author: LAVORATO, Justice.

text:
    John W. LEE, Appellee, v. EMPLOYMENT APPEAL BOARD, Appellant, Mitchell County Secondary Roads, Intervenor-Appellant.
    No. 99-0183.
    Supreme Court of Iowa.
    Sept. 7, 2000.

      Richard Ramsey, Des Moines, for appellant.
    Mark L. Walk, County Attorney, for intervenor-appellant.
    John S. Allen and Lois K. Cox, University of Iowa Clinical Law Program, and Bridget Butler, Myra Emerson, Tria Law-ton-Russell, and Rodney P. Weber, Student Legal Interns, Iowa City, for appel-lee.
   LAVORATO, Justice.

Mitchell County Secondary Roads (county) and the Employment Appeal Board (agency) appealed from a district court decision on judicial review reversing the agency’s decision to deny John W. Lee unemployment benefits based on misconduct. The county and the agency contended that the district court erred because there was substantial evidence to support the agency’s finding of misconduct. We transferred the case to the court of appeals, which agreed and reversed. We granted further review and now hold that there was no substantial evidence of misconduct. We therefore vacate the court of appeals decision and affirm the district court judgment.

I. Background Facts and Proceedings.

The county hired Lee on August 30, 1982. His duties included plowing snow and using a dump truck to spread gravel and sand during and after snowstorms.

On December 5, 1991, Mitchell County Engineer James Hyde gave Lee an oral warning about his poor job performance. The written record of the warning mentioned that Lee had experienced a drop in attitude and morale and had damaged property but failed to report the damage. The written record also mentioned that the county had received several public complaints about his snowplowing. The written record concluded that Lee’s “job is apparently of little importance” to him and that “[ijmprovements need[ed] to be made in attitude, morale, job performance, initiative, and desire.”

On January 26, 1995, Lee received another written warning about his job performance. The warning noted that Lee had “continued to destroy county property” and avoided work assignments. The warning also noted that employees had expressed “concern for their safety working around” Lee as well as their “concern for the safety of the traveling public when [he is] operating heavy equipment on the highway.” The warning concluded that Lee continued to “exhibit a poor attitude, lack of respect for county property, low morale, poor job performance, and little or no initiative or desire to perform the task at hand.” The warning demanded that Lee improve in these areas or otherwise face possible termination.

Shortly after this warning, the county issued Lee a notice of termination with the understanding that he could return to work if he successfully completed an alcohol treatment program. Lee successfully completed the program.

Later in 1995, Lee hit an overhead electrical wire with a county truck, tearing away one end of the wire from a nearby house. The incident caused damage to the house, and a resulting power surge damaged several household electrical appliances. Apparently, the county issued Lee no warning following this incident. Lee received no warnings between the January 25,1995 warning and 1998.

Hyde testified that despite the warnings that Lee received he — Hyde—saw no effort on Lee’s part to improve his job performance. According to Hyde, Lee’s typical response to any comment about his job performance was “get the union in here.” Hyde further testified that he saw no concern on Lee’s part about his job perfor-manee nor any effort by Lee to initiate any discussion on how he could improve.

On April 14, 1998, Lee was spreading rock and gravel on a slippery road. At the time, he was driving a county dump truck. He was traveling at the recommended speed limit of twenty miles per hour when he was forced to swerve the truck off to the right side of the road to avoid being hit by an oncoming car. In doing so, Lee hit and broke an overhead utility wire with the box of the truck that he had earlier raised to spread the rock and gravel.

Two days later, Lee, while driving a county dump truck, hit and broke a support wire for an overhead utility line partially hidden by overhanging trees. At the time, Lee was spreading rock at an intersection in a wooded area.

Lee immediately reported both incidents to the county.

On April 21 Hyde met with the county board of supervisors to discuss the two incidents. Shortly after this meeting, Lee was notified that the board had decided to conduct a termination hearing on April 27. Lee attended the hearing with his union representative.

In lieu of termination, Hyde recommended to the board a two-week suspension provided Lee would submit to a physical exam and agree to four drug and alcohol tests per year. The county would pay for one test and Lee would be responsible for the other three. (The union contract provided for only one annual drug test.) Several days later, Lee rejected the offer. Lee testified he rejected the offer because he did not want to pay for three drug and alcohol tests per year.

Thereafter, the county issued Lee a written notice of termination on May 4, 1998. The notice explained that the decision to terminate Lee’s employment was “based on Section 4.02 of the current contract which addresses the history of similar and/or past offenses, and Section 4.03(D) gross negligence resulting in willful destruction of property.”

Shortly thereafter, Lee applied for unemployment insurance benefits. On May 19, 1998, the Iowa Workforce Development Center determined that Lee was eligible for benefits. The decision determined that the “employer did not furnish sufficient evidence to show misconduct.” The county, as intervenor, appealed the decision.

On June 9 an Administrative Law Judge (ALJ) held a hearing at which Lee and Hyde testified. On June 18, in a written decision, the ALJ reversed the earlier decision that had allowed benefits. The ALJ found that the county had established misconduct on the part of Lee. The decision resulted in a disqualification for benefits.

Lee appealed to the Employment Appeal Board, which affirmed the ALJ’s decision. Lee petitioned for judicial review in the district court. The district court reversed, concluding that “the Employment Appeal Board erred as a matter of law in finding that Lee’s conduct was misconduct for which he could be denied benefits.”

II. Scope of Review.

The Iowa Administrative Procedure Act, Iowa Code ch. 17A, governs our review of unemployment benefits eases. See Dico, Inc. v. Iowa Employment Appeal Bd., 576 N.W.2d 352, 354 (Iowa 1998). When engaging in judicial review under Iowa Code section 17A.19(8) (1999), a district court acts in an appellate capacity to correct errors of law on the part of an agency. Holland Bros. Const. v. Board of Tax Review, 611 N.W.2d 495, 499 (Iowa 2000).

When this court reviews a district court’s judicial review decision, we apply the standards of section 17A.19(8) to the agency action to determine whether our conclusions are the same as those of the district court. Here, the issue concerns whether there was substantial evidence to support the agency’s determination of misconduct. Therefore, the standard we apply is whether the agency’s decision is supported by substantial evidence in the record made before the agency when that record is viewed as a whole. See Iowa Code § 17A.19(8)(f).

We are bound by agency findings of fact that are supported by substantial evidence. Norland v. Iowa Dep’t of Job Serv., 412 N.W.2d 904, 918 (Iowa 1987). Evidence is substantial when a reasonable mind could accept it as adequate to reach the same finding. Id.

III. Did Substantial Evidence Support the Agency’s Decision That Lee’s Actions Constituted Misconduct?

A. The law regarding misconduct. Iowa Code section 96.5(2) (1997) provides that a claimant is disqualified from unemployment benefits if the department of workforce development finds that the claimant has been discharged for misconduct in connection with the individual’s employment. The Iowa Administrative Code defines misconduct

as a deliberate act or omission by a worker which constitutes a material breach of the duties and obligations arising out of such worker’s contract of employment. Misconduct as the term is used in the disqualification provision [is] limited to conduct evincing such willful or wanton disregard of an employer’s interest as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of employees, or in carelessness or negligence of such degree of recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to the employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed misconduct within the meaning of the statute.

Iowa Admin. Code r. 871—24.32(1)(a) (1997). We have previously noted that this definition “accurately reflects the intent of the legislature.” Reigelsberger v. Employment Appeal Bd., 500 N.W.2d 64, 66 (Iowa 1993).

The employer bears the burden of proving a claimant is disqualified for benefits because of misconduct. Id.; see Iowa Code § 96.6(2) (“The employer has the burden of proving that the claimant is disqualified for benefits pursuant to section 96.5.”).

“‘Misconduct must be substantial in order to justify a denial of unemployment benefits. Misconduct serious enough to warrant the discharge of an employee is not necessarily serious enough to warrant a denial of benefits.’ ” Reigelsberger, 500 N.W.2d at 66 (quoting Breithaupt v. Employment Appeal Bd., 453 N.W.2d 532, 535 (Iowa App.1990)).

Determining whether an employee has committed misconduct is circumscribed by the provisions of Iowa Administrative Code rule 871 — 24.32(8). The rule provides that

[w]hile past acts and warnings can be used to determine the magnitude of a current act of misconduct, a discharge for misconduct cannot be based on such past act or acts. The termination of employment must be based on a current act.

Iowa Admin. Code r. 871 — 24.32(8). Therefore, “[a] termination for misconduct will not justify a denial of unemployment compensation if the termination is based solely on past acts.” Ringland Johnson, Inc. v. Hunecke, 585 N.W.2d 269, 271 (Iowa 1998).

The definition of “misconduct” in the administrative code focuses on whether the employee’s conduct was deliberate, intentional, or culpable. Kelly v. Iowa Dep’t of Job Serv., 386 N.W.2d 552, 554 (Iowa App.1986); see also Savage v. Employment Appeal Bd., 529 N.W.2d 640, 642 (Iowa App.1995) (noting that misconduct is a deliberate act or omission which requires a showing of a deliberate intention or culpable act by the employee); Roberts v. Iowa Dep’t of Job Serv., 356 N.W.2d 218, 222 (Iowa 1984) (noting that misconduct connotes volition). Therefore, whether misconduct has occurred requires proof that the employee acted intentionally; a showing of mere negligence is not enough to constitute misconduct.

B. Analysis.

1. Negligent acts. The agency first found that Lee was negligent in the performance of his job duties. In support of this finding, the agency noted that there was (1) no other explanation' “for having two accidents of the same type within a three-day period” and (2) no evidence that “Lee was-somehow physically or mentally incapable of performing his job duties in á safe and prudent manner.” Based on this evidence, the agency jumped to the conclusion that Lee “simply did not care to give enough attention and caution to his responsibilities to perform them well and safely.” This leap in reasoning — in the agency’s view — satisfied the intentional requirement for misconduct.

There seems to be no dispute that the two accidents in April 1998 precipitated Lee’s employment termination. However, there is no record evidence that Lee intentionally or deliberately damaged the utility lines. We conclude as a matter of law that these accidents standing alone do not constitute misconduct.

Of course, the definition of misconduct recognizes that multiple negligent acts may amount to misconduct:

Misconduct ... is ... limited to conduct evincing such willful or wanton disregard of an employer’s interest as is found in ... carelessness or negligence of such degree of recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to the employer.

Iowa Admin. Code r. 871 — 24.32(1) (a) (emphasis added).

We hold, however, as a matter of law, that under the facts here the property damage in 1991 and three accidents involving electrical wires (two in April 1998 and the one in 1995), even when taken together, do not amount to misconduct. There is no explanation in the record as to the property damage in 1991. The agency therefore inade no finding of negligence as to this incident.

The accident in 1995 happened when Lee’s dump truck came into contact with an overhead electrical wire. The agency also made no finding that this accident happened because of Lee’s negligence. Instead, the agency focused on the two accidents in 1998 and concluded that these accidents happened because Lee was negligent.

One of the 1998 accidents happened when Lee swerved his truck off the road to avoid hitting an oncoming car, and the other happened when Lee hit a power line partially obstructed from view by overhanging tree limbs. The only finding that the agency made to support its conclusion that Lee was negligent was that two accidents of the same nature happened within a three-day period. So, the agency concluded Lee - must have been negligent. The fact that two accidents of the same nature happened within a three-day period is speculative at best on the question of negligence.

There is no evidence other than Lee’s testimony as to how these accidents happened. Under his testimony, we find, as a matter of law, no negligence. There was no evidence that Lee violated any traffic laws. Additionally, the uncontroverted evidence is that the two accidents were beyond Lee’s control. In fact, Lee’s action in swerving to miss an oncoming car demonstrates he had his employer’s best interests in mind because his evasive action avoided a potentially serious accident and monetary loss for the employer. In short, there was nothing about these two accidents that would support an inference that Lee “did not care to give enough attention and caution to his responsibilities to perform them well and safely.”

We conclude the evidence falls short of establishing “carelessness or negligence of such degree of recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.”

2. Failure to improve job performance. Additionally, the agency found that Lee failed to perform his job to the best level of his ability. This failure, the agency concluded, constituted misconduct. On this point, the agency expressly found as follows:

The claimant was certainly aware the employer expected a certain standard of performance from him as evidenced from his performance evaluations and the previous incident of possible termination in 1995. For whatever reason, the claimant refused to improve his performance by exercising more caution. ... Failure to perform a job to the best level of one’s ability is misconduct. See Sellers v. Employment Appeal Bd., 531 N.W.2d 645 (Iowa App.1995).

The agency’s reliance on Sellers to support its finding of misconduct is misplaced. In Sellers, the claimant was a house painter who was discharged by his employer after thirteen months of employment. Sellers, 531 N.W.2d at 645-46. Over this thirteen-month period, the claimant had a history of working slower than he was capable of doing. Id. at 647. Each time the claimant received a verbal reprimand from his supervisor, the claimant’s work performance would improve. Id. However, each improvement was shortly followed by a decline in work performance. Id. On the day of his discharge, the claimant applied only one-fourth the amount of paint that should have been applied by an average painter in a workday. Id. at 646, 647. This evidence supported a finding that the claimant did not work as fully and completely as he was capable of doing.

The court of appeals concluded there was substantial evidence to support the agency’s finding of misconduct. Sellers, 531 N.W.2d at 647. Underlying this conclusion was that claimant’s failure to perform was so severe that it was objectively measurable (performing one-fourth of the expected work). The permissible inference was therefore that the claimant intentionally disregarded his duty to his employer. The improvement in his work performance after each warning amply demonstrated that the claimant was capable of doing better. Id. On the day of his discharge, the claimant had no believable explanation for his poor performance.

Kelly v. Iowa Department of Job Service, 386 N.W.2d 552 (Iowa App.1986), stands in stark contrast to Sellers. In Kelly, the claimant, a school custodian, was discharged for “neglect of his work.” Id. at 553. The triggering event was the claimant’s failure to adequately clean the school stage. Id. The claimant had been placed on probation twice for poor job performance and had been warned orally and in writing about his job performance on other occasions. Id. He was also warned that, if his performance did not improve, he could be terminated. Id. The claimant’s employer testified that the claimant was capable of doing a good job of cleaning but did not do it. When asked why he thought the claimant’s failure to do a good job was intentional, the employer testified: “Well, I don’t know what other reason there would be, because he was capable of doing it.” Id. The agency concluded that the claimant “was discharged from his position due to poor job performance and [the claimant] had the ability and capability of doing the work in question, thus, [claimant’s] actions indicate a willful and deliberate act on his part so as to constitute misconduct within the meaning of Iowa law.” Id. at 553.

The court of appeals reversed, concluding there was no substantial evidence to support the agency’s finding of misconduct. Id. at 555. In reversing, the court noted that

[t]here was no evidence presented of any statements or actions by [the claimant] which demonstrated a wrongful intent on his part. The record discloses only that [the claimant] was apparently incapable of performing his custodial work to meet the standards required by his employer.

Id.

The court of appeals further noted that the agency accepted as substantive proof the subjective conclusion of the employer that because the claimant “was a capable worker he must be guilty of misconduct when he failed to perform to [the employer’s] satisfaction.” Id. According to the court, accepting the employer’s subjective conclusion as substantial proof “would eviscerate the employment security act.” Id. Moreover, the court pointed out, “[e]very employer could defeat an unemployment claim by merely testifying that an employee was capable, didn’t do the job to the employer’s satisfaction, and was therefore guilty of misconduct.” Id.

Significantly, the court further concluded:

The employer’s subjective judgment is proof of dissatisfaction but, without more, is not proof of misconduct. It is for the fact finder to determine if the quantum of evidence adds up to a proof of misconduct. The hearing officer should not accept as a given that an employer’s subjective standards set the measure of proof necessary to establish misconduct. To do so skews the procedure, forcing the employee to prove that he is not capable or that he had no intent to commit misconduct. The result of the hearing officer’s analysis is that the burden of proving misconduct is removed from the employer and shifted to the employee, contrary to law.

Id.; accord Miller v. Employment Appeal Bd., 423 N.W.2d 211, 214 (Iowa App.1988) (holding that employer’s judgment that employee’s poor work performance constituted misconduct, based on ground that employee was aware of his job expectations and required level of performance, but did not live up to that standard for a three-week period, was not evidence supporting finding that employee’s poor work performance constituted “misconduct”).

We think Kelly and Miller, rather than Sellers, dictate the result here. The employer testified that Lee had annual job evaluations. The employer further testified that, despite written warnings and the annual job evaluations, the employer never saw any effort on the part of Lee to improve his job performance. Based on this testimony, the agency concluded that Lee was aware “the employer expected a certain standard of performance,” but “[f]or whatever reason, [Lee] refused to improve his performance.” The agency then concluded that “[f]ailure to perform a job to the best level of one’s ability is misconduct.”

As in Kelly and Miller, the agency here simply accepted the employer’s subjective proof that Lee’s failure to live up to the employer’s expectation was intentional. The undisputed testimony in this case is that Lee never improved his performance, even after receiving warnings. Therefore, there is no quantifiable or objective evidence that shows Lee was capable of performing at a level better than that at which he usually, worked. The employer had the burden to provide this objective evidence. The burden was not on Lee to show he was not capable of working to his employer’s satisfaction. Although Lee’s conduct might have been unsatisfactory as far as the employer was concerned, such conduct does not amount to misconduct. The last part of the definition of misconduct makes clear that “mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity ... are not to be deemed misconduct.” Iowa Admin. Code r. 871— 24.32(l)(a) (emphasis added).

In sum, contrary to the conclusion reached by the agency, the mere fact that Lee’s performance did not improve is not evidence of an intent not to improve. Such a conclusion can only be drawn if there is first established objective proof that the claimant was actually capable of improved performance. Because there was no such evidence here, substantial evidence of misconduct was lacking.

3. Refusal to accept suspension and undergo drug and alcohol testing. Additionally, on the issue of Lee’s failure to improve his work performance, the agency found that Lee

could have shown good faith in an attempt to improve by accepting the two-week suspension and the attendant agreement for drug and alcohol testing. His decision not to make this good faith effort is further evidence of the fact he simply did not have sufficient interest in his job to do it well.

We conclude the agency should not have relied on this evidence because Lee was not discharged because he refused to accept a two-week suspension and undergo drug testing four times a year. As the record clearly shows, the employer’s reason for discharging Lee was the “history of similar and/or past offenses” under section 4.02 of the union contract and “gross negligence in willful destruction of property” under section 4.03 of that contract. Lee’s refusal occurred after the last incident that gave rise to the employer’s decision to discharge him. Therefore, Lee’s refusal had nothing to do with the reason the county discharged him. The employer cannot now rely on such refusal as additional proof of misconduct.

IV. Disposition.

The district court correctly concluded that the employer had not proved misconduct on the part of Lee. The court of appeals erred in concluding otherwise. We therefore vacate the court of appeals decision. We affirm the district court decision (1) reversing the agency decision and (2) ordering the reimbursement of Lee’s unemployment benefits.

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

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


source: Caselaw Access Project

author: VOGEL, J.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. HY-VEE, INC., d/b/a Hy-Vee Food Store, Appellant.
    No. 99-0834.
    Court of Appeals of Iowa.
    June 14, 2000.

      Kerry A. Finley and Daniel E. Kelly of Finley, Alt, Smith, Scharnberg, Craig, Hil-mers & Gaffney, P.C., Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Fred H. McCaw, County Attorney, and Mark T. Hostager, Assistant County Attorney, for appellee.
    Heard by SACKETT, C.J., and HUITINK, VOGEL, MAHAN, ZIMMER, MILLER, HECHT, and VAITHESWARAN, JJ.
   VOGEL, J.

Hy-Vee, Inc. (Hy-Vee) appeals its conviction of selling alcoholic beverages to an underage patron under Iowa Code section 123.49(2)(h) and section 123.50(1) (Supp. 1997). Because we find the later statute unconstitutional, we reverse.

Background facts. On May 13, 1998, an employee of a Hy-Vee grocery store in Dubuque sold alcohol to two minors. According to Iowa Code section 123.49(2)(h), a person shall not:

[s]ell ... any alcoholic beverage, wine or beer to any person, knowing or failing to exercise reasonable care to ascertain whether the person is under legal age....

This code section has remained unchanged during the course of this case. Iowa Code section 123.50(1), the penalty section, however, has undergone substantive changes and is at the core of this dispute. The 1995 Code provided:

[A]ny person who violates section 123.49, subsection 2, paragraph “h”, commits a simple misdemeanor punishable as a scheduled violation under section 805.8, subsection 10, paragraph “b”.

Effective July 1, 1997, this code section was changed to hold an employer vicariously and criminally liable for such a sale conducted by an employee, regardless of the culpability, or lack thereof, of the employer.

[A] person who violates section 123.49, subsection 2, paragraph “⅛” commits a serious misdemeanor punishable by a fine of one thousand five hundred dollars. If the violation is committed by a person who is employed by a licensee or permittee, the licensee or permittee and the individual shall each be deemed to have committed the violation and shall each be punished as provided in this subsection.

The Iowa legislature later struck the vicarious liability language effective July 1, 1998, leaving in place the implication of a need for employer culpability before conviction under this statute.

[A] person who violates section 123.49, subsection 2, paragraph “⅞” commits a simple misdemeanor punishable as a scheduled violation under section 805.8, subsection 10, paragraph “a”.

Hy-Vee was directly affected by these revisions because of the timing of the sale at issue to the under aged patrons. The sale occurred May 13, 1998, and Hy-Vee was accordingly charged with a serious misdemeanor under the “deemed to have committed” version of section 123.50(1). Effective July 1, 1998, the statute was amended, by striking the serious misdemeanor provisions and reclassifying the offense as a simple misdemeanor punishable as a scheduled violation. Hy-Vee was then convicted and sentenced to pay a $1,500 fine under the vicarious liability statute on May 20,1999.

Hy-Vee argues its criminal conviction should be reversed because the vicarious liability code section was unconstitutional or, in the alternative, it should have been penalized under the statute in effect at the time of the conviction and sentencing.

Scope of review. Our review of this constitutional challenge is de novo. State v. Osmundson, 546 N.W.2d 907, 909 (Iowa 1996). Statutes are given a strong presumption of constitutionality. State v. Ryan, 501 N.W.2d 516, 517 (Iowa 1993). This presumption places a heavy burden on the one challenging the constitutionality of a statute. State v. Mehner, 480 N.W.2d 872, 878 (Iowa 1992).

Constitutionality of the statute. Hy-Vee contends the vicarious liability code section 123.50(1) (Supp.1997) violated its right to due process of law under the Fourteenth Amendment to the United Stated Constitution. A substantive due process analysis “considers both the interest of the public and the individual and whether, considering the legitimate public interests involved, there are other, less onerous means by which the public interests might be protected.” Davis v. Peachtree City, 251 Ga. 219, 304 S.E.2d 701, 702 (1983). The affected private or individual interests include damage to reputation and other future disadvantages, which stem from a criminal conviction that the accused neither committed nor endorsed. Minnesota v. Guminga, 395 N.W.2d 344, 346-47 (Minn.1986).

Hy-Vee asserts the statute is unconstitutional because imposing vicarious, criminal liability upon employers for the acts of their employees violates the bedrock of the criminal justice system that, almost without exception, one is required to have some level of culpability before being subjected to criminal sanctions. State v. Casey’s General Stores, Inc., 587 N.W.2d 599, 601 (Iowa 1998). “This doctrine is contrary to the basic premise of criminal justice that crime requires personal fault.” Id. (citations omitted). Hy-Vee does not deny the sales occurred but argues the employee acted in contradiction to company policies and procedures. Hy-Vee was tried to the court based on the minutes of testimony, which did not contain any evidence to establish that Hy-Vee knew or failed “to exercise reasonable care to ascertain whether the person is under legal age .... ” under Iowa Code section 123.49(2)(h).

The State counters that when dealing with issues of concern to the public welfare, including the sale of alcohol to minors, criminal sanctions may be imposed in an attempt to curtail a targeted activity. Morissette v. United States, 342 U.S. 246, 256, 72 S.Ct. 240, 246, 96 L.Ed. 288, 296-97 (1952). Under limited circumstances, criminal liability may be found against an accused although he is only vicariously liable for the act because such an act comes under the rubric of a “public welfare offense.” Id. The rationale behind dispensing with the finding of criminal culpability in such instances lies with the regulatory nature of certain statutes. Id. These laws are “in the nature of neglect where the law requires care, or inaction where it imposes a duty.” Id. “In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger.” Iowa City v. Nolan, 239 N.W.2d 102, 104 (Iowa 1976) (citing United States v. Dotterweich, 320 U.S. 277, 281, 64 S.Ct. 134, 136, 88 L.Ed. 48, 51 (1943)).

Under Morissette, three criteria must be met before criminal sanctions may be imposed in crimes considered public welfare offenses. Morissette, 342 U.S. at 256, 72 S.Ct. at 246, 96 L.Ed. at 296-97. They are as follows: 1) the penalty must be slight; 2) the conviction must not carry a damaging stigma; and 3) the conduct must at least rise to the level of common-law negligence. Id. Further, it must be more in the nature of a regulatory act than a true crime. Id.; see also State v. Conner, 377 N.W.2d 664, 665-66 (Iowa App.1985).

The idea of imposing vicarious criminal liability in public welfare offenses has been upheld in other cases. Vicarious liability imposed on a vehicle owner for parking violations, regardless of the identity of the actual driver, was upheld as a public welfare offense. See Nolan, 239 N.W.2d at 106. The court held the city ordinance in question was constitutional based on the small penalty involved and the regulatory nature of parking associated with vehicle ownership. Id. In a case involving a sale of alcohol to a minor by an employee, suspension of the employer’s liquor license survived a due process challenge because there was no criminal penalty or stigma attached, merely a regulatory sanction. See Randall’s Int’l, Inc. v. Hearing Bd. of the Iowa Beer & Liquor Control Dep’t, 429 N.W.2d 163 (Iowa 1988).

The State argues that other states with similar liquor control statutes have survived due process challenges. See Wisconsin v. Beaudry, 123 Wis.2d 40, 365 N.W.2d 593 (1985) (finding vicarious liability of an employer for an employee violation of store closing law); see also State v. Hy Vee Food Stores, Inc., 533 N.W.2d 147 (S.D.1995) (holding employer vicariously liable for an employee’s sale of alcohol to a minor). However, the Beaudry case did not employ a Morissette analysis and the Hy Vee case failed to consider a criminal conviction as harmful to the reputation of a corporation. For these reasons, we decline to follow their holdings.

Hy-Vee alleges the statute under which it was convicted does not conform to the Morissette criteria of a public welfare statute and must, therefore, be stricken as unconstitutional, violating its due process rights. We agree. There was no finding that Hy-Vee engaged in any culpable conduct. However, under the vicarious liability code section, Hy-Vee was “deemed” to have participated in the illegal activity of its employee. Having vicarious criminal liability imposed resulted in Hy-Vee being convicted of a serious misdemeanor with a fine of $1,500.

Hy-Vee maintains the offense carries with it a stigma to its corporate reputation. The consumption of alcohol by underage persons is an issue that cannot be minimized in today’s society. As such, the label of criminal offender for illegal alcohol sales could have an adverse effect on Hy-Vee’s reputation as a locally owned and operated business. We do not believe that being found guilty of a serious misdemean- or is an inconsequential conviction, even for a corporate defendant. The gravity of the conviction lifts this crime out of the regulatory public welfare arena and places it squarely into the criminal arena.

Because the stigma of a conviction of selling alcohol to a minor, a serious misdemeanor, is more than slight, we find Iowa Code section 123.50(1) (Supp.1997) cannot survive under a Morissette public welfare analysis. Without this narrow exception to circumvent due process requirements, the statute, which imposed vicarious criminal liability on Hy-Vee, must fail as unconstitutional.

Additionally, no evidence of Hy-Vee’s culpability in the sale was presented to the court to support a conviction under Iowa Code section 123.49. The case was tried on the minutes of testimony, which contained no allegations that Hy-Vee knew or failed “to exercise reasonable care to ascertain whether the person is under legal age.” Therefore, charges under both Iowa Code sections 123.49(2)(h) and 123.50(1) must be dismissed. See State of Iowa v. Casey’s General Stores, Inc., 587 N.W.2d 599 (Iowa 1998).

Accordingly, we reverse and remand for entry of a judgment of dismissal.

REVERSED AND REMANDED.

STREIT, J., takes no part.


author: OPINION RUSSELL A. ANDERSON, Justice. PAGE, Justice PAUL H. ANDERSON, Justice

text:
    Omolulu Valen ADEMODI, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. C1-99-294.
    Supreme Court of Minnesota.
    Sept. 7, 2000.

      Sandra L. Babcock, #253388, Minneapolis, for appellant.
    Michael A. Hatch, Minnesota Attorney General, St. Paul, Amy Klobuchar, Henne-pin County Attorney, by Gayle C. Hend-ley, Assistant County Attorney, Paul R. Scoggin, Assistant County Attorney, Minneapolis, for respondent.
   OPINION

RUSSELL A. ANDERSON, Justice.

Omolulu Valen Ademodi appeals from a reversal of the district court’s grant of his petition for postconviction relief. Ademodi petitioned the district court to vacate his 1990 conviction for aiding and abetting a controlled substance crime in the first degree. Ademodi argued that, as a Nigerian national, he was entitled to consular notification under Article 36 of the Vienna Convention on Consular Relations (Vienna Convention) and in the absence of such notification his conviction must be vacated and set aside. The district court granted his motion. The court of appeals reversed, holding that Ademodi failed to establish prejudice from the lack of notification. See Ademodi v. State, No. C1-99-294, 1999 WL 970338 (Minn.App. Oct. 26, 1999). We hold that Ademodi waived his claim under the Vienna Convention by failing to raise it on direct appeal.

Ademodi had lived in the United States for approximately nine years when he was arrested in 1989 for aiding and abetting the sale of cocaine. In 1990 Ademodi was convicted of one count of controlled substance crime in the first degree and was sentenced to 86 months incarceration. The court of appeals affirmed the conviction but remanded for resentencing, holding that the trial court should have exercised its discretion to consider Ademodi’s request for a downward departure. See State v. Ademodi No. C1-91-326, 1991 WL 222451 (Minn. App. Nov. 5, 1991). At resentencing, imposition of sentence was stayed for one year and Ademodi was ordered confined for 365 days in the local correctional facility with credit for time served. By operation of law, his conviction was reduced to a misdemeanor. See Minn. Stat. § 609.13, subd. 1(2) (1998).

Ademodi has remained law abiding since he was released from incarceration. He is married to an American citizen and they have three children, all of whom also are American citizens. He has earned multiple college degrees and, in 1998, he was hired as a corrections officer by the Minnesota Department of Corrections. However, he later was fired because of his conviction. More significantly, the Immigration and Naturalization Service has initiated deportation proceedings based on his conviction.

Ademodi petitioned the district court to vacate his conviction based on the violation of the Vienna Convention and ineffective assistance of counsel. The district court vacated the conviction, finding that Ademodi had been prejudiced by the state’s failure to inform him of his right to contact the Nigerian consulate after his arrest. The court of appeals reversed, holding that, assuming the Vienna Convention does create individual rights, a showing of prejudice must be made in order for a court to impose a remedy. The court held that the record did not support a finding of prejudice. We hold that Ademo-di waived his Vienna Convention claim and we therefore need not interpret the requirements of the treaty.

By its terms the Vienna Convention requires that when requested to do so a state must inform a consulate that a national of a foreign state has been arrested or is in custody. Ademodi did not raise a claim of a Vienna Convention violation in his direct appeal. “[W]here direct appeal has once been taken, all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconvietion relief.” State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). However, where the legal basis of a claim was not reasonably available because it was novel at the time of the direct appeal, the claim may be considered. See Case v. State, 364 N.W.2d 797, 800 (Minn.1985). In addition, the court may consider a claim not raised on direct appeal “in limited situations when fairness so requires and when the petitioner did not deliberately and inexcusably fail to raise the issue on direct appeal.” Russell v. State, 562 N.W.2d 670, 672 (Minn.1997) (quotation omitted).

The state argues that Ademodi’s claim under the Vienna Convention should be considered waived because it was known or knowable at the time of his direct appeal. Ademodi argues that a claim under the Vienna Convention was so novel at the time of his trial and appeal that he cannot reasonably be expected to have raised it.

The first criminal case to mention the Vienna Convention is a 1996 case, Faulder v. Johnson, 81 F.3d 515 (5th Cir.1996). However, the Vienna Convention had been in force for more than 20 years by the time Ademodi was tried in 1990. As the Fourth Circuit has noted, “[tjreaties are one of the first sources that would be consulted by a reasonably diligent counsel representing a foreign national.” Murphy v. Netherland, 116 F.3d 97, 100 (4th Cir.1997). The Murphy court also noted the existence of several published cases involving deportations and prosecutions for illegal reentry to demonstrate that “a reasonably diligent search by * * * counsel * * * would have revealed the existence and applicability (if any) of the Vienna Convention.” Id.

Our standard for considering an issue not raised on direct appeal is that the claim was so novel it lacked a reasonable basis in the law, not in practice. See Case, 364 N.W.2d at 800 (allowing postconviction relief if the claim’s legal basis was not reasonably available). The Vienna Convention provided a basis for Ademodi’s claim at the time of his direct appeal. We agree with the Fourth Circuit that diligent criminal defense attorneys who represent aliens can be expected to investigate whether international law has any influence on their clients’ cases. We conclude, therefore, that Ademodi’s claim was knowable because it had a reasonable basis in the law at the time of his appeal.

Finally, although Ademodi claimed in his reply brief that fundamental fairness requires substantive review of his arguments, he fails to articulate the particular facts of the case supporting this claim. Cf. Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995). Ademodi apparently has led an exemplary life since his conviction; our focus, however, is on the fairness of the process that led to his conviction and the determination of issues raised on appeal. Cf. Fox v. State, 474 N.W.2d 821, 825 (Minn. 1991) (considering substantive claim where defendant was under effects of anti-psychotic medication at time of trial and appeal); see also Roby, 531 N.W.2d at 484 n. 2 (noting Fox allowed substantive review because of “unique facts”). Having determined that Ademodi can be expected to have raised the Vienna Convention in his direct appeal, we are left with only a bald allegation of unfairness. In this circumstance, fundamental fairness does not require substantive review of Ademodi’s Vienna Convention claim.

In his petition for postconviction relief Ademodi raised a separate claim of ineffective assistance of counsel. Because the district court did not rule on this claim, we remand for further proceedings.

Affirmed, remanded for further proceedings.

PAGE, Justice

(dissenting).

I respectfully dissent. We have held that, “even where the legal basis was reasonably available, ‘this court may allow substantive review of [a] claim in limited situations where fairness so requires and when the petitioner did not “deliberately and inexcusably” fail to raise the issue on direct appeal.’ ” Gassler v. State, 590 N.W.2d 769, 771 (Minn.1999) (quoting Russell v. State, 562 N.W.2d 670, 672 (Minn. 1997)). While the issue raised by Ademo-di’s postconviction petition arguably was reasonably available at the time of his direct appeal, it cannot seriously be argued that it was not novel. Because of that novelty and the fact that it is clear that Ademodi did not “deliberately and inexcusably” fail to raise the issue on direct appeal, I believe that fairness requires us to consider this case on its merits.

PAUL H. ANDERSON, Justice

(concurring specially).

I concur with the result reached by the majority, but write separately to address the dissent. The dissent is correct when it states that we can address the merits of petitioner’s motion for postconviction relief by looking past petitioner’s waiver of his claim because he failed to raise the claim on direct appeal. We can do so when fairness so requires. The dissent concludes that fairness requires that we address the merits of petitioner’s claim under the Vienna Convention on Consular Relations (Vienna Convention), but unfortunately then fails to address the merits of that claim. While in this case it may be tempting to look to the fundamental fairness exception to the Knaffla doctrine, fairness considerations become more difficult if we were to address petitioner’s claim on its merits. For example, how would the dissent determine that failure to be advised of his rights under the Vienna Convention prejudiced petitioner? See Breard v. Greene, 523 U.S. 371, 377, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998). By addressing the merits, the dissent may be able to provide an answer to the dilemma presented by this case. But to suggest that we reach the merits and then not do so because we most likely would find another hurdle for petitioner only gives him a false sense of fairness.

      . Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820 (hereinafter Vienna Convention).

      . State courts have jurisdiction to enforce rights arising under federal law. See Owens v. Chicago Great Western Ry. Co., 113 Minn. 49, 53, 128 N.W. 1011, 1013 (1910) (“It is well settled that, when the parties are properly before it, a state court will enforce any right which one has by virtue of the federal Constitution or laws”); Breard v. Greene, 523 U.S. 371, 376, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998) ("[T]reaties are recognized by our Constitution as the supreme law of the land”). We are reluctant, however, to interpret the provisions of the Vienna Convention where the federal courts have not definitively interpreted its requirements. See Breard, 523 U.S. at 377, 118 S.Ct. 1352 (noting it was "extremely doubtful” that a Vienna Convention violation should result in reversal of a conviction without a showing of prejudice).

      . The Vienna Convention states:
      1. With a' view to facilitating the exercise of consular functions relating to nationals of the sending state:
      * * * *
      (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or commit-
      ted to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

      2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.
      Vienna Convention, art. 36, 21 U.S.T. at 100-01, T.I.A.S. No. 6820.


author: RUSSELL A. ANDERSON, Justice. PÁGE, Justice

text:
    STATE of Minnesota, Respondent, v. Sammie Lamont JOHNSON, Appellant.
    No. C3-99-1351.
    Supreme Court of Minnesota.
    Sept. 7, 2000.

      John M. Stuart, Minnesota Public Defender, Ann McCaughan, Assistant Public Defender, Minneapolis, for appellant.
    Michael A. Hatch, State Attorney General, St. Paul, Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Minneapolis, for respondent.
   OPINION

RUSSELL A. ANDERSON, Justice.

We review appellant Sammie Lamont Johnson’s convictions and sentences for the crimes of first-degree premeditated murder, Minn.Stat. § 609.185(1) (1998), and first-degree felony-murder during the commission of an aggravated robbery, Minn.Stat. § 609.185(3) (1998). On appeal, Johnson argues that the state’s peremptory strike of an African American woman from the venire constituted purposeful racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. Johnson also argues that the evidence was insufficient to support the convictions and that he is entitled to a new trial because the prosecutor committed misconduct during closing argument. Johnson also argues that the trial court erred by entering two judgments of conviction and by imposing concurrent life sentences for the same conduct. We affirm, but vacate Johnson’s judgment of conviction and sentence for first-degree murder committed during the course of an attempted aggravated robbery.

Agnes and Robert Fernlund spent the evening of October 27, 1998, playing cards with friends and returned to their Minneapolis home on 43rd Avenue South at approximately 11:45 p.m. Mr. Fernlund parked the car in front of their home and affixed a security device to the steering wheel while Mrs. Fernlund got out of the car. As she walked up the sidewalk toward their home she saw three men approach her husband from across the street. She heard one of the men ask for the time and Mr. Fernlund reply that it was a quarter to twelve. She continued walking and then heard a loud “pop.” She turned to see Mr. Fernlund lying in the street by the front of the car and the three men running away. She went into the house and called 911. Minutes later, paramedics arrived and discovered a gunshot wound in the upper right side of Mr. Fernlund’s back. He was pronounced dead at the scene.

Mrs. Fernlund was unable to describe the three men who approached her husband. However, neighbors were able to provide the police with some information. One neighbor heard a loud pop and then heard loud voices and laughter. Another neighbor heard a gunshot, footsteps, the sound of car doors slamming and an engine starting and then saw a white Ford Explorer-type vehicle with tinted windows speed down the alley. - Police found a shoe print in a yard across the street from the Fernlund home pointing in the direction of the alley and a tire track in the alley. No other evidence was recovered from the scene, and the casing from the bullet that killed Mr. Fernlund was never found.

The three men who approached Mr. Fernlund were Ernest Howard, Robert Neely and Johnson. Neely entered into a plea agreement with the state. In return for his promise to testify truthfully in any prosecution related to the Fernlund murder, Neely was permitted to plead guilty to second-degree unintentional murder for which he received a 12-year sentence. Neely testified at trial that on the day of the shooting he and Johnson met unexpectedly at a bus stop and that Johnson told him that he had a gun. Neely saw the gun’s loaded magazine. They went to the house of Johnson’s girlfriend who testified that she saw the gun and magazine in Neely’s pants. Neely testified that Johnson had given him the magazine to hold briefly.

After Johnson and Neely left the house, Neely testified that Johnson fired the gun in the air and it jammed. Johnson removed the jammed bullet and placed the gun and bullet under some wood in the space between two garages. The two went to a convenience store and then retrieved the gun. Johnson again hid the gun, this time in a Iawnmower bag in the garage of his friend, Kenny Pritchard. The two went back to the store where they saw Howard, Johnson’s friend, putting gas in a white Mercury Mountaineer at a gas station across the street. Johnson and Neely approached Howard and Johnson brought up the idea of doing a “jack,” robbing someone, and the men agreed. The three drove back to Pritchard’s house and retrieved the gun. Howard wrapped the gun in paper and placed it in a compartment in the back of the vehicle’s passenger seats. The men drove around for about 20 minutes smoking marijuana before they saw the Fernlunds. Johnson said, “let’s get them” and Howard stopped the vehicle in an alley. Neely took the gun, with magazine attached, out of the compartment and gave it to Johnson.

The three men approached the Fern-lunds. Mr. Fernlund was closing his door when Johnson asked him for the time. When Mr. Fernlund answered, Johnson pulled out the gun and told Mr. Fernlund to give him his money. Howard also told him to “give up the money.” Mr. Fern-lund turned and took about two steps when Johnson shot him in the back. Neely testified that Johnson squeezed the trigger once, then “tried it again but the gun got jammed.” No one took anything from Mr. Fernlund, instead the men ran back to the Mountaineer. Neely put the gun back in the compartment and Howard drove Neely and Johnson back to Pritchard’s house.

Johnson took the casing out of the gun and buried it in the dirt in Pritchard’s yard. He then put the gun back in the Iawnmower bag. Johnson and Neely went upstairs to Pritchard’s bedroom and awakened him. Neely heard Johnson telling Pritchard about the incident, but was not sure what was said. The two slept at Pritchard’s house and in the morning stole a car and drove to St. Cloud. They spent that night in St. Cloud and the following morning stole another car and drove back to Minneapolis.

A few days after the murder, Johnson was shot with a ,22-ealiber weapon that was similar in class and rifling characteristics to the gun used to shoot Mr. Fernlund. The bullet recovered from Mr. Fernlund also was consistent in general characteristics with the bullet removed from Johnson, but the two bullets had no matching individual characteristics. Johnson gave police several different versions of the shooting, none of which corresponded to the ballistics evidence that he was shot at a distance of three feet or less. After he was arrested, Johnson accused Neely of trying to cover up the Fernlund murder by shooting him or having him shot. Johnson maintained that he was shot from a range of 15 to 20 feet. The police concluded that Johnson shot himself.

When police questioned Johnson about the Fernlund murder, Johnson admitted that he was present in fi*ont of Fernlund’s home before the shooting but claimed that Neely had the gun and shot Fernlund. Johnson claimed that he was running down the block when he heard the shot. Johnson maintained that Howard parked the vehicle in the street, not the alley, and that the three men did not walk through the neighbor’s yard. However, the shoe print found in the neighbor’s yard matched unique characteristics created by a small rock lodged in the sole of one of Johnson’s shoes and the tire track found in the alley matched unique characteristics of a tire on the white Mercury Mountaineer that Howard was driving.

Johnson was charged and convicted of first-degree premeditated murder and first-degree felony-murder during the commission of an aggravated robbery. In his brief to this court Johnson concedes that the evidence was sufficient to convict him of aiding and abetting second-degree felony murder under Minn.Stat. § 609.19, subd. 2(1) (1998) (“causes the death of a human being, without intent to effect the death of another person, while committing or attempting to commit a felony offense ⅜ ⅜ ⅜

I.

We first consider Johnson’s argument that the trial court erred by allowing the state to use a peremptory challenge to remove an African-American woman from the venire. The Equal Protection Clause of the United States Constitution prohibits the use of a peremptory challenge to exclude a person from jury service solely on the basis of the person’s race. See Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

In Batson, the United States Supreme Court established a three-step process to determine whether a peremptory challenge is motivated by a prohibited discriminatory intent. See Batson, 476 U.S. at 96, 106 S.Ct. 1712. The defendant first must make a prima facie showing that the challenge was exercised on the basis of race. See id. Once a prima facie showing has been made, the burden then shifts to the prosecutor to articulate a race-neutral reason for the challenge. See id. at 97, 106 S.Ct. 1712. Finally, the trial court must then determine whether there has been purposeful discrimination. See id. at 98, 106 S.Ct. 1712; State v. Gaitan, 536 N.W.2d 11, 15-16 (Minn.1995). Appellate courts give considerable deference to the trial court’s finding on the issue of the prosecutor’s intent, however, because the trial court’s finding typically turns largely on its evaluation of credibility. See Hernandez v. New York, 500 U.S. 352, 366-69, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).

While the prosecutor argued at trial that Johnson failed to make a prima facie showing that the peremptory challenge was motivated by discriminatory intent, she then proceeded to provide race-neutral reasons for the challenge. Under this circumstance we do not review the adequacy of Johnson’s prima facie ease. Instead, we focus upon the reason offered by the prosecutor for the challenge and whether the trial court abused its considerable discretion in its determination that the prosecutor did not engage in purposeful discrimination. See State v. Scott, 493 N.W.2d 546, 548-49 (Minn.1992).

The prosecutor offered various race-neutral reasons for exercising a peremptory challenge to the juror. She expressed concern that (1) the juror, who worked with youth between the ages of 15 and 18 through the Urban League, would over-identify with Johnson, who was 17; (2) that hours before the murder Johnson was at the South Minneapolis Boys and Girls Club where the juror’s cousin was an administrator; the juror was an active* member of the North Minneapolis Boys and Girls Club and occasionally assisted her cousin with programs for the South Minneapolis club; potential witnesses were active members of the South Minneapolis club; and Johnson’s girlfriend lived near the South Minneapolis club; (3) the juror had been falsely accused of stealing from an employer and the prosecutor was concerned that she would have an agenda to “ferret out false accusations”; (4) the juror had a conflicted attitude toward the police; (5) the juror had expressed concern over how the community would react to the verdict; and (6) the juror had expressed discomfort with the idea of sitting in judgment of another. The prosecutor stated:

I’m reluctant to challenge her because she’s the only African-American juror on the panel, but * * * in the final analysis what I have to ask myself is would I challenge this juror if she were a white juror, and the answer is unequivocally yes. * * ⅜ I’m saying that no matter what race this juror was she would be challengeable by the State for those reasons.

The trial court did not analyze all of the reasons offered by the prosecutor, but found some unpersuasive. The trial court found, however, that the juror’s experience of being falsely accused of stealing and the juror’s connection with potential witnesses from the South Minneapolis Boys and Girls Club legitimately would cause a prosecutor concern and that the prosecutor had not engaged in purposeful discrimination. The trial court rejected the Batson challenge and allowed the peremptory challenge. We conclude that the trial court did not abuse its discretion in finding the prosecutor’s denial of discriminatory intent credible and in sustaining the challenge.

II.

Johnson next argues that there is insufficient evidence that he acted with premeditation and intent and, specifically, that the accomplice testimony of Robert Neely is not sufficiently corroborated to sustain the convictions. We view the evidence in a light most favorable to the verdict mindful that to successfully challenge a conviction based upon circumstantial evidence, the defendant must point to evidence within the record that is consistent with a rational theory other than guilt. See State v. Ostrem, 535 N.W.2d 916, 923 (Minn.1995); State v. Andrews, 388 N.W.2d 723, 729 (Minn.1986).

Johnson’s claimed rational theory is that the shooter, whoever he was, panicked when Mr. Fernlund resisted and shot him as a rash impulse rather than a premeditated act. No evidence in the record, however, supports that Mr. Fernlund resisted the assault. He simply turned around and began to flee. The fact that Fernlund was shot squarely in the upper back suggests that the shooter was aiming at him. Johnson laughed as he fled and he later appeared happy as he told Pritchard that “we” shot someone. Indeed, Johnson cites to no evidence in the record consistent with the “rash impulse” theory.

Circumstantial evidence must lead a rational trier of fact to conclude that the defendant is guilty, (see State v. Anderson, 379 N.W.2d 70, 75 (Minn.1985)), and, as applied in this case, to conclude that Johnson acted with premeditation. Premeditation and intent are states of mind. A state of mind generally is proved circumstantially, by inference from words and acts of the actor both before and after the incident. See Andrews, 388 N.W.2d at 728. A jury is permitted to infer that a person intends the natural and probable consequences of their actions. See State v. Cooper, 561 N.W.2d 175, 180 (Minn.1997).

So we review Johnson’s actions. Johnson and his two companions set out in a vehicle with a loaded gun with the admitted intent of “jacking” or robbing someone. After spotting the Fernlunds driving up in front of their home, Johnson said, “Let’s get them.” Howard stopped the vehicle in a nearby alley, presumably to avoid detection. Neely retrieved the loaded gun from the back seat and gave it to Johnson, presumably so they could use it in the robbery. Taking the evidence in the light most favorable to the verdict, Johnson shot Fernlund in the back and then attempted to shoot him again but the gun jammed. While fleeing, Johnson laughed, which is inconsistent with having acted on a “rash impulse” that arguably should lead to quick regret. Viewing the evidence in a light most favorable to the verdict, we conclude that there was sufficient evidence that Johnson acted with premeditation and with intent to kill Mr. Fernlund to sustain the conviction for first-degree premeditated murder.

Because the evidence described rests in large part on the testimony of an accomplice, however, we must find corroboration by other evidence that tends to convict the defendant of the crime. See Minn.Stat. § 634.04 (1998). Evidence that merely shows the commission of the crime or the circumstances thereof is not sufficient to corroborate accomplice testimony. See id. Corroborating evidence, which may be direct or circumstantial, is viewed in a light most favorable to the verdict and, while it need not establish a prima facie case of the defendant’s guilt, it must point to defendant’s guilt in some substantial way. See State v. Adams, 295 N.W.2d 527, 533 (Minn.1980).

Johnson admitted that he was there when Mr. Fernlund was shot. Neely testified that the three men approached Mr. Fernlund, one asking for the time, just as Mrs. Fernlund testified. Neely testified that Mr. Fernlund was shot in the back; the physical evidence demonstrates that he was. Neely testified that Mr. Fernlund was trying to run when shot; the position of Mr. Fernlund’s body and the position of the slippers he was wearing suggest that he attempted to flee before he was shot. Neely testified that Johnson attempted to fire another shot but the gun jammed; no casings were found at the crime scene consistent with the gun having jammed. This physical evidence therefore corroborates Neely’s testimony.

In addition, Neely testified that Johnson laughed after shooting Mr. Fernlund; a neighbor heard laughter after the shot was fired. Neely testified that they fled down an alley in a white Mercury Mountaineer; a neighbor identified a white similarly designed vehicle speeding down the alley after the shot was fired, and a tire track in the alley matched a tire on Howard’s Mountaineer. Neely testified that Johnson hid the gun in Pritchard’s garage; Pritchard testified that Johnson told him that he hid a gun in Pritchard’s garage. Neely testified that Johnson laughed after the shooting and appeared happy; Pritch-ard testified Johnson appeared happy when he arrived at Pritchard’s house on the night of the shooting. Neely described where and when he and Johnson stole cars to get to and from St. Cloud after the shooting; the owners of the stolen vehicles confirmed that the cars were stolen at approximately the time Neely indicated and from the locations that Neely identified. Finally, Neely testified that Johnson was the shooter; Pritchard testified Johnson told him “we” shot someone; and a few days later Johnson suffered a likely self-inflicted gunshot from a gun and with a bullet similar to that used on Mr. Fem-lund. From our review of the evidence, we conclude that Neely’s testimony was sufficiently corroborated by the physical and other testimonial evidence, and points to Johnson’s guilt in a substantial way. See Adams, 295 N.W.2d at 533.

Finding Neely’s accomplice testimony sufficiently corroborated, and viewing the evidence in a light most favorable to the verdict, we conclude that there was sufficient evidence that Johnson acted with premeditation and intent.

III.

Johnson also argues that he should be granted a new trial because of prosecutorial misconduct during final argument. We will reverse the district court’s finding on this issue only when the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired. See State v. Robinson, 604 N.W.2d 355, 361 (Minn.2000); State v. Voorhees, 596 N.W.2d 241, 253 (Minn.1999). With respect to claims of prosecutorial misconduct arising out of closing argument, we consider the closing argument as a whole rather than focus on particular “phrases or remarks that may be taken out of context or given undue prominence.” State v. Walsh, 495 N.W.2d 602, 607 (Minn.1993) (citing State v. Booker, 348 N.W.2d 753, 755 (Minn.1984)).

Johnson first contends that in closing argument the prosecutor argued facts not in evidence in an attempt to corroborate Neely’s claim that he was not the shooter when the prosecutor recounted information provided to police by an anonymous informant:

And then they got a break, and the break was that somebody who knew Robert Neely and who had talked to Robert Neely called Crime Stoppers and said I know someone who was present during the shooting, not the shooter, but I know somebody that was present and this is what I know about that.

(emphasis added). In fact there was no evidence that the anonymous caller to Crime Stoppers said that Neely was not the shooter. The caller simply informed Crime Stoppers that he had information that Neely was involved in the crime and with whom he was involved.

Johnson did not object to the prosecutor’s alleged mischaraeterization of evidence. Generally speaking a defendant is deemed to have waived a later challenge to the prosecutor’s final argument by not objecting. See State v. Ives, 568 N.W.2d 710, 713 (Minn.1997). We can, however, reverse a conviction even when the defendant failed to object if the prosecutor’s comment is unduly prejudicial. See State v. Parker, 353 N.W.2d 122, 127-28 (Minn.1984).

Throughout this trial the jury’s attention was directed to the identity of the shooter. Neely consistently testified that he was not the shooter, and there was evidence that he told others that he was not the shooter. A prosecutor is permitted to argue reasonable inferences from the facts presented, see State v. Porter, 526 N.W.2d 359, 363 (Minn.1995), and a reasonable inference from the evidence is that Neely was the person that the caller identified and claimed was not the shooter.

Furthermore, the jury was properly instructed that:

[T]he arguments or other remarks of the attorney are not evidence in this case. If the attorneys have made or if I [the judge] have made or should make any statement as to what the evidence is which differs from your recollection of the evidence then you should disregard the statement and rely solely upon your own memory.

Given this instruction, and the fact that the jury repeatedly heard Neely claim that he was not the shooter, any error in the prosecutor’s statement was not unduly prejudicial.

Johnson next argues that in closing argument the prosecutor improperly used hearsay statements that came in through the testimony of Sergeant Green suggesting that Neely told a cousin, Co-shay Murray, that the gun jammed. Johnson claims that this statement is significant because the state relied on the gun jamming to establish that the shooter intended to shoot the victim a second time and therefore, premeditated the act. The prosecutor stated:

Members of the jury, I was saying that Coshay Murray is also a cousin of Mr. Neely, and you recall the exchange that occurred between the defense attorney and Mr. - and Sergeant Green about whether or not Robert had said that the gun had previously jammed.
Sergeant Green had testified in front of the grand jury that Robert had said to him - Robert or Ernest had said to him that the gun had jammed during the shooting, and you’ll recall that [defense counsel] spent a fair amount of time suggesting to Sergeant Green that he was wrong about that point. When I talked to Sergeant Green, I asked him if in fact a statement had been taken from Coshay Murray, a cousin of Robert Neely, and Sergeant Green told you that yes, of course his statement has been taken, and in fact the defendant - or Mr. Neely previously said that when the defendant was firing the gun that the gun had jammed during the course of the murder.

The prosecutor then moved on to another point. On redirect examination, Sergeant Green had admitted that Coshay Murray’s statement appeared only in a report prepared by another police officer, and was not given to Sergeant Green personally as he had testified before the grand jury. Therefore, the content of Co-shay Murray’s statement regarding what Neely said was not offered for its truth, but to rehabilitate Sergeant Green.

However, for the purpose of showing that Neely actually made this statement, or that he was truthful, these statements are hearsay and do not satisfy any of the exceptions under Minn. R. Evid. 803. In evaluating claims of prosecutorial misconduct we have looked to the American Bar Association Standards for Criminal Justice as a model. See State v. Salitros, 499 N.W.2d 815, 817-18 (Minn.1993). The ABA Standards provide that it is unprofessional conduct for a prosecutor to “knowingly and for the purpose of bringing inadmissible matter to the attention of the judge or jury to * * * make other impermissible comments or arguments * * * ” American Bar Association Standards for Criminal Justice, Standard 3-5.6(b)(2nd ed.1980). The state argues that the evidence had been admitted and that the comments were simply an appropriate attempt to highlight testimony relevant to Green’s credibility. However, the statements were not admissible to show that Neely was credible, which, given the particular phrasing used, is how the jury likely interpreted the prosecutor’s comment.

When evidence admissible for one purpose but not for another is admitted, the court upon request must instruct the jury that the evidence is limited to its proper purpose. See Minn. R. Evid. 105. Accordingly, Johnson could have sought an instruction that may have avoided the prejudice he now alleges. Although there was discussion among the judge and counsel at the bench regarding the prosecutor’s statement during closing argument, Johnson does not claim that he requested a limiting instruction from the court. In this context we have difficulty finding that the comment was so serious and prejudicial that Johnson’s right to a fair trial was denied. Cf. Parker, 353 N.W.2d at 128 (noting failure to object to prosecutor’s statements implies that comments were not prejudicial).

Moreover, the prosecutor’s comment must be taken in the context of the closing argument as a whole. See Walsh, 495 N.W.2d at 607. The prosecution closing argument spans 75 pages of trial transcript. While evidence of the gun jamming was important to the state’s case, the prosecutor argued to the jury that the strongest evidence of premeditation was the fact that the victim was shot in the back. The prosecutor did not emphasize Green’s hearsay testimony and that testimony in no way provided a theme. See State v. Lewis, 547 N.W.2d 360, 364 (Minn.1996) (holding that no prosecutorial misconduct where alleged error constituted a small portion of oral argument and did not characterize the entire argument). In addition, the jury heard other evidence that arguably corroborated Neely’s testimony that the gun jammed - from a ballistics' expert who testified that the type of gun used was prone to jamming, and from the absence of any casing found at the scene, which also suggests the gun may have jammed. As we view not only the closing argument but the record as a whole, the prosecutor’s statement was not prejudicial.

Johnson also claims that in closing argument the prosecutor mischaracterized certain testimony. We have reviewed the transcript of the testimony at issue and are confident that the prosecutor either did not miseharacterize the testimony or argued only reasonable inferences from the testimony. See Porter, 526 N.W.2d at 363. Therefore, there was no misconduct in this respect.

Finally, Johnson argues that the prosecutor’s statements regarding his having been shot and his defense requiring the jury to believe in “coincidences” improperly denigrated his defense. It is misconduct for the prosecutor to call a type of defense “soddy,” see State v. Kirvelay, 311 Minn. 201, 248 N.W.2d 310, 311 (1976), or to suggest that the jurors would be “suckers” if they believed the defense, see Porter, 526 N.W.2d at 364. In this case the prosecutor was highlighting evidence that the state believed made the defense implausible. As such, it was properly focused on “references to the evidence rather than to matters ⅜ ⅜ * which serve to divert the minds of the jurors from facts to which their consideration should be given* * State v. Perry, 274 Minn. 1, 14, 142 N.W.2d 573, 581 (1966). As with Johnson’s other allegations, this claim of prosecutorial misconduct does not warrant a new trial.

IV.

Johnson argues that one of his convictions and sentences must be vacated. MhmStat. § 609.04 (1998) prevents multiple convictions based on the same conduct committed against the same victim. See, e.g., State v. Koonsman, 281 N.W.2d 487, 489-90 (Minn.1979) (holding that it would violate § 609.04 to enter four convictions for one act of criminal sexual conduct); State v. Bowser, 307 N.W.2d 778, 779 (Minn.1981) (holding that section 609.04 prohibits multiple convictions under differ ent sections of the same statute for a single criminal act against the same' victim). But see State v. Hesse, 281 N.W.2d 491, 493 (Minn.1979) (upholding convictions for first-degree criminal sexual conduct and incest for the same behavioral incident).

In the end only one murder has occurred in this case even though it may satisfy more than one definition of first-degree murder. Because Johnson was convicted of two offenses under different sections of Mirin.Stat. § 609.185 for a single criminal act, one of the convictions must be vacated. Further, because one of Johnson’s convictions must be vacated, only one sentence can be imposed. We vacate the judgment of conviction and sentence for first-degree murder committed during the course of an attempted aggravated robbery. We affirm the conviction and sentence for first-degree premeditated murder.

We affirm, but vacate the judgment of conviction and sentence for first-degree murder committed during the course of an attempted aggravated robbery.

Affirmed in part, vacated in part.

PÁGE, Justice

(concurring specially).

While I concur in the result reached by the court, I write separately about the court’s use of accomplice testimony to support Johnson’s conviction when that testimony is corroborated by nothing more than general facts showing the commission and circumstances of the crime. I believe that the court’s use of the accomplice’s general fact testimony for corroborative purposes is improper and unnecessary. “Corroborating evidence is sufficient if it ‘restores confidence in the accomplice’s testimony, confirming its truth and pointing to the defendant’s guilt in some substantial degree.’ ” State v. Ford, 539 N.W.2d 214, 225 (Minn.1995) (quoting State v. Scruggs, 421 N.W.2d 707, 713 (Minn.1988)). Johnson argues that it is improper to use these general facts to corroborate the accomplice’s testimony because these facts do not tend to convict him of first-degree premeditated murder. Johnson is correct.

Here, for purposes of corroboration of the accomplice testimony, the court relies on evidence that confirms the truth of the accomplice’s testimony but which does not point to Johnson being guilty of first-degree premeditated murder. The accomplice’s testimony that three men approached Mr. Fernland, with one asking for the time, that Mr. Fernland was shot in the back, that Mr. Fernland was trying to run when shot, that the gun jammed, that there was laughter after Mr. Fernland was shot, that the perpetrators fled down an alley in a white Mercury Mountaineer, that a tire track in the alley matched a tire on Howard’s Mountaineer, and that the accomplice and Johnson stole cars to get to and from St. Cloud after the shooting, is corroborated by evidence confirming the truth of those facts. The corroboration of this testimony is not sufficient to corroborate the accomplice’s testimony that Johnson was the shooter.

The underlying rationale for requiring corroboration of accomplice testimony is that such testimony exposes the accused “to the danger of imprisonment based on the testimony of a witness naturally inclined to shift or diffuse criminal responsibility.” State v. Mathiasen, 267 Minn. 393, 399, 127 N.W.2d 534, 539 (1964). Given the potential for blame shifting, the accomplice’s testimony regarding general facts showing the commission and circumstances of Mr. Fernland’s murder that are not corroborated by evidence pointing to Johnson as the shooter cannot be used to support Johnson’s first-degree premeditated murder conviction.

Although the accomplice testimony discussed above should not be used to support Johnson’s first-degree premeditated murder conviction, his conviction must nonetheless be affirmed because there was sufficient evidence pointing to his guilt. Part of the accomplice’s testimony includes corroborative evidence: that Johnson hid the gun in Pritchard’s garage, which was corroborated by Pritchard’s testimony that Johnson told him that he hid a gun in Pritchard’s garage; that Johnson laughed after the shooting and appeared happy, which was corroborated by Pritchard’s testimony that Johnson appeared happy when he arrived at Pritchard’s house on the night of the shooting; and that Johnson was the shooter, which was sufficiently corroborated by Pritchard’s testimony that Johnson told him “we” shot someone, to convict Johnson of first-degree felony murder. In addition, the evidence regarding Johnson’s gunshot wound from a gun and bullet similar to that used to shoot Mr. Fernland points to Johnson’s guilt. This evidence, coupled with the other evidence admitted at trial, when viewed in the light most favorable to the verdict, was sufficient to support the conviction.

PAUL H. ANDERSON, Justice (concurring specially).

I join in the special concurrence of Justice PAGE.

      . Pritchard's yard was searched twice with a metal detector but the casing was not found.

        . The prosecutor erred in describing the juror’s relative as a brother rather than a cousin. However, defense counsel made the same mistake and did not correct the prosecutor or the judge.

      . To premeditate is “to consider, plan or prepare for, or determine to commit, the act referred to prior to its commission.” Minn. Stat. § 609.18 (1998). Intent means that the actor "either has a purpose to do the thing or cause the result specified or believes that the act, if successful, will cause that result.” Minn.Stat. 609.02, subd. 9(4) (1998).

      . Minnesota Statutes § 634.04 provides that "[a] conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to con-vicl the defendant of the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”

      . At trial, Johnson objected to Sergeant Green’s testimony regarding the anonymous informant’s statement. The trial court overruled Johnson’s objection and while Green did not testify that the informant told him Neely said he wasn’t the shooter, he did testify to the statements the anonymous caller made. Johnson did not renew his objection to this testimony on appeal. Therefore, any error is waived. However, trial courts should be mindful of our repeated admonishments regarding the impropriety of admitting hearsay statements through the testimony of officers as evidence of why an investigation focused on the defendant. We have held that such statements should not be admitted because of their inherently prejudicial nature. See State v. Williams, 525 N.W.2d 538, 544 (Minn.1994); State v. Cermak, 365 N.W.2d 243, 247 (Minn.1985).

      . I question whether we should even reach this issue. Under Minn.Stat. § 609.04 (1998), only one of Johnson's two convictions may be upheld — the other must be vacated. The penalty for each is the same and there appears to be no required reason to vacate the first-degree felony murder conviction instead of the first-degree premeditated murder conviction. Because there is sufficient evidence to sustain Johnson’s first-degree felony murder conviction, if we were to vacate the first-degree premeditated murder conviction, there would be no need to rule on the corroboration issue.