author: PAGE, Justice. GILBERT, Justice

text:
    Michael OBST, Appellant, v. MICROTRON, INC., Respondent.
    No. CX-98-798.
    Supreme Court of Minnesota.
    June 29, 2000.

      Thomas P. Kane and David M. Wilk, Oppenheimer, Wolff & Donnelly LLP, St. Paul, for appellant.
    Eric J. Magnuson, Daniel Q. Poretti and Brian K. Jackson, Rider, Bennett, Egan & Arundel LLP, Larry E. Reed, Hassan & Reed Ltd., Minneapolis, for respondent.
   OPINION

PAGE, Justice.

Appellant, Michael Obst, filed suit against his former employer, Respondent, Microtron, Inc., for retaliatory discharge in violation of Minnesota’s whistle-blower statute, Minn.Stat. § 181.932, subd. 1(a) (1998). The matter proceeded tó trial and the jury found in favor of Obst. Microtron then moved for judgment notwithstanding the verdict, or in the alternative, a new trial, both of which the trial court denied. On appeal, the court of appeals reversed based on its conclusion that Obst failed to establish a violation of the whistle-blower statute. We affirm.

Obst began working for Microtron as Microtron’s quality assurance manager in March 1992. Obst reported to Keith Horton, vice president and general manager of Microtron. Microtron is a manufacturer of electronic components for the automobile industry. One of the electronic components Microtron manufactured was the wiper control module, a part used in motor vehicle windshield wiper and washer systems. Performance and design requirements for windshield wiper and washer systems are governed by federal regulations. Microtron began manufacturing wiper control modules for the Ford Motor Company in 1993. A manufacturing control plan developed by Microtron, in conjunction with Ford, set out in detail the individual steps of the manufacturing process Microtron was to follow, including specific procedures for testing finished wiper control modules. Changes to or deviations from the procedures set out in the control plan generally required Microtron to get advance approval from Ford.

According to the control plan, Microtron was required to test the finished wiper control modules using three different methods. First, every wiper control module was to be tested using what is referred to as the end-of-the-line tester. The functions tested by the end-of-the-line tester were: high speed operation; washer operation; maximum dwell time; wire scan; power consumption; minimum dwell time; wipe after wash; park operation; and low speed operation. The end-of-the-line tester was capable of testing multiple wiper control modules at one time. Micro-tron experienced problems with its end-of-the-line tester from the beginning of wiper control module production. The tester rarely ran at full capacity and broke down frequently. It also passed defective wiper control modules and failed wiper control modules that were not defective.

The control plan also called for ten finished wiper control modules from every carton of wiper control modules produced to be tested by a tester referred to as an audit tester. The functions tested by the audit tester were the same as the functions tested by the end-of-the-line tester with the exception of low speed operation, which the control plan did not require for audit tests.

Finally, the control plan called for the use of a durability tester to test 24 wiper control modules per week. The control plan called for the durability tester to test the following functions: minimum dwell time (2000 cycles); high speed (2500 cycles); and washer activation from off (1500 cycles). The durability tests were to be conducted at temperatures between 25° and 100 Celsius.

In the Fall of 1994, Ford engineers modified the design of the wiper control module causing Microtron' to become concerned that there would be an increase in the number of wiper control modules with electrical defects knowii as solder shorts. Microtron shared this concern with Ford. After the design change, consistent with Microtron’s concerns, there was a marked increase in the number of defective wiper control modules produced with solder shorts. At the same time, Microtron began having more problems with the end-of-the-line tester. As a result, the number of defective wiper control modules showing up in tests performed by Ford on its finished vehicles increased dramatically. As early as December 1994, Microtron began receiving communications from Ford manufacturing plants regarding the increased number of defective wiper control modules they were receiving.

On January 24,1995, Microtron’s end-of-the-line tester failed completely and Obst was asked to authorize a deviation from the control plan that would allow the use of the durability tester in its place. Obst initially refused to authorize the deviation and told Horton that they could not proceed with the proposed deviation because it violated the control plan. Horton responded that wiper control modules had to be shipped. Obst then authorized the deviation. Microtron did not, at that time, take any action to inform Ford about the deviation from the control plan or get approval for it.

On or about February 17, 1995, Micro-tron received notice from Ford’s Michigan truck assembly plant that wiper control modules received from Microtron were failing tests conducted at the plant at an unacceptably high rate. In a series of meetings beginning that day, Microtron developed a plan to respond to the complaint from the Michigan assembly plant, as well as complaints it had received from other Ford assembly plants. The plan called for Microtron to tell Ford that after analyzing some of the wiper control modules returned by the Michigan plant, they discovered that the end-of-the-line tester was allowing wiper control modules with solder shorts to pass inspection. Further, the plan called for Microtron to tell Ford that Microtron would be using the durability tester and the audit tester to certify the quality of the wiper control modules. The plan did not call for Microtron to tell Ford, and Microtron did not tell Ford, that the end-of-the-line tester had not been working since January 24, 1995 or that they had been using the durability tester to test wiper control modules since that time. According to Obst, he told the people at the meetings that because wiper control modules were safety critical parts regulated by federal law, they had to “come clean” with Ford and tell Ford that Microtron had shut down the end-of-the-line tester on January 24 and that Micro-tron had been deviating from the control plan without authorization since that time.

The plan was communicated to Ford by telephone and confirming letter. The letter noted that Microtron would be‘seeking formal approval from Ford for its deviation from the control plan. From the record, it appears that Ford ultimately approved Microtron’s plan of using the durability and audit testers in place of the end-of-the-line tester.

Obst testified that he believed that Mi-crotron’s plan was nothing more than an orchestrated cover-up to prevent Ford from finding out that Microtron had been using the durability tester instead of the end-of-the-line tester since January 24, 1995. Obst also believed that because the wiper control modules were a part of the windshield wiper and washer system, whose performance was regulated by federal law, Microtron was required to use only the end-of-the-line tester to test the finished wiper control modules.

On June 1, 1995, Microtron terminated Obst’s employment. According to Horton, Obst was terminated because of his inability to effectively communicate with his peers. Obst believed that the reason Horton gave for-his termination was pretextual and that the actual reason was the fact that he reported what he thought were violations of law to Microtron. In support of that belief, he points out that all of his performance reviews at Microtron were good and none ever mentioned him having an inability to effectively communicate. He further points out that only a month before he was terminated, he received a three percent pay raise.

This case comes to us on the court of appeals reversal of the trial court’s denial of Microtron’s motion for judgment notwithstanding the verdict. In Pouliot v. Fitzsimmons, 582 N.W.2d 221 (Minn.1998), we set out the trial court’s standard for considering a motion for judgment notwithstanding the verdict as well as the appellate standard of review when a judgment notwithstanding the verdict has been denied by the trial court. We said:

[w]hen the trial court considers a motion for JNOV it must determine whether, viewing the evidence in the fight most favorable to the nonmoving party, the verdict is manifestly against the entire evidence or whether despite the jury’s findings of fact the moving party is entitled judgment (sic) as a matter of law. Dean v. Weisbrod, 300 Minn. 37, 41-42, 217 N.W.2d 739, 742 (1974). Therefore the standard of review is de novo. Diesen v. Hessburg, 455 N.W.2d 446, 449 (Minn.1990). Where JNOV has been denied by the trial court, on appellate review the trial court must be affirmed, if, in the record, “there is any competent evidence reasonably tending to sustain the verdict. ‘Unless the evidence is practically conclusive against the verdict, [this court] will not set the verdict aside.’ ” Rettman v. City of Litchfield, 354 N.W.2d 426, 429 (Minn.1984) (quoting Sandhofer v. Abbott-Northwestern Hospital, 283 N.W.2d 362, 365 (Minn.1979)) (other citations omitted). The evidence must be considered in the light most favorable to the prevailing party and an appellate court must not set the verdict aside if it can be sustained on any reasonable theory of the evidence. See Stumne v. Village Sports & Gas, 309 Minn. 551, 552, 243 N.W.2d 329, 330 (1976).

Id. at 224.

Minnesota’s whistle-blower statute protects an employee who, in “good faith, reports a violation or suspected violation of any federal or state law or rule adopted pursuant to law to an employer or to any governmental body or law enforcement official.” See Minn.Stat. § 181.932, subd. 1(a) (1998); see also Hedglin v. City of Willmar, 582 N.W.2d 897, 901-02 (Minn.1998). While there need not be an actual violation of law, the reported conduct must at least implicate a violation of law. See Hedglin, 582 N.W.2d at 902. When interpreting the whistle-blower statute, we have suggested that it protects the conduct.of a neutral party “who ‘blows the whistle’ for the protection of the general public or, at the least, some third person or persons in addition to the whistleblower.” Williams v. St. Paul Ramsey Med. Ctr., Inc., 551 N.W.2d 483, 484 n. 1 (Minn.1996).

In this appeal, Obst asserts two separate claims: 1) that his reports to Microtron about Microtron’s deviation from its control plan with Ford, by using the durability tester in place of the failed end-of-the-line tester without informing Ford of that deviation, constituted reports of violations or suspected violations of federal law; and 2) that he made reports to Microtron about defective wiper control modules being shipped to Ford, which he claims also violates federal law.

Specifically, Obst asserts that the conduct he reported to Microtron constituted suspected violations of 49 U.S.C. § 30118(c)(1), which requires a manufacturer of a motor vehicle or replacement equipment for motor, vehicles to notify the Secretary of Transportation if it learns that “the vehicle or equipment contains a defect * * * related to motor vehicle safety;” 49 U.S.C. § 30112, which provides that “a person may not manufacture for sale * * *, introduce * * * in interstate commerce” any motor vehicle or motor vehicle equipment unless the vehicle or equipment complies with federal standards; and 49 C.F.R. § 571.104, which sets out design standards for windshield wiping and washing systems as they relate to the frequency, placement, and size of windshield wiping and washing systems.

We first address Obst’s claim that his reports to Microtron about defective wiper control modules being shipped to Ford constitute good faith reports to his employer of a violation or suspected violation of section 30118(c)(1). Obst presented very little evidence on this issue at trial. Obst’s theory of the case at trial was that because wiper control modules are safety critical parts governed by federal law, Mi-crotron’s use of the durability tester to test the wiper control modules after the end-of-the-line tester broke down on January 24, 1995 violated the control plan and that he was terminated by Microtron because he repeatedly told Microtron that they had to tell Ford the truth about their violations of the control plan. In fact, when asked specifically what Microtron did that violated federal law, Obst testified:

A [The violation of federal law was] that they did not immediately cease production, that they did not on the 22nd of February stop shipping product.
Q “They”?
A Microtron, as an organization, as a tier one supplier to Ford.
Q Let’s go back and use this hypothetical: What if they didn’t — let’s accept your version — even if the machine was shut down on January 24th and Ford was not notified until February 24th, and we’ll go further with your version, that you had authorized the use of the durability tester and audit tester, how is that a violation of federal law?
A Because the control plan was being violated, because the end-of-the-line tester was not being utilized, because the audit tester was not being utilized.

In essence, Obst took the position that Microtron’s deviation from the control plan is the violation or suspected violation of federal law. At oral argument, counsel for Obst emphasized that Obst was trying to get Microtron to tell Ford the truth and to “come clean” regarding its failure to properly test wiper control modules after the end-of-the-line tester broke down in January 1995.

In resolving Obst’s claim regarding the shipment of defective wiper control modules, we will assume that the record contains sufficient evidence supporting Obst’s claim that he made such reports to Micro-tron and that this claim was sufficiently

raised at trial. We will also assume, without deciding, that wiper control modules as manufactured by Microtron are governed by 49 U.S.C. § 30118(c)(1) and that the defects reported to Microtron would trigger the notification requirements of section 30118.

Under the whistle-blower statute, establishing that an employee reported violations or suspected violations of law to his or her employer does not end the inquiry. The critical question of whether those reports were made in good faith must also be answered. In order to determine whether a report of a violation or suspected violation of law is made in good faith, we must look not only at the content of the report, but also at the reporter’s purpose in making the report. The central question is whether the reports were made for .the purpose of blowing the whistle, i.e., to expose an illegality. See Minn. Stat. § 181.932, subd. 1(a). We look at the reporter’s purpose at the time the reports were made, not after subsequent events have transpired. See generally Wolcott v. Champion Intern. Corp., 691 F.Supp. 1052, 1059 (W.D.Mich.1987) (holding that the good faith requirement of the whistle-blower statute was not met where the purpose of the employee, at the time of the making of reports, was not to protect the public, but to protect the jobs of himself and his co-workers). In part, the rationale for looking at the reporter’s purpose at the time the report is made is to ensure that the report that is claimed to constitute whistle-blowing was in fact a report made for the purpose of exposing an illegality and not a vehicle, identified after the fact, to support a belated whistle7blowing claim.

Section 30118(c)(1) requires a manufacturer of motor vehicles or replacement equipment to notify the Secretary of Transportation, as well as the “owners, purchasers and dealers of the vehicle or equipment,” of a safety-related defect. Our reading of section 30118(c)(1) and our review of the record leads us to conclude that section 30118(c)(1) was not implicated by Obst’s reports. We base that conclusion on three aspects of the reports. First, the specific nature of Obst’s reports to Microtron was that Microtron shipped defective wiper control modules to Ford after deviating from the control plan without informing Ford. Second, Obst’s stated purpose in making the reports was to have Ford informed of Microtron’s deviation from the control plan. Finally, at no time did Obst ever indicate that his purpose was to have his reports go beyond Ford or to have either Microtron or Ford inform the Secretary of Transportation or anyone else of Microtron’s shipment of. defective wiper control modules.

According to Obst, his stated purpose in making the reports to Microtron was to have Ford informed that Microtron was shipping wiper control modules in violation of the control plan’s testing requirements. Based on Obst’s stated purpose, it is difficult,, if not impossible, to say that at the time the reports were made, his purpose was to expose an illegality as required for protection under our whistle-blower statute. At the time the reports were made to Microtron, Ford was well aware that Mi-crotron was shipping and it was receiving defective wiper control modules. Moreover, at the time Obst made the reports, Obst, as well as Microtron, knew that Ford was aware that Microtron was shipping defective wiper control modules and that the number was increasing. It was Ford, beginning in December 1994, that notified Microtron about the problem with the defective wiper control modules. Given Ford’s knowledge about the defective wiper control modules being shipped by Mi-crotron and Obst’s stated purpose in making the reports to Microtron, it would seem that there was no whistle to blow.

This is not to say that whenever an employer establishes that it or another entity receiving a report of a violation or a suspected violation of law from an employee knows of the violation before the report is made, that the employer can escape liability under the whistle-blower statute. We are only saying that on the facts presented here, Obst cannot be said to have been trying to expose what was so openly known and acknowledged by both Ford and Microtron. Therefore, we conclude, as a matter of, law, that Obst’s reports to Microtron about Microtron shipping defective wiper control modules to Ford did not constitute good faith reports under the whistle-blower statute. We note that our conclusion does not turn on Obst’s knowledge or understanding of 49 U.S.C. § 30118 when making his reports to Mi-crotron. It turns on the content of his reports and his purpose in making the reports at the time they were made.

The dissent relies on Clarke v. TRW, Inc., 921 F.Supp. 927 (N.D.N.Y.1996) to support its contention that allegations that a manufacturer of motor vehicle component parts who failed to follow agreed upon testing procedures could constitute a reportable defect under section 30118(c)(1). In the process, a critical distinction between Clarke and this case is glossed over. The issue presented in Clarke was whether the allegations contained in a proposed amended complaint were sufficient to survive a motion to dismiss for failure to state a claim. See 921 F.Supp. at 932. In making that determination, the court was required to accept as true all of the proposed complaint’s factual allegations and to draw all reasonable inferences in favor of the plaintiffs. See id. In effect, the court was required to assume the plaintiffs would prove their allegations at trial.

That is not the posture of this case, where we know what Obst proved at trial. We know that Obst failed to prove that he reported an illegality within the meaning of the whistle-blower statute where knowledge of the defect he reported was widespread. Whereas the plaintiffs in Clarke could simply allege good faith to amend their complaint, Obst had to prove it at trial to avoid judgment notwithstanding the verdict.

While Ford knew about the defective wiper control modules, Ford apparently did not know about Microtron’s deviation from the control plan. This fact is at the heart of Obst’s claim. The court of appeals concluded that Microtron’s failure to follow the control plan and to notify Ford of its deviation from the control plan did not implicate any state or federal law. The court of appeals therefore held that Obst’s whistle-blower claim failed because he did not make out a prima facie case under the whistle-blower statute.

Obst contends, that Microtron’s deviation from the control plan’s tésting procedures constitutes a violation or suspected violation of 49 U.S.C. § 30112(a) and 49 C.F.R. § 571.104. Section 30112 prohibits the introduction of motor vehicle equipment into interstate commerce that does not comply with federal standards. As applied to Obst’s claim, those standards, set out at 49 C.F.R. § 571.104, relate only to the frequency, placement and size of windshield washing and wiping systems and do not address wiper control modules or require particular tests or procedures for testing wiper control modules. The one reference to testing in the standards relates to the “frequencies or speeds” of windshield wiping systems and makes clear that the testing is permissive. Had the drafters of these standards intended for them to address testing procedures for wiper control modules, they could easily have done so, but did not. Moreover, neither the parties nor our own research has identified any case law linking either the statute or the regulation to wiper control module testing. Finally, we note that even if Obst could establish that 49 C.F.R. § 571.104 addressed testing procedures, his claim would still fail. The applicability of 49 C.F.R. § 571.104 and by reference 49 U.S.C. § 30112(a) to motor vehicles and their component parts is governed by 49 C.F.R. § 571.7, which states that “each standard * * * applies according to its terms to all motor vehicles or, items of motor vehicle equipment.” See also Clarke, 921 F.Supp. at 935. By its express terms, 49 C.F.R. § 571.104 applies to windshield wiping and washing systems in finished motor vehicles and not to a vehicle’s component parts. See 49 C.F.R. § 571.104 S2. Thus, Obst has not demonstrated that his reports to Microtron implicated a violation of either 49 U.S.C. § 30112(a) or 49 C.F.R. § 571.104.

While Microtron’s deviation from the testing procedures set out in its control plan with Ford may have implicated a violation of the control plan or a breach of its contract,with Ford, the deviation did not implicate a violation of law. Moreover, while the alleged control plan violations may have, permitted defective wiper control modules to escape detection, there is nothing in the record before us suggesting that they caused or in any way contributed to those defects. Certainly, the performance of wiper control modules raises safety concerns. However, to say that safety concerns are raised does not satisfy the requirement of the whistle-blower statute, that the employee’s reports must implicate a violation or suspected violation of a federal or state law or rule adopted pursuant to law. See Hedglin, 582 N.W.2d at 902; see also Minn.Stat. § 181.932, subd. 1(a). The dissent asserts that Hedg-lin does not require us to find a law implicated by the conduct reported when the employee’s belief that a law was violated was held in good faith. The dissent is simply wrong on this point. In Hedglin, we concluded that reports by two firefighters that “some of the fire officers were showing up at fire calls while drunk” were not protected by the whistle-blower statute because we were not directed to, nor could we find any statute or rule violated by the alleged conduct. See Hedglin, 582 N.W.2d at 902. In contrast, we concluded that reports of firefighters driving fire trucks while drunk implicated “possible” violations of identified state laws. See id. Thus, it is clear that the report, of a suspected violation of federal or state law must implicate an actual federal or state law and not one that does not exist.

Obst’s failure to establish that his reports to Microtron implicated a violation or suspected violation of an actual law means that the jury’s verdict cannot be sustained on any reasonable theory of the evidence. See Stumne, 309 Minn. at 552, 243 N.W.2d at 330. Because we conclude that the jury’s verdict cannot be sustained on any reasonable theory of the evidence, Micro-tron is entitled to judgment notwithstanding the verdict as a matter of law.

Affirmed.

GILBERT, Justice

(dissenting).

I respectfully dissent. The majority opinion now places the burden for proving actual violations of the law on those employees for whom whistle-blower protections were enacted. In doing so, it ignores an apposite federal court interpretation of the same federal statute at issue. The jury’s finding of a good faith report of suspected violations is then set aside by the majority after the trial court denied Mierotron’s motion for judgment notwithstanding the verdict or, in the alternative, a new trial.

When the trial court has denied a motion for judgment notwithstanding the verdict, our standard of review is to determine whether there is any evidence in the record tending to sustain the verdict. See Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn.1998). While the majority claims that its conclusions in this matter are a “matter of law,” it appears to substitute its conclusions for the findings of the jury on “the critical question of whether those reports were made in good faith.”

The jury, properly instructed by the trial court, answered that critical question. The jury, in its special verdict form, found that Obst had made a good faith report of a suspected violation of law to Microtron and Keith Horton. It also found that Obst was terminated because, in good faith, he reported a suspected violation to both Mi-crotron and Horton. The majority, after its own analysis of the content of the report and the reporter’s purpose in making the report, coupled with a technical review of 49 U.S.C. § 30118(c)(1), concludes as a matter of law that Obst could not have made a good faith report of a suspected violation.

However, federal courts interpreting the same federal statutes have reached the opposite conclusion on this matter of law. In a similar whistle-blower action under New York law, the U.S. District Court for the Northern District of New York concluded that allegations that a manufacturer of motor vehicle component parts failed to follow agreed-on performance testing procedures could constitute a defect within the meaning of 49 U.S.C. § 30102(2). See Clarke v. TRW, Inc., 921 F.Supp. 927, 935 (N.D.N.Y.1996).

In Clarke, the plaintiffs alleged that they had been wrongfully discharged under New York Labor Law § 740 for reporting to their supervisors testing and manufacturing deficiencies in motor vehicle component parts. 921 F.Supp. at 930-31. Specifically, two plaintiffs alleged that they were retaliated against and discharged from employment for reporting their employer’s failure to follow testing and'manufacturing specifications that the employer and its customer agreed on. See id. New York Labor Law § 740 requires that a plaintiff in a whistle-blower action allege an actual violation of “a law, rule or regulation” to sustain an action. Clarke, 921 F.Supp. at 933.

The central question in Clarke was whether the plaintiffs’ alleged facts were sufficient to support a claim that their employer had violated 49 U.S.C. §§ 30116(a)(1) or 30118(c)(1). 921 F.Supp. at 933-35 (noting that section 30116(a)(1) requires a manufacturer to repurchase defective motor vehicle equipment and section 30118(c)(1) requires the manufacturer to notify the secretary of transportation of such defective equipment). The employer argued that there was not “an actual violation of the law” nor did the practice “pres ent[ ] an actual danger to the public health or safety.” Clarke, 921 F.Supp. at 933. It further argued that because the allegations only related to testing and manufacturing procedures, they did not allege “defects” as defined by 49 U.S.C. § 30102(a)(2). See Clarke, 921 F.Supp. at 934. The court disagreed and found that the allegations of “fundamental construction and testing defects” met the definition of defect in section 30102(a)(2), “because that definition includes defects in construction or material of vehicle components.” Clarke, 921 F.Supp. at 934. Thus, these allegations were sufficient to allege violations of 49 U.S.C. §§ 30116(a)(1) and 30118(c)(1), See Clarke, 921 F.Supp. at 934.

The present situation is analogous to that in Clarke, but without us having to accept the complaint as being true. While in this case we address whether the district court erred in failing to grant-judgr ment notwithstanding the verdict, our analysis is similar to that in Clarke with the benefit of the jury having, found the allegations to be true. In Clarke, the proposed complaint, alleging that a New York manufacturer’s products suffered from “fundamental construction and testing defects,” was held to be sufficient to sustain a whistle-blower claim that the employer’s actions violated section 30118(c)(1).

Similarly,- the jury’s finding of a- good faith report of a suspected violation should be sustained under these facts. There is evidence in the record demonstrating that it was Obst’s purpose to expose the fact that Microtron was not following the agreed-upon control plan or testing proce7 dure, something that Ford Motor Company was not aware of and that Microtron was intent on keeping from Ford. There was also. evidence of defects in the construction of the components and that Obst reasonably believed that Microtron’s failure to follow the control plan, or -at least that Microtron’s attempts to conceal this failure from Ford, violated federal law.. It is significant that while the majority turns to a federal case to support its contentions regarding Obst’s purpose, the majority disregards a federal case resolving the specific issue, before it.

Additionally, the majority does not address the fact that the jury also found that Obst was fired for making this report. The record clearly supports this conclusion as well. Evidence was introduced showing that the Ford contract accounted for nearly half of Microtron’s sales. Obst also testified that he was told that not shipping these products to Ford was “not an option” and that Ford would shut Microtron down if they found out that proper inspection procedures were not being followed. There is also evidence in the record that Microtron supplied false information to Ford to conceal its failure to follow the control plan.

The majority, citing generally to a 1987 case from the Western District of Michigan, Wolcott v. Champion Intern. Corp., 691 F.Supp. 1052, 1059 (W.D.Mich.1987), claims to look at Obst’s purpose for making his report, at the time he made it, to determine whether that report was made in good faith. (In Wolcott, the report related to protecting jobs, not to protecting the overall public.) We have never adopted this rule before and the whistle-blower statute does not mandate that we do so now. The majority’s analysis on this point is based on its own factual determination about Obst’s purpose in -his communications with Microtron. However, we are not finders of fact. Rather, our standard of review requires us only to look to the record to determine whether there are any facts tending to support the verdict. See Pouliot, 582 N.W.2d at 224. The majority concludes that because “knowledge of the defect he reported was widespread,” Obst failed to prove he reported an'illegality within the whistleblower statute. However, just because others may have known about the defect and deficient testing procedures does not nullify Obst’s purpose nor change the requirement to notify the U.S. Secretary of Transportation. Importantly, the majority “assumes, without deciding,” that, “the defects reported to Microtron would trigger the notification requirements of section 30118.” At a minimum, the record on his purpose is a dispute as to the facts that the jury decided. As such; the findings of the jury must upheld. be

The majority also claims that Minnesota’s whistle-blower statute does not contain any protection for a report made by an employee for activity that in and of itself is not a violation of the law, regardless of the employee’s good faith belief that it was a violation. I read no such requirement in Hedglin. 582 N.W.2d at 902-03. In Hedglin, we held it was irrelevant whether there were any actual violations; the only requirement is that the reports of state law violations were made in good faith. Id. at 902. After concluding that two of the three claims implicated obvious violations of the law, we did not address whether a cause of action would have existed for a claim that, while certainly implicating public policy concerns, did not appear to violate any statute. See Hedglin, 582 N.W.2d at 903. Importantly, the only federal court interpreting this same statute on very similar facts came to the same legal conclusion that Obst came to: that construction and testing defects were sufficient to allege violations of 49 U.S.C. § 30118(c)(1). See Clarke, 921 F.Supp. at 934.

Microtron’s conduct in this matter supports the jury’s finding that Obst’s report of testing defects was made in a good faith belief that it was a violation of the law. Microtron knowingly deviated from a control plan designed to assure the shipment of safe parts. Numerous defective parts were shipped. False information was mailed to Ford and 49 U.S.C. § 30118(c)(1) requires the secretary of transportation to be notified by the manufacturer of defective equipment “related to motor vehicle safety.” Defective windshield wipers relate to motor vehicle safety as conceded by the majority. This report not only implicates a violation of 49 U.S.C. §§ 30112 and 30118(c)(1), but it may also implicate other statutes.

If, as the majority has done, we are going to engage in this type of an after the fact detailed legal analysis, judging a lay person’s understanding of the law, to overturn a jury verdict clearly supported by the record, then we should consider all other possible violations of law presented by the facts. Clearly, there was law supporting Obst’s rationale for reporting and he was penalized for making the disclosures. Therefore, we should defer to the findings of the jury in this matter and reverse the court of appeals.

      . In this.lawsuit, Obst also asserted claims for defamation, age discrimination and race discrimination. Those claims are not part of this appeal and will not be discussed further.

      . Minn.Stat. § 181.932 provides in relevant part:
      Subdivision 1 An employer shall not discharge, discipline, threaten, otherwise discriminate against, or penalize an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because:
      (a) the employee, or a person acting on behalf of an employee, in good faith, reports a violation or suspected violation of any federal or state law or rule adopted pursuant to law to an employer or to any governmental body or law enforcement official!)]

      . One piece of evidence relied on by Obst to support his claim that Microtron was manufacturing and shipping defective wiper control modules was trial exhibit 6, a June 6, 1995 QOS Report, regarding wiper control modules, sent by Microtron to Ford. The wiper control module monthly summary from the report shows, among other things, total number of wiper control modules tested for certain defects each month between July 1994 and May 1995 and the total rejected. In addition, the summary shows Microtron’s composite manufacturing, goal and the composite yield for each of these months. While Microtron has not made the argument and it is not the basis for our decision in this case, it is not at all clear, based on the numbers from the summary, that the number of defective wiper control modules escaping detection was not de minimus.

      . Microtron, in its argument to this court, contends that Obst's claims of violations of federal law were made up by his attorneys not only long after the reports were made but long after his employment at Microtron had ended. While that is not the basis for our decision, we note that in whistle-blower cases there is a danger of that happening. That danger is best illustrated by the dissent’s suggestion that Obst's reports “may also implicate other statutes.” Evidently, the dissent would have this case resolved on the basis of those statutes. Clearly, on the facts presented, any such statutes could not have formed the basis for Obst’s reports and therefore cannot support Obst’s whistle-blower claim.

      . We can think of a number of situations in which the employer’s previous knowledge might not lead to the conclusion that the employee lacked good faith in reporting. For example, there may be instances in which the employee is unaware that the employer already knows of the alleged violation and the employee otherwise acts in good faith. Or there may be instances in which the employee, aware that the employer has knowledge of the alleged violation, in addition to reporting to the employer, also reports to a governmental body or law enforcement official.

      . The dissent misstates the court’s ruling in Clarke. The dissent claims that the court in Clarke held that defects in testing constituted reportable defects under 49 U.S.C. § 30116(a)(1) and 30118(c)(1). In fact, the court found that both construction and performance defects met the regulatory definition, and did not hold that testing defects met the standard. The court simply noted that plaintiff alleged testing deficiencies. See 921 F.Supp. at 934.

      . "Compliance with subparagraphs S4.1.1.2 and S4.1.1.3 may be demonstrated by testing * * *." 49 C.F.R. § 571.104 S4.1.1.4 (emphasis added).

      . This regulation applies to passenger cars, multipurpose passenger vehicles, trucks, and buses.

      . We have not decided whether the whistle-blower statute also contains the common law protections for reports made in the interests of public policy or whether such claims are properly brought under a common law action for wrongful discharge. I would not have us decide this question today.


source: Caselaw Access Project

author: Alan C. Page Associate Justice

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Charles CLAYTON, an Attorney at Law of the State of Minnesota.
    No. C4-00-1009.
    Supreme Court of Minnesota.
    July 13, 2000.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Charles Clayton, has committed professional misconduct warranting public discipline, namely, that respondent represented a client on a contingent fee basis without a written retainer agreement, failed to diligently pursue the client’s representation, failed to respond to reasonable requests for information, failed to commence a lawsuit as instructed by his client, and made misrepresentations about the - status of the case to his client, in violation of Minn. R. Prof. Conduct 1.5(c), 1.3,1.4,1.2 and 8.4(c).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights pursuant to Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director wherein they jointly recommend that the appropriate discipline is a 60-day suspension followed by two years of supervised probation subject to the following conditions:

(1) Respondent shall pass the professional responsibility portion of the state bar examination within one year of the date of this court’s order;
(2) The reinstatement hearing provided for in Rule 18, RLPR, is waived;
(3) Respondent shall comply with Rule 26, RLPR; ...
(4) Respondent shall be reinstated to the practice of law following the expiration of his suspension provided that, at least 15 days before the expiration of the suspension period, respondent'files an affidavit with the Clerk of Appellate Courts and the Director’s Office establishing that respondent is current with Continuing Legal Education require ments, hás fully complied with Rules 24 and 26, RLPR, and has satisfactorily completed all other conditions imposed by the court in its decision;
(5)Upon respondent’s reinstatement to the practice of law, he shall be placed on supervised probation for a period of two years, subject to the following terms:
(a) Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
(b) Respondent shall abide by the Minnesota Rules of Professional Conduct.
(c) Respondent shall be supervised by a licensed Minnesota attorney, appointed by the Director to monitor compliance with the terms of this probation. Respondent shall provide to the Director the names of four attorneys who have agreed to be nominated as respondent’s supervisor within two weeks after respondent is reinstated to the practice of law. If, after diligent effort, respondent is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Until a supervisor has signed a consent to supervise, the respondent shall on the first day of eách month provide the Director with an inventory of active client files described in paragraph d. below. Respondent shall make active client files available to the Director upon request.
(d) Respondent shall cooperate fully with the supervisor in his/her efforts to monitor compliance with this probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall submit to the supervisor an inventory of all active client files by the first day of each month during the probation. With respect to each active file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
(e) Respondent shall initiate and maintain office procedures which ensure that there are prompt responses to correspondence, telephone calls, and other important communications from clients, courts and other persons interested in matters which respondent is handling, and which will ensure that respondent regularly reviews each and every file and completes legal matters on a timely basis.
(f) If at any time during the period of probation, after giving respondent an opportunity to be heard by the Director, the Director concludes that respondent has violated the conditions of the probation or engaged in further misconduct, the Director may file a petition for disciplinary action against respondent in the Minnesota Supreme Court without the necessity of submitting the matter to a Panel or Panel Chair. Respondent waives the right to such consideration by the Panel or Panel Chair.

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

IT IS HEREBY ORDERED that respondent Charles Clayton, is suspended from the practice of law for 60 days and placed on two years of supervised probation, subject to the reinstatement and probation conditions jointly agreed to and stated above. Respondent is further ordered to pay $900 in costs pursuant to Rule 24, RLPR.

BY THE COURT:

Alan C. Page Associate Justice


author: PER CURIAM.

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Alfred Milton STANBURY, an Attorney at Law of the State of Minnesota.
    No. CX-96-859.
    Supreme Court of Minnesota.
    July 20, 2000.

      Alfred Milton Stanbury, pro se.
    Edward J. Cleary, Director, Timothy M. Burke, Senior Assistant Director, Office of Lawyers of Professional Responsibility, for respondent.
   OPINION

PER CURIAM.

We consider the appropriate discipline for respondent Alfred Milton Stanbury due to his failure to cooperate in a disciplinary investigation. The Director of the Office of Lawyers Professional Responsibility petitioned this court to discipline Stanbury because he failed to cooperate with the Director or the District Ethics Committee (DEC) investigator for a period of ten months. Subsequent to the disciplinary hearing, the referee concluded that Stan-bury’s noncooperation violated Minn. R. Prof. Conduct 8.1(a)(3), 8.4(a), (d), and Rule 25, Rules on Lawyers Professional Responsibility (RLPR) and that his substantial disciplinary history was a serious aggravating factor. The referee recommended that we publicly reprimand Stan-bury and place him on unsupervised probation for two years. We agree with the referee’s recommendation.

Stanbury was admitted to the practice of law in Minnesota in 1988 and has a lengthy disciplinary history. In 1991 he was admonished for twice executing false proofs of service and using them to obtain subpoenas. He was admonished again in 1994 for refusing to return a client’s file after withdrawing from representation, insisting that she come to his home alone to retrieve the file, and asserting a claim against the client for fees for work he withheld from her. In 1996 he was admonished for serving a garnishment summons on a person’s employer when he knew that person was not a judgment debtor. We publicly reprimanded Stanbury in 1997 for failing to satisfy a judgment against him for computer research service fees and suspended him from the practice of law for 30 days for stopping payment on a check for a court filing fee. See In re Stanbury, 561 N.W.2d 507, 513 (Minn.1997). We required that prior to being reinstated to the practice of law he pay the judgment and the court filing fee and that he pass the professional responsibility examination within one year. See id. He was reinstated effective May 16,1997. See In re Stanbury, 562 N.W.2d 685, 685 (Minn.1997). He was also admonished in 1997 for making an obscene remark to a representative of Anoka County Social Services in a settlement discussion and for failing to cooperate in the ensuing disciplinary investigation.

After a former client filed a complaint against Stanbury, the Director sent Stan-bury a notice of investigation on December 31, 1997. This notice requested that Stan-bury respond to the allegations with the named DEC investigator within 14 days. On January 20, 1998, the Director mailed Stanbury a notice informing him that another investigator had been assigned to the matter pursuant to Stanbury’s request and again requesting a written response to the-allegations within 14 days. Stanbury did not respond. The investigator wrote to him on February 23,1998, and informed him that he had not yet received a response to the complaint. Stanbury then wrote to the Director on March 2, 1998, and explained that he was occupied with trial preparations and objected to the appointment of the second investigator on the ground that several potential conflicts existed. The Director notified Stanbury by letter of March 5, 1998, that he would not reassign the matter to a different investigator a second time. On March 27, 1998, the investigator wrote to Stanbury again requesting an explanation of his conduct.

Stanbury did not respond to the allegations until a meeting with the DE.C on October 2, 1998, and then only addressed them verbally. Following this meeting, on October 20, 1998, the Director wrote to Stanbury and requested that he provide information regarding the complaint. He responded in writing for the first time on November 4,1998.

The Director then issued several charges of unprofessional conduct. The Lawyers Professional Responsibility Board Panel found that probable cause supported the noncooperation charge. The panel issued an admonition to Stanbury for failure to communicate a settlement offer from a client to an opposing party in violation of Minn. R. Prof. Conduct 1.2(a) and found no probable cause as to several other charges.

The Director .petitioned this court to sanction Stanbury for noncooperation. Stanbury answered the petition and appeared at the hearing before the referee. He admitted that he did not contact the DEC investigator between March 5, 1998, when the Director notified him that it had denied his request to reassign the investigation, and October 2, 1998, when he attended the DEC meeting, and that he first responded to the charges in writing on November 4, 1998. He testified that he received the Director’s letters but did not recall receiving the investigator’s letter dated March 27, 1998. He also testified that he did not request an extension of time in which to provide an explanation to the investigator.

In explaining his conduct, Stanbury testified that on January 22, 1998, he notified the DEC investigator by' telephone and by fax that he had been involved in an automobile accident on January 16, 1998. He also testified .that in February of Í998 he began but never completed a written response to the DEC investigator. Further, he stated that he received the notice of the DEC meeting in early August and “at that point, I did not feel there was any need to respond to anybody.” Finally, Stanbury stated that his obligations to his clients prevented him from responding earlier to the allegations and suggested that the complaint brought against him was retaliatory.

The referee found that Stanbury first responded verbally to the complainants’ allegations at the DEC meeting on October 2, 1998, ten months after the Director mailed him the notice of investigation, and that he first responded in writing on November 4, 1999. The referee also found that Stanbury never requested or received an extension of time to answer and that circumstances, including the automobile accident, did not prevent him from responding to the complaint. Further, the referee found that Stanbury offered no evidence that he regretted his wrongful conduct or that he had instituted measures to prevent further misconduct. The referee therefore concluded that Stanbury violated Minn. R. Prof. Conduct 8.1(a)(3), 8.4(a), (d), and Rule 25, RLPR, by failing to cooperate in the investigation; that he acted intentionally; that his explanations did not excuse or mitigate his misconduct; and that his disciplinary history substantially aggravated his misconduct. He recommended that Stanbury be publicly reprimanded and placed on unsupervised probation for two years, on the condition Stanbury abide by the Rules of Professional Conduct and cooperate with the Director’s office in its monitoring efforts. Stanbury timely ordered a transcript of the hearing and therefore the referee’s findings and conclusions are not deemed conclusive pursuant to Rule 14(e), RLPR.

We will set aside a referee’s findings only if we conclude they are clearly erroneous. See In re Wyant, 533 N.W.2d 397, 400 (Minn.1995). While Stanbury has not clearly identified the findings and.conclusions that he is challenging, he suggests that his behavior was not intentional and that his obligations to his clients mitigated his failure to cooperate. At the hearing, Stanbury admitted that he failed to reply to the Director or the DEC investigator for a period of ten months and that he did not request an extension of time to answer. Further, Stanbury presented no evidence demonstrating that his obligations to his clients or other circumstances prevented him from cooperating with the investigation. We conclude that the referee’s findings are supported by the evidence and decline to set them aside.

Turning to the issue of discipline, we give great weight to a referee’s recommendation regarding a disciplinary sanction but retain the final responsibility for determining an appropriate sanction. See In re Simonson, 420 N.W.2d 903, 906 (Minn.1988). In determining an appropriate sanction for attorney misconduct, we consider the nature of the misconduct, the cumulative weight of the rule violations, and the harm to the public and to the legal profession. See In re Sigler, 512 N.W.2d 899, 901 (Minn.1994). We impose sanctions based on the facts of the particular case considering both aggravating and mitigating circumstances, see In re Iliff, 487 N.W.2d 234, 236 (Minn.1992), but look to similar cases for guidance in determining the appropriate discipline, see In re Sigler, 512 N.W.2d at 901. We weigh the relevant factors in light of the purpose of attorney discipline which is not to punish the attorney but rather to protect the courts, the public and the legal profession, and to guard the administration of justice. See In re Madsen, 426 N.W.2d 434, 435 (Minn.1988).

We have long recognized that it is imperative that an attorney cooperate in a disciplinary investigation, see In re Engel, 538 N.W.2d 906, 907 (Minn.1995), and that failure to cooperate is grounds for public discipline, including suspension, see id. (holding failure to cooperate warrants indefinite suspension); In re Neill, 486 N.W.2d 150, 151 (Minn.1992) (holding failure to cooperate, without more, warrants suspension); In re Cartwright, 282 N.W.2d 548, 552 (Minn.1979) (suspending attorney for six months due to noncooperation). We have disciplined attorneys for failure to cooperate with an investigator as well as with the Director. See In re Olson, 545 N.W.2d 35, 36-37 (Minn.1996).

We have also sanctioned attorneys for. noncooperation even where they eventually complied with some of the Director’s requests. See In re Terrazas, 581 N.W.2d 841, 843, 845 (Minn.1998). In In re Terra-zas, the attorney replied late to some of the Director’s inquiries and not at all to others and did not comply with discovery requests until the court ordered that he do so. Id. at 843. We publicly reprimanded Terrazas and placed him on probation for two years based on his noncooperation as well as other disciplinary rule violations. See id. at 846.

Terrazas makes plain that failure to cooperate with either the Director or the investigator for ten months warrants discipline and, in light of the aggravating factors present in this case, we conclude that public discipline is appropriate. Stan-bury’s extensive disciplinary history significantly aggravates the seriousness of his current misconduct. See In re Getty, 452 N.W.2d 694, 698 (Minn.1990) (noting that previous misconduct is a relevant factor in determining an appropriate sanction). We have stated that following discipline we expect an attorney to demonstrate a “renewed commitment” to ethical conduct. In re Jensen, 542 N.W.2d 627, 632 (Minn.1996). Such a commitment is not apparent from Stanbury’s disciplinary history. Pri- or to this investigation, Stanbury received admonitions for several instances of misconduct, including noncooperation in a previous disciplinary investigation. We also publicly reprimanded Stanbury and suspended him from the practice of law for 30 days due to professional misconduct. Yet Stanbury is again before this court and facing discipline for noncooperation for the second time. Stanbury’s lack of remorse is an additional aggravating factor. See In re Pokorny, 453 N.W.2d 345, 348 (Minn.1990). Based on these aggravating factors, we conclude that a public reprimand and two years of unsupervised probation is an appropriate sanction for Stanbury’s failure to cooperate.

Stanbury argues that because the panel did not find probable cause as to all of the" Director’s charges against him, the Director is not the “prevailing party” in this proceeding pursuant to Rule 24(a), RLPR and therefore an award of costs to the Director would be contrary to the RLPR. We disagree. We hold that Stan-bury’s misconduct warrants public discipline and therefore render a decision in the Director’s favor. See generally Borchert v. Maloney, 581 N.W.2d 838, 840 (Minn.1998) (holding that prevailing party pursuant to Minn.Stat. ch. 549 is party “in whose favor the decision or verdict is rendered and judgment entered”) (footnote omitted). We hold that the Director is the prevailing party pursuant to Rule 24(a), RLPR.

We publicly reprimand respondent Alfred Milton Stanbury and place him on unsupervised probation for a period of two years subject to the following conditions:

(1) Stanbury shall abide by the Minnesota Rules of Professional Conduct.
(2) Stanbury shall cooperate fully with the Director’s office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, respondent shall •provide authorization for release of information and documentation to verify compliance with the terms of this probation.

We also order that Stanbury pay $900 in costs and disbursements pursuant to Rule 24(a); (b), RLPR.

So ordered.

      . Minnesota Rules of Professional. Conduct 8.1(a)(3) provides that an attorney must cooperate with a disciplinary investigation by responding appropriately to requests for information:
      (a) [A] lawyer * * * in connection with a disciplinary matter, shall not:
      * * *
      (3) knowingly fail to respond to an admissions or discipline authority’s lawfully authorized demand for information by either providing the information sought or making a good faith challenge to the demand.
      Minn. R. Prof. Conduct 8.1(a)(3).
      Rule 25, Rules on Lawyers Professional Responsibility, similarly requires that in an investigation an attorney must furnish upon request a complete explanation and requested documents as well as attend all conferences and hearings related to the disciplinary process: ...
      (a) It shall be the duty of any lawyer who is the subject of an investigation or proceeding under these Rules to cooperate with the District. Committee, the Director, the Director's staff, the Foard, or a Panel, by complying with reasonable requests, including requests to:
      (1)Furnish designated papers, documents or tangible objects; -
      (2) Furnish in writing a full and complete explanation covering the matter under consideration;
      (3) Appear for conferences and hearings at the times and places designated.
      Such requests shall not be disproportionate to the gravity and complexity of the alleged ethical violations. * * *
      (b) Violation of this Rule is unprofessional conduct and shall constitute a ground for discipline; provided, however, that a lawyer’s challenge to the Director’s requests shall not constitute lack of cooperation if the challenge is promptly made, is in good faith and is asserted for a substantial purpose other than delay.
      Rule 25, RLPR.
      Minnesota Rules of Professional Conduct, 8.4 states that it is professional misconduct for an attorney to violate the Rules of Professional Conduct or engage in any conduct that is prejudicial to the administration of justice:
      It is professional misconduct for a lawyer to:
      (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
      * * * *
      (d) engage in conduct that is prejudicial to the administration of justice * * *.
      Minn. R. Prof. Conduct 8.4(a), (d).


author: GILBERT, Justice.

text:
    STATE of Minnesota, Respondent, v. John Steven MARTIN, Appellant.
    No. C5-99-1514.
    Supreme Court of Minnesota.
    July 20, 2000.

      John M. Stuart, State Public Defender and Bryan John Leary, Assistant State Public Defender, for appellant. ■
    Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney .General, and Marvin E. Ketola, Carlton County Attorney, for respondent.
   OPINION

GILBERT, Justice.

This case arises from the direct appeal of appellant John Steven Martin’s conviction for premeditated first-degree murder, in violation of Minn.Stat. § 609.185(1) (1998), and for aiding and abetting first-degree murder while committing kidnapping, in violation of Minn.Stat. §§ 609.185(3), 609.05 (1998), for the August 28, 1996, murder of Paul Antonich (Antonich). We find no error or abuse of discretion in the trial court’s rulings and therefore, we affirm.

Sometime after 8 p.m. on August 28, 1996, 17-year-old Antonich was driving to his parents’ home when he rear-ended a vehicle driven by the appellant at the intersection of Sixth Avenue East and Ninth Street in Duluth, Minnesota. With the appellant in his father’s vehicle were four of his friends, Lester Greenleaf, Jamie Au-bid, John Alexander “Mike” Martin and Andy DeVerney. No noticeable damage was caused to either vehicle. However, witnesses testified that appellant got out of his vehicle and went to the window of Antonich’s vehicle. A witness testified that appellant punched Antonich a couple of times. Appellant claimed that the accident frightened him because he had no valid driver’s license and no proof of insurance. At .that point, some or all of appellant’s friends got out of the vehicle and approached Antonich’s vehicle, swearing and yelling at Antonich. Witnesses testified that the men were angry and aggressive and two of the men also punched Antonich through the window.

A witness testified that following this initial assault, Antonich moved over to the passenger side of his vehicle. Mike Martin (Martin) testified that Greenleaf then got into the driver’s seat and removed the vehicle from the intersection. Appellant, Aubid, DeVerney and Martin were in appellant’s vehicle. Both vehicles then left the scene of the accident and proceeded to the intersection of 15th or 16th Street West and 3rd Street where the men exited the vehicles and struck and kicked Anto-nich. Appellant, Aubid and Martin then returned to the vehicle in which they had arrived at this scene. Greenleaf, DeVer-ney and Antonich left the scene in Anto-nich’s car. Martin said he heard appellant then say, “I think we killed the f- — ,” and said he wanted to get rid of the body.The two vehicles drove south on Highway 35, with appellant leading the way.

Martin then testified that both vehicles proceeded for approximately 34 miles to Ditchbank Road in a remote area on the Fond du Lac reservation outside Cloquet in Carlton County. Appellant exited his vehicle. Martin testified that appellant then said he was going to shoot Antonich. Martin said he saw appellant point a gun at Antonich’s head and heard a shot, followed shortly thereafter by three more shots. He said the first gunshot wound was to the neck. The medical examiner who performed the autopsy of Antonich testified that the gunshot wound to the neck would not necessarily have killed An-tonich. The medical examiner concluded however, that Antonibh’s death was a homicide and the cause of death was gunshot wounds, primarily one to the lower chest and also a fatal shot to the head. The medical examiner also testified that Antonich had a fourth gunshot wound below the jaw and that extensive bruising, abrasions and lacerations indicated that the shooting took place after Antonich had suffered a severe beating.

After killing Antonich, according to Martin, the ihen attempted to conceal the crime. Greenleaf, DeVerney and Martin wiped down Antonich’s vehicle. Police officers testified that Antonich’s body was found in the trunk of his vehicle, but neither áppellant nor Martin testified as to who had placed it there. Appellant then drove Antonich’s vehicle off the road into a drainage ditch. He exited the vehicle through the driver’s window onto the roof, walked across the roof onto the trunk, and then jumped from the trunk onto the bank. Martin testified that appellant told the men to keep silent about the murder as they rode back to Duluth.

The morning after the murder all five men got together', drove to the Blatnik Bridge in Duluth, and Martin threw the gun used to kill Antonich into Lake Superior. That day, Martin told Lawrence Murray, a friend, about the murder the night before. Around noon that day, a logger discovered Antonich’s vehicle in the drainage ditch submerged up to the bottom part of the dashboard and alerted the authorities. Police officers had Antonich’s vehicle towed out of the ditch and discovered his body in the trunk. The police found shoeprints on the roof, rear window and trunk of the vehicle and on a cooler found inside the vehicle. The Bureau of Criminal Apprehension laboratory later determined that the prints on the trunk and cooler corresponded in general tread pattern to the type of shoes appellant was wearing on the day of the murder but not to the general tread patterns of Anto-nich’s, DeVerney’s or Greenleafs shoes. The evening after the murder, Murray, watching the news, learned of the death of Antonich. He then placed two anonymous calls to law enforcement agencies, one to Carlton County and one to St. Louis County. Officer Kepler took the call to St. Louis County, and Murray told him what Martin had said earlier in the day about the murder. The following day, August 30, 1996, police officers arrested Martin. On August 31, 1996, Martin admitted his involvement in Antonich’s murder and implicated the other four co-defendants.

Appellant’s cousin, Kevin LaDue, testified that appellant left Duluth on August 31, 1996, after appellant asked him for a ride. Appellant brought with him in the vehicle a duffel bag of clothes, a cooler of beer and a knife. At some point in the drive, appellant told LaDue to drop him off on the North Shore of Lake Superior and appellant took with him only the knife and the beer. Appellant cut his wrists in a suicide attempt because he claimed he was being blamed for something he did not do. Later in the evening, he spoke with the mother of his children on the phone and arranged a meeting at the Blue Bird Landing on the North Shore. She testified that when she arrived, appellant was distraught and crying. She noticed a cut on his wrist. She later talked to the police and said that appellant reported that he was not involved in the murder, he was just driving his father’s vehicle when it happened. She said he was afraid to go to jail. An extensive manhunt for appellant began in the early morning of September 1, 1996. Appellant was apprehended at approximately ten that evening. A police officer testified that he had cuts on his hands and wrist, which were not new.

After bringing appellant to St. Luke’s Hospital to tend to his injuries, the officers brought him to Duluth police headquarters where he was interviewed for about 2½ hours with two breaks. One of the examining officers testified that appellant initially denied any involvement in the accident or the crime or claimed that he did not remember or know any specifics. Eventually, appellant responded affirmatively to police officer questioning regarding his involvement. He said that he first shot Antonich in the neck and that after the shot Antonich was “gurgling.” He then agreed that he had shot him a total of four times. After the body was placed in the trunk, he said that he drove the vehicle into the drainage ditch. Appellant agreed that his fingerprints might be in Anto-nich’s vehicle because he had touched it at the accident scene. He also agreed that his fingerprints might be on the gun. Asked if there was any reason that his shoeprints would be on the trunk of Anto-nich’s vehicle, appellant eventually said he had crawled out of the window of the vehicle, onto the roof and across the trunk after he drove the vehicle into the ditch. Appellant also admitted going with his accomplices to the Blatnik Bridge on August 29, 1996, where someone threw the gun used to kill Antonich into the water.

Several days later, on separate occasions, some of the accomplices and the appellant showed the police where the gun was thrown into Lake Superior under the Blatnik Bridge. Police found the murder weapon after searching for 3 to 4 days.

At trial, appellant testified that he was drinking excessively before and during a party on the day of the murder. He drank at least eight beers and half of a pint of Southern Comfort. He testified that he had given the keys to his father’s vehicle to DeVerney at the party, got into the car, blacked out and the next thing he remembered was waking up the day after the murder. He said that Martin then told him what had happened the night before and that Martin said that he had shot Antonich in the neck and killed him. He admitted that after that discussion, he had accompanied the others to Blatnik Bridge. On the stand, he denied that during his police interview he admitted killing Anto-nich. He admitted that he told the mother of his children that he was driving his father’s vehicle when Antonich was murdered. He admitted that he did not tell the police about his correct whereabouts on the day of the murder because he had his days “mixed up.” Appellant testified that he did not kill Antonich and- that he did not know who had killed him.

Appellant testified that he could not remember some of what he told police in his interview because he did not feel well at the time of the interview. He claimed that he was just telling them during the interview what Martin had told him, including that Martin had told him he was the shooter. Appellant argued that because he could not remember what had happened during the murder, he did not voldnteer information to police. He only agreed that it was possible that what they were.telling him was true because he had no way of knowing whether it 'was or was not true. He tried to show that his- answers were really questions or simply repeating what the police had said.

In rebuttal testimony, Martin denied telling appellant details that appellant relayed to.the police: that appellant drove the vehicle or that appellant had shot An-tonich in the neck. A former Duluth resident contradicted appellant’s testimony that he was passed out on the evening of the murder. The former resident testified that he saw and talked with appellant on the night of the murder at a party and that appellant had been .involved in an argument.

On September 17, 1996, a Carlton County grand jury returned an indictment charging appellant with premeditated first-degree murder in violation of Minn.Stat. § 609.185(1) and with first-degree murder, intentional killing during a kidnapping, in violation of Minn.Stat. § 609.185(3). The second count of the indictment was amended on May 10, 1999, to include Minn.Stat. § 609.05, subds. 1, 2 (1998), for aiding and abetting the intentional killing during a kidnapping. The trial court granted appellant’s motion for a change of venue and the trial was held in Dakota County. During voir dire, over appellant’s objection, the prosecutor exercised a peremptory strike to discharge the only minority juror, an African American.

During the trial, the trial court granted the state’s motion to exclude the proffered testimony of Kepler, appellant’s witness, regarding the anonymous phone call he received from Murray. The jury, after being out for almost nine hours, found appellant guilty of both charges and he was sentenced to the mandatory term at that time of imprisonment for life. After the trial, appellant filed, inter alia, a motion for a Schwartz hearing, which the trial court denied after discussion on the motion at the sentencing hearing.

Appellant challenges his conviction on the following grounds: (1) that the state improperly used its peremptory challenges to remove an African-American juror from the jury panel; (2) that the trial court abused its discretion by excluding Kepler’s testimony; and (3) that the trial court abused its discretion by denying a Schwartz hearing.

I.

Appellant first contends that the state improperly used a peremptory challenge to strike'the only African American from" the jury pool. Using peremptory, challenges to exclude persons from the jury solely on the basis of race is prohibited by the Equal Protection Clause of the United States Constitution. See Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); see also U.S. Const. amend. VI; Minn. Const. art. 1 §§ 2, 6. To make a successful Batson challenge, a defendant must make a prima facie showing that the state exercised a peremptory challenge on the basis of race; the burden then shifts to the state to articulate a race-neutral explanation for striking the juror in question; then, the trial court must determine whether the defendant met his burden of proving intentional discrimination. See Flournoy v. State, 583 N.W.2d 564, 570 (Minn.1998); see also Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). We will not reverse the trial court’s determination to sustain a peremptory challenge “absent clear proof that the prosecution’s stated reason for making the peremptory challenge was pretextual.” DeVerney, 592 N.W.2d at 843.

Where the trial court decided the ultimate question of intentional discrimination, the question whether the defendant made a prima facie showing is moot. See State v. Scott, 493 N.W.2d 546, 548 (Minn.1992) (citing Hernandez, 500 U.S. at 359, 111 S.Ct. 1859).

The next question is whether the prosecutor articulated a race-neutral explanation for striking the juror in question. See DeVerney, 592 N.W.2d at 843 (citing Batson, 476 U.S. at 97, 106 S.Ct. 1712). The prosecutor’s explanation “does not have to be ‘valid’ in the sense of establishing a reasonable basis for challenge, but it must be race-neutral.” Id. We do not require a “persuasive, or even plausible” explanation. Id. (quoting Burkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)). “At this step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent was inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Id. (quoting Hernandez, 500 U.S. at 358-59, 111 S.Ct. 1859).

The prosecutor gave a three-part explanation for his strike. First, the juror’s father had apparently been convicted of felony murder or robbery during the commission of which the juror believed someone had been killed. The juror’s father was imprisoned during the juror’s formative years and there was going to be testimony in this case about appellant’s two young children. The prosecutor stated that the appellant’s case was “almost identical.” Second, the prosecutor felt that the juror’s expressed anxiety about losing his job would cause the juror to be preoccupied and unable to focus on the task of being a juror. Finally, the juror’s brother was in prison, initially for a charge of criminal sexual conduct, and now for a parole violation.

This list of reasons provided sufficient nonrace-based justifications for the peremptory strike. A family member’s involvement with a criminal investigation is a race-neutral reason for striking a juror. See Scott, 493 N.W.2d at 549 (holding that a juror’s recent involvement with the sheriffs office because her husband used a gun to threaten to kill her stepson was a racially neutral explanation). Further, a confessed preoccupation and anxiety about finances and losing one’s job is also a race-neutral reason. See Batson, 476 U.S. at 89, 106 S.Ct. 1712 (holding that a prosecutor may exercise a peremptory challenge “for any reason at all, as long as that reason is related to his view concerning the outcome of the case to be tried”) (quotation omitted).

After the prosecutor has given a facially valid, race-neutral explanation, the trial court considers all of the relevant evidence bearing on the issue and determines whether the defendant has proven that the prosecutor acted with discriminatory intent. See DeVerney, 592 N.W.2d at 844 (citing Hernandez, 500 U.S. at 362-66, 111 S.Ct. 1859). The defendant has the burden to prove purposeful discrimination, and we review the trial court’s finding about the prosecutor’s intent for clear error. See Greenleaf, 591 N.W.2d at 501. “[Considerable deference must be given by a reviewing court to the trial court’s finding on the issue of intent because the finding typically will turn largely on an evaluation by the trial court of credibility.” DeVerney, 592 N.W.2d at 844. If the prosecutor had a discriminatory intent, the defendant is automatically entitled to a new trial because the harmless error analysis is “inappropriate in the case of a defendant convicted by a petit jury if there was racial discrimination in the selection of that jury.” Greenleaf, 591 N.W.2d at 500-01 (quoting State v. McRae, 494 N.W.2d 252, 260 (Minn.1992)).

Appellant argues that the prosecutor’s reasons are pretextual because once the juror was assured by his employer that he would not lose his job as a result of absences due to jury duty, he stated that he could manage and would not let his finances interfere with being a juror. During voir dire, the juror expressed concern about his finances, losing his job, and his ability to concentrate because of these worries. He equivocated about his ability to be as fair as possible and to give the matter his full attention if he was required to serve. The trial court found'that appellant had not shown the reasons given were a “pretextual explanation offered to mask a discriminatory intent,” because the court also “observ[ed] some hesitancy” in the juror. Given the trial court’s observation of the juror and the prosecutor and the considerable deference given to the trial court’s credibility determinations, we hold that the trial court properly determined that appellant had failed to demonstrate that the prosecutor acted with discriminatory intent when he struck the juror for this reason.

Appellant also argues that excluding African Americans who have family members with criminal histories from juries would have a disparate impact on African-American participation in juries because African Americans are more frequently arrested and more often have criminal records because* of the scrutiny they face from the predominantly white police force. “If the basis for the challenge given by the prosecutor is one that will result in the disproportionate exclusion of members of a certain race or gender, the trial court may consider this as one of the relevant circumstances bearing on the determination of whether the facially-valid reason given by the prosecutor is a pretextual explanation offered to mask a discriminatory intent.” Greenleaf, 591 N.W.2d at 500 (emphasis added). A disparate impact alone will not violate the principle of race neutrality, “[u]nless the [prosecutor] adopted a criterion with the intent of causing the impact asserted.” Hernandez, 500 U.S. at 362, 111 S.Ct. 1859. The trial court did not find a masked discriminatory intent to adopt a criterion that would exclude minorities. Looking to the entire record and with deference to the trial court’s determination of the prosecutor’s credibility, we hold that the finding that the prosecutor acted without discriminatory intent was not clearly erroneous.

II.

Appellant’s next contention is that the trial court erred when it excluded the proffered testimony of the appellant’s witness, Officer Kepler. Appellant made an offer of proof that Kepler would testify that Murray, a prosecution witness, had told him during a phone call that Martin, a co-defendant and also a prosecution witness, had told Murray just after the murder that “he and Jamie Aubid [also a co-defendant] killed a white man.” The state objected to the testimony of Kepler on the grounds that it was “at least double hearsay.” The trial court excluded the testimony. Trial court decisions on the admission of evidence are reviewed for a clear abuse of discretion. See State v. Williams, 586 N.W.2d 123, 126 (Minn.1998). Because Kepler’s testimony involved hearsay within hearsay, it is only admissible if each statement conforms with an exception to the hearsay rules. See Minn. R. Evid. 805.

At trial, appellant presented two arguments to support admission of the out-of-court statements. Appellant argued that Martin’s statement to Murray was admissible as a statement against interest and Murray’s statement to Kepler was admissible as an excited utterance. Under Minn. R. Evid. 803(2), an “excited utterance,” is admissible if it “relat[es] to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” There are “no strict temporal guidelines for admitting an excited utterance.” State v. Bauer, 598 N.W.2d 352, 366 (Minn.1999). However, the statement must be made while the declarant is “under the stress of excitement” from the startling event. Minn. R. Evid. 803(2). The trial court, in its discretion, determines whether the de-clarant was under the “aura of excitement,” Minn. R. Evid. 803(2), Advisory Comm. Cmt.—1989, and we review the determination for an abuse of discretion, State v. Edwards, 485 N.W.2d 911, 914 (Minn.1992).

The state argued that Murray’s statement to Kepler was not made “contemporaneously]” with the startling event, here, Martin’s admission. According to Murray, Martin’s admission was made at about 6 or 7 p.m. Murray’s “utterance” to police was made a few hours later after Murray saw a story about the death of Antonich on the evening news. Appellant argued that Murray was excited and spoke to Kepler “within an hour or two” of hearing Murray’s confession. The trial court found that the exception did not apply to the statement made “many hours after” the startling event. Without evidence of Murray’s excitement, other than that which the appellant argues we can infer from the timing alone, we hold that the trial court’s exclusion of this portion of the hearsay statement was not an abuse of discretion. Cf. Bauer, 598 N.W.2d at 367 (holding that statements about a startling event were admissible where there was testimony that the declarant was “very upset,” “extremely agitated,” and “very afraid”); State v. Berrisford, 361 N.W.2d 846, 850 (Minn.1985) (holding that statements made 90 minutes after startling event were excited utterances where there was testimony that de-clarant was “very upset,” “scared,” and “shaky”).

Additionally, the trial court did not abuse its discretion in rejecting appellant’s argument that Martin’s statement to Murray was admissible as a statement against interest. That exception does not apply here because Martin testified at trial and the exception only applies if the de-clarant is unavailable. See Minn. R. Evid. 804(b)(3).

On appeal, appellant offers new arguments in support of admission not presented to the trial court. Appellant argues that this testimony is admissible as extrinsic evidence of a prior inconsistent statement under Minn. R. Evid. 613(b) for impeachment purposes only. See generally State v. Thames, 599 N.W.2d 122, 125 (Minn.1999); Minn. R. Evid. 607 and 613. In order to impeach a witness with prior inconsistent statements, appellant must submit a foundation that the statements are “actually inconsistent,” State v. Vance, 254 N.W.2d 353, 358 (Minn.1977), or that the declarant “fails to recollect” the prior statement, Wild v. Rarig, 302 Minn. 419, 458, 234 N.W.2d 775, 799 (1975). The witness must be given a prior opportunity to admit, deny or explain the inconsistency in order for the statement to be admissible to impeach the witness. See State v. Richards, 495 N.W.2d 187, 194 (Minn.1992); Minn. R. Evid. 613(b). The state argues that a proper foundation was not laid for the admission of the prior inconsistent statement because Murray was given no such opportunity.

On direct examination, appellant’s attorney asked Murray about the contents of Martin’s statement. Murray answered that Martin had never personally identified himself as the shooter. Instead, Murray testified that “[Martin’s] words were they.” He also testified that he relayed the contents of this conversation to Kepler. On cross, Murray was directly challenged about his assertion that he told Kepler that Martin said “they” had killed somebody. Murray answered that he could not recall exactly what he had said. Failing to recall the prior statement was sufficient foundation to impeach the witness using extrinsic evidence. See Rarig, 302 Minn. at 458, 234 N.W.2d at 799 (failing to recollect statement is sufficient foundation for impeachment).

However, rather than impeaching Murray with Kepler’s testimony, appellant confronted Murray , with other extrinsic evidence of the prior-inconsistent statement, Murray’s testimony given under oath during DeVerney’s trial for Antonich’s murder. Murray agreed that his testimony during DeVerney’s trial was that he had told Kepler that Martin said “he” had killed somebody. Murray testified that his memory was fresher at the DeVerney trial.

The trial court did admit extrinsic evidence of Murray’s phone call to Kepler to' impeach Murray in the form of Murray’s testimony at DeVerney’s trial. Appellant used this evidence in both his opening and closing statements when he mentioned Murray’s phone calls to Kepler. The trial court retains the discretion to refuse to admit additional impeachment evidence as prejudicial or cumulative. See Minn. R. Evid. 403. We hold therefore, there was no abuse of discretion to refuse to allow Kepler to testify because that evidence would have been cumulative.

Appellant also argues that Kepler’s proffered testimony was admissible as a prior consistent statement. See Minn. R. Evid. 801(d)(1)(B). Prior consistent statements are admissible as substantive .evidence if the declarant testifies at trial and is subject to cross-examination .and if the statements are helpful to the trier of fact. See id; see also State v. Nunn, 561 N.W.2d 902, 908 (Minn.1997). Murray testified on direct examination (“they” killed somebody) inconsistently with his alleged out-of-court statement (“he” killed somebody). It was appellant who attacked Murray’s credibility by offering the former inconsistent statement (“he”). Once Murray agreed that he had made the prior statement, Kepler’s testimony was nothing more than a confirmation that Martin had indeed used the word “he.” The trial court retained the discretion to exclude such testimony as not helpful to the trier of fact under Rule 801(d)(1)(B) or cumulative under Rule 403 and thus did not abuse its discretion.

The next level of hearsay is Martin’s purported statement/admission to Murray the day after the killing that he had killed somebody. Appellánt argues that Kepler’s testimony about this portion of the double hearsay should be admissible under the residual hearsay exception because it was the only means to clarify what Murray heard Martin say because Murray’s memory .had faded and because Kepler had no reason to falsify the statement. The residual hearsay exception allows for the admissibility of hearsay statements when, though they are not admissible under any other exception, the statements have “equivalent circumstantial guarantees of trustworthiness.” Minn. R. Evid. 803(24). We agree with the state that there was no abuse of discretion in failing to admit the statement under this broad exception. Appellant failed to establish sufficient guarantees of trustworthiness because he made no offer of proof about the circumstances of the conversations, Kepler’s memory, or his relationship, if any, to Murray. See, e.g., Aubid, 591 N.W.2d at 479-80 (discussing factors that bear on determining trustwoijhiness).

Before appellant offered Kepler’s testimony, the appellant had already introduced extrinsic evidence to contradict Murray’s testimony. Appellant used this evidence in both his opening and closing statements. Therefore, we hold that the trial court did not abuse its discretion in excluding the testimony of Kepler.

III.

Appellant’s final contention is that the trial court erred in failing to order a Schwartz evidentiary hearing to investigate his claim of juror misconduct. See generally Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960). In order to be entitled to a Schwartz hearing, a “defendant must establish a prima facie case presenting ‘sufficient evidence which, standing alone and unchallenged, would warrant the conclusion of jury misconduct.’ ” State v. Church, 577 N.W.2d 715, 720 (Minn.1998) (quoting State v. Larson, 281 N.W.2d 481, 484 (Minn.1979)). We review the trial court’s denial of a Schwartz hearing for abuse of discretion. See Church, 577 N.W.2d at 721.

If a defendant has reason to believe that the jurors’ verdict is subject to impeachment, he must move for a summary hearing, in which the-trial court decides whether to order a Schwartz hearing. See Minn.R.Crim. P. 26.03, subd. 19(6). If the motion is granted, the trial court conducts a postverdict hearing, a Schwartz hearing, in which jurors are examined under oath as a means of addressing concerns of juror misconduct. See id. During a Schwartz hearing, interrogation of jurors is limited by Minn. R. Evid. 606(b), which generally disallows testimony about the jurors’ thought processes or deliberations to impeach a verdict. Juror testimony regarding improper contact between one or more jurors and some third party or the influence of extraneous prejudicial information is allowed. See Minn. R. Evid. 606(b).

During the summary post-trial hearing on June 3, 1999, appellant argued that there, had been jury misconduct when

[A]fter the verdict was reached but before it was read, some of the jurors expressed a desire to speak to the Anto-nich family and that indicates to me that there was — sympathy took [the] place of evidence in this case, , and that there’s a question as to who is speaking to the jury, how did they find out that the Antonich family was there, who told them, when did they tell them, and what else were they told.

Appellant makes two allegations of misconduct. First, the jury “may have received information during the trial that they shouldn’t have received,” in particular, information that allowed them to know the Antonich family was present. The court asked appellant if he had any “specific” evidence that the jurors had improperly received information. Appellant responded “no.” The court denied the Schwartz hearing on this basis because' appellant had failed to make a prima facie showing of misconduct. Appellant is not entitled to a Schwartz hearing on the basis of “wholly speculative” allegations of misconduct without more. See State v. Mings, 289 N.W.2d 497, 498 (Minn.1980) (finding no abuse of discretion in denying a Schwartz hearing where a claim that some third party contacted one or more jurors and improperly influenced the jury verdict was “wholly speculative” and not based on evidence reasonably suggesting misconduct). Under the circumstances, we hold that the trial court did not abuse its discretion in failing to order a Schwartz hearing on this basis.

The second allegation of misconduct was that “sympathy controlled [the jury’s] decision, not the evidence.” The trial court denied a Schwartz hearing based on this allegation because it would require the “jurors to testify as to matters that might have occurred during the course of their deliberations that led them to reach the verdict that they did and, of course, that would be off limits.” The trial court’s reasoning is in accord with the rules of evidence, which forbid testimony about the thought processes in determining guilt. See Minn. R. Evid. 606(b); see also State v. Hoskins, 292 Minn. 111, 125, 193 N.W.2d 802, 812 (Minn.1972). The trial court found that none of the exceptions for testifying about the motivation behind the verdict applied.

Additionally, the jurors were instructed that “in arriving at your verdict, you shall not permit bias, prejudice, or sympathy to affect your judgment. You should base your verdict entirely upon the evidence which has been received in court and upon the law which I have given you in these instructions.” In response, appellant points to a Máy 28, 1999, newspaper article, which quoted the jury foreperson as saying that the jurors’ minds were made up almost immediately. However, such a statement, without more, does not provide any evidence of improper influence or bias. We presume that jurors follow the trial court’s instructions. See State v. Shoen, 578 N.W.2d 708, 718 (Minn.1998). Appellant articulated no specific facts to overcome this presumption. Inquiry into the motivation for the verdict would entail asking questions in violation of Rule 606(b). Therefore, we hold that the trial court did not abuse its discretion' in failing to order a Schwartz hearing on this basis.

Affirmed.

      . See also State v. Martin, 591 N.W.2d 481 (Minn.1999) (appellant’s pretrial appeal).

      . After a then-anonymous tip led police to Martin, he was interviewed and implicated the other four defendants. Martin later reached a plea agreement with authorities wherein he would plead guilty to aiding and abetting second-degree murder and testify against the other four accomplices. The plea agreement allowed the court to reduce Martin’s sentence 25 to 50 percent for- testifying. truthfully. Martin provided many of the details of Antonich’s murder in his statement to police and during the trial of appellant and the other co-defendants. See also State v. DeVerney, 592 N.W.2d 837, 839-41 (Minn.1999); State v. Greenleaf, 591 N.W.2d 488, 494-96 (Minn.1999); State v. Aubid, 591 N.W.2d 472, 475-77 (Minn.1999).