text:
    STATE of Minnesota, Respondent, v. Clinton T. SWANSON, Appellant.
    No. A04-2130.
    Supreme Court of Minnesota.
    Jan. 10, 2006.
   OPINION

ANDERSON, G. BARRY, Justice.

Clinton Swanson appeals from his convictions of first-degree felony murder, second-degree murder, kidnapping, arid false imprisonment. Swanson, alleging error on several grounds, requests a new trial, the reversal of his kidnapping conviction, or the vacation of his consecutive sentence for kidnapping. Because sufficient evidence exists to sustain the kidnapping conviction, the consecutive sentence for kidnapping does not exaggerate the criminality of Swanson’s conduct, and there is no error warranting a new trial, we affirm.

This appeal arises out of the murder of Robert Schultz and the kidnapping of Candice Hansen. The parties to this appeal tell dramatically different versions of the events surrounding the murder and kidnapping.

It is undisputed that Hansen and Karol House, who disliked each other, were friends of Schultz. Schultz provided each with cocaine and House sold cocaine for Schultz.

According to the state’s version of events, Schultz’s frequent phone calls to House irritated her boyfriend, Swanson. On the evening of May 15, 2003, Swanson suggested to House that they travel to Schultz’s house and that “everything would be taken care of.” Swanson and House picked up Swanson’s friend, Elijah Combs, before traveling to Schultz’s home. The three stole a vehicle and, while traveling to Schultz’s house, Swanson asked House where Schultz kept his drugs and money. When they arrived, Hansen and Schultz were watching a movie. Neither Hansen nor Schultz had met Combs or Swanson. After finishing the movie, all, except Hansen, played darts and used cocaine. At one point during the evening, Hansen went into the bathroom. As she was leaving the bathroom, she heard a “popping noise” and saw Swanson pointing a handgun at Schultz. Hansen testified that she then saw Swanson shoot Schultz, and then she was tackled by Combs. While Combs and House tied Hansen up with electrical cords, Schultz, wounded, ran past Hansen into his bedroom. Swanson stepped on Hansen as he pursued Schultz. House testified that Swanson stabbed Schultz and searched Schultz and the rest of the house for drugs and money. House kicked and “stomped on” Hansen and helped Swanson search the house. After House, Combs, and Swanson left, Hansen managed to free herself. Discovering Schultz dead, she summoned help.

Swanson, Combs, and House drove away from Schultz’s home in the previously stolen vehicle and Schultz’s Blazer. They drove to the apartment of Swanson’s friend, Karl Schaak, and en route, Swanson threw a wallet out the window of the vehicle. House and Swanson changed clothes at Schaak’s apartment. Schaak then drove with Swanson, Combs, and House to a location under the “Cedar Bridge” where they burned the two stolen vehicles. Swanson was burned in the process. Schaak later drove Combs to Minneapolis to hide the murder weapons. Combs confided to Schaak that plans had gone awry — they were just supposed to “jack” (rob) Schultz. Combs, House, and Swanson were later arrested.

House, Schaak, and Hansen testified against Swanson. Evidence showed Schultz died of gunshot and stab wounds. Swanson’s fingerprints were found in the bathroom and on a cigarette package at Schultz’s home. DNA evidence linked Swanson and Combs to a cigarette butt found in the trash at Schultz’s home and Swanson and Schultz to a blood stain found in Schaak’s vehicle.

At trial, Swanson testified in his own defense, setting out a different roadmap for these events. He denied House was his girlfriend though he admitted to sleeping with her. He stated that he knew Schaak from doing drywall work with him previously. Swanson testified that he met Schultz for the first and only time on the evening of May 15, 2003. He traveled to Schultz’s home with House that evening because she wanted to get cocaine from Schultz. While at Schultz’s home, Swanson used the bathroom. Swanson and House left Schultz’s home after 15 minutes at most and drove to Schaak’s apartment. On the way, House suggested robbing Schultz and taunted Swanson for his lack of interest. At Schaak’s apartment, House suggested the robbery to Schaak and Swanson fell asleep. Swanson awoke the next morning to Schaak asking him to help “get rid of some cars.” Swanson traveled to a spot underneath a bridge with Schaak, House, and Combs. When Swanson asked Schaak why they were burning cars, Schaak stated, “We went and robbed that guy, that you guys were talking about.” Swanson was burned in the process and was arrested several days later.

Swanson was convicted of first-degree felony murder, three counts of second-degree murder, kidnapping, and false imprisonment, but was acquitted of first-degree premeditated murder'. He was sentenced to life imprisonment with the possibility of parole after 30 years for the first-degree murder conviction and a consecutive 48 month term for kidnapping. Swanson now appeals his conviction to this court.

Swanson raises the following seven issues on appeal:

1. Whether the district court committed reversible error by failing to instruct the jury to determine, as a matter of fact, whether Schaak was an accomplice;
2. Whether the district court committed reversible error by refusing to instruct the jury that it should evaluate Schaak’s testimony especially carefully because he was a cooperating witness;
3. Whether reversible error occurred due to the improper admission of Swanson’s prior convictions for impeachment;
4. Whether the prosecutor committed misconduct by impermissibly vouching for the credibility of the state’s witnesses and by commenting on Swanson’s ability to listen to all the trial testimony before testifying;
5. Whether there is sufficient evidence to support Swanson’s conviction of kidnapping;
6. Assuming the evidence supporting Swanson’s conviction for kidnapping is insufficient, whether Swanson is entitled to a new trial as a result of insufficient evidence for one of the alternative felonies underlying his conviction for first-degree felony murder; and
7. Whether Swanson’s consecutive sentence for kidnapping should be vacated because the sentence unfairly exaggerates the criminality of his conduct.

I.

A conviction may not be based solely on the uncorroborated testimony of an accomplice. Minn.Stat. § 634.04 (2004). A district court has a duty to instruct a jury about the need for corroboration of an accomplice’s testimony. State v. Strommen, 648 N.W.2d 681, 689 (Minn.2002). An accomplice instruction must be given if a witness testifying against the defendant might reasonably be considered an accomplice. State v. Shoop, 441 N.W.2d 475, 479 (Minn.1989). If the facts are undisputed, the district court determines whether a witness might reasonably be considered an accomplice, but if the “evidence is disputed or susceptible to different interpretations, then the question whether the witness is an accomplice is one of fact for the jury.” State v. Flournoy, 535 N.W.2d 354, 359 (Minn.1995). An accomplice is one who could have been charged with and convicted of the crime with which the accused is charged. State v. Palubicki, 700 N.W.2d 476, 487 (Minn.2005).

Swanson argues that the district court committed reversible error by failing to instruct the jury to determine, as a matter of fact, whether Schaak was an accomplice for the purposes of Minn.Stat. § 634.04. As Swanson implicitly concedes, Swanson’s testimony is the only evidence that Schaak was involved in the crime as more than an accessory after the fact. An accessory after the fact is not an accomplice. State v. Henderson, 620 N.W.2d 688, 701 (Minn.2001). Swanson’s testimony, if believed by the jury, indicates Schaak would have criminal liability for the robbery and murder of Schultz and reduces Swanson’s liability to that of an accessory after the fact. When determining whether Swanson’s testimony is sufficient to send the question to the jury, we are faced with the question of whether, in the absence of any evidence that a witness committed the crime with the defendant, a witness can be an accomplice for purposes of section 634.04.

We have previously stated that for a witness to be an accomplice “it should appear that a crime has been committed, that the person on trial committed the crime, either as principal or accessory and that the witness co-operated with, aided, or assisted the person on trial in the commission of that crime either as principal or accessory.” State v. Price, 135 Minn. 159, 164, 160 N.W. 677, 679 (1916). In Price, this court concluded that a district court can never instruct the jury that a witness is an accomplice as a matter of law, a conclusion this court has since rejected. See State v. Lee, 683 N.W.2d 309, 314-16 (Minn.2004); State v. Guy, 259 Minn. 67, 74, 105 N.W.2d 892, 898 (1960). Price’s reasoning on the issue before us today, however, remains sound. In order for a witness to be an accomplice for the purposes of section 634.04, there must be some evidence that the defendant and witness were accomplices. A witness who is alleged to have committed the crime instead of the defendant is, as a matter of law, not an accomplice under section 634.04. Because Swanson’s version of the facts would not make Schaak an accomplice, but instead an alternative perpetrator, the district court did not err by failing to give the jury accomplice testimony instructions concerning Schaak.

II.

Swanson appeals the district court’s refusal to give a jury instruction specifically relating to the credibility of Schaak. Swanson’s trial counsel proposed a jury instruction entitled “Testimony of a Witness under Grant of Immunity or Reduced Criminal Liability.” Swanson has not cited any Minnesota authority requiring such an instruction in this situation, but argues that Schaak’s inherent motivation to lie and shift blame makes the omission of this instruction reversible error. A district court’s refusal to give a jury instruction is evaluated using an abuse of discretion standard. See State v. Daniels, 361 N.W.2d 819, 831 (Minn.1985). If the substance of an instruction is already contained in the jury instructions, a court need not give the requested instruction. State v. Auchampach, 540 N.W.2d 808, 816 (Minn.1995). General instructions were given by the district court authorizing the jury to give Schaak’s testimony less weight as a result of his possible motive to avoid more serious charges by testifying. Given the lack of authority supporting Swanson and given the witness credibility instructions the jurors received, the district court did not abuse its discretion by refusing to issue the instruction sought by Swanson.

III.

Swanson argues that he should receive a new trial due to erroneous admission of his five prior felony convictions (theft of a motor vehicle, two counts of second-degree assault, criminal vehicular operation, and possession of stolen property) for impeachment. When evaluating whether prior convictions are admissible for impeachment, a court considers five factors set out in State v. Jones, 271 N.W.2d 534, 537-38 (Minn.1978). State v. Ihnot, 575 N.W.2d 581, 586 (Minn.1998). Swanson alleges that the district court did not sufficiently analyze the Jones factors on the record, that his convictions were more prejudicial than probative, and that the rule allowing impeachment by prior conviction should be revisited by this court.

A threshold issue is whether Swanson has waived this issue. After the denial of his motion in limine to prevent the prosecution from using his prior felony convictions as impeachment under Minn. R. Evid. 609, Swanson testified about his previous convictions on direct examination. Relying on Ohler v. United States, 529 U.S. 753, 120 S.Ct. 1851, 146 L.Ed.2d 826 (2000), the state argues that when a defendant testifies about his prior convictions on direct examination after denial of a motion to exclude the convictions, the defendant has waived review of the admissibility of the prior convictions.

While instructive, Ohler is an interpretation of the Federal Rules of Evidence and is not binding on this court. The reasoning of Ohler is at odds with Minnesota precedent. In Ohler, the Court cited Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984), as support for its reasoning. Ohler, 529 U.S. at 759, 120 S.Ct. 1851. Luce held that a defendant must actually testify in order to preserve the issue of the admissibility of prior convictions for appeal. Luce, 469 U.S. at 43, 105 S.Ct. 460. But, in Minnesota, a defendant need not testify to preserve this issue on appeal. Jones, 271 N.W.2d at 537. The Court in Ohler also indicated that its holding is based on the idea that it is fair to hold a defendant to the consequences of tactical trial decisions. Ohler, 529 U.S. at 759-60, 120 S.Ct. 1851. We recently rejected similar reasoning, stating that “[i]t is inconsistent with our precedent and with our notion of fairness to conclude that once a defendant chooses to stipulate to evidence he was unsuccessful in getting excluded he has waived the opportunity to argue on appeal that the court erred in admitting the evidence.” State v. Jones, 678 N.W.2d 1, 14 n. 4 (Minn.2004). In light of our prior decisions on these issues, we hold that a defendant who testifies about his convictions on direct examination after denial of a motion in limine to exclude those convictions has not forfeited the opportunity to appeal the admissibility of those prior convictions.

A district court’s ruling on the admissibility of prior convictions for impeachment of a defendant is reviewed under a clear abuse of discretion standard. Ihnot, 575 N.W.2d at 584. Evidence that a witness has been convicted of a felony is admissible for impeachment if the court “determines that the probative value of admitting this evidence outweighs its prejudicial effect.” Minn. R. Evid. 609(a)(1). To decide this, a court examines:

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant’s subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant’s testimony, and (5) the centrality of the credibility issue.

Jones, 271 N.W.2d at 538. The committee comment to Minn. R. Evid. 609(a) states that “[t]he trial judge should make explicit findings on the record as to the factors considered and the reasons for admitting or excluding the evidence.” Minn. R. Evid. 609(a) comm. cmt. — 1989. This court has not directly determined whether failure to make this analysis on the record is error. See State v. Kinyon, 302 N.W.2d 27, 28-29 (Minn.1981) (holding that although the court failed to apply the probative/prejudicial standard, the error, if any, was harmless); State v. Burrows, 295 N.W.2d 100, 101 (Minn.1980). The Minnesota Court of Appeals has held that a district court should demonstrate on the record that it has considered and weighed the Jones factors. State v. Lund, 474 N.W.2d 169, 172 (Minn.App.1991).

In this case, the district court stated on the record that “on assessing the admissibility of the impeachment evidence against the Defendant, [the court assessed] all the State versus Jones factors.” The district court made this statement well after making its ruling that the five prior felony convictions of the defendant were admissible for impeachment purposes and after the defendant testified. Swanson emphasizes that the district court had previously stated before trial that it would be inclined to admit any felony conviction under 10 years old. The district court made this pretrial statement, however, after briefing and oral argument from both parties on the Jones factors. Despite the district court’s obvious consideration of the Jones factors, the failure to place the analysis on the record makes review of the district court’s exercise of discretion more speculative and difficult. Put another way, absent an analysis on the record of the Jones factors, an appellate court does not know the reasons for the district court’s decision. Due to this difficulty, we adopt the rule as set out in Lund that a district court should demonstrate on the record that it has considered and weighed the Jones factors.

But while we conclude the district court erred by failing to make a record of the Jones factor analysis, a review of those factors as applied to the matter before us makes clear that the error was harmless. Our examination of these factors includes:

A.The impeachment value of the prior crime.

Swanson argues that there is very little to no impeachment value in his prior convictions. But we have held that a prior conviction can have impeachment value by helping the jury see the “whole person” of the defendant and better evaluate his or her truthfulness. State v. Gassier, 505 N.W.2d 62, 66-67 (Minn.1993). Because Swanson’s convictions are admissible under this analysis, Swanson’s argument is unavailing.

B. The date of the conviction and defendant’s subsequent history.

All of Swanson’s convictions occurred within 10 years of his murder trial. Swanson notes that the assault convictions occurred in 1996 when he was under 20 years of age. But even an older conviction can remain probative if later convictions demonstrate a “history of lawlessness.” Ihnot, 575 N.W.2d at 586. Because Swanson’s convictions show a pattern of lawlessness and because the convictions were all less than 10 years old, the dates of the convictions do not weigh against admission of the prior convictions.

C. The similarity of the past crime to the crime charged.

The more similar the alleged offense and the crime underlying a past conviction, the more likely it is that the conviction is more prejudicial than probative. Jones, 271 N.W.2d at 538. Swanson argues that the two assault convictions are very similar to the charged offense of murder. Due to the similarity between the crime charged and past convictions, this factor weighs against admission of the assault convictions.

D. The importance of defendant’s testimony and the centrality of credibility.

If credibility is a central issue in the case, the fourth and fifth Jones factors weigh in favor of admission of the prior convictions. State v. Smith, 669 N.W.2d 19, 29 (Minn.2003), overruled on other grounds by State v. Leake, 699 N.W.2d 312 (Minn.2005); Ihnot, 575 N.W.2d at 587. Before trial, Swanson gave notice that he intended to present an alibi defense, a defense for which his testimony was the only evidence. The jury had to determine whether to believe Swanson or to believe House and Hansen. Because credibility was a central issue here, the fourth and fifth Jones factors weigh in favor of admission of the prior convictions.

Because only one of the Jones factors weighs against the admission of Swanson’s assault convictions and none of the Jones factors weigh against admission of his remaining prior convictions, the district court did not abuse its discretion under Minn. R. Evid. 609(a)(1).

Swanson also argues that this court should revisit Minn. R. Evid. 609 and the use of prior convictions as impeachment evidence. Because Swanson did not make this argument before the district court, we decline to consider it on appeal. State v. Grube, 531 N.W.2d 484, 489 (Minn.1995).

IV.

Swanson argues that he should receive a new trial as a result of two different types of prosecutorial misconduct. He claims that the prosecution committed misconduct: (1) by impermissibly vouching for the credibility of the state’s witnesses and (2) by commenting on Swanson’s ability to listen to all the trial testimony before testifying. We address each of these claims in turn.

A.

Swanson claims that comments made by the prosecutor in closing argument are impermissible vouching. A prosecutor may not personally endorse the credibility of witnesses. State v. Porter, 526 N.W.2d 359, 364 (Minn.1995). When evaluating alleged misconduct, a court will look at the closing argument as a whole. State v. Powers, 654 N.W.2d 667, 679 (Minn.2003). The prosecutor made several statements during closing argument that appear to vouch for the witnesses’ credibility. When discussing Hansen’s testimony, the prosecutor stated, “Candice Hansen, very believable. Very believable witness.” Later, the prosecutor stated, “The believability of Karol House. The state believes she is very believable, primarily because her case is done.” He continued, “[Karol House] is very believable. Same thing for * * * Schaak.” These statements were made within a discussion of factors affecting the credibility of the witnesses, and based on that context the state argues the statements were proper. See State v. Googins, 255 N.W.2d 805, 806 (Minn.1977) (stating that prosecution has right to analyze evidence and “vigorously argue” state’s witnesses are worthy of credibility). We hold, however, that the statement “[t]he state believes [Karol House] is very believable” is impermissible vouching on its face because the state directly endorsed the credibility of witness House.

At trial, Swanson did not object to any part of the state’s closing argument arid therefore we review the statements under the plain error standard. Under the plain error rule, a new trial may be granted only if: (1) there was error, (2) the error was plain, and (3) the error affected the defendant’s substantial rights. See State v. Chiller, 583 N.W.2d 736, 740 (Minn.1998). To meet the third prong, a defendant must show that the error was prejudicial and affected the outcome of the case. Id. at 741. If these three prongs are met, we will assess whether we should address the error to ensure the fairness and integrity of the judicial proceedings. Id. at 740. Given the strength of the evidence against Swanson and given that the impermissible vouching constituted only a small part of the prosecutor’s closing argument, we hold the statements, while plain error, were not sufficiently prejudicial to warrant a new trial.

B.

Swanson argues that the prosecutor’s statements about Swanson’s ability to tailor his testimony to the rest of the evidence, made during the state’s rebuttal to the defense’s closing argument, also constitute prosecutorial misconduct. Before Swanson took the stand, his attorney made an unsuccessful motion for an order prohibiting the prosecution from questioning Swanson about or commenting on Swanson’s ability to hear all of the evidence before testifying. On cross-examination, the prosecution asked Swanson several questions emphasizing this point. Swanson argues that the following passage from the prosecution’s rebuttal to the defense’s closing argument constitutes misconduct:

It’s interesting that after the state rests it’s [sic] case, after the Defendant heard everything the state had to offer, after the Defendant heard that his fingerprints were in Mr. Schultz’[s] home in two places, after the Defendant learned that his DNA had been discovered, after the Defendant heard the eyewitness accounts, after the Defendant heard Mr. Schaak testify about what he did after-wards to help out the Defendant, the Defendant’s version is he just swaps places with Mr. Schaak. He knew he had to get his DNA in that house somehow. He knew he had to get his fingerprints in that house somehow.

The United States Supreme Court has held that such comments do not violate a defendant’s rights under the federal constitution. Portuondo v. Agard, 529 U.S. 61, 73, 120 S.Ct. 1119, 146 L.Ed.2d 47 (2000). The Court, however, did not discourage other jurisdictions from considering the question as a matter to be decided under state law.

A defendant’s credibility is subject to impeachment by the prosecution once the defendant takes the stand and testifies. See State v. Silvers, 230 Minn. 12, 15, 40 N.W.2d 630, 632 (1950). Here, the issue is whether the state may impeach a defendant by arguing that a defendant can “adjust” his testimony because he testified last. Put another way, may the state attack the defendant’s credibility by implicitly criticizing the defendant for exercising his constitutional right of confrontation?

The Supreme Court has described the right of a defendant to be present at his or her trial as “[o]ne of the most basic of the rights guaranteed by the Confrontation Clause.” Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). We have stated that the right to be present at trial is protected by the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment. Ford v. State, 690 N.W.2d 706, 711-12 (Minn.2005).

Here, the state implied that Swanson, in exercising his rights under the Confrontation.Clause to be present at trial and hear the testimony against him, tailored his testimony to the state’s evidence, but beyond the “fit” between Swanson’s testimony and the other evidence, the state provides no evidence that Swanson did, in fact, tailor his testimony in light of the prosecution’s case. One can reasonably argue that, in some cases, such comments by the state are merely a statement of the obvious and therefore should be permitted. We believe, however, that although not constitutionally required, the better rule is that the prosecution cannot use a defendant’s exercise of his right of confrontation to impeach the credibility of his testimony, at least in the absence of evidence that the defendant has tailored his testimony to fit the state’s case. Without specific evidence of tailoring, such questions and comments by the prosecution imply that all defendants are less believable simply as a result of exercising the right of confrontation. The exercise of this constitutional right, by itself, is not evidence of guilt. Because the record contains neither evidence of tailoring nor any other reason for the state’s argument, the prosecution’s questions and comments were error.

Once prosecutorial misconduct has been established, we must determine whether the misconduct constitutes harmless error. When reviewing claims of prosecutorial misconduct, we reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial. State v. Morton, 701 N.W.2d 225, 233 (Minn.2005). If the state has engaged in misconduct, the defendant “will not be granted a new trial if the misconduct is ‘harmless beyond a reasonable doubt.’ ” Id. (quoting Ture v. State, 681 N.W.2d 9, 19 (Minn.2004)). We will find an error to be harmless beyond a reasonable doubt “only if the verdict rendered was ‘surely unattributable to the error.’ ” Id. (quoting State v. DeRosier, 695 N.W.2d 97, 106 (Minn.2005)). Here, the impermissible questions and comments were confined to roughly two pages of transcript of a record comprising over 1,200 pages. More importantly, the state’s case was very strong. Hansen and House both testified that they saw Swanson shoot Schultz. DNA evidence linked both Swan-

son and Combs to a cigarette butt found at the Schultz residence, and also linked Swanson and Schultz to a blood stain on the front passenger seat of Schaak’s vehicle. The limited nature of the prosecutorial misconduct as well as the very strong evidence of guilt establishes that the jury’s decision to convict was surely unattributable to the misconduct, and the error is therefore harmless.

V.

Swanson argues that insufficient evidence supports his kidnapping conviction under Minn.Stat. §§ 609.05, 609.25 (2004). To uphold the conviction, the court must find sufficient evidence to convict under either section 609.05, subd. 1 or subd. 2. See State v. Pierson, 530 N.W.2d 784, 788 (Minn.1995). When reviewing sufficiency of evidence, a court inquires whether a jury could reasonably find the defendant guilty of the charged offense. Id. at 787. The court views the evidence in the light most favorable to the verdict. State v. Moore, 438 N.W.2d 101, 108 (Minn.1989).

A. Liability under Minn.Stat. § 609.05, subd. 1.

A person is criminally liable for the crime of another if the person intentionally aids the perpetrator. Minn. Stat. § 609.05, subd. 1. Under this statute, liability attaches when one “plays some knowing role in the commission of the crime and takes no steps to thwart its completion.” Pierson, 530 N.W.2d at 788. Jurors can infer the necessary intent from factors including: “defendant’s presence at the scene of the crime, defendant’s close association with the principal before and after the crime, defendant’s lack of objection or surprise under the circumstances, and defendant’s flight from the scene of the crime with the principal.” Id.

Viewing the evidence in the light most favorable to the verdict, the evidence is strong that Swanson “intentionally aided” in the kidnapping of Hansen. Swanson was at the scene when Hansen was restrained and tied up by Combs and House. Combs was Swanson’s friend, House was Swanson’s girlfriend, and Swanson arrived at Schultz’s house with House and Combs. Swanson stayed with House and Combs after the murder. While Hansen was subject to restraint, Swanson stepped on her as he pursued Schultz. Swanson left the scene of the crime with House and Combs. This evidence easily meets the Pierson factors and sufficient evidence exists to convict Swanson under Minn.Stat. § 609.05, subd. 1.

B. Liability under Minn.Stat. § 609.05, subd. Z.

Swanson can also be held criminally liable for the kidnapping if (1) Swanson is liable under section 609.05, subd. 1 for the robbery of Schultz, (2) the kidnapping of Hansen was committed in furtherance of the robbery, and (3) the kidnapping was reasonably foreseeable as a probable consequence of the robbery. See Minn.Stat. § 609.05, subd. 2.

Ample evidence exists showing Swanson conspired with House and Combs to rob Schultz. House testified that, on the way to Schultz’s house, Swanson asked her where Schultz kept his money and drugs. Schaak testified that Combs stated that he and Swanson were just supposed to “jack” (rob) Schultz.

Evidence also indicates that the kidnapping was committed in furtherance of the robbery. Hansen testified that, after she witnessed Swanson shoot Schultz, Combs tackled her as she “went to run.” From this, the jury could reasonably infer that Hansen was restrained to prevent interference with the robbery and that the kidnapping was committed “in furtherance of’ the robbery. Moreover, sufficient evidence exists that the kidnapping was reasonably foreseeable by Swanson because Swanson was aware of Hansen’s presence by the time he robbed and murdered Schultz; absent the kidnapping, Swanson knew that Hansen might interfere with the robbery or murder of Schultz. Therefore we hold that sufficient evidence exists to find Swanson liable for the kidnapping under either section 609.05, subdivision 1 or subdivision 2 and Swanson’s challenge to the kidnapping conviction fails.

VI.

Swanson argues that his consecutive sentence for kidnapping should be vacated because it exaggerates the criminality of his conduct. A defendant’s kidnapping sentence may be served consecutively to sentences for other crimes committed during the kidnapping. State v. Swanson, 498 N.W.2d 435, 440 (Minn.1993). If a kidnapping is completely incidental to another offense and the imposition of a separate conviction for Mdnap-ping unfairly exaggerates the criminality of a defendant’s conduct, the kidnapping conviction and sentence may be vacated. State v. Welch, 675 N.W.2d 615, 621 (Minn.2004); Smith, 669 N.W.2d at 32. A court reviews consecutive sentencing under an abuse of discretion standard. State v. Richardson, 670 N.W.2d 267, 284 (Minn.2003).

For the kidnapping of Hansen, Swanson was sentenced to 48 months of imprisonment to be served consecutively to his life sentence. Citing -Smith and Welch, Swanson argues this court should vacate his consecutive sentence for kidnapping because the kidnapping was completely incidental to Schultz’s murder and his consecutive sentence unfairly exaggerates the criminality 'of his conduct.

Smith and Welch are distinguishable from this case. In Smith and Welch we held that momentary confinement of the victim of a greater offense did not provide a basis for a separate kidnapping conviction. See Welch, 675 N.W.2d at 620 (victim of alleged kidnapping also victim of attempted second-degree criminal sexual conduct); Smith, 669 N.W.2d at 32-33 (victim of alleged kidnapping also murder victim). In this case, the greater offense, first-degree felony murder, was committed against Schultz, while the kidnapping was committed against Hansen. In light of the fact that the kidnapping victim was not also the murder victim, the separate conviction and sentence for kidnapping did not unfairly exaggerate the criminality of Swanson’s conduct and the district court did not abuse its discretion in imposing consecutive sentences for the two offenses.

Affirmed.

      . Before trial, Swanson filed notice of his intent to present an alibi defense. In this notice, he stated that he would testify that he was at Schaak's apartment at the time of Schultz's murder. This is consistent with his testimony at trial.

      . A similar approach has been taken by Massachusetts. See Commonwealth v. Gaudette, 441 Mass. 762, 808 N.E.2d 798, 801-03 (2004).

      . Swanson conceded at oral argument that sufficient evidence exists to find Hansen was kidnapped under Minn.Stat. § 609.25. A kidnapping conviction must be vacated if the kidnapping is "merely incidental” to the underlying crime and not otherwise criminally significant. State v. Welch, 675 N.W.2d 615, 620 (Minn.2004). Hansen was kidnapped to facilitate the commission of other crimes (the robbery and murder of Schultz), but the rule in Welch has never been used to vacate a conviction where the victim of the kidnapping was not also the victim of the underlying crime.

      . Because sufficient evidence exists to uphold Swanson's kidnapping conviction, we need not address Swanson's claim that, because there is insufficient evidence supporting his kidnapping conviction, he is entitled to a new trial due to insufficient evidence for one of the alternative felonies underlying his conviction for first-degree felony murder, Minn.Stat. § 609.185(3) (2004).


source: Caselaw Access Project

author: ANDERSON, G. BARRY, Justice.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Joshua Stafford BERTSCH, Appellant.
    No. A04-0177.
    Supreme Court of Minnesota.
    Jan. 10, 2006.

      Theodora Gaitas, Lawrence Hammer-ling, Deputy State Public Defenders, for appellant.
    Mike Hatch, Atty. Gen., Susan Gaertner, Ramsey County Atty., Jeanne L. Schleh, Asst. Cty. Atty., for respondent.
   OPINION

ANDERSON, G. BARRY, Justice.

This appeal arises out of the convictions and sentences Joshua Stafford Bertsch received for dissemination and possession of pornographic work involving minors. Both parties petitioned this court to review a decision of the Minnesota Court of Appeals affirming the district court in part, reversing in part, and remanding for re-sentencing. We hold that Bertsch’s convictions and sentences for possession of child pornography must be vacated under Minn.Stat. § 609.04 (2004) as included offenses, that the district court did not abuse its discretion in its assignment of a severity level to the dissemination offense, and that the district court did not err in refusing to grant Bertsch a dispositional departure. Accordingly, we affirm in part and reverse in part.

On May 2, 2003, authorities with the Minnesota Internet Crimes Against Children Task Force (MICAC) executed a search warrant at Bertsch’s dormitory room at his college in St. Paul. The warrant was based on information MICAC had received from Illinois authorities that a computer server operating out of Bertsch’s room was distributing child pornography. During the execution of the warrant, Bertsch spoke with authorities and admitted using a laptop computer as a server to distribute and receive child pornography. Bertsch estimated five gigabytes of files containing child pornography had passed through his server in the last 30 days.

On May 8, 2003, based on Bertsch’s statements and a forensic examination of his computer, Bertsch was charged with one count of dissemination of child pornography and 19 counts of possession of child pornography. On August 11, 2003, Bertsch pleaded guilty to all charges and the district court accepted his plea. Bertsch understood that he had no agreement with the state regarding sentencing. On October 28, 2003, the state filed an amended complaint. This complaint contained two amendments: (1) a specific computer file name was added to every count charging possession and (2) the date of count I (dissemination) was changed from “April 2003 through the 1st day of May, 2003” to “April 2003.” The date of the possession offenses remained “on or about the 1st day of May, 2003.” Sentencing was held on November 4, 2003. The district court assigned severity levels to Bertsch’s offenses: his dissemination offense was ranked as a level VIII offense; 14 of the possession offenses were ranked at level IV; and five possession offenses were ranked at level V. The district court imposed sentences on all counts. The total sentence imposed was 78 months imprisonment — 48 months for the dissemination offense, a consecutive 12 months and a day for possession of still images, and a consecutive 18 months for possession of movie images. The remaining 17 counts were sentenced concurrently. The district court stated that it considered the sentence a “mitigated disposition” but acknowledged that it had not departed downward from the presumptive sentence.

On appeal to the Minnesota Court of Appeals, Bertsch raised four challenges to the district court’s sentences: (1) his convictions for possession of child pornography must be vacated under Minn.Stat. § 609.04 as included offenses; (2) under Minn.Stat. § 609.035 (2004), he cannot receive multiple sentences for the 19 counts possession of child pornography; (3) the district court abused its discretion in its assignment of severity levels to the offenses; and (4) the district court’s discretionary decision to deny Bertsch’s request for a downward dispositional departure should be reversed. The court of appeals held that Bertsch’s convictions and sentences did not violate either Minn.Stat. § 609.04 or Minn.Stat. § 609.035 and that the district court did not abuse its discretion in denying Bertsch’s request for a dispositional departure. State v. Bertsch, 689 N.W.2d 276, 280 (Minn.App.2004). The court of appeals remanded Bertsch’s sentences, however, holding that the district court’s severity level assignment to the dissemination offense was not supported by sufficient findings and that different severity levels assigned to the possession offenses were not appropriate. Id. at 291-93. Before this court, Bertsch challenges his convictions and sentences on the same four grounds he raised at the court of appeals, and the state challenges the determinations of the court of appeals concerning the district court’s assignment of severity level rankings.

I.

Bertsch was convicted and sentenced on one count of dissemination of pornographic work involving minors, Minn.Stat. § 617.247, subd. 3 (2004), and 19 counts of possession of such works, id., subd. 4. On appeal, Bertsch contends that possession of child pornography is an included offense of dissemination of child pornography, and therefore, under Minn.Stat. § 609.04, his convictions and sentences for the possession offenses must be vacated. The court of appeals concluded that possession of a pornographic work involving a minor is an included offense of dissemination. Bertsch, 689 N.W.2d at 283. The court of appeals went on to hold, however, that the distinct dates on which the dissemination and possession offenses occurred, as stated in the amended complaint, made Bertsch’s separate convictions and. sentences permissible notwithstanding section 609.04. Bertsch, 689 N.W.2d at 284.

One may not be convicted of both the crime charged and “[a] crime necessarily proved if the crime charged were proved.” Minn.Stat. § 609.04, subd. 1(4). To determine whether an offense is an included offense falling under this statute, a court examines the elements of the offense instead of the facts of the particular case. State v. Roden, 384 N.W.2d 456, 457-(Minn.1986). An offense is “necessarily included” in a greater offense if it is impossible to commit the greater offense without committing the lesser offense. Id. Based on the elements of both offenses, we hold that possession of a pornographic work involving a minor is an included offense of dissemination of such a work. See Minn.Stat. § 617.247, subds. 3(a), 4(a).

But even if a person pleads guilty to or is found guilty of a greater offense and an included offense, the protections of section 609.04 will not apply if the offenses constitute separate criminal acts. See State v. Kemp, 305 N.W.2d 322, 326 (Minn.1981). The inquiry into whether two offenses are separate criminal acts is analogous to an inquiry into whether multiple offenses constituted a single behavioral incident under MinmStat. § 609.035. See Kemp, 305 N.W.2d at 325-26. Factors considered when analyzing' whether conduct is a single behavioral incident include “time 'and place * '* * [and] whether the segment of conduct involved was motivated by an effort to obtain a single criminal objective.” State v. Johnson, 273 Minn. 394, 404, 141 N.W.2d 517, 524-25 (1966) (emphasis omitted).

Analysis of the timing of the dissemination offense and possession offenses in this case is complicated by the existence of two versions of the complaint. The state argues that because the possession offenses occurred on a different day than the dissemination offense, the possession offenses are not included offenses under section 609.04. The state implicitly relies on a material and significant amendment to the complaint in making this claim. But Bertsch pleaded' guilty to the original complaint, admitted to the facts as alleged by the state in the original complaint, and his plea was properly accepted by the district court without objection by either party-

A valid guilty plea must be accurate, voluntary, and intelligent. State v. Trott, 338 N.W.2d 248, 251 (Minn.1983). A plea must be intelligent to ensure “that the defendant understands the charges, understands the rights he is waiving by pleading guilty, and understands the consequences of his plea.” Id. Here, the defendant can hardly be said to “understand the consequences of his plea” when the count to which he has pled is a moving target subject to later amendment by the state. The state cites no Minnesota authority permitting an amendment under such circumstances, and we have found none. We conclude that, in the absence of Bertsch’s consent, the state could not amend the date of the dissemination offense once the district court accepted Bertsch’s guilty plea. Therefore, the amendment is invalid and the original complaint controls this analysis. Consequently, the dissemination offense and possession offenses both occurred,, at least in part, on May 1, 2003.

Bertsch argues that his situation is similar to that of the defendant in State v. Kemp — a comparison we find persuasive. In Kemp, the defendant was convicted of several drug offenses, including the sale, possession with intent to sell, and the sim-pie possession of cocaine. Kemp, 305 N.W.2d at 323. The simple possession charge was based on cocaine discovered during a warranted search of the defendant’s apartment after the defendant sold cocaine to an undercover agent. Id. The district court determined that the offenses were part of a single behavioral incident and, pursuant to section 609.035, imposed a sentence on only one of the convictions. Kemp, 305 N.W.2d at 323. We held that this determination was not erroneous, and that it also applied for purposes of section 609.04. Kemp, 305 N.W.2d at 326. Because the offenses were part of the same course of conduct, the defendant could not receive a separate conviction for the simple possession under section 609.04. See Kemp, 305 N.W.2d at 326.

Like the defendant in Kemp, Bertsch’s possession charges stemmed from a warranted search of his dwelling following illegal distribution. This court’s decision in Kemp was based in part on the district court’s finding that the offenses were a single behavioral incident. Id. at 325-26. Here the district court implicitly came to the opposite conclusion, imposing separate sentences for the dissemination count and possession counts after Bertsch referenced section 609.035 and argued that all the counts he faced were “one behavioral incident.” Even under a deferential standard of review, the district court’s determination is erroneous. The dissemination offense and the possession offenses both occurred, at least in part, on May 1, 2003. The state has not shown that Bertsch’s acts of possession and dissemination took place at significantly different times or with significantly different criminal objectives. We do not hold that possession is always an included offense of dissemination, but the manner in which the state charged the offenses here makes it impossible to distinguish one offense from the other for the purposes of Minn.Stat. § 609.04. Because there is no evidence in the record that demonstrates Bertsch possessed the files named in the possession counts for a separate purpose than the files that were disseminated, the district court’s implicit determination that the dissemination and possession offenses were not a single behavioral incident is erroneous, and, pursuant to Kemp and section 609.04, we vacate Bertsch’s convictions and sentences for possession.

II.

A presumptive felony sentence is calculated using the severity of the offense and the offender’s prior criminal record. See Minn. Sent. Guidelines II. Most offenses have an assigned severity level ranging from I to XI. Minn. Sent. Guidelines II.A. Certain offenses have no assigned severity level because they are rarely prosecuted or “because the underlying conduct included in the offense covers such a wide range of severity.” Minn. Sent. Guidelines cmt. II.A.05. These un-ranked offenses include dissemination of pornographic works involving minors, as well as possession of such works. See MinmStat. § 617.247; Minn. Sent. Guidelines cmt. II.A.03.

When sentencing a defendant on an unranked offense, a district court must assign the offense a severity level. Minn. Sent. Guidelines cmt. II.A.05. When choosing a severity level, factors the district court may consider include:

the gravity of the specific conduct underlying the unranked offense; the severity level assigned to any ranked offense whose elements are similar to those of the unranked offense; the conduct of and severity level assigned to other offenders for the same unranked offense; and the severity level assigned to other offenders who engaged in similar conduct.

State v. Kenard, 606 N.W.2d 440, 443 (Minn.2000) (footnote omitted). No single factor is controlling, and the list of factors is not exhaustive. Id. On appeal, this court reviews a district court’s severity level determination using an abuse of discretion standard. See id. at 442. The failure of the district court to state the factors and considerations supporting its decision on the record can be a reason to find the district court abused its discretion. See id. at 442-48.

The district court thoughtfully and thoroughly explained its decision to rank the dissemination offense as a level VIII pí-fense as follows:

I have carefully, in considering the ranking of [the offense], considered all of [the Renard ] factors. The third particular factor, the conduct of similarly-situated offenders — from what I have been able to glean from everything that has been presented to me and from some additional cases that I have read— there is at this point in the law no case that is similarly situated in your particular instance and that is because of the incredibly large volume of child pornography that was maintained as part of your collection. Now that may be because [MICAC] is relatively new. * * * [I]t has been in operation perhaps * * * three and a half years. * * * However, these investigators that work in Minnesota were alerted by an investigator, I believe, in Illinois who indicated that there was a great deal of activity being run through your computer * * * and it was discovered that there was an extremely large amount of images that were maintained and, therefore, you had the ability to disseminate to others.
So I think we’re * * * in somewhat new territory in terms of these offenses being brought before the Court, and therefore, while I can take some guidance from the information presented to me by * * * the State[,] your lawyer, [and] the Guidelines Commission, * * * I am obviously not bound by those but have attempted to use those as guidance in your case.

The court of appeals remanded the determination of the severity level for the dissemination offense, stating, “[Bertsch’s] large amount [of pornography] was effectively the sole factor on which the court relied”- and that Renard “requires a more thorough analysis than is reflected on the record.” Bertsch, 689 N.W.2d at 292. Bertsch contends that the district court abused its discretion by basing its ranking on the allegedly unprecedented size of his collection. He suggests level V as an appropriate alternate ranking.

An analysis of the Renard factors in this case demonstrates that the district court did not abuse its discretion in ranking dissemination as a level VIII offense. Even assuming the size of Bertsch’s collection was the only factor influencing the district court’s decision, the district court, unlike the district court in Renard, clearly stated the basis of its decision on the record. Regardless of whether Bertsch’s collection was the largest found by MI-CAC, at his plea hearing Bertsch admitted having a “large collection” containing thousands of pornographic images of children which others could download from his server. The district court could use the size of Bertsch’s collection in its analysis of the first, third, and fourth Renard factors. The district court could rationally determine that the large size of Bertsch’s collection increased the gravity of his conduct and made his conduct unlike that of others convicted of dissemination. See Renard, 606 N.W.2d at 443.

Analysis of the remaining Renard factor, the severity level assigned to any ranked offense with elements similar to those of dissemination, id., also demonstrates that the district court did not abuse its discretion in this case. Both Bertsch and the state list other offenses they argue are analogous to dissemination. Bertsch lists offenses ranked at severity level V; the state lists offenses ranked at severity level IX. None of these suggested offenses have the same elements as dissemination, and the presence of reasonable disagreement as to whether disseminating large amounts of graphic child pornography is more similar to the offenses cited by one party or the other leads to the conclusion that the district court did not abuse its discretion. We hold that the district court performed an adequate analysis under the Renard factors and did not abuse its discretion by ranking dissemination as a level VIII offense. Thus, we reverse the court of appeals on this issue.

III.

Bertsch argues that the district court abused its discretion by denying his motion for a downward dispositional departure. The court of appeals held that the district court did not abuse its discretion when it refused to depart dispo-sitionally. Bertsch, 689 N.W.2d at 294. Appellate courts may vacate or modify a sentence on many grounds, including that the sentence is unreasonable or inappropriate, Minn.Stat. § 244.11, subd. 2(b) (2004), or that such a result is in the interest of “fairness and uniformity.” State v. Vazquez, 330 N.W.2d 110, 112 (Minn.1983). However, we will not ordinarily interfere with a sentence “fall[ing] within the presumptive sentence range, either dispositionally or durationally, even if there are grounds that would justify departure.” State v. Abeyta, 336 N.W.2d 264, 265 (Minn.1983). While we have stated that we do not “intend entirely to close the door on appeals from refusals to depart,” we have emphasized that “it would be a rare case which would warrant reversal of the refusal to depart.” State v. Kindem, 313 N.W.2d 6, 7 (Minn.1981).

A defendant’s particular amenability to probation justifies a district court’s decision to stay the execution of a presumptively executed sentence. State v. Trog, 323 N.W.2d 28, 31 (Minn.1982). Factors a court can consider when determining whether to grant such a stay include “the defendant’s age, his prior record, his remorse, his cooperation, his attitude while in court, and the support of friends and/or family.” Id. Bertsch argues that an analysis of these factors demonstrates that he should have received a stayed, rather than executed, sentence. Another district court might have found a dispositional departure appropriate, but Bertsch’s situation is not the “rare case” warranting our intervention with the district court’s discretion. The probation department recommended that Bertsch receive an executed sentence and stated that Bertsch currently had a “level of defensiveness” which would “make sex offender specific treatment very difficult, at best.” Given this record, we hold there was no abuse of discretion by the district court in refusing Bertsch’s request for a dispositional departure.

Affirmed in part and reversed in part.

      . "Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included offense, but not both. An included offense may be any of the following: * * * A crime necessarily proved if the crime charged were proved.” Minn.Stat. § 609.04, subd. 1.

      . The state concedes that, based solely on the elements of the offenses, possession of a pornographic work involving a minor is an included offense of the dissemination of such a work.

      . Two additional points are worth noting with respect to the amendment of the complaint. First, while the record reveals that the state disclosed that it was seeking to amend the complaint by attaching a specific computer file name to each possession count, it is troubling that the state did not disclose to the district court or defense counsel that the amendment also included a change to the dates of dissemination in the dissemination count. Because we decide the amendment is invalid on other grounds, we need not decide whether the state’s partial disclosure, inadvertent or otherwise, would also justify rejection of the amended complaint. In light of this partial disclosure and in the absence of notice to either the district court or defense counsel, however, we reject the state's argument that this issue should not be considered because it is raised for the first time on appeal. See Minn. R.Crim. P. 28.02, subd. 11, 29.04, sub.ll. Second, the parties do not address, and we do not decide, if there are circumstances where a post-plea amendment of a criminal complaint might be appropriate. It is sufficient for purposes of this appeal to conclude that under these facts this amendment of the criminal complaint was not permissible.

      . Bertsch disseminated child pornography by making his computer files available to others through a server. As individuals downloaded pornographic files from Bertsch's computer, they would upload more pornographic files onto Bertsch’s computer. Bertsch stated that he had not viewed "the vast majority” of the pornographic files on his computer, and that he only kept most of the files involving young children to distribute in exchange for files involving teenagers. As Bertsch notes, the state did not allege that Bertsch disseminated any specific files and did not attempt to distinguish the works Bertsch disseminated from the works he possessed.

      . Because we hold that Bertsch's convictions for possession of child pornography are included offenses under Minn.Stat. § 609.04 and must be vacated, we do not reach the issue of whether multiple sentences for multiple convictions of possession of child pornography are permissible under Minn.Stat. § 609.035.

      . Because we hold that Bertsch’s convictions for possession of child pornography must be vacated under Minn.Stat. § 609.04, we do not address whether the district court abused its discretion in its assignment of severity levels to the possession offenses.

      . Bertsch emphasizes that: (1) at the time of the offense, he was a 22-year-old college senior; (2) he had no prior criminal history; (3) he quickly took responsibility for the offenses, pleading guilty as charged; (4) he expressed remorse for his actions at sentencing; and (5) he had a large support network of family, friends, and college professors.


author: BLATZ, Chief Justice.

text:
    Kristen THOMPSON, Respondent, v. CITY OF MINNEAPOLIS, et al., Appellants, Michael Litz, Respondent.
    No. A04-1050.
    Supreme Court of Minnesota.
    Jan. 10, 2006.
   OPINION

BLATZ, Chief Justice.

A sport utility vehicle (SUV) driven by respondent Michael Litz was being followed by two Minneapolis Police Officers in a detox van when the SUV hit and injured pedestrian respondent Kristen Thompson as she was crossing a street in downtown Minneapolis. Thompson filed a negligence claim against Litz, the two police officers who were following Litz, and the City of Minneapolis. Thompson’s claim alleged that the officers’ careless and negligent operation of the van was the direct and proximate cause of Thompson’s injuries. The city and the officers moved for summary judgment based on the defense of official immunity for the officers and vicarious official immunity for the city. The district court granted the motion, holding that the officers’ decision to pursue Litz was discretionary and therefore was entitled to official immunity. The court of appeals reversed and remanded, holding that once the discretionary decision to pursue had been made, the officers’ failure to perform the ministerial duties of turning on the detox van’s emergency lights and sirens made the defense of official immunity inapplicable. We affirm the denial of summary judgment but remand the case for further fact-finding to determine if the officers initiated a “vehicular pursuit” as defined by the Minneapolis Vehicle Operation Policy (“Pursuit Policy”) section 7-404, and if so, whether the officers employed the van’s emergency lights and siren as required by Pursuit Policy section 7-405.

At approximately 1:30 p.m. on Thursday, November 29, 2001, Minneapolis Police Officer Thomas Schmid was driving a police detox van with his partner Police Officer Gordon Blackey in the passenger seat. While heading southbound on Nicollet Avenue, Schmid stopped the van for a red light at Fourth Street. Shortly after the light turned green, the officers observed an SUV driven by Litz go through a red light at Nicollet Avenue while heading eastbound on Fourth Street. According to Litz, while stopped partway into that intersection, he looked to his left and saw the detox van flash its emergency lights. He “got scared and took off.” The officers then followed the SUV through downtown Minneapolis. Seven blocks later, Litz drove through a red light and the SUV struck pedestrian Thompson as she was crossing Fourth Avenue at Seventh Street. Litz drove for an additional block after the accident, turned the corner, and then ran from the SUV. Officer Blackey apprehended Litz a short time later. Litz was ultimately convicted of a hit and run accident involving Thompson.

On appeal, Thompson claims, inter alia, that the officers’ failure to continuously operate their van’s emergency lights and siren while pursuing Litz was negligent because the officers had a duty to warn her of the pursuit. The city and officers assert that they never initiated a vehicular pursuit as defined by the Pursuit Policy section 7-404, which reads:

VEHICULAR PURSUIT — A vehicular pursuit occurs whenever an officer pursues a driver of a vehicle who has been given a signal to stop by the activation of red lights and siren, and the suspect or violator fails to comply and attempts to elude the officer by taking evasive actions.

They further argue that, because they never initiated a pursuit, they are entitled to official immunity from the negligence action because they did not have a ministerial duty to continuously operate their emergency lights and siren as required by Pursuit Policy section 7-405, set forth infra in footnote 3. While the parties vigorously dispute the facts giving rise to the claims before us, we focus on the facts critical to the determination of whether the officers are entitled to official immunity: (1) whether the officers initiated a vehicular pursuit, and (2) whether and when the officers activated the detox van’s emergency lights and siren.

Beyond an agreement that the police van followed Litz through downtown and that Litz’s vehicle struck Thompson, the record provides a confused and contradictory account of what occurred in the few minutes before the collision. At least 19 different witnesses provided depositions or statements recounting their memories of the incident, with most witnesses seeing only a portion of what transpired in the final block before the collision.

Regarding whether a “vehicular pursuit” was initiated, Litz testified that he was “chased” through downtown. In contrast, the officers testified that although they did attempt to make a “traffic stop,” they never initiated or engaged in a “vehicular pursuit” of Litz as defined by the Pursuit Policy. Litz testified that the police van went through some of the same red lights that he did while Officer Schmid testified that he drove through two red lights — on Fourth Street — only after stopping and activating the van’s emergency lights and siren. Although both Litz and the officers agreed that Litz was speeding during the incident, the officers contend that they never exceeded the speed limit while Litz implies that they were going even faster than he was, testifying that the officers were catching up to him at the end of seven blocks. In contrast, the officers testified that the distance between the detox van and Litz’s SUV increased as they attempted to follow him. The other eyewitnesses’ testimony on this point is similarly varied, as witnesses indicate that the police van arrived at the scene of the accident between five seconds and “45 to 50 seconds” after the accident.

In addition to whether the officers initiated a vehicular pursuit of Litz, the parties also dispute whether and when the officers activated their emergency lights and siren. The officers both testified that they each first activated the van’s emergency lights “mid-block” of Fourth Street between Ni-collet and Marquette Avenues. The officers also testified that they each turned the emergency lights off after they had cleared the Fourth Street and Second Avenue intersection approximately two blocks later. Litz testified that the van’s emergency lights were activated while he was stopped in the intersection of Fourth Street and Nicollet Avenue, one-half block earlier than where the officers testified to first turning the emergency lights on. He further testified that although he frequently looked in his rearview mirror and saw the police van close behind him throughout the entire incident, he never saw the emergency lights on again.

The testimony on the use of the siren is also conflicting. Litz testified that he never heard the van’s siren. Schmid, the driver, testified that he activated the siren only for a few seconds at the intersection of Fourth Street and Marquette Avenue and then again for a few seconds at the intersection of Fourth Street and Second Avenue. Each time, he activated the siren to clear through the intersection against a red light and then deactivated the siren after clearing the intersection. Schmid testified that he did not turn the siren on again before he and Blackey came upon the scene of the accident on Fourth Avenue. In contrast, Blackey testified that he — not Schmid — activated the siren “mid-block of Fourth between Nicollet and Marquette,” simultaneously with his activation of the lights. Blackey further testified that he turned the siren off after they had turned onto Second Avenue from Fourth Street. Blackey stated that he did not activate the siren again before they came upon the scene of the accident, but did not remember if Schmid activated it earlier. Confusing matters further, as noted by the district court, the sound of a siren is audible on the audiotape at all times when the officers were broadcasting, including the time when they were traveling eastbound on Sixth Street — a time when neither officer testifies to the siren being activated.

Finally, the other eyewitness testimony does little to clarify the officers’ operation of their emergency lights and siren. One witness testified that as the police van approached the corner of Sixth Street and Fourth Avenue, one block before the spot where Litz collided with Thompson, the van’s emergency lights and siren both were on. Other witnesses testified that the van’s emergency lights and siren were not on in the final block as the van approached the scene of the collision.

Thompson filed a personal injury negligence action against Litz, the officers, and the city. With respect to the officers, the complaint alleged that the detox van “was being operated in a careless and negligent manner and in violation of the Minneapolis Police Department[’]s Pursuit Policy, including but not limited to the failure to use their flashing emergency lights and siren.” The officers and the city moved for summary judgment based on official and vicarious official immunity. The district court granted the motion, concluding that the officers’ decision to pursue Litz was a discretionary and not a ministerial act. Additionally, the district court concluded that the officers had not committed a willful or malicious wrong, and therefore official immunity relieved the officers of liability. Finally, the district court held that the city was entitled to vicarious official immunity.

The court of appeals reversed and remanded, holding that although the officers’ original decision of whether to engage in pursuit was discretionary, the Pursuit Policy imposed ministerial duties on the officers in conducting a pursuit. Thompson v. City of Minneapolis, No. A04-1050, 2005 WL 89492, at *4-5 (Minn.App. Jan.18, 2005). In concluding that the Pursuit Policy imposed ministerial duties, the court relied on the language of section 7-405, which required that “ ‘[ojfficers shall use their red lights and siren in a continuous manner’ when engaged in vehicular pursuit,” and section 7-408, which required the officers to “[t]urn off the pursuit route at the next available intersection” and notify dispatch when terminating a pursuit. Thompson, 2005 WL 89492, *4-5 (quoting Pursuit Policy). Holding as a matter of law that the officers had initiated a pursuit, the court of appeals held that the officers’ failure to conform to the requirements set forth in sections 7-405 and 7-408 resulted in a loss of official immunity. Thompson, 2005 WL 89492, at *4-5. Finally, the court of appeals denied vicarious official immunity to the city because the officers did not have official immunity. Id. at *6.

In reviewing an appeal from the grant or denial of official immunity on summary judgment, we must determine whether there are genuine issues of material fact and whether the lower court erred in applying the law. Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 655 (Minn.2004). We consider the evidence in the light most favorable to the nonmoving party. Gleason v. Metro. Council Transit Operations, 582 N.W.2d 216, 217 (Minn.1998). The application of official immunity presents a question of law reviewed de novo. Id. at 219. Summary judgment should be granted if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file “show that there is no genuine issue as to any material fact and that either party is entitled to judgment as a matter of law.” Minn. R. Civ. P. 56.03.

A public official is not protected by immunity in the performance of his duties when he fails to perform a ministerial act, or when his performance of a discretionary act is willful or malicious. Anderson, 678 N.W.2d at 660, 662. We have distinguished discretionary acts from ministerial acts by defining a discretionary act as one requiring “the exercise of individual judgment in carrying out the official’s duties.” Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn.1998). A ministerial act, in contrast, is “ ‘absolute, certain-, and imperative, involving merely the execution of a specific duty arising from fixed and designated facts.’ ” Cook v. Trovatten, 200 Minn. 221, 224, 274 N.W. 165, 167 (1937) (quoting People v. May, 251 Ill. 54, 95 N.E. 999, 1000 (1911)).

In order to determine whether the conflicting accounts of the officers’ conduct raise a genuine issue of material fact regarding the officers’ official immunity, we first must determine “ ‘the precise governmental conduct at issue.’ ” Gleason, 582 N.W.2d at 219 (quoting Watson v. Metro. Transit Comm’n, 553 N.W.2d 406, 415 (Minn.1996)). In the instant case, the district court granted official immunity to the officers on summary judgment because it focused on the officers’ “decision to pursue” Litz and determined that it was a discretionary act. The court of appeals reversed, focusing instead on the manner in which the officers carried out their duties in following Litz. Thompson, 2005 WL 89492, at *4-5. The court of appeals held that although the officers’ decision to pursue was discretionary, the officers’ failure to continuously operate their vehicle’s emergency lights and siren while pursuing Litz was a breach of a ministerial duty mandated by the Pursuit Policy. Id.

In our recent opinion in Anderson, a high school woodworking teacher was sued for negligence after a portion of a student’s finger was severed while the student used a table saw to make rip cuts of thin strips of wood. 678 N.W.2d at 654. We addressed the issue of whether the school district’s unwritten safety protocol regarding the use of a table saw’s blade guard imposed a ministerial duty upon a teacher in the conduct of that teacher’s classroom instruction. Id. at 659. In holding that the protocol did impose a ministerial duty, we made clear that the challenged conduct of the teacher was not the discretionary decision “to teach woodworking, to use power equipment in the course, to allow [the student] to use the table saw, or even to leave [the student] unsupervised to make the remaining rip cuts on his own.” Id. at 656. Rather, the specific conduct challenged was the ministerial decision of whether to instruct the student to make rip cuts with the blade guard disengaged as clearly dictated by an established protocol. Id. at 656-57.

In the instant case, we agree with the court of appeals that the precise conduct at issue is the officers’ conduct in following Litz after they initially observed him committing a traffic violation. On this record, however, we cannot determine whether the officers initiated a “vehicular pursuit” as defined by the Pursuit Policy. In particular, it is unclear if their admitted attempt to make a “traffic stop” became a “vehicular pursuit” under the Pursuit Policy, and if it did, at what point during the incident it became one.

If the officers initiated a vehicular pursuit, the language of Pursuit Policy section 7-405 clearly imposed a ministerial duty upon them. Section 7-405 states: “Officers shall use red lights and siren in a continuous manner for any emergency driving or vehicular pursuit.” The policy makes clear that officers have no discretion regarding the use of emergency lights and siren once they have initiated a vehicular pursuit, as the policy imposes an “absolute, certain, and imperative” ministerial duty with which the officers are required to comply. See Cook, 200 Minn. at 224, 274 N.W. at 167 (defining ministerial duties). If the officers violated section 7-405 of the policy — a fact unclear from this record — then they are not entitled to official immunity for claims arising from the nonuse of emergency lights and siren. See Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316 (Minn.1998) (holding that a city sidewalk inspector’s failure to comply with a city ordinance to immediately repair broken a sidewalk defeated the inspector’s claim of official immunity).

Therefore, we hold that the Pursuit Policy creates a ministerial duty to continuously operate emergency lights and siren during a “vehicular pursuit” as defined by section 7-404 of that policy. See Mumm v. Mornson, 708 N.W.2d 475 at 487 (Minn. Jan. 10, 2006) (holding that a different portion of the Pursuit Policy creates a ministerial duty). However, we remand this case to the district court for trial to determine if the officers initiated such a pursuit, and if they did, whether the officers used the van’s emergency lights and siren in the required continuous manner.

Competing versions of the events support different conclusions of what actually happened. Given the state of the record before us, additional analysis as to what in fact occurred would be wholly speculative and call for fact-finding, a task beyond the scope of our review. See State ex rel. Beaulieu v. City of Mounds View, 518 N.W.2d 567, 573 (Minn.1994) (remanding the determination of official immunity to a fact finder).

In Ludwig v. Anderson, the Eighth Circuit stated that, in the context of qualified immunity, a case should be submitted to the jury when the facts giving rise to the applicability of qualified immunity were disputed. Specifically, the Eighth Circuit stated:

Although it is a question of law whether particular facts entitle police officers to summary judgment based on qualified immunity, where, as here, “there is a genuine dispute concerning predicate facts material to the qualified immunity issue, there can be no summary judgment.” The evidence in this case presents material issues of fact on which the issue of qualified immunity turns and “presents a sufficient disagreement to require submission to a jury.”

Ludwig v. Anderson, 54 F.3d 465, 474 (8th Cir.1995) (citations omitted).

We believe that the Eighth Circuit’s reasoning is persuasive and applicable to cases involving claims of official immunity. While we recognize that official immunity is intended to provide “immunity from suit, not just from liability,” Sletten v. Ramsey County, 675 N.W.2d 291, 299 (Minn.2004), when' predicate facts are in dispute, we cannot determine whether official immunity applies until the factual disputes are resolved. See State ex rel. Beaulieu, 518 N.W.2d at 573. Therefore, we affirm the court of appeals’ denial of summary judgment, reverse the court of appeals’ denial of official immunity, and remand the matter to the district court for trial to determine if the officers are entitled to official immunity.

Affirmed in part, reversed in part, and remanded to the district court for trial.

      . The officers’ testimony on the activation and deactivation of the emergency lights and siren conflicts; each of them testified that he was the one to turn them on and off.

      . Volume Seven of the Minneapolis Police Department Operations Section is entitled “Field Operations." Chapter 7-400 is entitled "Vehicle Operation.” Pertinent parts of Chapter 7-400 read as follows:
      7-404 VEHICULAR PURSUIT DEFINITIONS

        VEHICULAR PURSUIT — A vehicular pursuit occurs whenever an officer pursues a driver of a vehicle who has been given a signal to stop by the activation of red lights and siren, and the suspect or violator fails to comply and attempts to elude the officer by taking evasive actions.

        TERMINATE — A pursuit is considered to be terminated when the officer discontinues the use of all emergency equipment and slows the squad car to the posted speed limit and turns off the pursuit route at the next available intersection.

      7-405 (B-D) INITIATING OR CONTINUING A PURSUIT (11/20/01)

      Officers involved in a vehicular pursuit shall exercise caution and due consideration for the safety of the public. Only marked squads shall be used in a pursuit. Officers shall use red lights and siren in a continuous manner for any emergency driving or vehicular pursuit. The use of red light and siren does not exempt officers from the need for caution.

      A pursuit is justified after an offender has engaged in evasive tactics only when an officer knows or has reasonable grounds to believe that the fleeing offender committed an offense and there is a reasonable expectation of a successful apprehension of the offender.

      7-408 TERMINATION OF PURSUITS

      When a pursuit has been terminated, the pursuing officers shall notify dispatch and:
      1. Reduce speed to the posted speed limits. (11/20/01)
      2. Turn off emergency lights and sirens.
      3. Turn off the pursuit route at the next available intersection.

      . If it is found that the officers in fact initiated a vehicular pursuit of Litz but then attempted to terminate the pursuit, Pursuit Policy section 7-408 may also come into issue.


author: /s/ G. Barry Anderson Associate Justice

text:
    Keith ELLINGSON, Relator, v. BRADY CORPORATION, Self-Insured, adm’d by Gallagher Bassett Services, Respondents, and Blue Cross/Blue Shield of Minnesota, Unum Life Insurance of America, and Fairview Health Services, Intervenors.
    No. A05-1462.
    Supreme Court of Minnesota.
    Jan. 10, 2006.
   ORDER

Based upon all the files, records and proceedings herein, and upon an evenly divided court,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed June 28, 2005, be, and the same is, affirmed without opinion.

BY THE COURT:

/s/ G. Barry Anderson Associate Justice

BLATZ, C. J., took no part in the consideration or decision of this case.