author: ANDERSON, RUSSELL A., Chief Justice.

text:
    STATE of Minnesota, Respondent, v. Charles Ellice MEMS, Appellant.
    No. A04-1608.
    Supreme Court of Minnesota.
    Jan. 26, 2006.

      Charles Ellice Mems, Stillwater, MN, pro se.
    Mike Hatch, Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

ANDERSON, RUSSELL A., Chief Justice.

Appellant Charles Ellice Mems was found guilty by a district court jury of first-degree premeditated murder in the shooting death of his former girlfriend and was sentenced to life in prison. Appellant’s appeal from the judgment is based principally on the claims that he was mistakenly identified and was deprived of a fair trial. We affirm.

Appellant and coworker Cindy Peterson dated for approximately six years. Peterson broke off the relationship in late 2001 or early 2002. She told a close friend that appellant was very upset and did not want the relationship to end. In January 2002, Peterson began dating another coworker, Ignacio Villordo-Luna. Thereafter, appellant approached Villordo-Luna at work and told him to “leave [Peterson] alone.” Appellant routinely harassed Peterson at work. Peterson reported the harassment to the employer’s human resources department. In one reported incident, Peterson said that appellant had confronted her outside the break room and told her that she was “not the kind of employee that [the employer] would want” and that he was “going to get [her].” Appellant also engaged in stalking behavior, loitering around her house in the early morning hours and following her in his car.

Meanwhile, Peterson and Villordo-Luna became engaged and planned to marry in Las Vegas on October 26, 2002. During the week before the couple was to leave for Las Vegas, appellant approached Peterson at work twice, telling her each time that she would never marry “the Mexican.” On October 23, 2002, Peterson left her house at approximately 9:30 p.m. to go to work. As she was about to enter her car, she was shot three times: once crosswise through her buttocks, and twice in the head and neck. She died the next day from her wounds.

A neighbor heard the shots, immediately went outside and saw a person approximately six feet two inches tall, dressed in a long, olive-green trenchcoat and a tight hat, standing by the open door of Peterson’s car. The person turned and began walking away from the scene without looking back. The neighbor followed this person for several blocks. At about this time a pedestrian crossed paths with the man in the olive-green trenchcoat at 26th and Madison. The neighbor continued following the man down Madison to a vehicle parked south of the intersection of Madison and Lowry. The neighbor described the vehicle as a dark green SUV, probably a Ford Explorer based on the length. The neighbor saw the person enter the car, drive to the intersection of Madison and Lowry, and turn right onto Lowry. The neighbor ran after the SUV a short distance to try to obtain the license plate number but was unsuccessful. However, he told an officer in a passing police car that the suspect had just driven towards Central Avenue in a dark SUV.

Meanwhile, at approximately 9:40 p.m., off-duty truck driver Richard Miller was listening to a police scanner as he drove along Johnson towards the intersection of Johnson and Lowry. He had heard about the shooting and the police alert for a dark SUV in the area. About a quarter of a block away from the intersection of Johnson and Lowry, he saw a dark Ford Explorer going east on Lowry run a red light at the intersection. Suspecting the Explorer was the one the police were seeking, Miller followed it. During the ensuing chase the Explorer took sudden U-turns, ran red lights, and went up to speeds of 80 miles per hour. Miller noted the license plate number, which he wrote on the palm of his hand and communicated to the police through a 911 operator via cell phone. The police initially heard the license plate number as BGS-615 and that appeared to be confirmed by Miller during the 911 call. However, when the police called him back later, Miller stated the license plate number as BJS-615. At one point during the chase, the two vehicles came to a complete stop next to each other in a well-lit area. Miller finally lost the Explorer when it took a U-turn on Snelling, driving over a median.

Appellant was the registered owner of a dark blue Ford Explorer with license plate number BJS-615. Based upon information gathered from those in the vicinity of the shooting and those who had encountered the suspect, police officers went to appellant’s house, arriving between 10:15 and 10:20 p.m., and set up surveillance. At 12:45 a.m. on October 24, appellant arrived in a dark blue Ford Explorer with no license plates and entered the house. When appellant left the house at approximately 1:20 a.m., the officers arrested him.

At approximately 6:30 a.m. on October 25, 2002, police investigators showed truck driver Miller a six-person photographic lineup that included a photograph of appellant. The investigators asked Miller if he recognized anyone. Miller identified appellant as the person who most resembled the driver of the SUV he had followed.

Appellant was indicted by grand jury for first-degree premeditated murder, Minn. Stat. § 609.185(a)(1) (2004), first-degree domestic assault murder, Minn.Stat. § 609.185(a)(6), and second-degree murder, MinmStat. § 609.19, subd. 1(1) (2004). In the year and a half before trial, he dismissed two attorneys and caused the withdrawal of a third attorney by the submission of various complaints against him, alleging criminal and unethical conduct. Appellant was then found eligible for public defender services. He subsequently sought to discharge his public defenders for the purpose of seeking new counsel but was advised that no further continuances would be granted. He chose to remain with the public defenders rather than proceed to trial pro se. Before trial, the district court dismissed the first-degree domestic abuse homicide count and excluded all references to domestic abuse during voir dire and preliminary jury instructions.

The jury found appellant guilty of first-degree premeditated murder and second-degree murder on May 26, 2004. The district court entered judgment of conviction for first-degree premeditated murder; and after finding that appellant had been previously convicted of a heinous crime involving force or coercion, the court sentenced appellant to life in prison without parole. Proceeding pro se on appeal, appellant claims that the evidence of identification was insufficient to support the verdict and that he was deprived of a fair trial by the improper admission of evidence, prosecutorial misconduct, judicial bias and other irregularities at trial.

I.

Appellant’s primary contention is that his conviction should be reversed outright because the evidence in support of his identification as the person who committed the charged crime rests on inconsistent and/or perjured testimony. He points to inconsistencies in the testimony of investigating officers regarding the October 25, 2002, photographic-lineup display; inconsistencies in testimony of witnesses as to the color and license plate number of the suspect vehicle; and inconsistencies in the testimony of those witnesses who encountered the suspect shortly after the shooting. He argues that the truck driver’s out-of-court identification of him as the driver of the Ford Explorer the truck driver had chased was tainted by media coverage of the shooting, and that the truck driver’s in-court identification testimony was fabricated. He argues that the forensic scientist’s testimony was “deliberately false” and that other witnesses were “untruthful.” He suggests that the evidence shows that truckdriver Miller committed the crime, stole appellant’s license plates and called 911 to frame appellant for the crime.

Assessing the credibility of a witness and the weight to be given a witness’s testimony is exclusively the province of the jury. State v. Bliss, 457 N.W.2d 385, 390 (Minn.1990). The jury is free to accept part and reject part of a witness’s testimony. State v. Johnson, 568 N.W.2d 426, 436 (Minn.1997). Inconsistencies or conflicts between one witness and another do not necessarily constitute false testimony or serve as a basis for reversal. State v. Daniels, 361 N.W.2d 819, 826 (Minn.1985). “It will be noted that in reviewing the sufficiency of the evidence we do not try the facts anew. Our responsibility extends no further than to make a painstaking review of the record to determine whether the evidence, direct and circumstantial, viewed most favorably to support a finding of guilt is sufficient to permit the jury to reach that conclusion.” State v. Ellingson, 283 Minn. 208, 211, 167 N.W.2d 55, 57 (1969). Here, the state’s evidence of appellant’s identity, offered by witnesses in the vicinity of the shooting and those who chased the suspect, in conjunction with and corroborated by the testimony of investigating officers, together with evidence of threats and a strained relationship, was legally sufficient to support the verdict.

II.

Improper Admission of Evidence. Appellant asserts that the truck driver’s out-of-court identification of him as the driver of the Ford Explorer should have been suppressed and that the in-court identification should not have been permitted. The test for determining whether suppression of eyewitness identification testimony is required on due process grounds is whether the identification procedures used by the police were so unnecessarily suggestive as to create a “ ‘very substantial likelihood of irreparable mis-identifieation.’ ” Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)). Here, the district court found, and our independent review of the record confirms, that the photographic display was not impermissibly suggestive.

Appellant asserts that the admission of evidence obtained during the execution of search warrants for his house and vehicles was improper because the affidavits in support of the warrants contained factual misrepresentations. “Misrepresentations invalidate a warrant when they are (1) deliberately or recklessly made, and (2) material to establishing probable cause, meaning probable cause could likely not be established without them.” State v. Jones, 678 N.W.2d 1, 12 (2004) (citing State v. Moore, 438 N.W.2d 101, 105 (Minn.1989)). The record reflects that the misrepresentations alleged by appellant, largely information gathered in 911 calls, were neither intentional nor reckless and in any event not material as the affidavits otherwise provided probable cause for the search warrants. Appellant also asserts that the searches were invalid because the officers named in the warrants were not present at the inception of the respective searches as required by Minn.Stat. § 626.13 (2004). The district court found, and the record reflects, that the search warrants were properly executed.

Prosecutorial Misconduct. Appellant asserts that the prosecutor committed misconduct in closing argument by misstating the evidence by arguing the 911 operator did not clearly hear and record the license number the truck driver called in and that the truck driver showered before the police photographed the license plate number he had written on his hand. Counsel has the right to analyze and explain the evidence, and to argue all proper inferences to be drawn from the evidence. State v. Wahlberg, 296 N.W.2d 408, 419 (Minn.1980). The record reflects that the prosecutor did not mischaracterize the evidence and that the statement about the 911 call was a fair and reasonable inference that could be drawn from the evidence. The prosecutor did not commit misconduct in closing argument.

Judicial Bias. Appellant asserts judicial bias in the official transcription of the proceedings and the conduct of trial. He claims that one of the court reporters deliberately mistranscribed portions of the proceedings, intentionally changed other portions from one transcript to the next, and omitted at least one portion of the examination of one of the investigating officers. This claim centers on a July 7, 2003 pretrial hearing that was transcribed pretrial and, for reasons not apparent from the record, transcribed a second time on appeal after the conviction. Both transcripts reflect that the hearing primarily concerned making a record of appellant’s dismissal of his second privately-retained attorney on the eve of trial. Rather than evidencing a deliberate mistranscription, the differences between the two transcripts of the same hearing are minor clerical deviations of the sort which likely would occur if the transcription were done twice.

Appellant further claims that the district court was not impartial, as demonstrated by rulings adverse to him. There is the presumption that a judge has discharged his or her judicial duties properly. McKenzie v. State, 583 N.W.2d 744, 747 (Minn.1998). Prior adverse rulings by a judge, without more, do not constitute judicial bias. Cf. United States v. Anderson, 433 F.2d 856, 860 (8th Cir.1970) (holding that prior rulings do not establish bias, even if erroneous, for purposes of recusal). The record reflects that the district court carefully considered motions made by both sides; and the court ruled in favor of appellant on some very important motions. Appellant was not denied his right to a fair trial before an impartial judge.

Other Irregularities at Trial. Appellant asserts a violation of his First Amendment rights by restrictions on the manner of communicating with the court. He alleges that when he raised his hand to be acknowledged by the court, the court told him to communicate his concerns to the court through his attorneys. Trial courts have a grave responsibility in overseeing and regulating courtroom conduct and procedure during trials, including criminal trials. See Minn. R. Gen. Prac. 2.02. A trial court must maintain order in the courtroom. Code of Judicial Conduct, Canon 3.A(3). “Because an appellate court cannot glean from a transcript the atmosphere or particular threats to order and decorum in the courtroom, trial courts are vested with broad discretion in deciding matters of courtroom procedure.” State v. Lindsey, 632 N.W.2d 652, 658 (Minn.2001). Here, the record reflects that the district court properly exercised that discretion.

Appellant argues that he was deprived of legal counsel of his choice. The Sixth Amendment of the United States Constitution and article I, section 6 of the Minnesota Constitution provide that a criminal defendant has the right to the assistance of counsel for his defense, which “includes a fair opportunity to secure counsel of his choice.” State v. Vance, 254 N.W.2d 353, 358 (Minn.1977). Appellant discharged two privately retained attorneys and caused a third attorney to withdraw before the appointment of public defenders, all of which necessitated multiple continuances and significant delay in trial. Under these circumstances, appellant’s right to counsel of his choice had been vindicated as he had been granted ample time to secure privately-retained counsel.

Appellant claims that his attorneys refused to call certain witnesses to testify on his behalf, in violation of the Sixth Amendment right to compulsory process. What evidence to present and which witnesses to call at trial are tactical decisions properly left to the discretion of trial counsel. State v. Doppler, 590 N.W.2d 627, 633 (Minn.1999). “[T]he lawyer has— and must have — full authority to manage the conduct of the trial. The adversary process could not function effectively if every tactical decision required client approval.” Taylor v. Illinois, 484 U.S. 400, 418, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988).

Appellant argues that jury sequestration during deliberation put undue pressure on the jury and coerced the verdict. Jury sequestration during deliberation is mandatory unless the defendant and prosecution consent otherwise. Minn. R.Crim. P. 26.03, subd. 5(1) (stating “[w]ith the consent of the defendant and the prosecution, the court, in its discretion, may allow the jurors to separate over night during deliberation.”). Here, the prosecution did not consent to jury separation during deliberation, requesting instead jury sequestration. “In this state, it is a long-standing precedent that sequestration of jurors during deliberation is necessary to protect defendants against even the possibility of outside influence or jury tampering.” State v. Sanders, 376 N.W.2d 196, 207 (Minn.1985) (Wahl, J., concurring specially).

Appellant further argues that the district court engaged in communications with the deliberating jury in his absence, in violation of his right to be present at all critical stages of the trial. “[T]he general rule is that a trial court judge should have no communication with the jury after deliberations begin unless that communication is in open court and in the defendant’s presence.” State v. Sessions, 621 N.W.2d 751, 755-56 (Minn.2001). Here, the record reflects that the sole substantive communication between the district court and the jury after deliberations began was done in open court and in appellant’s presence.

Finally, appellant asserts that his privilege against compelled self-incrimination was violated because the Miranda warning given prior to custodial interrogation was inadequate. Statements made by a suspect during custodial interrogation are generally inadmissible unless the suspect is first given a Miranda warning. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Miranda warnings protect a defendant’s Fifth Amendment privilege against compulsory self-incrimination. Rhode Island v. Innis, 446 U.S. 291, 297, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Even assuming appellant’s police statement was obtained in violation of Miranda, there was no Fifth Amendment violation where his statement was not admitted at trial. See Chavez v. Martinez, 538 U.S. 760, 767, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003) (stating that “[statements compelled by police interrogations of course may not be used against a defendant at trial * * * but it is not until their use in a criminal case that a violation of the Self-Incrimination Clause occurs.”).

In summary, we conclude that the evidence of appellant’s identity was legally sufficient to support the verdict and that he received a fair trial.

Affirmed.

GILDEA, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this matter.

      . After briefs were filed by both appellant's attorney and the state in this direct appeal, appellant discharged his attorney. We granted his request to proceed pro se and to substitute his own brief for that of his attorney.

      . Appellant also maintains that the truck driver's identification from the photographic display was tainted by media coverage and fabricated; but as already discussed, that is a matter of witness credibility and not of suggestive identification procedures.

      . Parties may seek correction or modification of the record pursuant to Minn. R. Civ.App. P. 110.05 (stating that "[i]f anything material to either party is omitted from the record by error or accident or is misstated in it, the parties by stipulation, or the trial court, either before or after the record is transmitted to the appellate court, or the appellate court, on motion by a party or on its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be approved and transmitted.”).


source: Caselaw Access Project

author: HANSON, Justice.

license: Public Domain

text:
    Quanartis DaLee TURNAGE, Appellant, v. STATE of Minnesota, Respondent.
    No. A04-2419.
    Supreme Court of Minnesota.
    Jan. 26, 2006.

      John M. Stuart, State Public Defender, Michael F. Cromett, Asst. State Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General — Criminal, St. Paul, MN; and James Backstrom, Dakota County Attorney, Nicole E. Nee, Assistant County Attorney, Hastings, MN, for Respondent.
   OPINION

HANSON, Justice.

Appellant Quanartis DaLee Turnage was convicted of two counts of first-degree murder (intentional murder during a kidnapping and premeditated murder) and one count of intentional second-degree murder in connection with the death of Wa Vang on March 2, 2004. The district court sentenced Turnage to life in prison without the possibility of parole on the murder during kidnapping conviction. Turnage appeals his convictions and sentence, arguing that (1) the district court erred in admitting a tape recording of phone calls made by Turnage from the Ramsey County Workhouse; (2) the evidence was insufficient to sustain the conviction because the accomplice testimony was not corroborated and the evidence of kidnapping showed only incidental confinement and removal of the victim; and (3) the district court erred in failing to instruct the jury that kidnapping requires that any confinement or removal be more than incidental to the underlying crime. We affirm.

Prior to his death, Vang lived at 754 University Avenue, St., Paul, a building that was owned by May Pa Lee and co-managed by Lee’s boyfriend, Yia Xiong Yang. Vang assisted Yang in various capacities, including acting as Yang’s translator when requested.

Lee also owned a duplex property at 884 University Avenue, St. Paul, a building that has a three-bedroom apartment on the second floor. On January 1, 2004, three- couples, Turnage and Tamika Chapman, Turnage’s brother Quantez and Lau-tusia Ball, and Turnage’s sister Nicole and Damien Robinson, moved into the second-floor apartment. Nicole and Robinson gave Lee and Yang $1,000 as a deposit for their share of the rent.

After about 2 weeks, Nicole and Robinson moved out of the apartment, and Yang gave them about $550 back. According to Nicole, Yang also promised to give them another $100. On March 2, 2004, Nicole, Robinson, Quantez, and Ball went to talk to Yang about getting the $100 back. The parties got into an argument and Vang, who was also present, tried to intervene. Nicole called the police. Two St. Paul police officers came to the building and noticed that Vang was “very drunk” and was not behaving calmly. The officers directed Vang not to intervene and left after referring the parties to the proper civil process to settle their dispute.

On March 24, 2004, 22 days after the rental dispute, Vang’-s body was found in a field adjacent to a commercial storage facility near Highway 52 in West St. Paul, Dakota County. The autopsy revealed that Vang had eight or nine entry stab wounds and more than 30 other sharp force injuries on his body that were caused by two or three knives. Vang died from the loss of blood from these injuries. In addition , to the sharp force injuries, Vang also suffered four blunt trauma injuries to his head, consistent with having been caused by a small baseball bat. Further, Vang had injuries to his thyroid area which could have been caused by a blunt pointed object, possibly a flat head screwdriver. According to the pathologist, Vang had a blood alcohol concentration of 0.182 at the time of death, but there was no evidence of drugs in Vang’s system. Because the cold weather could have prevented the decomposition of Vang’s body, the pathologist could not determine the time of death from the body.

After the police arrested Quantez and Robinson, they seized and examined Robinson’s car. They found a spot of blood consisting of a mixture of DNA on the right passenger side door handle. The predominant DNA profile of this blood matched Vang’s. The police were unable to identify the other DNA profile contained in the blood, but excluded Turnage’s DNA from the mixture. The police later discovered that on March 2, 2004, at around 10:12 p.m., Robinson, Nicole, and Turnage went to a grocery store and bought first aid products. They also found that on March 3, 2004, at 1:15 a.m., Quan-tez went to Hennepin County Medical Center and, under the false name of Mar-kee or Markees Jones, received treatment for severe lacerations to three fingers on his right hand.

Subsequent to their arrest, Quantez and Robinson both pleaded guilty to intentional second-degree murder and received sentences of 339 and 299 months respectively. Both testified for the state at Turnage’s trial, but gave differing accounts of what had happened.

According to Quantez, he met Vang after he had moved into 834 University Avenue, and they quickly became friends and frequently used drugs together. On March 2, 2004, Quantez went to 745 University Avenue with Robinson and their girlfriends to settle the rent dispute with Yang. Vang was intoxicated and tried to get involved in the dispute. Vang argued with Robinson and then tried to rush Robinson, but Quantez got in the middle of it and pinned Vang down.

After the police arrived, Quantez went back to his apartment, told Turnage about what had happened, and the two of them laughed about it. Robinson then returned to the apartment and told Quantez that Vang was coming to beat Robinson up. Quantez met Vang in the hallway. Vang apologized to Quantez for Yang’s behavior, and Quantez and Vang smoked marijuana together.

When Quantez returned to the apartment, Robinson told Quantez that they should go and get Vang. Quantez and Robinson found Turnage, and the three got into Robinson’s car. When they saw Vang, Quantez called Vang over to the car and invited him to use some drugs together. Because the rear driver-side door did not open and the rear passenger-side door only opened from the outside, Quantez, who was sitting in the back, rolled down the window, opened the rear passenger door, got out of the car, and let Vang in. They drove a short distance and parked behind a house, and Quantez and Vang got high. Vang sang some rap lyrics and then suddenly “snapped out” and “told [Tur-nage] f — k him, basically.”

Quantez fell asleep. When he awoke, Robinson’s car was parked at the Cedar-view Commons in North St. Paul, an apartment complex Quantez used to live in. Quantez noticed that Semela Rice, a girl Robinson was dating, was standing by the car and asking Robinson for money. Later, Turnage’s friend, Madjid Elbert, came to the car and talked to Turnage. Quantez then went back to sleep.

When Quantez woke up for the second time, he noticed the car was pulling into a long driveway. He also noticed that Robinson and Vang were arguing and tussling. Subsequently, Robinson and Turnage got out of the car, and Turnage let Quantez out. Quantez initially testified that when Vang got out of the car, Robinson hit Vang in the head with a miniature bat, and Vang took off running. Quantez then provided a different account, explaining that after Turnage got out of the car, Turnage “leaned in” and swung a straight razor toward Vang. Quantez tried to grab the razor and got cut.

Quantez testified that both Turnage and Robinson had knives in their hands and they both chased Vang. After a while, Tur-nage came back to the car and said, “This motherf-r won’t die.” Turnage then went to the trunk and ran back out into the field. Eventually, Turnage returned to the car, went to the trunk again, closed the trunk, hopped in the car, and they sped off. Quantez estimated that they were in the field 30 to 40 minutes. After returning to their apartment, Turnage collected the clothes that Robinson and Quan-tez had worn and put them in a bag with the weapons. Turnage and Robinson then left with the bag.

Robinson’s testimony differed from Quantez’s. First, Robinson did not state that he told Quantez to get Vang, but that they ran into Vang on the street. Second, Robinson testified that, as he was driving to North St. Paul, Turnage made a number of phone calls on Robinson’s cell phone, including a call to Elbert in which Turnage asked Elbert for some “demos.” Third, Robinson stated that at the Cedar-view Commons apartment complex, Elbert came out and handed Turnage a brown plastic bag.

Robinson also gave a different account of the roles that he, Turnage, and Quantez played in Vang’s death. According to Robinson, Turnage directed him to go to the storage facility in West St. Paul. After arriving, Turnage told Vang that he had to let the car air out because “Damien Robinson’s girl” would not like the smell. Robinson got out of the car to go to the bathroom while Turnage let Quantez and Vang out of the car. Turnage then said “plug him” and stabbed Vang in the chest with a knife. Vang took off running, and Quantez tried to stab Vang with a knife. Turnage and Quantez then chased after Vang. After Quantez tackled Vang, both Turnage and Quantez stabbed Vang.

Turnage testified in his defense and denied killing Vang, stating he was not. present when it happened. According to Tur-nage, instead of going to North St. Paul with Quantez and Robinson, he and Chapman did laundry at a laundromat. At around 8:00 p,m., after washing several loads of clothes, he went to a liquor store and bought some alcohol. He then talked to a friend on the street for about 10 to 15 minutes, and went back to his apartment. At around 9 or 9:30 p.m., Turnage received a call from his friend Cory Washington, and they met in the alley behind Turnage’s apartment building. They sat in a car, talked, and smoked marijuana together. After that, Turnage went back to the apartment. Soon after, Robinson called Turnage and asked Turnage to meet him in 10 minutes. After Turnage got into Robinson’s car, Quantez showed Turnage his bleeding hand. Turnage asked what had happened, and Robinson told him “dude gone, we had some business, dude gone.”

Several other witnesses also testified at the trial. Elbert testified that at about 7:25 p.m„ he received a phone call from Robinson’s phone and an unknown male voice asked for some knives. Elbert brought a chef knife and a boning knife in a tan bag, went downstairs and handed the bag to the person sitting on the passenger side of Robinson’s car. Elbert claimed he did not recognize anyone in the car because it was really dark. At around 10:00 p.m., Elbert received another call from Robinson’s phone where a person whose voice he did not recognize said somebody’s fingers were cut and asked how to bandage a deep cut. Elbert threw out the rest of the knife set when Quantez was arrested.

Rice testified that, on the evening of March 2, 2004, she was at Elbert’s apartment and saw Elbert leave the apartment. She went out and saw Robinson, Turnage, and Quantez in Robinson’s car. According to Rice, Elbert was standing on the side talking to Robinson. Rice saw a black coat in the back seat with Quantez, but it did not appear that there was a person in the coat.

Chapman testified that she did laundry with Turnage on the evening of March 2, 2005. Turnage left just before 8:00 p.m. to go to a liquor store. Turnage did not return to the laundromat and was not home when Chapman got back to the apartment. About 80 minutes later, Quan-tez and Robinson came into the apartment through the back door and, soon after, Turnage came in through the front door with alcohol in his hand. Quantez’s hand was cut and he went into the bathroom with Ball. Turnage took Chapman into their bedroom and told her it was not their business that Quantez’s hand was cut.

Tyrone Sain, an inmate who was in the Ramsey County Courthouse with Turnage on March 4, 2004, testified that Turnage said he wished it would keep snowing because of a body in a' field. Turnage showed Sain a cut in his hand and told Sain that he, his brother, and a friend killed a person in South or West St. Paul. Turnage did not think the authorities would find the body until the snow melted. Turnage also told Sain that he used something like a screwdriver to stab the person in the throat area and got the cut on his hand from stabbing the person.

Robert Jones testified that he was housed with Turnage at the Ramsey County Workhouse in March 2004. Jones noted that Turnage was “frantic” every day to see the Pioneer Press newspaper. When Jones asked Turnage why, Turnage explained to Jones that he and his brother had murdered a “Chinese dude,” and that the body was beside a highway under snow.

Demont Bowie was Turnage’s cellmate in the Dakota County Jail. As a result of testifying against Turnage, Bowie received a 10-day reduction in his sentence. According to Bowie, Turnage told Bowie that “his brother and them” had done “something” and hoped “they” would not tell on him. Turnage also told Bowie that the father of the Asian person who was killed was upset about some rent money.

While housed at the Ramsey County Workhouse from March 4 to March 18, 2004, Turnage made several phone calls to Quantez and Elbert that were tape recorded by the facility. These conversations were played for the jury over Turnage’s objection. In one conversation, Turnage told Quantez:

It is snowing like a motherf-r * * *. That’s a great thing. Every time some more inches come, I, I, I look forward to my out date, G, with no complications, you heard me.
⅜ ⅜ ⅜ *
It look a little clearer cause I’m telling ya boy, once that sun come out, I’m moving to Chicago.

In another conversation, Turnage again commented to Quantez, “Yeah, man, I hope it get freezing cold again and starts snowing * *

On a three-way call between Turnage, Quantez, and a female, Turnage talked about the injury to Quantez’s hand, stating, “[i]t was business. Serious s — t was going on when that happened. * * * That wasn’t no damn joke when that happened. That was some serious s — t going on. * * * S — t, his hand, his hand was in the way.”

In a telephone conversation with Elbert, Turnage engaged in the following dialogue: Elbert: There’s some s — t man we gotta talk about too man.

Turnage: What’s that?
Elbert: I’m, we gonna let you know man tomorrow. * * * Real serious man. Very. It’s
Turnage: It’s a problem?
Elbert: It could be.
Turnage: With us?
Elbert: Not me. With ya’ll.
Turnage: With us?
Elbert: Yeah. I’m going to let you know. We ain’t telling D-thing yet because it’s on him. * * * Yeah. That goofy ass [Rice] bitch. * * * Running her mouth ⅜ * * Told some s — t. Told Erica some s — t man. Know the whole f — king scoop. That f — king [Rice] bitch got a big ass mouth, man.
Turnage: On that, you talking about on the demo.
Elbert: Yeah.
Turnage: That bitch don’t know s — t. * * *
Elbert: Yes the f — k he did dude.
Turnage: Oh, s — t.
Elbert: He told her every f — king thing. I had her sitting in the f — king house crying. * * * What the f — k is wrong with you. You know what I’m saying. Coming at me now like ya ya ya and I know what happened and I’m like what the f — k you talking about * ⅞ * [Robinson] told me everything that happened, you know what I’m saying, and Erica turned around like, yeah and told [Quantez]. I know exactly what happened * * *.
Turnage: Oh, f — k, now man, nigger, you know me, I keep the, I didn’t even know the bitch know nothing * * *. Too much.

I.

Turnage argues that there was no foundation to establish that the tape-recorded copies of the tapes of his telephone calls were the same as the originals. According to Turnage, the person who made the copies was not able to verify that the copies were accurate reproductions of the originals.

The district court has broad discretion over the admissibility of evidence, and the standard of review for the adequacy of foundation with respect to the admission of evidence is abuse of discretion. See State v. Williams, 337 N.W.2d 689 (Minn.1983); State v. Johnson, 307 Minn. 501, 504-05, 239 N.W.2d 239, 242 (1976).

In Furlev Sales & Associates v. North American Automotive Warehouse, Inc., 325 N.W.2d 20, 27 n. 9 (Minn.1982), this court noted,

There are seven foundational elements that must be established before a tape recording can be admitted: (1) a showing that the recording device was capable of taking testimony; (2) a showing that the operator of the device was competent; (3) establishment of the authenticity and correctness of the recording; (4) a showing that changes, additions and deletions have not been made; (5) a showing of the manner of the preservation of the recording; (6) identification of the speakers; and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement.

Minnesota Rules of Evidence 901(a) provides: “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Minnesota Rules of Evidence 1003 further states, “A duplicate [recording] is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.”

At trial, the state called Sven Pieper, a technician responsible for recording the phone conversations and for making the tape. According to Pieper, the Ramsey County Workhouse records all the phone calls made by prisoners and stores them in a digital database. The recording system generates a report that contains the destination phone number, the length of the phone call, and the time and date of the phone call. A user can locate specific phone calls on the stored digital tapes by destination number and then use a recording machine to copy the digital recording to a regular tape recording. Pieper testified that during the relevant time period, the recording system recorded all the phone calls originating from the workhouse, the recording machine worked properly and there was no indication that any data was lost. Pieper testified that he located Turnage’s calls by destination numbers and recorded them. Although Pieper did not directly compare the copies to the original, he listened to the conversations as they were recorded and confirmed that he had recorded the correct phone calls.

We conclude that the district court did not abuse its discretion in admitting copies of the tapes. First, the initial digital recordings of the phone conversations satisfy the required foundation elements that this court noted in Furlev and would have been admissible as original tape recordings. Second, the duplicated copies of the digital tapes satisfied the requirement for admitting a duplicate recording. As stated above, under Minn. R. Evid. 1003, the duplicate recording is admissible to the same extent of the original digital tape unless there is a genuine question regarding the authenticity of the original or it is unfair to admit the duplicate in lieu of the original. In light of Pieper’s testimony regarding how the phone conversations were recorded and the copies were made, Pieper’s admission that he did not compare the digital tapes to the regular tapes does not raise a genuine question of authenticity of the digital tapes. Further, there is no indication that it was unfair to admit the copies in lieu of the digital tapes.

II.

Turnage next argues that the evidence was insufficient to sustain the murder convictions because (1) the accomplice testimony of Turnage’s participation in the murder was not corroborated and (2) the evidence necessary to prove kidnapping, as an essential element of first-degree intentional felony murder during kidnapping, was insufficient to establish anything but minimal or incidental confinement or removal of Vang.

A.

When reviewing the sufficiency of evidence to corroborate accomplice testimony, “we view the evidence in the light most favorable to the state and all conflicts in the evidence are resolved in favor of the verdict.” State v. Adams, 295 N.W.2d 527, 533 (Minn.1980). Minnesota Statutes § 634.04 (2004) provides that “[a] conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” In Adams, this court held that adequate corroboration means the “[c]orroborating evidence must link or connect the defendant to the crime” and “must point to the defendant’s guilt in some substantial degree.” Adams, 295 N.W.2d at 533.

The key elements of the testimony of Robinson and Quantez were that on the evening of March 2, 2004, Turnage joined them in the car; the three of them invited Vang into the car; Turnage called Elbert to ask for weapons; Elbert delivered knives to Turnage; Turnage directed Robinson to a secluded spot; Turnage let Vang out of the car, attacked him, pursued him into the field, and stabbed him to death; and Turnage then returned to the apartment with Robinson and Quantez.

Contrary to Turnage’s assertion, Robinson’s and Quantez’s testimony was corroborated by other witnesses for the state in several material respects. Rice testified that she saw the three defendants together in Robinson’s car at Elbert’s apartment complex. Chapman confirmed that Tur-nage was not in her presence after leaving the laundromat and that the three defendants returned to the apartment at about the same time. Robinson’s cell phone record supported Robinson’s testimony that Turnage called Elbert to ask for some “demos.” Several witnesses testified that Turnage was familiar with the area in West St. Paul where Vang was killed because he had previously resided across the street with Chapman. Finally, and most importantly, Turnage’s statements to various witnesses when he was in custody, and in the tape-recorded phone calls, provide corroboration that he had participated in the killing of Vang and was concerned that the authorities might discover Vang’s body. Viewing the evidence in the light most favorable to the state and resolving all conflicts in favor of the convictions, we conclude sufficient corroborating evidence existed not only to link Turnage to the crime but to substantially point to Tur-nage’s guilt.

B.

We next address Turnage’s argument that the evidence is insufficient to support his conviction for murder during a kidnapping. Minnesota Statutes § 609.25, subd. 1 (2004), defines kidnapping as:

Whoever, for any of the following purposes, confines or removes from one place to another, any person without the person’s consent or, if the person is under the age of 16 years, without the consent of the person’s parents or other legal custodian, is guilty of kidnapping and may be sentenced as provided in subdivision 2:
(1) to hold for ransom or reward for release, or as shield or hostage; or
(2) to facilitate commission of any felony or flight thereafter; or
(3) to commit great bodily harm or to terrorize the victim or another; or
(4) to hold in involuntary servitude.

We have held that “where the confinement or removal of the victim is completely incidental to the perpetration of a separate felony, it does not constitute kidnapping.” State v. Smith, 669 N.W.2d 19, 32 (Minn.2003). In Smith, the victim was first attacked in the bedroom and then was blocked from the doorway when he tried to escape. Id. at 23. We concluded that the momentary confinement of the victim, which occurred only after the attack that culminated in the murder was underway, was “completely incidental” to the murder, and therefore, did not constitute kidnapping. Id. at 32-33. Similarly, in State v. Welch, 675 N.W.2d 615, 620-21 (Minn.2004), we reversed the defendant’s kidnapping conviction, concluding that “the confinement that forms the basis of the kidnapping is the very force and coercion that supports the attempted second-degree criminal sexual conduct conviction.”

Turnage argues that the confinement of Vang in the car did not constitute kidnapping because Vang entered the car voluntarily and consented to the trip. Turnage argues that the confinement and removal of Vang in the field were completely incidental to the murder that was immediately underway when Vang got out of the car.

When reviewing.sufficiency of evidence to support a verdict, we view the evidence in the light most favorable to the verdict. State v. Pierson, 530 N.W.2d 784, 787 (Minn.1995). We conclude that sufficient evidence existed to demonstrate that the confinement and removal of Vang in the car was accomplished without Vang’s consent, and thus supported a finding of kidnapping.

Vang was intoxicated when he entered the car, and a jury could reasonably conclude that Vang lacked the capacity to give a valid consent. More importantly, there was evidence from which the jury could conclude that Turnage and his accomplices lured Vang into the car by fraud. Specifically, a jury could find that the three defendants planned to harm Vang from the very beginning; that they tricked him into getting into the car- by telling him they merely wanted to. drive around and use some drugs; that they traveled a considerable distance to North St. Paul to obtain the murder weapons; that they then drove another considerable distance to West St. Paul to a secluded spot to commit the murder; and that, the' entire time, Vang was confined in the back seat next to an inoperable door and blocked from the other door by Quantez. Accordingly, the jury could reasonably conclude from this evidence that any consent by Vang to enter the car was legally ineffective.

This conclusion is consistent with our decision in State v. Budreau, 641 N.W.2d 919 (Minn.2002). There, the defendants lured the victim into their car on the false premise that they were going to drive to one location to buy some drugs when, in fact, they planned to drive to a different, secluded location to murder her. Id. at 930. We held that the victim “only consented to go to a place where they could buy drugs, but did not consent to be taken to the isolated construction site where the assault and murder occurred.” Id. Similarly, we conclude that Vang consented to drive around to use drugs but did not consent to drive to the secluded place where the assault and murder occurred. Accordingly, we hold that the evidence was sufficient to support the jury’s finding of kidnapping.

III.

Finally, Turnage argues that the jury instruction on kidnapping was erroneous because the district court failed to inform the jury, consistent with Smith and Welch, that any confinement or removal that was incidental to the murder was insufficient to constitute kidnapping. The district court did instruct the jury on the general elements of kidnapping, using CRIMJIG 15.02, which states, in pertinent part:

The elements of kidnapping are:
First, the defendant confined or removed [Vang] from one place to another without [his] consent.
* ⅜ * ⅜
To confine a person is to deprive the person of freedom. A physical restraint is not necessary; a person can restrain another by threats of force. To remove a person from one place to another is to cause the person to move from the place where the person was to another place. It is not necessary that the defendant have physically transported [Vang], It is sufficient if the removal was accomplished by the threat of force.

10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 15.02 (4th ed.1999).

The parties agree that, because Turnage did not object to the instruction in question at the trial, the issue should be reviewed under a plain error analysis. See State v. Griller, 583 N.W.2d 736, 740 (Minn.1998), (stating absent plain error affecting a defendant’s substantial rights, a trial court does not err when it does not give a warranted jury instruction if the defendant has impliedly or expressly waived that instruction). Plain error requires a finding of (1) error, (2) that was plain, (3) that affected substantial rights. Id. An error is plain if it is clear and obvious. State v. Baird, 654 N.W.2d 105, 113 (Minn.2002). Further, a plainly erroneous jury instruction affects substantial rights if there is a “reasonable likelihood that the giving of the instruction in question would have had a significant effect on the verdict of the jury.” Griller, 583 N.W.2d at 741 (quoting State v. Glidden, 455 N.W.2d 744, 747 (Minn.1990)).

We do not address whether, under other facts, the district court must instruct the jury consistent with Smith and Welch because we conclude, under these facts, such an instruction was not required. As this court stated in State v. Dahlin, in deciding whether a specific jury instruction should be given, a reviewing court must view the evidence in the light most favorable to the party requesting the instruction to determine whether the trial court abused its discretion. 695 N.W.2d 588, 598 (Minn.2005). A trial court’s refusal to give a jury instruction constitutes an abuse of discretion if the evidence warrants such an instruction. Id. Here, the question is whether, when viewed in the light most favorable to Turnage, the evidence would support a jury finding that the confinement and removal of Vang were completely incidental to the murder.

Because Turnage denied being present in the car or at the West St. Paul field, his testimony does not provide any basis for the court to consider an instruction under Smith and Welch. Accordingly, Turnage must rely on the testimony of other witnesses concerning how Vang was induced to enter the car, transported to various locations and pursued from the car to the field where he was murdered. It is true that the jury could have found from this evidence that Vang entered the car voluntarily, because Robinson never mentioned any previous discussion about “getting” Vang. But the testimony that Turnage and his accomplices drove to North St. Paul to obtain the murder weapons is not negated or contradicted by any witness. Thus, at least from the time of the visit to North St. Paul, the evidence demonstrates that Vang was taken to West St. Paul for the purpose of assaulting him with knives, a purpose to which he certainly never consented. Thus, as in Budreau, Turnage’s conduct “did not involve only minimal acts of confinement or removal, nor were his actions ‘completely incidental’ to the murder committed in the course of the kidnapping.” Budreau, 641 N.W.2d at 930. Given the length of the removal of Vang from North St. Paul to West St. Paul and his confinement in the car for that distance, well before the assault got underway, there was no evidence on which the jury could have found that the removal and confinement were merely incidental to the murder. Instead, the removal and confinement were criminally significant because they both preceded and facilitated the commission of the murder.

Accordingly, we hold that the district court did not err in instructing the jury on kidnapping.

Affirmed.

PAGE, J., took no part in the consideration or decision of this matter.

GILDEA, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

      . Robinson stated that he did not know what "demo” meant at the time, but later he learned that Turnage used the word to mean knife.

      . Cell phone records showed the calls were made between Robinson’s cell phone and Elbert’s phone at 7:25 (2 minutes), 7:32 (2 minutes), 7:41 (2 minutes), 7:45 and 10:03 p.m. on March 2, 2004. Elbert, however, claimed that he did not remember the other phone calls that night.

      . On March 4, 2004, Turnage appeared for sentencing at the Ramsey County Courthouse regarding a charge of fleeing a peace officer in a motor vehicle. After sentencing, he was taken to the Ramsey County Jail and was later transported to the county workhouse.

      . We note that although Turnage objected to the admission of the copies of tapes at trial, his objection focused on the relevancy of the taped conversation and the accuracy of the recording transcript and the foundation for the admission, and not whether the duplicated tapes were the same as the original digital tapes.

      . The district court file discloses that the state gave notice to Turnage that it intended to offer the taped phone conversations in evidence. Turnage had the opportunity to review the digital recording and compare them to the duplicate tapes.

      . We do not consider the testimony of Elbert in this context because it could be argued that Elbert was also an accomplice.


author: DIETZEN, Judge.

text:
    Estelle BUSCH, Appellant, v. MODEL CORPORATION, et al., Respondents.
    No. A05-426.
    Court of Appeals of Minnesota.
    Jan. 10, 2006.

      Estelle Busch, Minneapolis, MN, pro se appellant.
    Joseph Shun, New Brighton, MN, pro se respondent.
    Considered and decided by DIETZEN, Presiding Judge; RANDALL, Judge; and PETERSON, Judge.
   OPINION

DIETZEN, Judge.

Appellant challenges the district court judgment awarding respondent $5,000 in damages for breach of contract, arguing that the district court erred in not requiring respondent to refund $5,000 paid on a contract to build a garage for failure to comply with Minn.Stat. §§ 325G.06 to 325G.11 (2004) (the home solicitation sale statute). Because the home solicitation sale statute excludes contracts for the sale of real property, which includes improvements to real property, we reverse the district court’s determination that the parties’ contract constituted a home solicitation sale; however, because the parties’ mutually rescinded the contract and appellant retained a benefit from respondent, we affirm the district court judgment in favor of respondent.

FACTS

Appellant Estelle Busch is the owner of residential property located in Minneapolis, Minnesota. In April 2002, appellant and respondent Joseph Shun, a residential construction contractor operating as Model Corporation, entered into a written contract regarding the construction of a new garage on appellant’s property.

Respondent agreed to obtain a city permit; remove the old garage, driveway and sidewalk; excavate and grade a new pad for the garage; pour new concrete for the driveway and sidewalk; and construct a new garage. Appellant agreed to pay respondent a contract price of $14,900 in three installments: (1) $5,000 as down payment (Phase I); (2) $5,000 “after concrete” (Phase II); and (3) the balance upon completion (Phase III). Upon signing the contract, appellant paid respondent the $5,000 down payment.

Respondent commenced work on the project. But numerous disagreements between the parties ensued, particularly regarding the due date of the Phase II payment. After completion of the demolition and removal of the old garage, and the pouring of the concrete, appellant refused to make the Phase II payment, arguing that the concrete work was not done in accordance with acceptable standards and, therefore, respondent failed to complete the Phase I concrete work. Respondent asserted that he completed the work contemplated by Phase I of the contract and demanded the Phase II payment before progressing further on the project.

As a result of appellant’s continued refusal to pay, respondent stated his intention to terminate the contractual relationship. Then, appellant sent a letter to respondent canceling the contract and demanding return of the $5,000 down payment. Appellant then entered into a contract with a new company to complete the project for $13,500. When respondent refused to return the down payment, appellant filed a lawsuit in conciliation court. The conciliation court found in favor of appellant and awarded her $8,600 in damages. Respondent appealed the award to the district court.

At trial, the parties appeared pro se and stipulated to certain facts, including that respondent obtained a building permit, removed the old garage and garage slab, excavated the rubble, and poured concrete for the new garage. Appellant testified that she was entitled to return of the $5,000 down payment because respondent violated the “home solicitation sale” statute; and that respondent’s concrete work was below acceptable standards. Both parties testified that the negotiations and the execution of the contract occurred at appellant’s home. Appellant also testified that respondent failed to notify her of the right to cancel the contract, or provide her with a notice of cancellation form as required by the statute.

To support her claim that the concrete work was below acceptable standards, appellant presented photographs and the testimony of her son, a civil engineer. Appellant admitted that the new company was able to use the concrete slab poured by respondent to complete the project. Respondent provided an accounting of his costs for the work that was completed, which totaled $6,565. Appellant did not provide evidence to refute these costs.

Following trial, the district court entered its order for judgment, concluding that the contract between the parties constituted a “home solicitation sale” and that respondent failed to comply with the statute by neither informing appellant of the right to cancel or providing her with a notice of cancellation form as required by the statute. The district court also concluded that appellant was not entitled to damages because the benefit received by appellant from respondent’s work exceeded the cost of the down payment; and appellant failed to prove damages. This appeal follows.

ISSUES

I. Did the parties’ contract constitute a “home solicitation sale,” entitling appellant to statutory redress?

II. Did the district court err in entering judgment for respondent?

ANALYSIS

I.

Appellant first argues that the contract to build a garage is covered by Minn.Stat. §§ 325G.06-.il (2004), the home solicitation sale statute. Appellant contends that, because respondent failed to comply with the statutory notification requirements, she is entitled to a refund of the $5,000 paid for Phase I of the project. Although respondent failed to file a brief, we will determine the case on the merits. Minn. R. Civ.App. P. 142.03.

Statutory interpretation presents a question of law, which this court reviews de novo. Eischen Cabinet Co. v. Hildebrandt, 683 N.W.2d 813, 815 (Minn.2004). In Minnesota, consumer protection statutes have been enacted to protect a buyer in a “home solicitation sale.” Minn.Stat. § 325G.06, subd. 2. A “home solicitation sale” is defined as:

[A] a sale of goods or services, by a seller who regularly engages in transactions of the same kind, purchased primarily for personal, family or household purposes, and not for agricultural purposes, with a purchase price of more than $25, in which the seller or a person acting for the seller personally solicits the sale, and when the buyer’s agreement or offer to purchase is made at a place other than the place of business of the seller.

Id.

The primary protections afforded to a buyer in a home solicitation sale relate to the seller’s obligation to notify the buyer of the right to cancel the sale. Id. § 325G.07. The statute requires that notice be provided orally; through specific statutory language in the contract; and by a notice of cancellation form. Id. § 325G.08, subd. 1. Until a seller has complied with the notice requirements, the buyer is free to cancel the home solicitation sale at any time and the seller must return any payments previously made by the buyer. Id. § 325G.09, subd. l(a)-(c).

But the home solicitation statutes provide various exceptions from the definition of a home solicitation sale, including sales of “real property.” Id. § 325G.06, subd. 2(e). Although the statutes do not provide a definition of “real property,” other Minnesota statutes define the term. See, e.g., Minn.Stat. §§ 272.03, subd. 1 (2002) (taxation); § 256J.08, subd. 74 (2002) (welfare); § 398A.01, subd. 7 (2002) (regional railroad authorities); § 469.002, subd. 20 (2002) (housing and redevelopment authorities); § 471.656, subd. 3(e) (2002) (municipal bonds). These statutes uniformly define “real property” as including improvements to real property. Id. “As a matter of statutory construction, we presume that the legislature uses the same words the same way, even in different statutes.” Stansell v. City of Northfield, 618 N.W.2d 814, 819 (MinmApp. 2000). Therefore, we may reasonably conclude that the legislature intended the term “real property” in Minn.Stat. § 325G.06 to include improvements to such property.

An improvement to real property is defined as “a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs.” Pacific Indem. Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 554 (Minn.1977) (citation omitted). This court has interpreted an improvement to real property to include remodeling, Taney v. Indep. Sch. Dist. No. 621, 673 N.W.2d 497, 504 (Minn.App.2004); installation of a furnace, Pacific Indem. Co., 260 N.W.2d at 554; installation of light fixtures, Citizens Sec. Mut. Ins. Co. v. Gen. Elec. Corp., 394 N.W.2d 167, 170 (Minn.App.1986), review denied, (Minn. Nov. 26, 1986); installation of electrical equipment and wiring in a barn, Johnson v. Steele-Waseca Coop. Elec., 469 N.W.2d 517, 519 (Minn.App. 1991), review denied (Minn. July 24, 1991); and excavation as part of the process of building an attached garage and basement. Fiveland v. Bollig & Sons, Inc., 436 N.W.2d 478, 480-81 (Minn.App.1989), review denied (Minn. Apr. 24,1989).

Here, the parties contracted for the removal of appellant’s old garage and construction of a new garage. A new garage is a permanent fixture that enhances the value of appellant’s property. See Pacific Indem. Co., 260 N.W.2d at 554. Thus, we conclude that the construction project of a new permanent garage constituted an “improvement” to real property, and the contract for such construction falls within the “sales of real property” exception to the home solicitation sale statute. See Minn. Stat. § 325G.06, subd. 2(e). Consequently, the district court erred in concluding that that parties’ contract constituted a home solicitation sale; and respondent was not required to comply with the home solicitation statute’s notification requirements.

II.

Appellant contends that respondent breached the contract by performing concrete work below acceptable standards, and by demanding the second payment prior to completion of Phase I; therefore, appellant is entitled to a refund of the $5,000 down payment.

On appeal from a judgment where no motion for a new trial was made, “appellate review is limited to examining whether the evidence supports the findings of fact and whether those findings support the conclusions of law.” Schweich v. Ziegler, Inc., 463 N.W.2d 722, 730 (Minn.1990) (citation omitted). Appellate courts view the record in the light most favorable to the district court’s judgment and will not disturb the district court’s findings if there is reasonable evidence to support them. Rogers v. Moore, 603 N.W.2d 650, 656 (Minn.1999) (citation omitted). However, we review questions of law de novo. Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minnesota, 664 N.W.2d 303, 311 (Minn.2003).

When a material breach of contract occurs, the nonbreaching party may elect to either affirm or rescind the contract. See Loppe v. Steiner, 699 N.W.2d 342, 349 (Minn.App.2005). If an injured party affirms the contract, damages are awarded with the purpose of putting the injured party in the position he would have occupied had the contract been fully performed by the other party. 11 Arthur L. Corbin, Corbin on Contracts § 996 (1964). If a party rescinds the contract, recovery is based on restoring the injured party to the position occupied before the contract was made. Id.

Rescission is an equitable remedy that seeks to put the parties “in the same position they would have been had the contract never existed.” Johnny’s, Inc. v. Njaka, 450 N.W.2d 166, 168 (Minn. App.1990). Both parties to a bilateral contract may rescind the contract if each demonstrates intent to rescind and there is mutual assent. Abdallah, Inc. v. Martin, 242 Minn. 416, 421-22, 65 N.W.2d 641, 645 (1954). Mutual assent to rescind a contract may be inferred from the attendant circumstances and conduct of the parties. Id. at 422, 65 N.W.2d at 645. If there is mutual rescission, the parties must return any benefit received under the contract and put the other party as nearly as is possible in his or her situation before the contract. See MCC Invs. v. Crystal Props., 415 N.W.2d 908, 911 (Minn.App. 1987), review denied (Minn. Feb. 12, 1988).

Here, the district court did not find that respondent breached the contract, and the record supports this finding. Respondent’s concrete work was incorporated by the new company into the project and, therefore, provided a benefit to appellant. Consequently, respondent was entitled to the Phase I payment and his refusal to cease further performance was justified, and not in breach of the agreement. And appellant’s subsequent letter “canceling” the contract acknowledges respondent’s refusal to perform and clearly states her own intent to rescind. Therefore, the parties’ mutual rescission disaf-firms the contract, and the parties must return any benefit received under the contract and return the other party to the pre-contract status quo. Id. at 911.

The district court found that appellant acquired a benefit from respondent, which exceeded appellant’s $5,000 down payment. The evidence supports the district court’s finding. Respondent introduced an accounting of the costs of the completed portion of the project, which totaled $6,565. Appellant did not controvert these costs.

Because of the nature of the benefit received, i.e., labor and materials incorporated into the completed project, appellant is unable to return the benefit. To allow appellant to retain the benefit would be a windfall to her and would fail to restore the parties to the status quo. Consequently, the district court did not err by entering judgment in favor of respondent for $5,000.

The district court’s judgment is also supported by the equitable principle of quantum meruit. A party may recover under quantum meruit where he or she has conferred a benefit to another and has not received reasonable compensation for this. act. See, e.g., Frankson v. Design Space Int'l 394 N.W.2d 140, 145 (Minn. 1986). Under quantum meruit, the measure of recovery for a partially completed project is “the reasonable value of the fraction of the project that was completed.” E.C.I. Corp. v. G.G.C. Co., 306 Minn. 433, 437, 237 N.W.2d 627, 630 (Minn.1976). Determination of the “reasonable value” can be based on the contract price, even though recovery is sought in equity. Confer Bros. v. Currier, 164 Minn. 207, 210, 204 N.W. 929, 931 (Minn.1925). Here, the contract price for Phase I was $5,000, thus providing a reasonable value of the portion of the project that respondent completed. Therefore, the district court judgment in favor of respondent for that amount was also proper under quantum meruit.

DECISION

Because the home solicitation sale statute excludes contracts for the sale of real property, which includes improvements to real property, we reverse the district court’s determination that the parties’ contract constituted a home solicitation sale; however, because the record supports the district court’s judgment in favor of respondent, appellant is not entitled to return of the $5,000 payment.

Affirmed in part and reversed in part.