’s conviction, we affirm.

Affirmed.

      . It is unclear from the record whether the parties submitted the case on stipulated facts under Minn. R.Crim. P. 26.01, subd. 3, which permits an appellant to "raise issues on appeal the same as from any trial,” including pretrial issues, or under the procedure set forth in State v. Lothenbach, 296 N.W.2d 854 (Minn.1980), which preserves only pretrial issues for appeal. See State v. Mahr, 701 N.W.2d 286, 291 (Minn.App.2005) (discussing distinction between rule 26.01 and Lothenbach), review denied (Minn. Oct. 26, 2005). Because the issue of subject-matter jurisdiction can be raised at any time in a proceeding, Cochrane v. Tudor Oaks Condo. Project, 529 N.W.2d 429, 432 (Minn.App.1995), the issue is properly before us regardless of whether the case was submitted under rule 26.01 or the procedure set forth in Lothenbach.

      . The Stone court interpreted the “public policy” referred to in the Cabazon test "to mean public criminal policy,” which is public policy that "seeks to protect society from serious breaches in the social fabric which threaten grave harm to persons or property.” 572 N.W.2d at 730.