author: SHUMAKER, Judge.

text:
    STATE of Minnesota, Respondent, v. Earl WEMBLEY, Appellant.
    No. A05-245.
    Court of Appeals of Minnesota.
    April 25, 2006.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, Minneapolis, MN, for respondent.
    John M. Stuart, State Public Defender, Marie L. Wolf, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by SHUMAKER, Presiding Judge; LANSING, Judge; and HALBROOKS, Judge.
   OPINION

SHUMAKER, Judge.

Appellant challenges his conviction for criminal sexual conduct, arguing that (1) his constitutional right to confrontation was violated; (2) the district court made several errors in its evidentiary rulings; and (3) his counsel was ineffective. Appellant also raises in his pro se brief a separate issue of ineffective assistance of counsel and argues that the evidence was tainted. Because we find no reversible error, we affirm.

FACTS

Appellant Earl Wembley was convicted of criminal sexual conduct against his 12-year-old daughter.

M.C. had two daughters by Wembley, L.C. and K.C. Wembley, M.C., and the girls lived together for a time, but then M.C. and the girls moved to another residence. Thereafter, both girls occasionally visited Wembley.

In May 2004, when K.C. was 12 years old, she stayed at Wembley’s apartment for a weekend. L.C. did not accompany her on this visit. After that visit, K.C. told L.C. and M.C. that Wembley rubbed her body with lotion, made her watch a pornographic videotape, and sexually touched and penetrated her.

M.C. called the police, and Detective Kent Nielsen investigated. He took K.C. to CornerHouse, a child-advocacy agency, for a forensic interview; arranged for a medical examination; arrested and interviewed Wembley; and searched Wem-bley’s apartment, where he located the pornographic videotape that K.C. alleged that she watched.

The state charged Wembley with criminal sexual conduct, and he opted for a jury trial. K.C. testified, as did Detective Nielsen and Jodi Lashley, an expert forensic interviewer employed by CornerHouse. KC.’s interview was videotaped, and the tape was received in evidence as a trial exhibit. During its deliberations, the jury was allowed to view a replaying of the videotaped interview.

The jury found Wembley guilty, and he brings this appeal, alleging constitutional and evidentiary errors and ineffective assistance of counsel.

ISSUES

1. Is a defendant in a criminal case entitled to be present while the jury, during its deliberations, reviews a videotaped statement that was admitted into evidence as an exhibit?

2. Even though an expert witness im-permissibly testifies to the credibility of an alleged crime victim, is the testimony unfairly prejudicial when all of the expert’s “assessment criteria” are factors that the jury could observe and discern without expert assistance?

3. When a party offers his own out-of-court statement in his favor and fails to identify a relevant nonhearsay purpose for the statement, may the district court assume that the statement is offered for its truth unless a nonhearsay purpose is otherwise apparent from the nature or content of the statement or its context?

4. Did the district court err in excluding as irrelevant evidence that someone other than the appellant allegedly sexually abused the victim’s sister?

5. Was appellant’s defense counsel ineffective when she failed to object to expert testimony and other evidence, failed to present certain witnesses to testify, and allegedly failed to investigate the allegations against appellant?

ANALYSIS

1. Wembley’s Absence During Videotape Replay

Shortly after the jury retired to deliberate, it sent a note to the court requesting the videotape of K.C.’s Corner-House interview. At the court’s direction, the jury returned to the courtroom, and, in the presence of the prosecutor, defense counsel, and Wembley, the court told the jury that the videotape would be played in its entirety in the courtroom and that only the bailiff and the' court’s clerk would be present. Wembley did not object to this procedure. The court, counsel, and Wem-bley left the courtroom, and the jury viewed the entire videotape a single time.

Wembley claims for the first time on appeal that the district court committed reversible error by allowing a replaying of the videotape in his absence and without his waiver of his right to be present at a critical stage of the trial.

Because Wembley did not object to the court’s procedure for reviewing the videotape, he is presumed to have waived any alleged error in that procedure. See State v. Gustafson, 610 N.W.2d 314, 318 (Minn.2000). Nevertheless, we may consider whether the procedure constituted plain error that affected Wembley’s substantial rights. State v. Litzau, 650 N.W.2d 177, 182 (Minn.2002). The threshold inquiry in a plain-error analysis is whether the district court in fact erred in a ruling at trial. See id. Caselaw has applied Minn. R.Crim. P. 26.03, subd. 19(1) and (2) — regarding materials that may be taken to the jury room and requests by the jury to review evidence—to the issue of replaying videotaped statements after the jury retires to deliberate. State v. Kraushaar, 470 N.W.2d 509, 514 (Minn. 1991). And caselaw recognizes that the district court has broad discretion in applying that rule. Id. Here, if the district court abused its discretion by improperly applying rule 26.03, subd. 19, in light of pertinent caselaw, through the procedure the court used for replaying the videotape, then there was error.

Wembley presupposes that the jury’s reviewing of the videotape after deliberations had begun was a critical stage of the trial. He cites various cases holding that, after a jury retires to deliberate, communications between judge and jury, requests by the jury to have certain testimony read, questions by the jury, and instructions by the court to the jury are all critical stages of the trial at which a criminal defendant is entitled to be present and as to which he is entitled to be heard. We agree, but there are three crucial distinctions between Wembley’s authorities and the proceedings at issue.

First, the videotape of K.C.’s statement was not testimony. It was not under oath. See Minn.Stat. § 595.01 (2004) (to be a “witness,” a person must give declarations under oath); Minn. R. Evid. 603 (before testifying, a witness must, by oath or affirmation, declare to testify truthfully). Nor was the statement adversarial in the sense that it was subject to cross-examination at the time of its making. And the statement was not subject to any of the rules of the adversarial system. See, e.g., Minn. R. Evid 611(c) (regulating the use of leading questions). A principal authority that Wembley cites and quotes is a case from New Jersey that discusses the concerns about the use of “videotaped testimony.” State v. Michaels, 264 N.J.Super. 579, 625 A.2d 489, 528 (1993), aff'd, 136 N.J. 299, 642 A.2d 1372 (1994). Not having the essential underlying oath or affirmation, and bereft of other procedural restrictions and safeguards of the adversary system, K.C.’s statement could not be classified as competent testimony except solely in rhetoric. Her statement, in interview form, is more accurately characterized as investigative, and thus the rules and cases dealing with the rereading of trial testimony do not apply.

Second, KC.’s CornerHouse statement, as recorded, was offered and received, without objection, as an exhibit at trial. Rule 26.03, subd. 19(1), provides that the “court shall permit the jury, upon retiring for deliberation, to take to the jury room exhibits which have been received, in evidence ... except depositions.... ” (Emphasis added.) The mandate “shall” in the rule implicitly confers on the jury a right to have the use of exhibits that have been received in evidence. This is precisely what the supreme court indicated when it considered the question of whether a deliberating jury in a kidnapping trial was entitled to view videotapes that had been received in evidence of the defendant assaulting and engaging in discussions with his victims: “In analyzing this problem, it is necessary to keep in mind that the jury had a right to view the video tapes since they had been received into evidence.” State v. Ming Sen Shiue, 326 N.W.2d 648, 653 (Minn.1982) (emphasis added). On the face of rule 26.03, subd. 19(1), Wembley’s jury had a right to view the exhibit consisting of K.C.’s recorded CornerHouse statement.

But the supreme court has been reluctant to read the rule as an absolute right, stating that, when applying the rule to videotapes, “trial courts should exercise caution and discretion.” Kraushaar, 470 N.W.2d at 515. The supreme court further indicated that the rule does not mean that the district court has “unreviewable discretion” in allowing the jury to use such exhibits. Id.

Wembley’s concern is primarily that he was not allowed to be present while the jury viewed the videotape. That brings us to a third distinction, namely, between the proceedings the court employed preliminarily to the replaying of the tape and the actual playing of the tape for the jury. Wembley surely was entitled to know that the jury had requested a replaying of the tape; he was entitled to be heard as to whether the court would grant the request and, if it did, what procedure would be followed; and he was entitled to be present when the jury returned to the courtroom to hear the judge respond to the request and instruct the jury as to what procedure would be used. He was present for the entire preliminary proceedings, and nothing in the record suggests that he was denied an opportunity to object to the replaying of the tape or to be heard as to the procedure the court proposed to use in the replaying. But bearing in mind that the videotape was an exhibit in the trial which the jury had a right to review to some extent, he was not entitled to be present while the jury performed its function of reviewing that item of evidence any more than he would be entitled to be present when the jury reviewed any other item of evidence. We know of no authority, and Wembley has cited none, that allows any party, or even the court, to supervise or monitor a jury’s review of admitted evidence during its deliberations.

The sense of rule 26.03, subd. 19, in light of pertinent caselaw, is that the district court may reasonably regulate the manner and extent of the jury’s use of a videotape exhibit, but it would be in clear contravention of the rule if no use of the exhibit were permitted at all. Thus, Wembley was not denied his right to be present at and to be heard about a critical stage of the trial.

Wembley also raises a concern about the presence of the bailiff and the judge’s law clerk during the replaying of the video. Consistent with our conclusion that neither the parties nor the district court is entitled to be present when the jury engages in its function of reviewing evidence, court personnel should not be present either. Rule 26.03, subd. 19, does not adequately address the logistics of replaying a nontestimonial recorded statement. But it is inadvisable to have anyone other than jurors present while the jury performs its official function. The potential for extraneous influence from nonju-rors exists when nonjurors mix with jurors during evidence review. Wembley has neither argued nor shown that the nonju-rors present for the replaying of this tape influenced the jury in any way. And the court was cautious to limit the jury to a single viewing of the tape in its entirety and to instruct the jury to make no comment or engage in any discussion until it returned to the jury room. Absent a comprehensive procedural rule providing for the jury’s right to view the exhibit balanced against safeguards addressing concerns of misuse, undue prejudice, and avoidance of the potential for, or even the appearance of, extraneous influence, the court here selected a reasonable procedure, did not abuse its discretion, and did not commit error in excluding Wembley from the courtroom when the jury viewed the exhibit.

Because videotaped statements of children who allegedly have suffered sexual abuse have become commonplace in trials, and because rule 26.03, subd. 19, does not fully address the situation that arose here, some guidance for future trials might be helpful. At the threshold is the rule that the child-declarant’s out-of-court statement is hearsay if it is offered to prove that what the child said was true. Minn. R. Evid. 801(c). But the statement is not hearsay if the child testifies at trial and is subject to cross-examination and if the statement is both consistent with the child’s trial testimony and would be helpful in evaluating credibility. Minn. R. Evid. 801(d)(1)(B) This is the rule under which statements of the type produced at Cor-nerHouse are ordinarily offered and received. Such statements, or pertinent portions thereof, may also be disclosed for impeachment if they are inconsistent with the child’s testimony. Minn. R. Evid. 801(c).

So, there are proper bases for allowing the jury to hear such statements. The problematic issue arises when the recording is offered and received as an exhibit because that triggers the jury’s right to view the recording during its deliberations. Ming Sen Shine, 326 N.W.2d at 653. There are at least three approaches through which the statement may be allowed, if it qualifies under the Rules of Evidence, but the videotape of the statement may be disallowed. First, the videotape of the statement is cumulative evidence. . The jury will have heard the child’s testimony at trial. It will then have heard the identical, or substantially similar, statement through the playing of the videotape during the trial. If the videotape is an exhibit in the case, the jury then is entitled to hear the same information a third time. The court may disallow the videotape exhibit as “needless presentation of cumulative evidence.” Minn. R. Evid. 403.

The second approach for allowing the statement but excluding the recording as an exhibit is that the exhibit, when replayed during deliberations, tends to highlight and isolate one portion of the trial evidence, thus inviting, perhaps encouraging, undue emphasis on that portion. Under Minn. R. Evid. 403, the district court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. The probative value of information already presented twice to the jury during the trial would seem minimal and clearly substantially outweighed by the danger of unfair prejudice through overemphasis of the evidence contained in the videotape.

The third approach is an application of Minn. R. Evid. 611(a). That rule vests the court with “control over the mode ... of ... presenting evidence so as to ... make the ... presentation effective for the ascertainment of the truth.” (Emphasis added.) The court may rely on this rule in deciding that the statement is admissible and may be played through the videotape during the trial but the videotape itself will not be received as an exhibit.

We recognize that there might be instances in which an objection relates to the audio or the visual aspect of the recorded statement and that the recording should be received as an exhibit to facilitate meaningful appellate review. But if, as here, there is no objection to the statement in audio-visual form, or if an objection relates to a matter for which the videotape itself need not be preserved for appellate review, courts should be cautious about receiving such videotapes as exhibits, keeping in mind the implications of doing so.

2. Expert Testimony of CornerHouse Interviewer

CornerHouse is a child-advocacy center that, among other things, conducts forensic interviews of children who allegedly have been sexually abused. Jodi Lashley is the training coordinator and an interview specialist at CornerHouse. She has a bachelor’s degree in sociology, a master’s degree in social work, and training and experience in conducting forensic interviews of children in alleged sex-abuse cases. She interviewed K.C., videotaped the interview, and testified at trial about the process and content of the interview. Wembley contends that it was error for the court to allow Lashley to give expert testimony as to K.C.’s credibility.

Drawing on her expertise, Lashley performed two functions respecting K.C.: First, she interviewed K.C., using her expert background and skill to attempt to ensure that the process and content of the interview would be appropriate for and meaningful to K.C., considering KC.’s age and background. Second, she “assessed” the interview. Lashley testified that in making her “assessment” she evaluated four criteria: (1) content, that is, what the child is able to say about the sex-abuse allegation; (2) consistency, that is, whether the child is consistent in what she says and what she is able to illustrate through the use of anatomical dolls or diagrams; (3) context, that is, “peripheral details which are not just the core things that happen,” such as “[s]ensory details, things they’ve heard or smelled or felt or saw perhaps while abuse was occurring”; and (4) affect, that is, the emotions the child displays during the interview, including considerations of reluctance, spontaneity, and body language. The “assessment” also includes an exploration of “the alternative hypothesis,” that is, a consideration of whether someone else other than the alleged perpetrator committed the abuse.

The purpose of the assessment was to determine KC.’s credibility, as revealed by Lashley’s answer to the following question by the prosecutor on redirect examination:

Q. And so then when you assess [KC.’s] interview, that’s also what you did in that case; you simply looked at what [K.C.] told you on June 24th and made a credibility assessment of her statement?
A. That’s correct.

The fundamental rule is that “assessment of witness credibility is a jury function.” State v. Reese, 692 N.W.2d 736, 741 (Minn.2005). “An expert witness may not testify as to the credibility of a specific witness, though the expert may be able to testify generally as to certain psychological or physiological conditions that may affect credibility, if such testimony is beyond the knowledge and experience of an average jury.” Id. See also State v. Ritt, 599 N.W.2d 802, 812 (Minn.1999) (an expert may not testify as to the coercive effects of an interrogation on a particular defendant because that is a jury question); State v. Koskela, 536 N.W.2d 625, 629-30 (Minn. 1995) (an expert may describe the nature of schizoid-personality disorder in general, but whether the defendant fit the profile was a jury question); State v. Saldana, 324 N.W.2d 227, 231-32 (Minn.1982) (an expert opinion about a witness’s capacity to perceive events invades the province of the jury to make credibility determinations).

The Minnesota Supreme Court has recognized that, in most criminal cases, the credibility of witnesses “is peculiarly within the competence of the jury, whose common experience affords sufficient basis for assessment of credibility.” State v. Myers, 359 N.W.2d 604, 609-10 (Minn.1984). And although an expert’s opinion might be helpful, it might also be unduly influential:

In most cases, even though an expert’s testimony may arguably provide the jury with potentially useful information, the possibility that the jury may be unduly influenced by an expert’s opinion mitigates against admission. Nor should the credibility of witnesses in criminal trials turn on the outcome of a battle among experts.

Id. at 610. The court in Myers further emphasized the problem with expert opinion as to credibility, stating that, “[a]s a general rule, however, we would reject expert opinion testimony regarding the truth or falsity of a witness’ allegations about a crime, for the expert’s status may lend an unwarranted stamp of scientific legitimacy to the allegations.” Id. (quotation omitted). It is the unusual case in which expert opinion as to credibility is admissible. Saldana, 324 N.W.2d at 231.

With the fundamental rule and the foregoing explanations in mind, we turn to the question of whether Lashley’s expert testimony violated the proscription against expert opinion on credibility to a sufficiently serious degree as to cause unfair prejudice to Wembley. We begin by noting that, given the clear Minnesota rule about expert opinion on credibility, it is a perilous course for an attorney in a criminal case to present an expert for the express purpose of testifying about the expert’s assessment of a witness’s credibility, and we strongly caution against such usage of expert testimony in future cases.

Although there surely is no rule against a forensic interviewer in a child-sex-abuse case forming an opinion about the credibility of the interviewed child, the general, and nearly unexcepted rule, is that the expert may not testify directly or indirectly to that opinion. Lashley did not expressly state her opinion that she found K.C. to be credible. She did not testify that K.C. was telling the truth when she alleged that Wembley sexually molested her, and Lashley did not say that there was no fabrication in K.C.’s statement. But she did explain the criteria she used for assessing KC.’s credibility, and she testified (1) that K.C. was able to relate the major facts of the molestation incident, thus satisfying the “content” criterion; (2) that K.C. was able to correspond her verbal recounting of the incident with pointing to parts of her own body, portions of the diagrams used, and parts of the anatomical dolls, thus fulfilling the “consistency” criterion; (3) that K.C. was able to relate various sensory details indicative of having actually experienced the sensations she described, thus meeting the “context” criterion; and (4) that, although K.C. exhibited reticence about certain aspects of the incident, she spoke with sufficient spontaneity at other times to support the “affect” criterion. In essence, Lashley, as the forensic interviewer, testified that KC.’s interview was consistent with all factors making up the credibility assessment. This testimony violated the prohibition against expert opinion as to a witness’s credibility.

But the violation did not unfairly prejudice Wembley. The jury watched the videotape of K.C.’s interview. Lashley did not interpret the videotape for the jury, although she did testify about K.C.’s use of diagrams that was not visible on the tape. That testimony was descriptive of what K.C. pointed to and did not involve Lash-ley’s opinion or evaluation.

Despite Lashley’s expert testimony about the assessment criteria and KC.’s satisfaction of the criteria, the jury could judge for itself all of the factors on which Lashley relied in making her assessment. From viewing the videotaped interview, the jury could determine the extent and depth of the content K.C. described. The jury could verify whether K.C. was consistent in her statement and in her connection of her verbal description to the diagrams, the dolls, and her own body. The jury could also decide whether the contextual details K.C. discussed rang sufficiently true to support an inference that K.C. actually experienced the events she described. Moreover, the jury could see and hear K.C. and could assess her affect and her body language. Finally, the jury was able to compare all of what they saw and heard in the videotaped interview with what they saw and heard as K.C. gave her testimony in court during the trial. .

Distilled to its essence, Lashley’s expert testimony provided the jury with very little that the jury could not ascertain independently from considering the nonexpert evidence introduced at trial. Lashley’s contribution, other than having employed her expertise to conduct the forensic interview, was to suggest some commonplace factors that any layperson might think of without expert assistance to help in determining whether to believe a witness’s statement about an occurrence. Lashley’s suggestion standing alone does not appear to violate the general rule about expert opinion as to credibility because it contains no opinion about credibility but rather provides an orderly way the jury could use its common experience in deciding a relevant issue. We conclude that there was no plain error in allowing the expert testimony of Jodi Lashley.

3. Cross-Examination of Detective Nielsen

Apparently during either a bench or chambers conference that is not on the record, defense counsel stated that she would cross-examine Detective Nielsen about statements Wembley made during his interrogation. The prosecutor said she would object. Later, on the record, defense counsel said she “wanted to ask Detective Nielsen whether or not Mr. Wem-bley told him where to find the tape” that K.C. had testified she viewed in Wembley’s bedroom. The prosecutor’s objection was that that statement would be self-serving and hearsay. The court agreed, stating, “Okay. And I have ruled that that is not admissible because it’s self-serving hearsay.”

Wembley challenges the court’s ruling, arguing that (1) “self-serving” is not a proper basis for an objection or a judicial ruling excluding evidence and (2) his statement is not hearsay. In support of his argument, Wembley cites State v. Bergeron, 452 N.W.2d 918, 926 (Minn.1990), in which the supreme court noted that an objection that evidence is “self-serving” is not valid under the codified evidence rules and that “[t]he objection that testimony is ‘self-serving’ appears to be a variation on the objection that a defendant is incompetent to testify because of an ‘interest’ or ‘bias’ in the case. Simply put, this is not really a valid objection under the Minnesota or Federal Rules of Evidence.” Id. (citation omitted).

The issue in Bergeron was entirely different from that raised here. The defendant was on trial for felony-murder, it being alleged that he stabbed a homeowner to death during an attempted burglary of the decedent’s home. Id. at 919. The defendant testified in his own defense, and his attorney asked him if he intended to burglarize or to steal anything when he went to the decedent’s home. Id. at 926. The state objected solely on the ground that the testimony would be “self-serving,” and the court sustained the objection. Id.

On appeal, the supreme court noted that the common-law rule disqualifying criminal defendants from being competent witnesses because of their “self-interest” had been abolished by modern evidence law. Id. The objection as “self-serving” that the Bergeron court considered went to the issue of the competency of a criminal defendant to promote his own self-interest by testifying in his own defense. Because modern evidence law permits such “self-serving” testimony, the court ruled that the objection as it relates to competency is no longer valid. Id. The objection in Ber-geron did not raise a hearsay issue, and, thus, that case does not support Wem-bley’s first argument.

The court’s ruling here was not merely that the evidence would be self-serving but rather would be “self-serving hearsay.” And Wembley contends that the statement would not have been hearsay. He claims on appeal that he “wanted merely to correct the inference left by Nielsen’s testimony: that the only way the police knew about the videotape was by seizing it pursuant to a search warrant.” He contends that his statement thus would have been offered for a purpose other than the truth of its content and, as such, it was not hearsay.

We note preliminarily that he is mistaken in his suggestion that, without his statement, the jury would be left to infer that “the only way the police knew about the videotape” was through the search of Wembley’s apartment. Detective Nielsen listened to K.C.’s CornerHouse interview, and he heard her tell the interviewer that Wembley made her watch a pornographic videotape while they were in the bedroom. The jurors heard K.C.’s testimony about the pornographic videotape at trial, and they heard her statement about it in the recorded CornerHouse interview. The jury also heard Detective Nielsen’s testimony that he observed the CornerHouse interview and that “[d]uring the statement given by [K.C.], she talked about a pornographic video being played during the incident. After seeing that and arresting Mr. Wembley, I wanted to try and obtain that video.” It is clear from the testimony of K.C. and Detective Nielsen that the police were aware of the pornographic videotape before they interrogated Wembley. The jury could not reasonably have inferred that the only way the police knew of the videotape was through the search of the apartment.

But Wembley is correct that a statement is hearsay only if it is offered “to prove the truth of the matter asserted.” Minn. R. Evid. 801(c). Conversely, if a statement is offered for some other relevant purpose, it cannot be classified as hearsay.

At trial, defense counsel did not inform the court of any relevant nonhearsay purpose for the introduction of Wembley’s statement. She told the court only that she wanted to show that Wembley told Detective Nielsen where the videotape could be found. The nonhearsay purpose Wembley now urges on appeal is not readily apparent from defense counsel’s explanation at trial of why she wanted to elicit the statement. And considering the tenuousness of the nonhearsay purpose raised on appeal, as noted in our discussion of the “inference” the statement allegedly would correct, it was reasonable for the court to conclude that the statement was going to be offered for its truth, namely, the location of the videotape. Thus, unless counsel identifies a relevant nonhearsay purpose for an out-of-court statement, or unless such a purpose is readily apparent from its nature, content, or context, it is proper for the court to treat the statement as being offered for its truth.

This was a statement by a party to the case. A statement by a party is not hearsay if it is offered against that party. Minn. R. Evid. 801(d)(2). But it retains its hearsay nature if it is offered in the party-declarant’s favor. This statement, ostensibly to be offered to prove its truth, would favor Wembley and, therefore, would be inadmissible hearsay. Moreover, because the statement would be offered to serve Wembley’s interests, it was not improper for the court to characterize it as self-serving hearsay. The court did not err in this evidentiary ruling.

4. Prior Sexual Abuse of K C. Sister

K.C. and her sister, L.C., lived for a time with their mother, M.C., and Steve Jones, M.C.’s boyfriend. Allegedly, Jones sexually abused L.C., and L.C. told both M.C. and K.C. something about the abuse. Wembley’s theory of defense as stated in his brief on appeal “was that [K.C.] had acquired sexual knowledge through prior sexual abuse of her sister, and possibly of herself, by Steve Jones.” Wembley wanted to testify about a conversation he had with M.C. to illustrate that the abuse of L.C. had been a family topic of conversation and that “might have suggested itself to [M.C.] or [K.C.], or both” that they could get Wembley out of their lives by accusing him of sexually abusing K.C. The court ruled that the information Wembley sought to disclose was irrelevant and more prejudicial than probative. Wembley claims this ruling denied to him the opportunity to present a complete defense.

The district court has wide discretion in determining the relevancy of evidence. State v. Schulz, 691 N.W.2d 474, 477 (Minn.2005). The court permitted Wembley to cross-examine K.C. about what she learned from L.C. regarding the alleged sexual abuse of L.C. K.C. testified that she could not recall specifics because she was only three or four years old at the time. The district court did not restrict Wembley’s right of proper cross-examination of K.C. on this topic.

But the court did preclude Wem-bley from testifying that he wanted to discuss with M.C. the allegations against Jones so as to acquire more information from M.C. about the alleged sex abuse. It appears that Wembley wanted to testify about information he hoped to acquire from M.C. but that he did not acquire in a conversation with her. Evidence is relevant if it would make a fact of consequence more likely or less likely than it would be without the evidence. Minn. R. Evid. 401. Evidence that a party hopes to obtain but fails to obtain is not evidence of anything at all. And we know of no authority that would make relevant Wembley’s desire for information so that he could assemble a defense. The court did not err in its ruling.

5. Ineffective Assistance of Counsel

Wembley contends that his defense counsel ineffectively assisted him when she failed to object to Lashley’s expert testimony. Much of Lashley’s testimony was proper. As we have discussed above, only the credibility assessment was improper and objectionable.

A claim of ineffective assistance of counsel is established when it is shown that the attorney’s performance fell below an objective standard of reasonableness and, but for this deficiency, there is a reasonable probability that the outcome of the case would have been different. Gates v. State, 398 N.W.2d 558, 561 (Minn.1987).

The state contends that defense counsel refrained from objecting to Lashley’s testimony as a matter of strategy. Given the clear, and nearly absolute, rule that an expert witness is not permitted to give an “assessment” of another witness’s credibility, we cannot conceive of any strategic reason for failing to object to Lashley’s “assessment” testimony. But as we have stated above, Lashley provided very little that the jury could not discern for itself from both the videotaped interview and K.C.’s trial testimony. The jury could determine all of the factors that Lashley based her assessment on, and thus it is likely that Lashley’s influence in the trial was minimal. Even had defense counsel objected and succeeded in obtaining the exclusion of Lashley’s improper assessment testimony, very little for jury consideration would have been lost, and we are convinced that the outcome of the case would not have been different. Wembley has failed to establish his claim of ineffective assistance of counsel.

6. Wembley’s Pro Se Issues

Wembley raises two issues in his pro se brief: (1) whether counsel was ineffective by not presenting any of Wembley’s witnesses or by not doing “any form of investigations into the alleged allegations”, and (2) whether counsel allowed tainted, suggestive evidence into trial.

An assignment of error in a brief based on “mere assertion” and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection. State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn.App.1997). Wembley makes mere assertions of error without supporting facts, authorities, or arguments. He contends that his trial counsel did not do any investigation or prepare a proper defense by calling witnesses on his behalf. But he fails to cite any facts indicating that counsel did not investigate the case, and he fails to identify potential witnesses and their likely testimony, if presented. He also fails to show that, but for the alleged errors, the jury verdict would have been different. See Gates, 398 N.W.2d at 561 (requiring a showing that, but for the error of counsel, the outcome would have been different).

Wembley next argues that the state’s witnesses agreed “that a lot of suggestive questions were asked of the victim” and that these witnesses stated “there is a big problem with suggestive questions.” Yet Wembley does not cite any place in the record showing “suggestive” questioning of witnesses. Nor does he show that “but for” the alleged suggestive questioning, the verdict would have been different.

DECISION

A defendant does not have a constitutional right to be present during jury deliberations when the jury reviewed exhibits submitted into evidence. Therefore, the district court did not commit reversible error when it allowed the jury to replay the videotape exhibit outside of Wembley’s presence. Although an expert may not testify to a witness’s credibility, such testimony is not necessarily prejudicial when the witness has testified and the jury could judge for itself all of the factors on which the expert relied in making a credibility assessment. When a party-declarant offers an out-of-court statement in its favor, it is self-serving hearsay and inadmissible unless counsel identifies a relevant non-hearsay purpose for the statement or unless such a purpose is readily apparent.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Tammey J. ANDERSON, f/k/a Tammey J. Blazjak, et al., Appellants, v. McOSKAR ENTERPRISES, INC. d/b/a Curves for Women, Respondent.
    No. A05-1546.
    Court of Appeals of Minnesota.
    May 2, 2006.

      Amy L. Baumgarten, Martin T. Montili-no, Borkon, Ramstead, Mariani, Fishman & Carp, Minneapolis, MN, for appellants.
    Patrick J. Sauter, Kathleen M. Daly, Rider Bennett LLP, Minneapolis, MN, for respondent.
    Considered and decided by STONEBURNER, Presiding Judge; SHUMAKER, Judge; and DIETZEN, Judge.
   OPINION

SHUMAKER, Judge.

When appellant registered to become a member of respondent health and fitness club, she signed a release of liability of the club for injuries from “any act or omission, including negligence.” Appellant was injured and sued respondent for damages for negligence. Respondent moved for summary judgment on the ground that appellant had released it from liability for negligence. The district court granted the motion. Appellant contends that the release is unenforceable because it is ambiguous in scope and contravenes public policy. The district court did not err in granting summary judgment.

FACTS

Respondent McOskar Enterprises, Inc. owns and operates a fitness and health club in Montieello known as “Curves for Women.” Appellant Tammey J. Anderson joined the club on April 2, 2003.

As part of the registration requirements, Anderson read an “AGREEMENT AND RELEASE OF LIABILITY,” initialed each of the three paragraphs in the document, and dated and signed it. The first paragraph purported to release Curves from liability for injuries Anderson might sustain in participating in club activities or using club equipment:

In consideration of being allowed to participate in the activities and programs of Curves for Women® and to use its facilities, equipment and machinery in addition to the payment of any fee or charge, I do hereby waive, release and forever discharge Curves International Inc., Curves for Women®, and their officers, agents, employees, representatives, executors, and all others (Curves® representatives) from any and all responsibilities or liabilities from injuries or damages arriving [sic] out of or connected with my attendance at Curves for Women®, my participation in all activities, my use of equipment or machinery, or any act or omission, including negligence by Curves® representatives.

The second paragraph provided for Anderson’s acknowledgment that fitness activities “involve a risk of injury” and her agreement “to expressly assume and accept any and all risks of injury or death.”

After completing the registration, Anderson began a workout, primarily with machines, under the supervision of a trainer. About 15 or 20 minutes later, having used four or five machines, Anderson developed a headache in the back of her head. She contends that she told the trainer, who suggested that the problem was likely just a previous lack of use of certain muscles and that Anderson would be fine.

Anderson continued her workout and developed pain in her neck, shoulder, and arm. She informed the trainer but continued to exercise until she completed the program for that session.

The pain persisted when Anderson returned home. She then sought medical attention, eventually had a course of physical therapy, and, in June 2003, underwent a cervical diskectomy. She then started this lawsuit for damages, alleging that Curves had been negligent in its acts or omissions during her workout at the club.

Curves moved for summary judgment on the ground that Anderson had released the club from liability for negligence. The district court agreed and granted the motion. Anderson challenges the court’s ruling on appeal.

ISSUE

A fitness club required members to sign a release of liability of the club for “any act or omission, including negligence,” causing injury to a member. Appellant signed the release and thereafter was injured while using club equipment. She contends that the release is unenforceable because it is ambiguous in scope and it is a contract of adhesion that contravenes public policy.

Is the release legally enforceable?

ANALYSIS

Anderson contends that there exist genuine issues of material fact both as to negligence and the release that she signed. But it' is the question of the enforceability of the release that is dispositive. Anderson argues that the release is ambiguous in scope and, therefore, unenforceable, and that it is also a contract of adhesion violative of public policy.

Anderson’s arguments about the release do not point to material facts in dispute. In her deposition, she admitted that she read the release before she signed it, that she placed her initials next to each of the three paragraphs in the document, and that she agreed to all conditions stated in the release. Although she testified that she did not understand all of the content of the release, she did not specify any particular part that she failed to understand, and she reiterated in response to a question that, by signing the release, she agreed to it. Furthermore,' she does not claim that Curves committed any wanton, willful, or intentional act that caused or contributed to her injury, alleging in her complaint only that Curves was negligent.

Releases

It is settled Minnesota law that, under certain circumstances, “parties to a contract may, without violation of public policy, protect themselves against liability resulting from their own negligence.” Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 922-23 (Minn.1982). The “public interest in freedom of contract is preserved by recognizing [release and exculpatory] clauses as valid.” Id. (citing N. Pac. Ry. Co. v. Thornton Bros. Co., 206 Minn. 193, 196, 288 N.W. 226, 227 (1939)).

Releases of liability are not favored by the law and are strictly construed against the benefited party. Id. at 923. “If the clause is either ambiguous in scope or purports to release the benefited party from liability for intentional, willful or wanton acts, it will not be enforced.” Id. Furthermore, even if a release clause is unambiguous in scope and is limited only to negligence, courts must still ascertain whether its enforcement will contravene public policy. On this issue, a two-prong test is applied:

Before enforcing an exculpatory clause, both prongs of the test are examined, to-wit: (1) whether there was a disparity of bargaining power between the parties (in terms of a compulsion to sign a contract containing an unacceptable provision and the lack of ability to negotiate elimination of the unacceptable provision) ... and (2) the types of services being offered or provided (taking into consideration whether it is a public or essential service).

Id. (citations omitted).

The two-prong test describes what is generally known as a “contract of adhesion,” more particularly explained in Schlobohm:

It is a contract generally not bargained for, but which is imposed on the public for necessary service on a “take it or leave it” basis. Even though a contract is on a printed form and offered on a “take it or leave it” basis, those facts alone do not cause it to be an adhesion contract. There must be a showing that the parties were greatly disparate in bargaining power, that there was no opportunity for negotiation and that the services could not be obtained elsewhere.

Id. at 924-25.

Scope of the Release

Because there is no genuine issue of material fact as to what the release provides, whether or not Anderson read and signed it, whether or not she agreed to its terms, or the circumstances under which she signed it, we are required to ascertain whether the district court erred in its application of the law in granting summary judgment in favor of the party benefited by the release. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990).

As held in Schlobohm, a release of liability will not be enforced if (1) it “purports to release the benefited party from liability for intentional, willful or wanton acts,” or (2) it is ambiguous in scope. Schlobohm, 326 N.W.2d at 923. There is nothing in the Curves release that expressly exonerates the club from liability for any intentional, willful, or wanton act. Thus, we consider whether the release is ambiguous in scope.

Whether an agreement is ambiguous is a question of law. Blattner v. Forster, 322 N.W.2d 319, 321 (Minn.1982). We review questions of law de. novo. Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984). Contract language “is ambiguous if it is reasonably susceptible of more than one construction.” Collins Truck Lines v. Metro. Waste Control, 274 N.W.2d 123,126 (Minn.1979). “In order to be ambiguous in the legal sense, both constructions must be reasonable.” Id.

Anderson argues that the release is ambiguous because it broadly exonerates Curves from liability for “any act or omission, including negligence.As her authority for that argument she relies on dicta in Nimis v. St. Paul Turners, suggesting that a release that exonerated a health club for “negligence of the releasee or otherwise ...” was ambiguous in scope as to whether it also released the club for injuries caused intentionally. 521 N.W.2d 54, 57 (Minn.App.1994). She then points to Schlobohm as involving a release of “liability for acts of negligence and negligence only.” Schlobohm, 326 N.W.2d at 923.

Although the supreme court in Schlo-bohm interpreted the release as applying only to acts of negligence, the language of the release was broader than that, purporting to release Spa Petite from

any claims, demands, injuries, damages, actions or causes of action, whatsoever, ... and member does hereby ... release ... Spa Petite from all such claims, demands, injuries, damages, actions or causes of action, and from acts of active or passive negligence....

Id. at 921-22 (emphasis added).

Despite the breadth of the language of the Schlobohm release, it was clear that it exonerated acts of negligence on the part of Spa Petite because the release expressly so provided, and it was negligence of which Spa Petite was accused. The court held the release not to be ambiguous.

The vice of ambiguous language is that it fails precisely and clearly to inform contracting parties of the meaning of their ostensible agreement. Because ambiguous language is susceptible of two or more reasonable meanings, each party might carry away from the agreement a different and perhaps contradictory understanding. In the context of a release in connection with an athletic, health, or fitness activity, the consumer surely is entitled to ■ know precisely what liability is being exonerated. A release that is so vague, general, or broad as to fail to specifically designate the particular nature of the liability exonerated is not enforceable. Id. at 923.

The release here does not suffer from the infirmity of ambiguity despite its broad language any more than the broadly cast release in Schlobohm did. It is clear from this release that Anderson agreed to exonerate Curves from liability for negligence, that being part of the express agreement that Anderson accepted And it is solely negligence of which Curves is accused.

The unmistakable intent of the parties to the Curves agreement is that Curves at least would not be held liable for acts of negligence. The first two paragraphs of the three-paragraph document focus specifically on considerations of risk, voluntary acceptance of hazards, and waiver of liability, thus evincing a mutual intention to agree to a release. Because the parties expressed a clear intention to release liability and because that release clearly included liability for negligence, that intention should be enforced. See Metro. Sports Facilities Comm’n v. Gen. Mills, Inc., 470 N.W.2d 118, 123 (Minn.1991) (where the language of a contract is plain and unambiguous, the court must enforce the contract as written).

The arguably ambiguous portion of this release is not at issue. It would subvert the parties’ manifested intent to effect a release of liability for negligence if the broader language were given precedence. That would not be the better rule of law: “A better interpretation of the law is that any ‘term’ in a contract which attempts to exempt a party from liability for gross negligence or wanton conduct is unenforceable, not the entire [contract].” Wolfgang v. Mid-American Motorsports, Inc., 898 F.Supp. 783, 788 (D.Kan.1995).

Public Policy

Even if a release is unambiguously confined to liability for negligence, it still will be unenforceable if it contravenes public policy. Anderson contends that the Curves contract is one of adhesion characterized by such a disparity in bargaining power that she was compelled to sign it without any ability to negotiate.

But her argument is unpersuasive in view of the Schlobohm holding that “an adhesion contract is ... forced upon an unwilling and often unknowing public for services that cannot readily be obtained elsewhere.” 326 N.W.2d at 924. It is, according to Schlobohm, a contract “imposed on the public for necessary service on a ‘take it or leave it’ basis.” Id. Schlo-bohm involved a “gym or health spa” known as Spa Petite. Id. at 920. Similar to Curves, it offered fitness services and required members to sign a contract that provided for a release of liability for negligence. The supreme court found no disparity in bargaining power between Spa Petite and the litigating member; found that there had been no showing that the spa’s services were necessary or that they could not have been obtained elsewhere; and found that health and fitness clubs ordinarily are not within the public-service or public-necessity classification that make their services of great public importance and necessary for the public to obtain.

Even if there was a disparity of bargaining ability here — which has not been demonstrated — there was no showing that the services provided by Curves are necessary and unobtainable elsewhere. Although fitness activities surely are desirable for most people, they cannot plausibly said to be necessary. And the availability of services ranges from highly structured and formal fitness programs at commercial clubs to one’s own basement or living room. Furthermore, specialized training by fitness experts is available through videotapes and compact discs that may be used at home if a person so chooses.

The Curves release did not contravene public policy, and we adopt the supreme court’s conclusion in Schlobohm: “Here there is no special legal relationship and no overriding public interest which demand that this contract provision, voluntarily entered into by competent parties, should be rendered ineffectual.” Id. at 926.

DECISION

The district court did not err in granting respondent’s motion for summary judgment on the ground that appellant signed and agreed to a release of respondent’s liability for negligence. We affirm.

Affirmed.


author: MINGE, Judge.

text:
    Ronald RASMUSSEN, et al., Appellants, v. The HOUSING AND REDEVELOPMENT AUTHORITY for the City of St. Anthony, Minnesota, Respondent, and The Housing and Redevelopment Authority for the City of St. Anthony, Minnesota, petitioner, Respondent, v. Ronald Rasmussen, et al., Appellants.
    Nos. A05-1418, A05-1419.
    Court of Appeals of Minnesota.
    May 2, 2006.

      David D. Meyer, Steven J. Quam, Fre-drikson & Byron, P.A., Minneapolis, MN, for appellants.
    David Y. Trevor, Heather C. Toft, Dorsey & Whitney, LLP, Minneapolis, MN; and James J. Thomson, Jr., Mary Tietjen, Kennedy & Graven, Chartered, Minneapolis, MN, for petitioner and respondent.
    Considered and decided by MINGE, Presiding Judge; RANDALL, Judge; and COLLINS, Judge.

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

   OPINION

MINGE, Judge.

In this consolidated appeal, appellants challenge the district court’s grant of summary judgment on their breach-of-contract and damages claims arising out of a condemnation petition. Because respondent did not breach the lease by initiating condemnation proceedings and because the lease prohibits appellants from recovering a takings award, we affirm.

FACTS

Appellants Ronald and Judith Rasmussen have operated a Tires Plus store under a series of leases at the same location in St. Anthony since the early 1980s. In July 1996, the Rasmussens entered into their current lease for this business property with Ste. Marie Company (Ste.Marie) as their landlord. The lease has a term of 15 years, with two options to extend the lease for additional terms of five years each. In 1997, respondent the Housing and Redevelopment Authority (HRA) for the City of St. Anthony, Minnesota, purchased land from Ste. Marie in order to establish a municipal liquor store. Because the Ras-mussens’ business was located next door to the proposed liquor store and Ste. Marie was willing to sell the entire larger parcel to HRA, HRA purchased the parcel containing the Rasmussens’ store as well. Because the Rasmussens had a right of first refusal, they were notified of the sale and given an opportunity to buy their store location before HRA completed its purchase.

Six years later, the site of the Apache Plaza shopping center was the subject of a redevelopment project. Incident to that project, HRA agreed to acquire certain parcels of land, including the site of the Rasmussens’ tire business, to use eminent domain if needed to accomplish this, and to transfer the parcels to Apache Redevelopment, LLC. Upon learning of HRA’s commitment to acquire their leasehold and to condemn it, if necessary, the Rasmussens brought a claim for breach of contract against HRA in May 2004. The Rasmus-sens alleged that, by telling them that they needed to vacate their premises and threatening to condemn the premises, HRA breached the quiet enjoyment provision of the lease. That provision reads as follows:

Landlord hereby warrants that it and no other person or corporation has the right to lease the Premises. So long as Tenant shall perform each and every covenant to be performed by Tenant hereunder, Tenant shall have peaceful and quiet use and possession of the Premises without hindrance on the part of Landlord, and Landlord shall warrant and defend Tenant in such peaceful and quiet use and possession.

HRA subsequently brought a petition seeking to condemn the Rasmussens’ leasehold. HRA argued that due to various terms of the lease dealing with condemnation, the Rasmussens had no com-pensable interest in the property. The lease defines condemnation as “(a) the exercise of any governmental power, whether by legal proceedings or otherwise, by a Condemnor, or (b) a voluntary sale or transfer by Landlord to any Condemnor, either under threat of condemnation or while legal proceedings for condemnation are pending.” The lease describes the consequences of a total taking: “If all of the Premises shall be taken in Condemnation, except for a taking for temporary use, this Lease shall be terminated automatically as of the Date of Taking.” The lease also provides for termination by either party in the event of substantial partial taking. Furthermore, the lease states that “[t]he Award for any taking shall be the sole property of Landlord.” The lease defines “award” as “all compensation, sums, or anything of value awarded, paid or received on a total or partial condemnation.” (However, the lease recognized the Ras-mussens’ right to retain payment for moving expenses, loss of stock, personal property and trade fixtures, and unamortized costs of improvements paid for by the tenant.)

In August 2004, the district court granted HRA’s petition for condemnation. The parties brought cross-motions for summary judgment on the breach-of-contract action and cross-motions for partial summary judgment on the condemnation action. The district court granted HRA’s motions to dismiss the breach-of-contract action and grant the condemnation. The district court reasoned that if the condemnation was a “total taking,” the lease terminated by its terms. The district court further reasoned that even if it was not a total taking, it was still “a taking through condemnation proceedings” and that the Rasmussens waived their right to compensation except what they had been paid for moving expenses, personal property, and trade fixtures.

The parties stipulated that the district court’s order for summary judgment resolved all of the issues in the matter and final judgment was entered. The Rasmus-sens appeal.

ISSUES

1. Did HRA breach the quiet enjoyment provision of the lease in acquiring the Rasmussens’ interest as lessees by condemnation?
2. Do the lease provisions limiting the lessees’ right to condemnation damages apply to this condemnation by HRA?

ANALYSIS

When reviewing summary judgment, an appellate court asks whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). Summary judgment is proper when the evidence in the record shows there is no genuine issue of material fact and either party is entitled to a judgment as a matter of law. Minn. R. Civ. P. 56.03; DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997). “On appeal, the reviewing court must view the evidence in the light most favorable to the party against' whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

I.

The first issue is whether HRA breached the quiet enjoyment provision of its lease with the Rasmussens by bringing a condemnation petition. Minnesota courts have discussed the covenant of quiet enjoyment, describing a breach of the covenant as “[w]hen an outstanding superior title is asserted in hostility to the title of the covenantee.” Efta v. Swanson, 115 Minn. 373, 376, 132 N.W. 335, 336 (1911); see also Miles v. City of Oakdale, 323 N.W.2d 51, 57 (Minn.1982) (noting that the covenant of quiet possession applies to adverse claims, not to “mere trespasses or actions of wrongdoing third parties”). Although the issue before us is a matter of first impression in Minnesota and we will consider how other jurisdictions have approached the issue, we first consider how Minnesota views the prerogatives of a condemning authority that is also a party to a lease.

A. Lundell

The Minnesota Supreme Court recently considered the position of a utility with condemning authority who was also a lessee in Lundell v. Coop. Power Ass’n and it upheld the district court’s grant of the utility’s condemnation petition against its own lessor. 707 N.W.2d 376, 381-83 (Minn.2006). In that ease, the utility leased property for a telecommunications tower. Id. at 379. Subsequently, the lessor suspected that the utility was subleasing the property and using more space and buildings than the lease permitted. Id. After the parties disputed various terms of the lease and negotiated for three months, the owner threatened cancellation. The utility then initiated, and the district court upheld, condemnation proceedings. Id. at 380.

The property owners appealed, arguing that there was no public purpose or necessity for the taking and that the utility had acted in bad faith in failing to complete negotiations for amendments to the lease. Id. at 378. The supreme court affirmed, reasoning that a condemning authority that has an interest in a property under a lease need only show that the taking was necessary, not that the taking of an interest greater than its current interest under the lease was necessary. Id. at 382. The court noted that, “as we have held, a condemning authority cannot bargain away its power of eminent domain.” Id. at 381 (citing Village of St. Louis Park v. Minneapolis, Northfield & S. Ry. Co., 156 Minn. 164, 169, 194 N.W. 327, 329 (1923)).

The supreme court also concluded that the utility did not act in bad faith: “The mere fact that [the utility] chose to exercise its power of eminent domain rather than continue negotiations with the landowner does not make this taking an abuse of [the utilityj’s condemnation power.” Id. at 383. The court further stated that any additional leverage that this power gives to a condemning authority that is also a party to a lease “is leverage that the law intends such an authority to have.” Id. Although Lundell did not consider a quiet enjoyment provision in a lease, we find it instructive on the issue of a condemning authority’s powers when the authority is also a party to a lease, as HRA is here.

B. Other States

The parties cite cases from other jurisdictions on the issue of whether an entity with eminent domain authority breaches a quiet enjoyment provision in a contract by initiating a condemnation proceeding against its own tenant. In City of Glendale v. Superior Ct., the city-lessor agreed to a 20-year lease and reserved the right to terminate the lease after 10 years, but then prior to the expiration of the 10-year period, filed a complaint to condemn the property. 18 Cal.App.4th 1768, 1773-74, 23 Cal.Rptr.2d 305, 308-09 (1993). The court held that the city did not breach its lease by using its powers of eminent domain, noting that “the City, as a governmental entity, could not in any event abridge by contract its sovereign authority to take property by eminent domain.” Id. at 1778, 23 Cal.Rptr.2d at 312.

Similarly, in Goodyear Shoe Machinery Co. v. Boston Terminal Co., the court held that a covenant of quiet enjoyment was not breached when a landlord exercised its power of eminent domain over its tenant: “But the sovereign power to take by eminent domain is not an incumbrance, and the exercise of the power is not a breach of any of the ordinary covenants.” 176 Mass. 115, 57 N.E. 214, 215 (1900). The court further noted that “it cannot matter that the person who sets the delegated sovereign power in motion is the landlord. The exercise of that power has not been covenanted against.” Id.

The Rasmussens attempt to distinguish Glendale on the basis that the tenant in that case was still entitled to just compensation for the taking, even though its breach-of-contraet claim was dismissed. See 18 Cal.App.4th at 1780-81, 23 Cal. Rptr.2d at 313. But this factor was not dispositive in Glendale, and we conclude that whether the Rasmussens are entitled to just compensation for the taking is irrelevant to the question of whether HRA breached the contract. See id. The Ras-mussens further argue that Glendale was different because it involved “a public building,” but this distinction is not supported because the district court here also found that HRA’s taking served a public purpose.

The Rasmussens attempt to distinguish Goodyear Shoe on the basis that it involved an implied covenant, rather than an express provision in a lease. See 57 N.E. at 215. But this distinction is not compelling because the implied covenant of quiet enjoyment is fundamental to the lessor’s obligation to the tenant and a sovereign’s ability to impair its eminent domain powers by contract should not be any different for an implied covenant than for an express contract.

In support of their position, the Rasmussens cite Farmers’ Elec. Coop., Inc. v. Missouri Dep’t of Corr., 977 S.W.2d 266 (Mo.1998). In that case, the cooperative alleged that the department breached its contract with the cooperative by requesting the annexation of land that would make the cooperative’s performance under the contract illegal. Id. at 269. The supreme court reversed the district court’s grant of summary judgment for the department, rejecting the department’s defense that the annexation was a valid exercise of its police power to which the cooperative’s contractual rights were subject. Id. at 272. The court stated that “[t]he act of requesting and agreeing to annexation did not involve an exercise of police power by the department” because any party could request annexation and the annexation was voluntary. Id. Because HRA in the case before us is using its eminent domain authority, Farmers’ Elec, is inapplicable.

The reasoning of Glendale and Goodyear Shoe is consistent with the tenor of the approach taken by the Minnesota Supreme Court in Lundell. We conclude that HRA retained and did not waive the right to its power of eminent domain and that the use of that power did not breach the quiet enjoyment provision of the lease with the Rasmussens. In reaching this conclusion, we note that there is no allegation or evidence that HRA structured its purchase and condemnation activities to limit the Rasmussens’ rights (or recovery) as a lessee.

C. Sovereign Acts Doctrine

The Rasmussens argue that HRA’s breach of the contract was not the protected act of a sovereign under the principles of the “sovereign acts doctrine,” an affirmative defense to a breach-of-contract claim. See Allegre Villa v. United States, 60 Fed.Cl. 11, 16 (Fed.C1.2004). It is not clear that the sovereign acts doctrine has been adopted in Minnesota. Even if the doctrine is viable in Minnesota, we need not reach it here because we have concluded that HRA did not breach the covenant of quiet enjoyment and does not need an affirmative defense.

II.

The second issue is whether the terms of the lease limit the Rasmussens’ recovery following a condemnation. As the Minnesota Supreme Court recognized in Housing and Redevelopment Auth. of City of St. Paul v. Lambrecht, a lease may contain a provision limiting the rights of a tenant upon condemnation of the property. 663 N.W.2d 541, 546 (Minn.2003). Here, the lease contained two types of such provisions, one terminating the lease upon a “total taking” or a “partial taking” and the other assigning the award for any taking to the landlord.

The Rasmussens first argue that the provision terminating the lease or providing an option to terminate the lease does not apply because this was not a total or partial taking, as only their leasehold interest was taken, not the rest of the fee interest already held by HRA. In Bradley Facilities, Inc. v. Bums, the court interpreted similar language, “the entire Demised Premises, or so much thereof that the remainder is not useful to Tenant,” as it applied to the condemnation of a leasehold by the lessor who itself held the fee interest. 209 Conn. 480, 551 A.2d 746, 749 (1988). The court noted that by “entire,” the lease was only referring to “the physical parcel of land being leased and not to the diverse interests that may exist in that land” because the phrase “entire Demised Premises” was followed by a clause contrasting it with “so much thereof that the remainder is not useful.” Id.

Here, the lease contrasts “total” and “partial” takings with each other; “total” is not contrasted with some interest less than the entire fee simple. Because HRA took the Rasmussens’ entire leasehold, which in combination with the interest HRA already owned in the property constituted full fee-simple ownership, it was a total taking. As a consequence, .the lease terminated upon the taking, and the Ras-mussens no longer had any interest in the condemned property. See Lambrecht, 663 N.W.2d at 547.

The Rasmussens also argue that the provision in the lease assigning the condemnation award to HRA is not applicable. However, this argument is based on the claim that the taking is fractional. Based on our foregoing conclusion that this taking is functionally of the entire interest in the parcel, this argument fails.

The Rasmussens finally argue that the condemnation provisions of the lease did not contemplate a condemnation petition brought by the lessor itself, citing one of the lease’s definitions of condemnation as “a voluntary sale or transfer by Landlord to any Condemnor, either under threat of condemnation or while legal proceedings for condemnation are pending.” Although this definition may imply that the lease contemplated application to condemnations not initiated by the landlord, the first definition of condemnation in the lease provides no such limitation: “ ‘Condemnation’ means (a) the exercise of any governmental power, whether by legal proceedings or otherwise, by a Condemnor ... (4) ‘Condemnor’ means any public or quasi-public authority, or private corporation or individual, having the power of condemnation.” As discussed earlier, the Lundell decision recognizes that condemning authorities have dual roles when they are lessees and may properly act in either capacity. See Lundell, 707 N.W.2d at 382.

The lease prohibits the Rasmussens from recovering a takings award following a condemnation. We note that the Ras-mussens have received the same amount of compensation they would have received if Ste. Marie had not sold the property to HRA. There is no allegation or evidence that HRA orchestrated its purchase and condemnation so as to disadvantage the Rasmussens. The district court did not err in granting summary judgment against the Rasmussens on their claim for damages due to the condemnation.

DECISION

The district court did not err in determining that the quiet enjoyment provision of the lease does not preclude HRA from acquiring the Rasmussens’ interest by condemnation even though HRA was also the lessor. The district court also did not err in determining that the lease provisions limiting damages in condemnation were applicable to HRA’s acquisition of the Ras-mussens’ interest in this proceeding.

Affirmed.

      . Because we conclude that HRA did not breach its contract, we need not reach the Rasmussens' argument that HRA cannot enforce provisions of the contract prohibiting ■the Rasmussens from recovering a takings award if HRA breached other provisions, of the contract. We also do not reach the issue of whether HRA's actions served a public purpose because the Rasmussens do not challenge that finding on appeal.

      . The Rasmussens claim HRA reaps a windfall benefit here because as the present landlord, it is able to keep whatever compensation it would have been obliged to pay Ste. Marie if HRA had initiated condemnation proceedings while Ste. Marie owned the property. To the extent there were any such savings, Ste. Marie would have been able to negotiate for that premium when it sold to HRA. Furthermore, the Rasmussens had a right of first refusal to purchase the property when HRA bought but declined to do so. If the Rasmus-sens thought the sale by Ste. Marie to HRA was for a bargain price, they could have bought at that earlier date, merging their interest with that of Ste. Marie, and claimed compensation from HRA accordingly.
      The Rasmussens further argue that HRA has been opportunistic, playing a chameleon-like role by taking maximum advantage of its position as a condemning authority and then changing hats to take maximum advantage of fortuitous lease provisions that favor the landlord. As the Minnesota Supreme Court observed in Lundell, the added leverage the condemning authority has is inherent in the power the legislature granted. 707 N.W.2d at 383. In any event, there is no evidence that HRA was malevolent or devious.


author: HALBROOKS, Judge.

text:
    Lisa N. BORGEN, Clay County Attorney, Respondent, v. 418 EGLON AVENUE and $1,230.00 U.S. Currency, Defendant, Santos Ramiro Martinez, Appellant.
    No. A05-1138.
    Court of Appeals of Minnesota.
    May 2, 2006.

      Lisa N. Borgen, Clay County Attorney, Jenny M. Samarzja, Assistant County Attorney, Moorhead, MN, for respondent.
    Craig E. Cascarano, Minneapolis, MN, for appellant.
    Considered and decided by SHUMAKER, Presiding Judge; LANSING, Judge; and HALBROOKS, Judge.
   OPINION

HALBROOKS, Judge.

Appellant challenges the district court’s order that he forfeit his house and any drug-related money found in the house as the result of execution of a search warrant. Appellant argues that the forfeiture is an unconstitutionally excessive fine and that the district court erred in finding that it met the gross-disproportionality and nexus tests. Because the forfeiture meets both the gross-disproportionality and the nexus tests, we conclude that it is not an unconstitutionally excessive fine. We therefore affirm.

FACTS

Between November 2001 and August 2002, law enforcement investigated appellant Santos Martinez for suspected drug-related offenses. During that time, the police made eight controlled buys of cocaine from appellant at his house, obtaining a total of 15.1 grams of cocaine. The police then obtained and executed a search warrant for the premises. As a result of the search, law enforcement recovered an additional 6.6 grams of cocaine and $1,230 in cash, some portion of which was money from the controlled buys. The total value of the cocaine recovered as a result of the controlled buys and the search warrant was $1,500 or more.

The state charged appellant with multiple controlled-substance offenses. In addition, the state served appellant with a complaint seeking forfeiture of the $1,230 and appellant’s house. Appellant was tried on a first-degree controlled-substance offense charge, but the trial resulted in a hung jury. Appellant then pleaded guilty to second-degree controlled-substance offense.

The district court conducted a bench trial on the forfeiture complaint and took judicial notice of the facts adduced at the trial for first-degree controlled-substance crime (sale) and from appellant’s guilty plea to second-degree controlled-substance crime (possession). The parties also stipulated that appellant’s home’s tax valuation was $18,300. The district court ordered the property and money to be forfeited because it found that both the gross-dis-proportionality and nexus tests had been satisfied. This appeal follows.

ISSUE

Does forfeiture of appellant’s house and $1,230 in cash, as a result of the controlled-substance offenses, constitute an excessive fíne in violation of the federal and Minnesota constitutions?

ANALYSIS

The applicable forfeiture statute states, in pertinent part: “All property, real and personal, that has been used, ... or has in any way facilitated, in whole or in part, the ... exchanging of contraband or a controlled substance ... is subject to forfeiture.” Minn.Stat. § 609.5311, subd. 2 (2004). But the statute places a limitation on the forfeiture of real property. “Real property is subject to forfeiture under this section only if the retail value of the controlled substance or contraband is $1,000 or more.” Id., subd. 3(b) (2004).

The legislature made plain its intent behind the forfeiture statute by enacting a section that states its purpose. Minn.Stat. § 609.531, subd. la (2004), states:

Sections 609.531 to 609.5318 must be liberally construed to carry out the following remedial purposes:
(1) to enforce the law;
(2) to deter crime;
(3) to reduce the economic incentive to engage in criminal enterprise;
(4) to increase the pecuniary loss resulting from the detection of criminal activity; and
(5) to forfeit property unlawfully used or acquired and divert the property to law enforcement purposes.

Appellant contends that the forfeiture of his house violates the federal and Minnesota constitutions’ protection against excessive fines. The two constitutional provisions are identical, stating, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const, amend VIII; Minn. Const. art. I § 5. “Resolution of this issue requires interpretation of a constitutional provision[,] ... a legal question that we review de novo.” State v. Rewitzer, 617 N.W.2d 407, 412 (Minn.2000) (citations omitted).

The United States Supreme Court articulated the gross-disproportion-ality test for use in determining whether a punishment violates the Cruel and Unusual Punishment Clause of the Eighth Amendment. Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 3011, 77 L.Ed.2d 637 (1983). Following Solem, the Court adopted the gross-disproportionality test as a means of analyzing cases under the Excessive Fines Clause of the Eighth Amendment. United States v. Bajakajian, 524 U.S. 321; 336, 118 S.Ct. 2028, 2037, 141 L.Ed.2d 314 (1998). This test contains three prongs that the district court must consider: “(i) the gravity of the offense and harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” Solem, 463 U.S. at 292, 103 S.Ct. at 3011. But the test “is not whether the forfeiture is directly proportional to the sentence a particular defendant or claimant would receive for the offense committed, but rather whether forfeiture is grossly disproportional in the circumstances of the case.” United States v. One Parcel of Prop. Located at 32 Medley Lane, 372 F.Supp.2d 248, 266 (D.Conn. 2005).

Minnesota courts previously used the instrumentality or nexus test, which asks only whether the property bears a close relationship to the offense. City of Worthington Police Dep’t v. One 1988 Chevrolet Berreta, Maroon in Color, Bearing License #520 CLP & Bearing VIN # 1G1LV1412JE6227125, 516 N.W.2d 581, 584 (Minn.App.1994). But after Bajakajian, the Minnesota Supreme Court adopted the gross-disproportionality test. Rewitzer, 617 N.W.2d at 414. While Minnesota courts may still use the instrumentality or nexus test to determine whether forfeiture is appropriate, it must be in conjunction with the gross-disproportionality test. Miller v. One 2001 Pontiac Aztek, # GHS-186, VIN: 3G7DA03E41S500032, 669 N.W.2d 893, 897 n. 2 (Minn.2003) (stating that to solely use an instrumentality test is inappropriate, but “an instrumentality or a ‘nexus’ consideration may be combined with the Solem test”).

Although the Minnesota legislature provided that the forfeiture statute is remedial in nature, “the United States Supreme Court has stated that ‘forfeiture generally and statutory in rem forfeiture in particular historically have been understood, at least in part, as punishment.’ ” Schug v. Nine Thousand Nine Hundred Sixteen Dollars & Fifty Cents in U.S. Currency, 669 N.W.2d 379, 382 (Minn.App. 2003) (quoting Austin v. United States, 509 U.S. 602, 618, 113 S.Ct. 2801, 2810, 125 L.Ed.2d 488 (1993)), review denied (Minn. Dec. 16, 2003). Moreover, forfeiture laws are “disfavored and will only be enforced when the claim is within both letter and spirit of the law.” Id. (quotation omitted). Thus, due to “the punitive and disfavored nature of the forfeiture laws this court is to strictly construe its language and resolve any doubt in favor of the party challenging it.” Id. (quotation omitted).

Forfeiture of one’s house under this statute is a case of first impression in Minnesota, and we recognize that it has the potential to lead to a harsh result. But “large discretion is necessarily vested in the legislature to impose penalties sufficient to prevent the commission of an offense, and it would have to be an extreme case to warrant the courts in holding that the constitutional limit has been transcended.” Rewitzer, 617 N.W.2d at 412 (quotation omitted). The legislature has clearly evinced its intent to use the forfeiture of real property as a method of enforcing the law, deterring crime, and decreasing the economic loss from illegal activity. Minn. Stat. § 609.531, subd. la.

1. Gravity of Offense and Harshness of the Penalty

The supreme court, in applying the So-lem test, stated, with regard to the first prong, that “drug use and distribution is one of the greatest problems affecting the health and welfare of our population.” Rewitzer, 617 N.W.2d at 414. Additionally, “[t]he Minnesota Legislature has targeted ... controlled-substance crime because of [its] social and economic impact and has set severe maximum penalties .... ” State v. Kujak, 639 N.W.2d 878, 884 (Minn.App.2002) (stating that “higher-degree drug crimes are [among] the most serious offenses”), review denied (Minn. Mar. 25, 2002).

The offense that appellant was convicted of is a grave one, as it is a high-degree controlled-substance crime. Although appellant was convicted of possession and not sale or distribution, the underlying facts from appellant’s trial and plea, which the district court took judicial notice of, clearly reveal that he was selling cocaine out of his house. Thus, the effect of appellant’s offense on the public renders his offense sufficiently grave.

It was permissible for the district court to consider the underlying facts of appellant’s drug-sale activity although he was not convicted of a sale offense because forfeiture under Minn.Stat. § 609.5311 need not arise from a conviction. Minn. Stat. § 609.531, subd. 6a(a) (2004). Only forfeitures under Minn.Stat. § 609.5312 require an underlying criminal conviction. Id. For all other sections of the forfeiture law, a conviction is not required. And, under Minn.Stat. § 609.531, subd. 6a(a), a prosecutor need only prove forfeiture by clear and convincing evidence.

Federal courts have long been faced with the forfeiture of homes and have routinely upheld forfeiture, despite the harsh result. See 82 Medley Lane, 372 F.Supp.2d at 266-67 (stating that “[t]he Court fully realizes that the forfeiture of the ... home will have a profound impact on the entire family”); United States v. 829 Calle de Madero, 100 F.3d 734, 739 (10th Cir.1996) (stating that when “evaluating the harshness of the sanction, we recognize that this forfeiture will displace the Claimants’ three minor children from their family home”). But “Congress concluded that when real property is used to facilitate the ... distribution of drugs, forfeiture — even of a family home—is appropriate, and this Court cannot say that in the circumstances of this case, the Constitution forbids that result.” 82 Medley Lane, 372 F.Supp.2d at 267.

The same can be said for the Minnesota legislature as it, too, has determined that forfeiture is appropriate when real property is used to facilitate the sale or possession of drugs. Minn.Stat. § 609.5311. Therefore, we conclude that forfeiture of appellant’s house is not disproportionately harsh when compared to the severity of his offenses.

2. Comparison to Other Minnesota Crimes

In order to determine whether forfeiture in a particular case is comparable to fines imposed for other Minnesota crimes, courts look to the sentencing guidelines to determine what other offenses are of similar severity. Rewitzer, 617 N.W.2d at 414; see also Kujak, 639 N.W.2d at 884-85. Thus, the district court analyzes the severity level of the offense and looks at the penalties for other offenses at that level. Rewitzer, 617 N.W.2d at 414-15.

Appellant was charged with a severity-level 9 offense (sale) and charged with and convicted of a severity-level 8 offense (possession). See Minn. Sentencing Guidelines V (2004). Other offenses at those levels have maximum fines between $20,000 and $50,000. See Minn.Stat. § 609.2325 (2004) (defining criminal abuse, a severity-level 8 crime when resulting in great bodily harm, and providing a maximum fíne of $20,000); Minn.Stat. § 609.25 (2004) (defining kidnapping and providing a maximum fine for the most serious forms of kidnapping, severity-level 8 and 9 offenses, of $50,000). Thus, a total fine — between the house and the money — of $19,530 is not grossly disproportionate and is actually less than the permissible fine range. And even when

the value of the property forfeited may exceed, even considerably, the fine range provided by the Sentencing Guidelines[, it] does not necessarily mean that the forfeiture is grossly disproportional.... [N]o mathematical formula will substitute for a careful assessment of all facts and factors and the application of sound judgment to what all must acknowledge is an “inherently imprecise” task.

32 Medley Lane, 372 F.Supp.2d. at 266 (citation omitted).

While we do not have other home-forfeiture cases in Minnesota to use in our analysis, we do have vehicle-forfeiture decisions for guidance. For example, Minnesota decisions have held that a forfeiture of a motor vehicle under the driving-while-impaired statute was constitutional despite the fact that the value of the vehicle vastly exceeded the amount of the maximum fine. See Miller, 669 N.W.2d at 898 (stating that “[t]he value of appellant’s vehicle was not much different than other vehicles, nor is it grossly different than other fines for crimes of a similar serious nature,” when the forfeited vehicle was worth $13,000 more than the maximum fine); City of New Brighton v. 2000 Ford Excursion VIN # 1FMNU43S2YEA74156, 622 N.W.2d 364, 371 (Minn.App.2001) (noting that “forfeiture is not excessive merely because the value of [the] car is higher than the maximum fines he might receive for committing similarly classified offenses. Under prior cases, forfeitures have not been deemed excessive simply because the value of the car forfeited was higher than the fines authorized for similarly ranked offenses.”), review denied (Minn. Apr. 17, 2001); Lukkason v.1993 Chevrolet Extended Cab Pickup, 590 N.W.2d 803, 808-09 (Minn.App.1999) (holding that due to the serious nature of DWI offenses, forfeiture of a vehicle worth more than $11,000 as a result of a gross-misdemeanor DWI offense was not excessive), review denied (Minn. May 18,1999).

Additionally, appellant argues that the district court erred because it did not look at fines that were imposed on actual defendants solely within Clay County. But no court, including the United States Supreme Court, has analyzed this prong by looking at actual imposition of fines, but rather by considering what fines are permissive or allowable. Moreover, this prong is meant to compare the instant crime with other crimes in the same state, not just the same county. See Solem, 463 U.S. at 292, 103 S.Ct. at 3011. When the United States Supreme Court applied this prong, it looked at other sentences within the state of South Dakota, not the particular county in which the defendant was convicted. Id. at 298, 103 S.Ct. at 3013-14.

3. Comparison to Other Jurisdictions

This prong involves a comparison that is similar to the previous one, in that courts look to other jurisdictions for the penalties of similar offenses in order to determine proportionality. Rewitzer, 617 N.W.2d at 415. This includes the Federal Sentencing Guidelines, as well as other states’ sentencing statutes. Id. (federal guidelines); City of New Brighton, 622 N.W.2d at 371-72 (other states’ statutes).

The district court determined that under the Federal Sentencing Guidelines, appellant’s offense would be categorized as a level-12 offense. The fines imposed for offenses at that level range between $3,000 and $30,000. United States Sentencing Commission, Guidelines Manual § 5E1.2(c)(3) (2004). Thus, the district court stated that the $19,530 forfeiture is well within that range and does not suggest disproportionality.

Appellant again challenges the district court’s methodology, arguing that it was improper to consider the federal guidelines because they are inapplicable to Minnesota and because the district court improperly analyzed the federal guidelines. We disagree. The district court properly considered the federal guidelines under this prong. Rewitzer, 617 N.W.2d at 415. Furthermore, the district court’s methodology properly involved determining where a second-degree controlled-substance crime was ranked in the federal system and what fines were allowable for an offense with that ranking. We therefore conclude that the district court’s methodology was proper.

4. Instrumentality or Nexus

Under the nexus test, a court considers “ ‘not how much the confiscated property is worth, but whether the confiscated property has a close enough relationship to the offense.’ ” City of Worthington Police Dep’t, 516 N.W.2d at 584 (quoting Austin, 509 U.S. at 628, 113 S.Ct. at 2815 (Scalia, J., concurring)). Thus, “if the use of the property plays a significant part in committing an offense, then the property may be forfeited, no matter what its value.” City of Worthington Police Dep’t, 516 N.W.2d at 584. “[I]n Minnesota, an action for forfeiture is a civil in rem action. The property seized becomes the defendant, based on the legal fiction that it is the inanimate object itself, not its possessor or owner, that is guilty of wrongdoing.” Miller, 669 N.W.2d at 896 (quotation omitted).

But a high standard must be met when the object of the forfeiture action is one that is pervasive and used for many activities, both criminal and non-criminal. See Riley v. 1987 Station Wagon, VIN:1JCMT7840HTI07485, 650 N.W.2d 441, 445 (Minn.2002). Riley involved the forfeiture of an automobile, and the supreme court stated that “[t]he use of the automobile in our society is pervasive. A car by itself is not contraband and there is little activity that the use of a car does not ‘facilitate’ to some degree.” Id. (citation omitted). The court interpreted the term “facilitate” for forfeiture purposes to “require[ ] a direct and substantial connection between the [property] being forfeited and the designated offense.” Id.

A similar analysis is applicable here because ownership of a house is also common in our society. Appellant’s house was the instrument for his drug-sale operation and drug possession. While it is true that a house is not necessary to facilitate the sale or possession of drugs, the question is whether appellant used the house to sell or possess drugs. City of Worthington Police Dep’t, 516 N.W.2d at 584. As the district court here stated,

all of the alleged drug transactions took place at the house in question. The house was used both to store drugs in [appellant’s] possession, and also to gain privacy for his drug transactions. The use of the house made the sales easier to conceal, as they could be kept out of the sight of the public.

Because we conclude that such use meets the “direct and substantial connection” requirement, the district court did not err by concluding that appellant’s house was an instrumentality of his criminal activity.

DECISION

Because forfeiture of appellant’s house and money is not grossly disproportional and because the house was an instrumentality of appellant’s criminal activity, the forfeiture under ■ Minn.Stat. § 609.5311 (2004) does not constitute an unconstitutionally excessive fine,

Affirmed.