author: ANDERSON, PAUL H., Justice.

text:
    STATE of Minnesota, Respondent, v. Jason Lee BOLSTAD, Appellant.
    No. A03-832.
    Supreme Court of Minnesota.
    Sept. 23, 2004.

      Timothy R. Anderson, Frederic Bruno & Associates, Minneapolis, MN, for Appellant.
    Mike Hatch, Minnesota Attorney General, Kelly O’Neill Moller, Assistant Attorney General, St. Paul, MN, Norman J. Loren, Kanabec County Attorney, Mora, MN, for Respondent.
   OPINION

ANDERSON, PAUL H., Justice.

On April 2, 2003, a Kanabec County jury found Jason Lee Bolstad guilty of first-degree murder for the April 2, 1996 death of his father, Gary Bolstad. The Kanabec County District Court then sentenced Bol-stad to life in prison. Bolstad appeals his conviction, arguing the evidence presented at trial was insufficient to support his conviction, the court abused its discretion in denying his request to recall a witness, and the state committed misconduct by making several unduly prejudicial statements during the course of the trial. We affirm.

Sometime after 9:00 p.m. on April 2, 1996, Larry Elwood received a telephone call from Patricia Reissig, n/k/a Patricia Sinn. Sinn asked Elwood to check on Gary Bolstad, her fiancée, because he had failed to show up for a 5:30 dinner engagement. Elwood was a friend of Gary Bolstad’s and both lived in the Devil’s Lake area of Kanabec County. Sinn lived in Anoka County. At approximately 9:45 p.m., Elwood found Gary Bolstad’s body lying at the base of the porch of Bolstad’s home. Elwood went to a neighbor’s house to summon help. Officers from the Kanabec County Sheriffs Department soon arrived and secured the area. The Bureau of Criminal Apprehension (BCA) was contacted and led the subsequent investigation.

Gary Bolstad had been shot a number of times. His wounds from these shots were not life-threatening, and a medical examiner determined he remained conscious after being shot. The examiner also determined that Bolstad was struck a minimum of 24 times in the head with a blunt object. The subsequent medical examination determined that the cause of Bolstad’s death was blunt trauma to the head. When Bol-stad’s body was found, his wallet was missing from the back pocket of his pants and the lining of his right front pants pocket was pulled out. Bolstad reportedly often carried a large amount of cash in that pocket.

On April 3, 1996, investigators interviewed Gary Bolstad’s youngest son, appellant Jason Bolstad, who was then 19 years old. Jason Bolstad told investigators that he had an apartment in Blaine, but stated that during the days before and the day of April 2, 1996, he had been staying with his girlfriend, Lisa LeTour-neau, at her apartment in Hudson, Wisconsin. Lisa LeTourneau’s sister, Angie LeTourneau, was also staying at the apartment to take care of Lisa LeTourneau’s son. Bolstad stated he had gotten up at around 10:30 a.m. on the day of his father’s murder, went to a local McDonald’s to eat, and returned to LeTourneau’s apartment around noon. Bolstad stated that, when he returned, he found his friend William “Billy” VonWald at the apartment. VonWald, a high school senior, was dating Angie LeTourneau and had stopped by the apartment to visit her during his lunch period.

Jason Bolstad then told investigators that he spent the afternoon of April 2 sleeping and watching movies. He said that at 4:00 p.m., VonWald stopped by the apartment on his way to work at a Wendy’s restaurant and they watched movies for about an hour. Bolstad stated that, after VonWald finished work later that evening, he and VonWald went to a nearby store to shop. On April 4, 1996, Angie LeTourneau told investigators that Bol-stad was in the Hudson apartment throughout the day on April 2, and Von-Wald stated that he saw Bolstad at the apartment at noon that- day and again after work.

Jason Bolstad also told investigators about a 1995 incident when he and his father were outside his father’s Devil’s Lake home. Someone apparently shot at his father from across the lake and the bullet hit a nearby tire. According to Jason Bolstad, his father told him not to tell anybody about the incident.

In an effort to ascertain the time of death, investigators interviewed the garbage service route driver who collected Gary Bolstad’s garbage on April 2. The garbage had been collected that day at approximately 12:45 p.m. The driver picked up the garbage from a garbage can at the end of the driveway and said that he did not notice anything unusual. The garbage can had been returned to its usual place near the house. The investigators concluded that Gary Bolstad apparently had put the garbage can away some time following the pick-up.

On two occasions in early April, investigators interviewed Gary Bolstad’s neighbor Kathryn Harrison, n/k/a Kathryn Buz-zell. Buzzell had arrived home from work on April 2 at 6:10 p.m. She noticed a vehicle in Gary Bolstad’s driveway when she drove past his home. Buzzell, who worked at an auto body shop, told investigators that she recognized customers more by their cars than by their names. She said she thought the vehicle she saw in the driveway was an “older body style” Ford Ranger pick-up. She said a fence surrounding most of Gary Bolstad’s property obstructed her view of the vehicle and this resulted in her being able to see only the vehicle’s tailgate and some of its rear fender. She identified the vehicle as a Ford Ranger based on its body style, the “lines around the tailgate,” and “the chrome panel across the tailgate.” Buzzell said she did not pay attention to the vehicle’s color.

David Harrison, Buzzell’s husband at the time of the murder, also told authorities that he saw a vehicle in Gary Bolstad’s driveway. Harrison described the vehicle and said he was absolutely certain that it was a Ford Ranger. Harrison did not testify at Jason Bolstad’s trial, but his identification of the vehicle as a Ford Ranger and the fact that Harrison had familiarity with vehicles from his work as an insurance adjuster was introduced through the testimony of the investigator who interviewed him in April 1996.

On April 10, 1996, investigators recovered Gary Bolstad’s bank card and other items that had been in his wallet. Two boys found these items in Andover in Ano-ka County while they were riding their bicycles. The location where the items were found was approximately one block away from the home of Gary Bolstad’s oldest son, Jeff Bolstad. Jeff Bolstad is Jason Bolstad’s half-brother.

On April 14 and 15, 1996, investigators interviewed Adam Sundermeyer. Adam Sundermeyer’s sister, Mandi Sundermeyer, had been dating Jason Bolstad until a few weeks before Gary Bolstad’s death. Adam Sundermeyer told investigators of two conversations he had with Jason Bol-stad before Gary Bolstad’s murder. The first conversation took place on a road in Stanchfield, Minnesota, in the Spring of 1995. Sundermeyer stated that during this conversation Jason Bolstad offered Sundermeyer $10,000 to kill his father because he was mad at him.

The second conversation took place as the two shared a case of beer at Jason Bolstad’s Blaine apartment. This conversation was within a month before Gary Bolstad’s murder. Adam Sundermeyer told investigators that in this conversation Bolstad offered Sundermeyer $5,000 to kill his father, but did not say why he wanted his father killed. During this conversation, Bolstad referred to his father as a “prick” and also said he was planning to sell his truck to come up with the $5,000. In this conversation, Sundermeyer and Bolstad discussed shooting Bolstad’s father with a rifle from a location across Devil’s Lake — a location suggested by Bol-stad. They also discussed using a specific size and caliber of rifle and the need for a scope sight and tripod. Sundermeyer testified later that he did not believe Bolstad was serious in either conversation. Sun-dermeyer did mention the conversations to his mother, but she could not recall if he mentioned them before or after Gary Bol-stad’s murder. Sundermeyer’s mother did not go to a law enforcement agency with the information.

Adam Sundermeyer’s girlfriend was with him in Jason Bolstad’s apartment at the time of the second conversation and overheard parts of the conversation. The girlfriend stated at trial that Jason Bol-stad’s request for Sundermeyer to kill Gary Bolstad came across to her as a joke and she said that during the conversation Sundermeyer “laughed it off’ as a joke. The girlfriend also stated that Jason Bol-stad had said he did not like his father and would like to have him dead.

Mandi Sundermeyer testified at trial that on “a few occasions” Jason Bolstad stated that he wished his father were dead because then he would be rich and would not have to work anymore. She stated that she did not take Jason Bolstad seriously and thought he was joking when he made the statement. She also stated that she believed money was important to Jason Bolstad because he talked about it frequently.

Jeff Bolstad testified that, about a month before his father’s murder, Jason Bolstad told him that he was mad because their father would not help him replace his current Chevy truck with a Dodge Dakota. During this conversation, Jason Bolstad stated he wished their father were dead. Jeff Bolstad’s wife, Kristine Bolstad, was present when Jason Bolstad made the statement and testified that she thought he was “just a hostile kid being mad at his parent.”

On April 16, 1996, Jeff Bolstad, Jason Bolstad, and Gary Bolstad’s parents went to the Kanabec State Bank to redeem Gary Bolstad’s certificates of deposit (CDs) and close his other bank accounts. Gary Bolstad had named his sons and parents as the payable-on-death beneficiaries of the CDs. Jeff and Jason Bolstad received $104,525.67 and $87,222.02 respectively from the CDs. Gary Bolstad’s parents received $158,758.43 total from the CDs and the other bank accounts. Jason Bolstad and Gary Bolstad’s parents also were the beneficiaries of Gary Bolstad’s will, but there is no indication that Jason Bolstad knew either of the existence of the will or that he was named as a beneficiary.

On April 17, 1996, investigators asked Jason Bolstad if he had ever asked someone to kill his father. Bolstad initially replied “Nope,” but eventually admitted that he had had the conversations with Adam Sundermeyer. Bolstad also admitted that he had said that he wished his father were dead, but added that he never said he would actually kill him. During this interview, investigators asked Bolstad about the 1995 incident when someone had allegedly shot at his father from across the lake. When asked if “there was a comparison” between this incident and his discussion with Adam Sundermeyer, Bolstad acknowledged there was a comparison, but said that the two were not connected and he did not get the idea to shoot his father from across the lake from the incident.

The investigation into Gary Bolstad’s murder stalled after about 18 months had elapsed and no arrest had been made.

In October 2001, approximately 5⅜ years after Gary Bolstad’s murder, Jeff O’Malley contacted the police with new information about the murder. The information from O’Malley led investigators to contact three persons who had been with Angie LeTour-neau at a summer festival in August 1996. All three told investigators that Angie Le-Tourneau had commented at the festival that she had not told investigators the truth when she said Jason Bolstad was with her in her sister’s apartment throughout the day on April 2,1996.

Investigators then interviewed Angie LeTourneau on January 3, 2002. Investigators challenged her earlier story by informing her that several persons had told them of her August 1996 comment. The investigators added that she might be called before a grand jury, and that the consequence of giving false testimony to a grand jury was felony perjury. Angie Le-Tourneau, however, maintained that she had told the truth in 1996. Angie LeTour-neau’s brother, with whom she and her daughter were staying at the time, was present during this interview. Afterward, the brother spoke with investigators separately. Later that same day, the brother and his wife apparently talked to LeTour-neau and told her she could lose custody of her daughter if she did not tell the truth.

Four days later, on January 7, 2002, Angie LeTourneau contacted the investigators. In an interview later that day at her brother’s home, LeTourneau told investigators that she had lied about Jason Bol-stad being with 'her in the apartment on April 2, 1996. She stated that Bolstad had left early in the afternoon and came back after dark. LeTourneau stated that when Bolstad returned to the apartment, he told her not to turn on the lights, went into the bathroom for about 15 minutes, and then carried a garbage bag out of the apartment. Bolstad did not have the bag with him when he returned to the apartment 10 or 15 minutes later. LeTourneau later testified at Bolstad’s trial that he had told her to say he had been with her if anyone asked where he was.

In early January 2002, investigators contacted VonWald as part of their effort to reexamine Jason Bolstad’s possible involvement in the murder. After the state offered VonWald immunity — the terms of which were negotiated through VonWald’s attorney — the attorney delivered to investigators a Colt .32 caliber semiautomatic pistol. Investigators then interviewed VonWald on January 12. VonWald told them that he had lent the pistol to Jason Bolstad after the latter asked for a handgun to use at a target range. VonWald said he took the pistol from his father’s dresser and gave it to Bolstad on March 29, 1996. VonWald also told investigators that on the evening of April 2, 1996, Jason Bolstad called him at work and told him he was done with the pistol and that VonWald could pick it up that evening at Lisa Le-Tourneau’s apartment. After work, Von-Wald went to the apartment, took the pistol and its empty ammunition clip from the kitchen counter, and put them in the trunk of his car. He then returned to the apartment where he watched movies with Angie LeTourneau until midnight.

After their interviews with VonWald and Angie LeTourneau, investigators recontacted Buzzell, the neighbor who had seen a vehicle in Gary Bolstad’s driveway the day of his murder. The investigators asked her to drive past the same driveway and look at a vehicle parked there in order to determine if it was the same one she saw on April 2, 1996. This identification took place using the Dodge Dakota pick-up that Jason Bolstad had purchased on March 29, 1996. Buzzell later testified that the vehicle resembled the one she saw in 1996, but she could not state with certainty that it was the same vehicle.

The BCA tested the pistol turned over by VonWald and was able to determine that it was the same pistol used to fire the bullets recovered during the investigation of Gary Bolstad’s murder. The BCA also discovered traces of blood under the pistol’s grip, hammer, and slide mechanism. The DNA profile of the blood found under the pistol’s hammer matched Gary Bol-stad’s DNA profile with a relative frequency of no more than once in the world’s population. The DNA profile of the blood found under the grip matched Gary Bol-stad’s DNA profile with a relative frequency of one in 320,000. A DNA profile could not be obtained from the traces of blood from under the slide.

On January 18, 2002, Jason Bolstad was arrested and charged by complaint with second-degree murder. On March 13, 2003, a Kanabec County grand jury indicted Bolstad on four criminal counts for the death of his father — two counts each of first-degree and second-degree murder. MinmStat. §§ 609.185(3) (2002) (first-degree felony murder), 609.185(1) (2002) (first-degree premeditated murder), 609.19(1) (2002) (second-degree intentional murder), 609.19(2) (2002) (second-degree felony murder). Jason Bolstad’s jury trial began March 18, 2003. He did not testify at his trial. He did call several witnesses to testify mainly to his general character for peacefulness. Jason Bolstad also called a physician who testified regarding a heart condition he had known as supra-ventricular tachycardia (SVT) which causes a person’s heart to beat at times in an abnormal rhythm.

On April 2, 2003, the jury found Jason Bolstad guilty on all four counts. The district court sentenced him to life in prison for the second count: premeditated first-degree murder. Bolstad appeals his conviction, arguing that the evidence presented at trial was insufficient to support his conviction, the court abused its discretion in denying his request to recall a witness, and the state committed misconduct by making a number of unduly prejudicial statements during the course of the trial.

I.

Our review of a claim of insufficient evidence is limited to determining whether the jury could have reasonably concluded that the defendant is guilty of the offense based on the evidence presented at trial. State v. Quick, 659 N.W.2d 701, 709 (Minn.2003). We view the evidence in the light most favorable to the verdict and assume “that the jury disbelieved any testimony in conflict with the result reached.” Woodruff v. State, 608 N.W.2d 881, 889 (Minn.2000). We will uphold the jury’s verdict “if, giving due regard to the presumption of innocence and to the state’s burden of proving the defendant’s guilt beyond a reasonable doubt, the jury could reasonably have found the defendant guilty.” Quick, 659 N.W.2d at 709-10.

A conviction based on circumstantial evidence warrants particular scrutiny. State v. Scharmer, 501 N.W.2d 620, 621 (Minn.1993). In such a case, the evidence “must do more than give rise to a suspicion of guilt; ‘[i]t must point unerringly to the accused’s guilt.’ ” Scharmer, 501 N.W.2d at 622 (quoting State v. Loss, 295 Minn. 271, 281; 204 N.W.2d 404, 409 (1973)). Nevertheless, “circumstantial evidence in a criminal case is entitled to as much weight as any other type of evidence so long as the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational or reasonable hypothesis except for that of guilt.” State v. Wallace, 558 N.W.2d 469, 472 (Minn.1997). Thus, in the context of the evidence as a whole, the circumstances must form a complete chain leading “so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.” State v. Wahlberg, 296 N.W.2d 408, 411 (Minn.1980). While this is a strict standard, it remains the province of the jury to determine the credibility and weight of the circumstantial evidence and we will continue to assume the jury believed the state’s witnesses and disbelieved the defendant’s witnesses. Quick, 659 N.W.2d at 710. We have recognized that the jury is normally in the best position to evaluate circumstantial evidence and its verdict is entitled to due deference. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989).

Bolstad advances two primary arguments in claiming the evidence was insufficient to support his conyiction. First, he asserts that the 1996 statements of Angie LeTourneau and VonWald confirming Bol-stad’s alibi defense are more credible than their subsequent statements in 2002. Bol-stad argues that we should not credit Angie LeTourneau’s testimony because in January 2002 investigators caused her to change her story by telling her she could face perjury charges and possibly go to jail if she lied to a grand jury. It is uncontro-verted that investigators did discuss with LeTourneau the consequences of giving false testimony, but we can discern no reason to conclude that such an accurate warning caused LeTourneau to testify falsely.

The role of Angie LeTourneau’s brother and his wife in causing LeTourneau to change her story is less clear. Although LeTourneau testified that no investigator told her she could lose her daughter, she did testify that upon returning home from a store the day of the first 2002 interview, her brother and his wife “told me that they had called back and said that if I don’t tell the truth they would put me on the stand and basically try me and give me a lie detector test.” (Emphasis added.) Le-Tourneau acknowledged that when she talked to her brother and his wife, she was under the impression she could be prosecuted and her daughter could be taken away from her. All of the foregoing circumstances surrounding LeTourneau’s changed story were developed at length in testimony before the jury.

Our review of the record also indicates that the jury was presented with the relevant details of the circumstances surrounding YonWald’s 1996 statement and his 2002 statement and the immunity he received in exchange for his cooperation and testimony at trial.

In essence, Bolstad asks us to conclude that the testimony of Angie LeTour-neau and VonWald was so lacking in credibility that it does not support the jury’s finding of guilt, or alternatively could support a hypothesis that VonWald committed the murder. However, the facts of this case do not warrant usurping the jury’s role in assessing credibility. In State v. Pippitt, we were asked to discount the testimony of a witness in an appeal based on a claim of insufficient evidence. 645 N.W.2d 87 (Minn.2002). In Pippitt, the witness’s credibility was seriously called into question by evidence of multiple prior convictions and through conflicting testimony about his motivation for giving a statement in that case. Id. at 94. We noted that “weighing the credibility of witnesses is a function exclusively for the jury,” and refused to reject the witness’s testimony as unworthy of belief. Id. In State v. Asfeld, we upheld a verdict against a sufficiency challenge when the defendant asserted that the circumstantial evidence pointed “as strongly” to a different person as it did to him. 662 N.W.2d 534, 546 (Minn.2003). In Asfeld, we explained that, when the defendant asserts that the circumstantial evidence pointed to another person as well as the defendant, it “is precisely the kind of situation in which we apply the presumption that the jury, in its role as evaluator of witness credibility, believed the state’s witnesses and disbelieved the defense witnesses.” Id.

In this case, we conclude there is no basis for departing from our presumption favoring a jury’s resolution of witness credibility. We conclude the jury would necessarily have assessed the credibility of LeTourneau and VonWald and their changed stories in light of the relevant surrounding circumstances. On the record before us, there is no basis in the changed stories to question the jury’s verdict against Bolstad. See State v. Reichenberger, 289 Minn. 75, 79-80, 182 N.W.2d 692, 695 (1970) (noting that the jury had been apprised of a witness’s prior inconsistent statements and that weighing credibility was a task for the jury and not for this court). Therefore, we conclude that the part of Bolstad’s sufficiency argument that is based on the credibility of LeTourneau and VonWald lacks merit.

Bolstad’s second sufficiency of the evidence argument is that VonWald “was the most likely person to have been involved in the murder of Gary Bolstad” or, in other words, the evidence supports a reasonable inference other than that Bol-stad is guilty. There is little doubt that the pistol surrendered by VonWald is the most incriminating piece of physical evidence connected to the murder. The implication resulting from the pistol’s recovery and the subsequent determination that it was used during Gary Bolstad’s murder is that whoever is connected to the possession of the pistol on April 2,1996 is inextricably connected to the murder. VonWald testified that he lent the pistol to Jason Bolstad on March 29 and Bolstad returned it to him on the night of April 2. Although Jason Bolstad initially had an alibi placing him in Hudson throughout April 2, Angie LeTourneau’s changed story leaves a gap of time during the afternoon and early evening of April 2 when Bolstad cannot account for his whereabouts.

In contrast, school attendance records show that VonWald was in school on April 2 during all seven class periods from 7:40 a.m. to 2:40 p.m. Employment records show that VonWald was at work that evening from 5:18 p.m. until 8:00 p.m. Given this evidence, it would be implausible for VonWald to have committed the murder because it takes three hours to make a round trip from Hudson to Devil’s Lake. In addition, there is no clear evidence that VonWald knew where Bolstad’s father lived or had a motive to commit the murder. In response to the evidence supporting VonWald’s alibi, Bolstad emphasizes a school official’s acknowledgment at trial that human error does occur in taking attendance. Bolstad also claims that Von-Wald could have, had another employee enter his employee identification number for him at work.

We note that the state presented extensive testimony regarding Bolstad’s possible motives for killing his father. While evidence of a motive is not necessary to proving first-degree murder, “a motive helps form inferences from the circumstantial evidence, and adds credibility to the state’s case.” Webb, 440 N.W.2d at 431. After reviewing the record and Bol-stad’s arguments, we conclude there is no basis for departing from our presumption favoring the jury’s resolution of contested issues of fact. In sum, we hold that the evidence presented by the state was sufficient to convict Jason Bolstad of the premeditated first-degree murder of his father.

II.

Bolstad next contends that the district court abused its discretion in denying his request to recall Sinn as a witness on the second to last day of testimony. Bolstad argues for admission of Sinn’s testimony under Minn. R. Evid. 804(b)(5). We review a district court’s decision on the admission of evidence for abuse of discretion. State v. Williams, 586 N.W.2d 123, 126 (Minn.1998). Absent a clear abuse of discretion, a district court’s evidentiary ruling will not be reversed. Id.

After the state elicited testimony from investigators concerning Bolstad’s statements about the 1995 incident when someone apparently shot at his father from across Devil’s Lake, Sinn approached defense counsel offering to testify that Gary Bolstad had told her about the same incident. Sinn had been one of the first trial witnesses and, despite the district court’s sequestration order, had been present in the courtroom for the testimony of subsequent witnesses. Apparently, counsel for Bolstad and the state discussed the matter of Sinn remaining in the courtroom after her testimony and agreed she could remain, but could not be recalled by either the state or the defense. •

On appeal, Bolstad claims it was necessary to call Sinn to bolster his credibility by corroborating his 1996 statement tó investigators about the 1995 incident. At trial, Bolstad’s counsel’s stated reason for proffering Sinn’s testimony was to “show that this [1995] incident did, in fact, occur and that Gary Bolstad did not report it as one would expect someone to do under the circumstances and his reasons for not doing so, according to Ms. Sinn.” Trial counsel then explained that Sinn’s testimony was “more probative than any other evidence I can present at this point that the incident did occur.” We note that this argument appears to have conflated the first two elements of Minn. R. Evid. 804(b)(5) by limiting the “point for which it is offered” to the “material fact” for which the statement is evidence. See United States v. Sposito, 106 F.3d 1042, 1047 (1st Cir.1997) (holding the plain language of Fed.R.Evid. 804(b)(5)(B) — now Fed. R.Evid. 807 — does “not require that the issue on which the statement is most probative be a material fact; it requires only that it be probative on the point ‘for which it is offered.’ ”).

The district court found that the underlying statement of Gary Bolstad was hearsay and that it was being offered as evidence of a material fact. When reaching this result, the court did not indicate what material fact it found the testimony was being offered to prove; but, based on counsel’s argument, it appears that the fact or point for which it was offered was to prove the 1995 incident actually occurred. The court, focusing on Minn. R. Evid. 804(b)(5)(B)’s “more probative” language, noted that the jury had already heard about the shooting incident through the properly admitted testimony of investigators about Jason Bolstad’s 1996 statements in which he gave an eyewitness account of the incident.

The district court concluded that Jason Bolstad’s eyewitness account was more probative of the fact of the incident than Sinn’s proffered testimony that Gary Bol-stad had told her about the same incident. The court also expressed agreement with the state’s contention that Sinn’s testimony had reliability and trustworthiness problems because Sinn had never before mentioned the incident to investigators and she had only come forward after hearing other witnesses talk about the incident. In addition, the court noted that it was concerned about Sinn being in the courtroom despite the court’s sequestration order. We conclude that the reasons given by the court do support its decision. Therefore, we hold that the court did not abuse its discretion when it denied Bolstad’s request to recall Sinn.

III.

Bolstad next contends that questions by the state during voir dire and comments during the state’s opening statement and during its closing argument “had the distinct possibility of inflaming the passions of the jury and unduly prejudicing” its deliberations. Bolstad failed to object to the allegedly prejudicial conduct or request curative instructions. As Bolstad acknowledges, he is therefore deemed to have waived his right to appeal on the basis of this alleged misconduct. State v. Torres, 632 N.W.2d 609, 617-18 (Minn.2001). However, we may still grant relief if we conclude that the state’s conduct was so prejudicial that a defendant’s right to a fair trial was denied. See State v. Smith, 541 N.W.2d 584, 588 (Minn.1996). In evaluating claims of misconduct, we look to the full trial record. Id.

During voir dire, the state asked each of the twelve jurors and two alternates about the topic of offering money to have a parent killed. The following three excerpts are representative of how the state examined the jurors on this topic:

Excerpt # 1:

q. * * * * Would you describe that as a situation where your mom was neglectful of you or busy working and didn’t have time to do things apparently as a single mom?
A: She was very young, and maybe just a little — maybe too young to handle the responsibilities and ...
Q: Okay. And sounding like your grandmother stepped in and you had a pretty good relationship with her?
A: Yes.
Q: And if I understood your answers, it sound[s] like your relationship with your mom has improved and you have a pretty decent relationship with her now?
A: Yes.
Q: Have you ever asked someone if they would kill your mother, and offer them money?
A: No.
Q: Have you ever been involved in a situation where you heard someone offering money to kill one of their parents.
A: No.
Q: What would you do if you had heard someone doing that?
A: Well, I don’t know that I would even believe it.
Q: Okay. If the Police came 'around and asked about that later on, would you be willing to talk with them about that?
A: Yes.
Excerpt # 2
Q: Have you ever asked someone if they would kill one of your parents for you and perhaps even offered money to do that?
A: No.
Q: Have you ever been in a situation where you heard someone offering-money to have someone, especially even someone like a parent, killed?
A: No.
Excerpt S
Q: Have you ever been in a situation where someone offered money to have a parent killed?
A: No.
Q: Have you ever been in a situation where someone said that they wished that their parent was dead?
A: No.

In particular, the state asked seven jurors whether they themselves had offered money to have a parent killed, as illustrated in excerpts one and two. In three of these instances, the state’s question immediately followed questions about the individual juror’s own parents and the juror’s relationship with them. The state also asked five other jurors if they had been in a situation where someone offered money to have a parent or someone killed, as illustrated in excerpt three. The state asked another juror whether he had been in a situation where he or someone else had offered money to have a parent killed. In addition, the state asked a juror if he had been “in a situation where you were offered some money to have one of your parents killed?”

Bolstad claims that the state’s voir dire questions “cléariy were an attempt to infuse in the jurors from the start the idea that if someone even talks about such a horrible thing as wanting a parent dead, they must be guilty as charged.” The state responds that the questions were asked “to determine whether to exercise a peremptory challenge” and that the information jurors obtained from the questions was the same as what they eventually learned from the evidence. The state also argues that because the defense theory was that B'olstad’s statements about offering to pay to have his father killed were not serious, the state asked the questions to see how the jury would react to witness statements.

We are troubled by the nature of the state’s questions and the possibility that, in some circumstances, this type of blunt questioning could inflame the passions of jurors. Such questioning could be a less than subtle means of getting jurors to identify with the victim and to indirectly commit to how they will react to testimony. While we are concerned about the nature of the state’s questioning, given the record as a whole we conclude that the questioning was not unduly prejudicial. Nevertheless, we note that in a closer case similar questioning has the potential for tipping the balance on appeal.

The next alleged misconduct occurred when, during opening statements, the state graphically described its theory of how Bolstad murdered his father. Bol-stad argues that the opening statement was especially improper because the state’s case was primarily based on circumstantial evidence and no one had ever placed Bolstad at the scene of the murder. Bolstad claims that the state’s description prejudiced the jury against him before the first witness testified.

It is established that the state is not required to make a colorless argument and has a right to present all legitimate arguments on the evidence and to present all proper inferences to be drawn from the evidence. Williams, 586 N.W.2d at 127. Here, the state’s description of how Bol-stad’s father was murdered was consistent with the testimony of BCA crime scene investigators and the medical examiner. In addition, the district court also instructed jurors just before the opening statement that

You should listen attentively to any statement that the [a]ttorneys may make. Those statements are made so that you can better understand the testimony. What the [attorneys say to you, however, is not evidence. Evidence is what the witnesses say, and also any exhibits that may be submitted to you.

Based on our review of the record, we conclude the state’s opening statement was not unduly prejudicial to Bolstad.

The third, and final, alleged instance of misconduct occurred during the state’s closing argument. The state asserted that

if we had to prove guilt beyond all possibility of a doubt, we simply could never hold accountable those who deny their guilt in order to avoid being held responsible. Nor is it doubt created by the imagination or ingenuity of one of the lawyers in the case.

Bolstad asserts that this statement was aimed at “belittling the constitutional role of defense counsel” and attacked Bolstad’s decision to invoke his right not to testify. The state responds that parties are given latitude in closing arguments, the state properly described the standard of proof, and the statement was a small part of an argument spanning 66 pages of trial transcript.

In the context of Bolstad’s trial, we have difficulty discerning any significant support for his contention that the state’s comments during closing argument were unduly prejudicial to him. It does not appear that the comments attacked Bol-stad’s decision to not testify. The reference to “imagination or ingenuity” appears to relate to the several instances when Bolstad’s counsel questioned witnesses about Bolstad’s SVT heart condition. One of these witnesses, who was the last witness the defense called, was a physician, and the sole topic of his testimony was SVT and whether a person with this condition might experience a momentarily debilitating episode. Apparently, Bolstad wished to imply that this condition would have made him physically unable to commit the murder. Based on our review of the record, we conclude that Bolstad’s argument that the state’s comments during closing argument unduly prejudiced him lacks merit.

Based on the foregoing conclusions, we hold that the state’s conduct at trial did not deny Bolstad a fair trial.

Affirmed.

      . O’Malley was Lisa LeTourneau’s former boyfriend and father of her first child. Lisa LeTourneau and Jason Bolstad eventually married and had two children of their own and Bolstad legally adopted LeToumeau’s first child — fathered by O'Malley. Around the time O’Malley contacted law enforcement, Le-Tourneau and Bolstad had separated and were in the process of dissolving their marriage — a process that involved an apparently acrimonious dispute regarding visitation and custody.

      . Bolstad also makes a number of auxiliary assertions, such as it was unfair for investigators to not obtain potentially "exonerating evidence” in 1996 by inspecting his vehicle, his shoes, and taking his fingerprints even though he offered to cooperate, and failing to test a tire track from the crime scene. The substance of Bolstad’s assertions was presented to the jury and, when viewed in light of the presumptions of our standard of review, we conclude there is no basis to question the jury’s resolution of them.


source: Caselaw Access Project

author: WRIGHT, Judge.

license: Public Domain

text:
    Kelci STRINGER, individually and as Personal Representative of the Estate of Korey Stringer, and as Trustee for the Heirs and Next of Kin of Korey Stringer, et al., Appellants, v. MINNESOTA VIKINGS FOOTBALL CLUB, LLC, et al., Respondents, Dennis Green, et al., Defendants, W. David Knowles, MD, et al., Defendants.
    Nos. A03-1635, A04-205.
    Court of Appeals of Minnesota.
    Sept. 21, 2004.

      Paul DeMarco (pro hac vice), Waite, Schneider, Bayless & Chesley Co., L.P.A., Cincinnati, OH; Eric J. Magnuson, Rider Bennett, L.L.P., Minneapolis, MN; Kenneth R. White, Law Office of Kenneth R. White, P.C., Mankato, MN; Richard G. Hunegs, Randal W. LeNeave, Hunegs, Stone, LeNeave, Kvas & Thornton, P.A., Minneapolis, MN; and Kevin O’C. Green, Law Offices of Kevin O’C. Green, P.A., Mankato, MN, for appellants.
    James A. O’Neal, Bruce G. Jones, Amy R. Freestone, Faegre & Benson, L.L.P., Minneapolis, MN, for respondents.
    Considered and decided by WRIGHT, Presiding Judge; RANDALL, Judge; and KALITOWSKI, Judge.
   OPINION

WRIGHT, Judge.

Appellants brought a wrongful-death action against co-employees of the deceased. The district court granted summary judgment based on co-employee immunity under the workers’ compensation act. Arguing that respondents (1) owed a personal duty to the deceased and (2) were grossly negligent in breach of that duty, appellants contend that summary judgment was erroneously granted because there are genuine issues of material fact as to whether an exemption to co-employee immunity applies. We affirm.

FACTS

Korey Stringer, a professional football player with the Minnesota Vikings, died of complications from heat stroke on August 1, 2001. Appellant Kelci Stringer and other survivors brought this wrongful-death action in February 2002. The defendants included several employees of the Minnesota Vikings: head trainer Charles Barta, assistant trainer Paul Osterman, and coordinator of medical services Fred Zamber-letti (collectively respondents).

Stringer reported to training camp on July 29, 2001. On the first day of training camp, July 30, Stringer complained of bouts of stomachache. Late that afternoon, Stringer started vomiting during practice. A coach called Barta and asked him to assist Stringer. While on the field with Barta, Stringer vomited two more times. Barta then escorted Stringer to an air-conditioned first-aid trailer.

Inside the trailer, Osterman and Zam-berletti were assisting other players. Bar-ta told Zamberletti that Stringer was vomiting and needed to cool down. Barta then retrieved Dr. William Knowles, a training-camp physician. By the time Dr. Knowles arrived, Stringer had received water and was not exhibiting ill effects. According to Dr. Knowles’s notes, Stringer suffered an “episode of heat exhaustion” but “recovered without incident following rest and hydration.” That evening Barta supplied Stringer with two bottles of Gatorade to assist in rehydration.

Severe heat and humidity were predicted for morning practice on July 31. As part of the daily training-camp routine, all players were weighed before and after practice. Barta examined Stringer’s weight chart, comparing Stringer’s weight from the prior afternoon to his weight that morning. Barta did not note any extraordinary changes. As a result, Barta allowed Stringer to participate fully in morning practice.

At approximately 10:30 a.m., Stringer vomited again but continued to participate in practice. While working out on a large blocking dummy, Stringer dropped to one knee. Osterman checked on Stringer, who refused assistance. Shortly thereafter, Stringer lay down on the practice field. Osterman and another trainer were called to assist Stringer. Stringer got up and struck the blocking dummy once more; then Osterman escorted Stringer to the first-aid trailer.

Osterman and Stringer entered the trailer at approximately 11:20 a.m. Oster-man gave Stringer water, and he took a few sips. Stringer lay down on the floor of the trailer at some point later. Approximately five to ten minutes after they had entered, Stringer asked Osterman to remove his shoes and ankle tape. As Oster-man did so, he observed that Stringer was sweating and his skin was moist. Stringer thanked Osterman for his assistance. Ost-erman then gave Stringer iced towels to cool down. Stringer moved to an examination table for a few minutes, where he was observed humming and bobbing his head. Later he moved back to the floor. Oster-man did not find this behavior unusual.

Another trainer arrived with a cart to transport Stringer back to the camp dormitory. But by that time, Stringer was unresponsive. Osterman instructed the other trainer to retrieve Zamberletti. While Osterman waited for Zamberletti to arrive, he took Stringer’s pulse, which was “steady but weak.”

When Zamberletti arrived, he saw Stringer breathing rapidly and concluded that Stringer was hyperventilating. To treat this condition, Zamberletti instructed another trainer to place a plastic bag around Stringer’s mouth for 45 to 60 seconds. Zamberletti took Stringer’s pulse and felt that Stringer’s skin was cool and sweaty. Zamberletti then made emergency arrangements to transport Stringer to the hospital.

Stringer arrived at the hospital at approximately 12:25 p.m. His body temperature, measured for the first time that day, was 108.8 degrees. Stringer died early in the morning of August 1, 2001, from complications of heat stroke.

Appellants submitted seven expert affidavits on respondents’ care and treatment of Stringer. Appellants’ experts generally assert that, prior to Stringer’s hospitalization, respondents failed to (1) properly investigate Stringer’s condition; (2) prevent his participation in the July 31 practice; (3) observe changes in his behavior; (4) monitor his vital signs as his condition worsened; (5) diagnose and implement treatment for heat stroke; and (6) rapidly procure emergency treatment.

Appellants’ experts raise more specific challenges to the actions of individual respondents. One alleges that, because players sometimes wore sweat-drenched uniforms when they were weighed, Barta lacked reliable data to calculate actual weight loss. Others allege that Zamber-letti misdiagnosed Stringer for hyperventilation; they claim that, by placing a plastic bag around Stringer’s mouth, Zamberletti exacerbated Stringer’s heat stroke.

On these facts, respondents moved for summary judgment, contending that they had co-employee immunity under the workers’ compensation act. The district court granted respondents’ motion. This appeal followed.

ISSUES

I. Are there genuine issues of material fact as to respondents’ personal duty, thereby precluding summary judgment based on co-employee immunity under the workers’ compensation act?

II. Are there genuine issues of material fact as to respondents’ gross negligence, thereby precluding summary judgment based on co-employee immunity under the workers’ compensation act?

ANALYSIS

Appellants contend that the district court erroneously granted respondents summary judgment based on co-employee immunity under the workers’ compensation act. Whether summary judgment was properly granted is a question of law, which we review de novo. Prior Lake Am. v. Mader, 642 N.W.2d 729, 735 (Minn.2002). In doing so, we consider whether any genuine issues of material fact exist 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). A genuine issue of material fact does not exist when “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” DLH; Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)). “[T]he party resisting summary judgment must do more than rest on mere aver-ments.” Id. at 71. A genuine issue for trial must be established by substantial evidence. Id. at 69-70. We view the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). Summary judgment is appropriate when a party fails to establish the existence of an element essential to the party’s case. Bersch v. Rgnonti & Assocs., Inc., 584 N.W.2d 783, 786 (Minn.App.1998), review denied (Minn. Dec. 15,1998).

Here, the district court granted summary judgment on two separate bases. First, it held that respondents had no personal duty to Stringer. In the alternative, the district court held that respondents’ actions were not grossly negligent. Because the existence of a duty is a prerequisite to negligence, we address this issue first.

I.

The workers’ compensation act is based on a “mutual renunciation of common law rights and defenses by employers and employees alike.” Minn.Stat. § 176.001 (2002). Employers assume strict liability for workplace injuries, assuring that employees receive due compensation, while also avoiding the expense of complex common-law litigation. Foley v. Honeywell, Inc., 488 N.W.2d 268, 271 (Minn.1992). Underlying strict liability is the premise that employers have an exclusive and nondelegable duty to provide a safe workplace. Wicken v. Morris, 527 N.W.2d 95, 99 (Minn.1995). Because co-employees execute this duty, they ordinarily are conferred immunity. Id. But co-employee immunity does not exist when “the injury resulted from the gross negligence of the co-employee or was intentionally inflicted by the co-employee.” Minn. Stat. § 176.061, subd. 5(c) (2002).

Prior to the codification of co-employee immunity at section 176.061, the Minnesota Supreme Court considered the scope of this immunity in Dawley v. Thisius, 304 Minn. 453, 455, 231 N.W.2d 555, 557 (1975), holding:

The acts of negligence for which a co-employee may be held liable must be acts constituting direct negligence toward the plaintiff, tortious acts in which he participated, or which he specifically directed others to do. A co-employee may be held liable when, through personal fault as opposed to vicarious fault, he breaches a duty owed to plaintiff.... He must have a personal duty towards the injured plaintiff, breach of which has caused plaintiffs damage.

Id. (citations omitted). The Dawley court concluded that there was no personal duty based on a manager’s “general administrative responsibility” to maintain a safe workplace. Id.

Following the enactment of section 176.061, the Minnesota Supreme Court revisited the concept of personal duty in Wicken, 527 N.W.2d at 98. Adopting and expanding the analysis in Dawley, the Wicken court emphasized that personal duty does not attach when an employee executes the employer’s nondelegable duty to provide a safe workplace. Id. at 99. It reaffirmed the principle of Dawley, again holding that personal duty does not include a manager’s “administrative activity” to keep a safe workplace. See id. The Wick-en court described personal duty as “no different than the duty any individual owes another arising from normal daily social contact — the duty to refrain from conduct that might reasonably be foreseen to cause injury to another.” Id. at 98.

In other cases involving managers and officers with administrative responsibility for workplace hazards, Dawley and Wick-en have been consistently interpreted to provide immunity from negligence actions. In these cases, because the employees’ actions were pursuant to the employer’s non-delegable duty to provide a safe workplace, no personal duty attached. See, e.g., Buck v. Freeman, 619 N.W.2d 793, 795-96 (Minn.App.2000), review denied (Minn. Feb. 21, 2001); Wood v. Korn, 503 N.W.2d 523, 525 (Minn.App.1993), review denied (Minn. Aug. 24,1993).

Based on the foregoing authorities, a personal duty arises when a co-employee undertakes direct acts toward another employee, Dawley, 304 Minn, at 455, 231 N.W.2d at 557, that are not pursuant to the employer’s nondelegable duty to provide a safe workplace, Wicken, 527 N.W.2d at 99. The scope of this duty is similar to that owed in the course of mutual association during any ordinary social contact. Id. at 98.

Appellants not only contend that Stringer’s injuries arose out of an unsafe workplace, but also that respondents failed to identify Stringer’s injuries and ensure proper treatment. We observe that, because appellants’ claim is not strictly based upon alleged workplace hazards, the analysis here is unique.

When the facts are taken in the light most favorable to appellants, respondents Osterman and Zamberletti both observed Stringer’s heat exhaustion on July 30, but they did not take further action. When Stringer exhibited symptoms of heat stroke on July 31, neither recognized these symptoms or took action to treat them properly.

Osterman and Zamberletti both were directly engaged in the care and treatment of Stringer. Because their actions did not involve general workplace safety or the removal of workplace hazards, their actions were not pursuant to their employer’s nondelegable duty to provide a safe workplace. We, therefore, hold that Ost-erman and Zamberletti had a personal duty to Stringer.

This personal duty is equivalent to that of any ordinary person in the course of ordinary social contact. Wicken, 527 N.W.2d at 98. When an ordinary person knows of another’s distress and takes charge of or controls the circumstances, that person has an affirmative duty to provide due care. See, e.g., Regan v. Stromberg, 285 N.W.2d 97, 99-100 (Minn. 1979) (finding genuine issue of material fact as to whether husband was in charge of intoxicated wife and thereby owed duty of due care to her when he abandoned her on a highway at night); Tiedeman ex rel. Tiedeman v. Morgan, 435 N.W.2d 86, 88 (Minn.App.1989) (finding that host aware of guest’s heart condition owed duty of due care to guest upon learning that guest was suffering an “episode of illness”), review denied (Minn. Mar. 29, 1989). That duty exists here, regardless of the co-employee relationship among Stringer, Osterman, and Zamberletti. See Dawley, 304 Minn, at 455, 231 N.W.2d at 557.

Again, viewing the evidence in the light most favorable to appellants, Barta knew of Stringer’s heat exhaustion on July 30. Barta was responsible for accurately weighing the players, but he did not ensure that these measurements were correct. Barta also did not take Stringer out of practice on July 31.

Arguably, when Barta evaluated Stringer’s weight, Barta was undertaking a direct act toward Stringer. But there is no question that Barta did so to determine whether it was safe for individual players to practice. Because Barta’s actions arose out of his employer’s nondelegable duty to ensure safe work conditions, we hold that Barta had no personal duty to Stringer. In the absence of a personal duty, Barta enjoys the protection of co-employee immunity under Minn.Stat. § 176.061, subd. 5(c).

Relying on the district court’s analysis, respondents argue that any action by a co-employee within the scope of employment is necessarily excluded from personal duty. This proposition is not directly stated in any workers’ compensation immunity cases. Citing several unpublished opinions, respondents derive this rule from the fact that, in these cases, actions within the scope of employment caused the injury. See, e.g., Wicklander v. Rarick, No. C5-02-1217, 2003 WL 282384, at *3 (Minn.App. Feb. 11, 2003) (finding no personal duty where prison workshop supervisors failed to protect foreperson from violent offender); Graves v. McConnell, No. C1-99-1929, 2000 WL 719753, at *5 (Minn.App. June 6, 2000) (finding no personal duty where plant operator, due to breakdown in workplace procedures, miscommu-nieated that plaintiff had already left steam tunnel).

This argument is unavailing. As the foregoing analysis indicates, under some circumstances, personal duty may be coextensive with employment duties. But not every action taken by an employee is in furtherance of the employer’s nondelega-ble duty to provide a safe workplace. Cf. Stelling v. Hanson Silo Co., 563 N.W.2d 286, 290 (Minn.App.1997). Because Oster-man and Zamberletti undertook direct acts toward Stringer that were not in furtherance of their employer’s duty to provide a safe workplace, a personal duty arose.

II.

Once the personal duty is established, liability is incurred only if the actions of the co-employees are grossly negligent. Minn.Stat. § 176.061, subd. 5(c). The Minnesota Supreme Court first provided a detailed definition for gross negligence in State v. Bolsinger, 221 Minn. 154, 159, 21 N.W.2d 480, 485 (1946). It said:

Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty, and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others.

Id. (quoting Altman v. Aronson, 231 Mass. 588, 121 N.E. 505, 506 (1919)). This definition has subsequently been applied to determine whether co-employee liability exists in workers’ compensation cases. See Ackerman v. Am. Family Mut. Ins. Co., 435 N.W.2d 835, 840 (Minn.App.1989).

More recently, in State v. Chambers, again in the context of criminal vehicular homicide, the Minnesota Supreme Court revisited the gross negligence standard. 589 N.W.2d 466, 478-79 (Minn.1999). Based on a narrow indirect quotation from Bolsinger, the Chambers court defined gross negligence as action “without even scant care but not with such reckless disregard of probable consequences as is equivalent to a willful and intentional wrong.” Id. This definition was later adopted by the Minnesota District Court Judges Association in the guideline jury instruction for gross negligence. See 4 Minnesota Practice, CIVJIG 25.35 (1999) (“Gross negligence occurs when a person does not pay the slightest attention to the consequences, or uses no care at all”).

Few cases have considered whether a co-employee’s actions reach the threshold of gross negligence. All of these have concluded that gross negligence did not occur. Thus, it was not gross negligence when a supervisor assembled a nonstandard scaffolding system for silo construetion. Terveer v. Norling Bros. Silo Co., 365 N.W.2d 279, 280 (Minn.App.1985), review denied (Minn. May 31, 1985); cf. Ackerman, 435 N.W.2d at 840 (finding no gross negligence when evidence showed defendant had safely operated truck, but could not stop in time to prevent collision).

On the evening of July 30, after Stringer’s bout with heat exhaustion, Barta sent Gatorade to Stringer’s dormitory to assist in rehydration. After morning practice on July 31, Osterman walked with Stringer to the first-aid trailer. Osterman observed Stringer’s condition, gave him water, removed his shoes, and applied iced towels. When Zamberletti arrived, he attempted to treat Stringer for hyperventilation and then arranged emergency transportation to the hospital.

Even when viewed in the light most favorable to appellants, the uncontroverted record establishes that respondents were cognizant of potential adverse consequences arising from Stringer’s condition and took some actions to care for him. Respondents’ actions may reflect poor judgment or lack of reasonable care, but there is no basis to conclude that respondents disregarded the risk to Stringer altogether in a manner “equivalent to a willful and intentional wrong.” Chambers, 589 N.W.2d at 478. Because the evidence, viewed most favorably to appellants, cannot support a conclusion of gross negligence as a matter of law, the district court properly granted summary judgment. Cf. Terveer, 365 N.W.2d at 281.

In challenging the district court’s conclusion that the record does not support a determination of gross negligence, appellants rely on their experts’ affidavits, which uniformly conclude that respondents failed to provide even scant care for Stringer. Conclusory statements in an expert affidavit do not necessarily preclude, summary judgment, Potter v. Pohlad, 560 N.W.2d 389, 395 (Minn.App.1997), review denied (Minn. June 11, 1997), and will not remedy a legally deficient claim, In re Trusts A & B of Divine, 672 N.W.2d 912, 918 (Minn.App.2004). Even if appellants’ experts correctly determined that respondents’ actions led to Stringer’s death, a contrary outcome is not compelled under the applicable standard for gross negligence.

III.

Appellants also challenge the district court’s award of $34,981 to respondents for expert fees. Prior to assessing costs and disbursements, the district court must hold an oral hearing “so a full record is available for review.” Stinson v. Clark Equip. Co., 473 N.W.2d 333, 338 (Minn.App.1991), review denied (Minn. Sept. 13, 1991). Here, the district court conducted a hearing on costs and disbursements, but appellants failed to provide a transcript of that hearing on appeal. Without a record, we must assume that the findings of the district court would be supported by what occurred at the hearing, and we decline to consider appellants’ challenge to this award. See Noltimier v. Noltimier, 280 Minn. 28, 29, 157 N.W.2d 530, 531 (1968) (allowing dismissal of appeal based upon incomplete record).

DECISION

Respondents Osterman and Zamberletti undertook direct acts toward Stringer that were not pursuant to their employer’s nondelegable duty to provide a safe workplace; conversely, respondent Barta’s actions were pursuant to this duty. Accordingly, Osterman and Zamberletti had a personal duty to Stringer, but Barta did not. All respondents nevertheless exercised more than a scant level of care that did not entirely disregard the particularly adverse consequences arising from the symptoms of injury Stringer exhibited. Because the facts viewed in the light most favorable to appellants do not establish a genuine issue of material fact as to whether respondents were grossly negligent, the district court did not err by entering summary judgment in favor of respondents.

Affirmed.

      . Although Minnesota Vikings Football Club, LLC is also a defendant in this matter, its liability, if any, is not at issue in this appeal.

      . Only two other states, Florida and Iowa, currently extend immunity to co-employees but provide an exemption for some form of negligence. See 6 Arthur Larson & Lex K. Larson, Workers’ Compensation Law § 111.03 (2002); see also Fla. Stat. ch. 440.1 l(l)(b) (2003); Iowa Code § 85.20 (2001). Neither of these jurisdictions has considered a factual situation comparable to the one presented here. See generally Marjorie A. Shields, Annotation, Award of Workers' Compensation Benefits to Professional Athletes, 112 A.L.R.5th 365 (2003).


author: MINGE, Judge.

text:
    DAVID E. McNALLY DEVELOPMENT CORPORATION, Respondent, v. CITY OF WINONA, Appellant.
    No. A03-1785.
    Court of Appeals of Minnesota.
    Sept. 21, 2004.

      Gregory M. Spoo, Rochester, MN, for respondent.
    Bruce A. Nelson, Assistant Winona City Attorney, Robertson, Blahnik & Nelson, Winona, MN, for appellant.
    Considered and decided by MINGE, Presiding Judge; HARTEN, Judge; and HALBROOKS, Judge.
   OPINION

MINGE, Judge.

Appellant city challenges the district court’s judgment setting aside its assessment and ordering a reassessment of all property covered by the assessment roll. Although respondent’s evidence as to cost and value is insufficient to rebut the presumption of the assessment’s validity, we agree with the district court that the city did not comply with its ordinance in determining the gross developable area benefited by the improvement. Because that error affects the entire assessment roll, we affirm the district court’s disapproval of the assessment roll and we remand to the city for reassessment not inconsistent with this opinion.

FACTS

Respondent David E. McNally Development Corporation is a corporation, whose primary business is real-estate development. Respondent was the developer of Bluffview Subdivision, located within the boundaries of appellant City of Winona, and was the owner of four lots and one out lot within phase one of the subdivision. Three of its lots were subsequently sold on contracts for deed.

Respondent petitioned the city to extend and construct water and sewer lines for Bluffview Subdivision. On December 18, 2000, appellant enacted Ordinance 3481, providing that 80% of the cost of constructing the improvements to the benefited property would be assessed based on acres or square footage of the gross deve-lopable acres. When respondent requested an estimate, appellant’s city engineer advised him that each lot would be assessed $938.52 for the trunk lines.

The total cost of sewer and water extensions was $570,291. Although smaller diameter lines would have adequately serviced the subdivision, the city installed a 24-inch sewer trunk line and a 16-inch water trunk line to accommodate potential future development in West Burns Valley, beyond the Bluffview Subdivision. On March 4, 2002, appellant assessed each lot in Bluffview Subdivision, including those of respondent, a total of $5,350.56. Respondent contested the assessment on April 2, 2002, arguing that the assessment exceeded the benefit to the property and that the assessment was not uniform on the same class of property.

At the district court proceeding, the city presented its assessment roll and its witnesses testified that the city deducted from the assessment both the added cost of the larger trunk lines installed to accommodate future growth and 20% of the cost of the construction, all as provided by Ordinance 3481. In spreading the assessments, the city determined that a total of 34.94 developable acres benefited from the water line extensions and 11.15 developa-ble acres benefited from the sewer line. In making this determination, the city included in the assessment only property that could be connected to the trunk lines without further extensions.

The parties’ experts offered different opinions on the property that would benefit from the extension of the trunk lines in the future. Respondent’s expert witness testified that between 150 and 300 gross developable acres could be serviced by the water trunk line extension in the future and that between 900 and 1,800 gross de-velopable acres could be serviced by the sewer trunk line extension. The city’s expert witness testified that only 52 develo-pable acres could be serviced by the water trunk line extension in the future and only 380 developable acres could be serviced by the sewer trunk line extension in the future. A third expert testified that the benefited areas were 165 gross developa-ble acres for the water and 140 acres for the sewer trunk line extensions.

Ronald Jaastad, a certified real-estate appraiser, testified for the city that, in his opinion, the benefits of the sewer and water trunk line extensions exceeded the cost assessed by the city. David McNally, respondent’s president and an experienced real-estate developer, agreed that the property received a special benefit but disagreed on the extent of the benefit. The district court found that McNally believed that the assessment exceeded the increase in value to the property, although McNally did not specify values to support this belief.

The district court concluded that McNally’s testimony was competent, that it overcame the presumption established by the city’s introduction of its assessment roll, and that the assessment exceeded the benefits to the property. It further determined that appraiser Jaastad’s testimony “lacked significant criteria that should have been used to establish substantial similarity between [respondent’s] property and the comparison properties .... [and i]t is impossible to discern whether Mr. Jaastad’s comparison properties are actually comparable to [respondent’s].”

The district court further concluded that the assessment was not uniform on the same class of property because the city did not consider the benefit to the substantial acreage of property beyond Bluffview Subdivision. The court found that the city limited its consideration of the benefit from the project to the immediate area, rather than the increase in fair market value to the larger gross developable area required by Ordinance 3481, and that the city’s calculation of benefiting acres was substantially less than that of all the experts. The court further found that this error was so significant that the entire assessment roll was invalid and that all affected properties should be reassessed. The city challenges the district court’s findings and legal conclusions.

ISSUES

1. Did the district court err in concluding that McNally’s testimony rebutted the presumption that benefits exceeded the assessments created by the city’s adoption of its assessment roll?
2. Did the district court err in determining that the city failed to properly consider the benefits to all gross develo-pable acres of property in preparing the assessment roll?
3. Does the district court have authority to order a reassessment of property owned by persons who did not appeal the original assessment?

ANALYSIS

“The cost of any improvement, or any part thereof, may be assessed upon property benefited by the improvement, based upon the benefits received .... ” Minn.Stat. § 429.051 (2002). A municipality’s power of assessment, however, is limited by three conditions: (1) the land must receive a special benefit from the improvement being constructed; (2) the assessment must be uniform upon the same class of property; and (3) the assessment may not exceed the special benefit. Carlson-Lang Realty Co. v. City of Windom, 307 Minn. 368, 369, 240 N.W.2d 517, 519 (1976). Appellant Winona’s Ordinance 3481 states that

[e]ighty percent (80) of the costs for all trunk improvements for sanitary sewers, water mains, and storm sewers shall be prorated for assessment to the benefiting properties based either on the number of acres or square footage of the gross developable area. If the city determines that additional size ... is required for future extension, the City shall initially pay for the additional cost due to the oversizing.

Id.

I.

Respondent challenged the assessment on two separate grounds: first, the benefit to its own lots; second, the area benefited. The first issue is whether the district court erred in determining that the assessments against respondent’s lots exceeded the benefit of the water and sewer trunk line improvements. An assessment that exceeds the benefit constitutes a taking of property without fair compensation in violation of the Fourteenth Amendment. See Carlson-Lang, 307 Minn, at 370, 240 N.W.2d at 519. When the issue is whether there has been an unconstitutional taking, the district court cannot abrogate its duty by deferring to the taxing authority; rather, its decision must be based upon independent consideration of all the evidence. Buettner v. City of St Cloud, 277 N.W.2d 199, 203 (Minn.1979). This court cannot upset this de novo review of the special assessment when the district court’s determination is supported by the record as a whole. Dosedel v. City of Ham Lake, 414 N.W.2d 751, 756 (Minn.App.1987). Our scope of review is a careful examination of the record to determine whether the evidence fairly supports the district court’s findings and whether those findings support its conclusions of law. Id.

A city is presumed to have legally assessed its property until proven to the contrary, and the introduction of its assessment roll into evidence constitutes pri-ma facie proof that the assessment does not exceed the special benefit. Carlson-Lang, 307 Minn, at 370, 240 N.W.2d at 519. The party appealing the assessment can overcome this presumption by introducing competent evidence that the assessment is actually greater than the benefit. Id. If the city then presents evidence that the amount of the assessment is equal to or less than the increase in the market value of the property, the district court must weigh the parties’ evidence and make a factual determination. Id. at 370, 240 N.W.2d at 519-520.

The city argues that the district court erred because it did not properly weigh the evidence at trial. It contends that the testimony of respondent’s president was insufficient to overcome the presumption of validity created when the city presented its assessment roll. But the caselaw indicates that if the experience and background of the property owner warrants, the district court can give substantial weight to the property owner’s testimony, that such testimony alone is sufficient to rebut the presumption created by the approval of the assessment roll, and that expert testimony is not required. E.H. Willmus Prop., Inc. v. Vill. of New Brighton, 293 Minn. 356, 359-60, 199 N.W.2d 435, 437-38 (1972). A property owner can overcome the presumption created by the assessment roll by identifying the maximum benefit and testifying that the assessment exceeded the benefit. Do-sedel, 414 N.W.2d at 756.

In this case, the city adopted the assessment roll, thereby placing the burden on respondent to present sufficient evidence to rebut the presumption of validity of the assessment. The district court found the testimony of respondent’s president sufficient to rebut that presumption. While McNally’s testimony related to his general concerns with the city’s assessment, at no point does he actually state his opinion, as the owner or as an experienced real-estate developer, that he believed that the assessment exceeded the benefit. The only statements come from an attorney that respondent “disputes” the “[city’s] position that the value of the property has increased in an amount greater than the amount of the assessment.” Allowing vague testimony and argument of counsel to overcome the presumption of validity created by the city’s adoption of its assessment would render such presumption meaningless. Requiring a clear statement that the assessment exceeds the benefit does not place an overly exacting burden on a challenging party. We therefore conclude that the record in this case does not support the district court’s conclusion that the assessments exceeded the benefits.

II.

The second issue we consider is whether the district court erred in determining that the city failed to recognize the entire area benefited by the improvements. Where the issue presented to the district court is the regularity of the assessment process or other determinations within the municipality’s discretion, such as what property is benefited and the prorated division of the cost, the district court should not upset the city’s finding unless it is clearly erroneous. Buettmr, 277 N.W.2d at 203. In these situations, we examine the record to determine whether the evidence as a whole fairly supports the findings of the district court and whether the findings support the court’s conclusions of law and judgment. Carlson-Lang, 307 Minn, at 373, 240 N.W.2d at 521.

Although the law does not define how property is classified for assessment purposes, the municipality has' an obligation to evaluate and determine the reach of the benefit from the improvement. Minn.Stat. § 429.051. In doing so, the municipality has substantial discretion as long as its decision is fair. Minnesota law states that the cost 'of the improvement may be assessed upon property benefited by the improvement “whether or not the property abuts on the improvement.” Id. However, the municipality must evaluate the situation. In Quality Homes, Inc. v. Vill. of New Brighton, 289 Minn. 274, 281, 183 N.W.2d 555, 559-60 (1971), the supreme court rejected the village’s assessment because it had not determined whether nonabutting property was benefited by potential access to the improvement. The-court in City of St. Paul v. Sanborn, 176 Minn. 62, 66, 222 N.W. 522, 523 (1928), stated that “[o]f course it is not necessary that the sewer or improvement should abut the particular parcel in order to subject it to assessment for benefits, so long as some benefit by way of enhanced market value inures to it.” Further, when determining what land receives a benefit, the market value may be calculated upon the best use of the land in- the future, and present use, while a consideration, is not dispositive. Anderson v. City of Bemidji, 295 N.W.2d 555, 560 (Minn.1980).

When the city assessed the property in the present case, it determined that only Bluffview Subdivision “immediately benefited” from the improvements and only included Bluffview lots in its assessment. The city excluded other property further up West Burns Valley because that land required further trunk extensions to hook up to the mains. The district court found that the city’s determination was clearly erroneous because the evidence showed that a significant area of additional property beyond the subdivision was benefited. The court indicated that because part of that property in West Burns Valley was zoned as single-family residential, it was in the same class of property as Bluffview Subdivision.

On appeal, the city points out that the record also indicates that even though the more distant property in West Burns Valley was zoned for single-family residences, parts of that property were not platted and that it was unclear when, if ever, development might occur. The city also argues that it properly assessed only 80% of the cost of the project as limited to the size needed to serve Bluffview and that it reserved the option of assessing at a future date the cost of extending water and sewer trunk lines beyond Bluffview, plus the cost of oversizing the mains as built for Bluffview. The city claims that this was a reasonable policy determination, that it is authorized by Minn.Stat. § 429.051 (2002), and that the district court should not have reversed the city’s decision.

We recognize that a city has broad discretion in classifying property. See id. To conclude that the city abuses its discretion if it does not place all property that is zoned residential in the same class for assessment purposes is difficult because zoning alone does not establish whether land is similarly benefited by the public improvement. All of the West Burns Valley should not be in the same class merely because it is zoned the same as Bluffview Subdivision. Land that is in the process of actually being developed is different from undeveloped land for which there is not an identifiable development plan. The district court went too far in indicating that all of the property in West Burns Valley is of the same class of property merely because it is zoned the same as Bluffview Subdivision.

Even if the district court overemphasized zoning, there remains the question of whether the benefit of the trunk line extension was properly allocated to property in West Burns Valley, whatever the class designation or zoning. As previously observed, the city has discretion to determine classes of property for assessment purposes. See Buettner, 277 N.W.2d at 203; Quality Homes, 289 Minn, at 285, 183 N.W.2d at 562. As long as the city provides a reasonable analysis as to how it exercised its discretion in allocating the benefits, that determination is for the city, not the courts. Still, benefited property must be identified and the assessment fairly prorated. See Quality Homes, 289 Minn, at 280-81, 183 N.W.2d at 559. Not only is this a statutory obligation, but in this case Winona city ordinances apply. The district court concluded that given the provisions of Winona Ordinance 3481 § 1(b), (c), the city failed to exercise its discretion in a reasonable fashion. Under that ordinance, the city was obligated to allocate 80% of the cost of the trunk extensions to the “gross developable area.” In addition, the city is to pay the oversizing costs, and it is obliged to later assess 80% of that oversizing cost against the property benefited by the oversized line. Here, all of the expert testimony indicated that the gross developable area benefited from the project was extensive. The city’s expert ventured that 380 acres benefited from the sewer trunk line and 52 acres from the water trunk line. Respondent’s expert testified that 900 acres benefited from the sewer main and 150 acres from the water trunk line. In constructing its assessment rolls, the city only included 11.15 acres as benefited by the sewer and 34.94 acres by the water trunk line.

The city did not determine the extent of the property that benefited from the construction of the smaller diameter trunk lines, as required by Ordinance 3481. The conclusion that the city reached in making the assessment was simply that Bluffview would pay the cost of the line as if constructed at a smaller diameter and that the outlying gross developable acreage would pay only the incremental cost of the larger diameter line. Other than a reference to proximity for connections, this conclusion was reached without any analysis. Under this approach, the city absorbed 20% of the cost of the line extension in each category and ignored any possible benefit to the extensive gross developable acreage from the basic construction cost of the smaller diameter line. This is inconsistent with the unanimous testimony of the expert witnesses, including the witness called on behalf of the city, regarding the benefitr ed gross developable area and as a result inconsistent with Ordinance 3481 § 1(b), (c). We cannot assume that the benefit to the gross developable area beyond Bluff-view is limited to the cost of oversizing the water and sewer trunk lines. We agree with the district court that the city did not comply with the requirements of its ordinance that it allocate the cost of the improvement to the gross developable area.

III.

The final issue is whether the district court exceeded its authority in vacating the assessment and ordering a reassessment of all property included in the assessment roll, even though respondent is the only property owner to appeal and only owns or has an identified interest in three lots. Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 890, 393 (Minn.1998). Minn.Stat. § 429.081 (2002) states that “[w]ithin 30 days after the adoption of the assessment, any person aggrieved, who is not precluded by failure to object prior to or at the assessment hearing ... may appeal to the district court .... ” Minn.Stat. § 429.061, subd. 2 (2002) provides that “[a]ll objections to the assessments not received at the assessment hearing ... are waived, unless the failure to object at the assessment hearing is due to a reasonable cause.” We further note that Minn.Stat. § 429.081 states that “[t]he court shall either affirm the assessment or set it aside and order a reassessment as provided in section 429.071, subdivision 2.” We recognize that Minn.Stat. § 429.071, subd. 2 (2002), provides that “[w]hen an assessment is, for any reason whatever, set aside by a court of competent jurisdiction as to any parcel or parcels of land ... the council may, upon notice and hearing ... make a reassessment or a new assessment as to such parcel or parcels.”

The city argues that under these statutes, any property owner who did not object to an assessment waives any right to do so, and that the district court did not have jurisdiction to vacate the assessment against such owners. Respondent, on the other hand, proposes that although an owner’s failure to properly appeal an assessment precludes that particular owner from later objecting to his or her assessment, such failure does not preclude a district court from fully vacating an assessment roll that is flawed.

The crucial question is whether the objection and determination of the district court is particularized and unique to a specific lot, such as the amount of benefit, or if the objection and determination of the district court deals with the integrity or validity of the entire assessment roll. It is helpful to note that although property owners who do not timely object are es-topped from claiming irregularities and technical defects in the assessment process, such owners may not be precluded from claiming fraud or that the assessment was performed in violation of the law. See 14 Eugene McQuillin, The Law of Municipal Corporations § 38.198 (3rd ed. 1998). “[D]elay [will not] preclude [property owners] from complaining of the legality of the assessment by reason of the manner in which the apportionment was made.” Id. at § 38.199. And the waiver rules “do not apply to defects, imperfections and omissions rendering the assessment void.” Id. at § 38.203.

We conclude that, when the error affects the validity of the entire assessment, the district court can order a reassessment of all property on the roll. In this case, the failure to properly determine the gross developable area benefited by the project and allocate the costs accordingly goes to the validity of the assessment roll. Therefore, the district court properly ordered reassessment.

DECISION

Because respondent’s president only testified in general terms, his testimony failed to rebut the presumption of validity created by the city’s approval of its assessment roll. While the city is allowed discretion to determine categories of property benefited by improvements, under its ordinance, it must allocate the cost of the improvement to the gross developable acreage benefited. The district court did not abuse its discretion in determining that the city failed to comply with its ordinance in making this allocation. When considering a challenge to a city’s assessment, the district court has authority to order a reassessment of all the property if the challenge involved the validity of an entire assessment. We remand this matter to the city for reassessment, in a manner not inconsistent with this opinion.

Affirmed and remanded.

      . We recognize that the city may pay part of the benefit and later assess that portion. See
        Minn.Stat. § 429.051. Ordinance 3481’s provision that the city pay 20% of the cost of the trunk lines does not relieve the city from fairly allocating the other 80% to the entire gross developable area. Although the ordinance appears to go beyond the statutory requirements by using the phrase “gross de-velopable area,” the ordinance still limits the allocation of costs to the “benefiting properties” and may be construed as not imposing a standard that goes beyond the statute.