author: WRIGHT, Judge.

text:
    STATE of Minnesota, Respondent, v. Jakklyn M. NETLAND, Appellant.
    No. A06-1511.
    Court of Appeals of Minnesota.
    Dec. 11, 2007.

      Charles A. Ramsay, Sharon R. Osborn, Ramsay & DeVore, Roseville, MN, for appellant.
    Lori Swanson, Attorney General, St. Paul, MN; and Andrew R. Small, Assistant City Attorney, Minneapolis, MN, for respondent.
    Considered and decided by WRIGHT, Presiding Judge; SHUMAKER, Judge; and STONEBURNER, Judge.
   OPINION

WRIGHT, Judge.

Appellant challenges her conviction of second-degree driving while impaired for refusal to submit to a chemical test, arguing that (1) imposing criminal penalties for refusing to submit to chemical testing unconstitutionally conditions the privilege of driving on the driver’s surrender of rights guaranteed by the Fourth Amendment to the United States Constitution; (2) a conviction of driving while impaired for “refusing” to submit to a breath test based on the Intoxilyzer machine’s rejection of her breath samples, despite her apparent willingness to provide one, and the officer’s rejection of her timely requests for additional opportunities to complete the Intoxi-lyzer test and an alternate method of testing, violates the right to due process; (3) the district court erred in denying her motion for a mistrial; and (4) admitting the results of an incomplete breath test was prejudicial error. We reverse the conviction on due-process grounds.

FACTS

Appellant Jakklyn Netland was charged with one count of third-degree driving while impaired(DWI), a violation of Minn.Stat. § 169A.20, subd. 1(1) (2004), and one count of second-degree DWI for refusal to submit to a chemical test (test refusal), a violation of Minn.Stat. § 169A.20, subd. 2 (2004). Following a jury trial, Netland was acquitted of third-degree DWI but found guilty of test refusal.

In the early morning of January 7, 2006, Officer Dennis Hagen arrested Netland for DWI. Netland does not dispute that Officer Hagen had probable cause for doing so. At the police department, Officer Ha-gen asked Netland to submit to a breath test under Minn.Stat. § 169A.51 (2004). He read Netland the “Motor Vehicle Implied Consent Advisory” form, which informed her that (1) Minnesota law requires her to submit to chemical testing; (2) refusal to take a test is a crime; (3) she has the right to consult with an attorney before deciding whether to be tested; and (4) she will be deemed to have refused if the test is unreasonably delayed or if she refuses to make a decision. After reading each of the four parts of the advisory, Officer Hagen asked Netland if she understood that portion of the form. Neltand replied, “Yes” to each.

Netland invoked her right to an attorney. The attorney who spoke with her advised her to take the test, stating, “Whatever you do, do not refuse the test. It’s way worse than coming up with a positive.” According to Netland, this advice “freaked out” Netland, who testified that she had never heard of the implied-consent law. As a result of the advice, Netland testified, “I wanted to take the test and I wanted it to be over.”

After Netland hung up the telephone, Officer Hagen asked if she would submit to a breath test. Because Netland said that she would, Officer Hagen led her to the Intoxilyzer 5000 (Intoxilyzer), which was ready for operation. According to the expert testimony, the Intoxilyzer has specific parameters that a breath sample must meet in order to be analyzed. First, the test subject must activate the machine’s internal sequence by blowing into the mouthpiece at an overall rate of at least 0.175 liters of air per second. This triggers an audible tone, which indicates that the Intoxilyzer is analyzing the sample. But for the Intoxilyzer to accept the breath sample as sufficient, the subject must maintain a flow of at least 0.15 liters of air per second. The tone will continue uninterrupted if the subject maintains this airflow rate. Dropping below 0.15 liters per second interrupts the tone, thereby indicating a “deficient sample” and requiring the subject to start over. The Intoxi-lyzer will accept a breath sample as “adequate” once the subject has provided a total volume of at least 1.1 liters of air after maintaining a continuous tone. And although the Intoxilyzer records the number of attempted samples a subject provides, it does not record the specific reason for each breath sample it rejects.

An audio recording of Netland’s Intoxi-lyzer test was a focal point of the trial. Officer Hagen instructed Netland to blow into the Intoxilyzer and told her that she would hear a tone once she started. He also told Netland that she “need[ed] to keep the tone going.” According to the printout of test results, Netland made 19 attempts in fewer than three minutes and 30 seconds before Officer Hagen terminated the test. The audio recording conclusively establishes that Netland blew into the Intoxilyzer hard enough to sustain a number of tones, although it is difficult to tell whether some of these tones are long, continuous tones or a series of short tones with barely perceptible interruptions. It does not appear that the Intoxilyzer accepted any of these attempts, although the printout shows the total volume of only the last of these attempts.

Officer Hagen advised Netland that he considered her test performance to be a refusal, variously explaining that he felt Netland was “obviously not trying” and “playing games,” and that it was the Intox-ilyzer that “deemed” Netland’s deficient samples as a refusal. Netland repeatedly insisted that she was not refusing, explained that she was having trouble sustaining a tone for the requisite length of time, and asked to be given additional opportunities to blow into the Intoxilyzer.

Shortly thereafter, Officer Hagen ended the breath test and advised Netland that she would be charged with test refusal. Insisting that she was not refusing, Net-land asked to be permitted to submit a blood or urine sample. But Officer Hagen denied the request. Officer Hagen testified that it was his common practice to offer a breath test rather than a blood or urine test because the breath test is immediately available and produces an immediate test result. Officer Hagen also testified that, although Netland specifically told him that she would be willing to take a blood or urine test, he “felt she wasn’t trying ... [to] giv[e] a valid, long breath” and declined to offer an alternative test because “it would lead to ... charging her with a test refusal.” Undeterred, Netland hired an independent tester to obtain and analyze a urine sample that she submitted, which subsequently measured her alcohol concentration to be 0.036.

At trial, Officer Hagen testified that he “felt [Netland] wasn’t trying to give a[n] appropriate sample” because she did not blow hard enough or long enough for the Intoxilyzer to register a valid breath sample. Netland testified that she has difficulty breathing under stress, and she was under particular stress because she could not get the Intoxilyzer to register her breath samples. Netland repeatedly denied refusing to take the test.

Regarding what constitutes a “test refusal,” the jury was instructed that the state must prove that “the defendant was requested by a police officer to submit to a chemical test of [her] breath” and “refused to submit to the test.” During deliberations, the jury requested a cassette player to “listen to the evidence,” referring to the audio recording of the Intoxilyzer test. The jury’s note emphasized that “[t]his is a must.” The tape was played once more in the courtroom. Although the jury acquitted Netland of the DWI charge, it found her guilty of refusing to submit to the Intoxilyzer test. This appeal followed.

ISSUES

I. Does criminalizing refusal to submit to a chemical test violate the Fourth Amendment’s prohibition against unreasonable searches?
II. Does due process permit a test-refusal conviction when the officer terminated an in-progress breath test because the Intoxilyzer rejected the defendant’s breath sample and the officer denied the defendant’s insistent requests for additional and alternative forms of chemical testing?
III. Did the district court abuse its discretion by denying the defendant’s motion for a mistrial?
IV. Did the district court abuse its discretion by admitting evidence of the partial Intoxilyzer test results?

ANALYSIS

Netland challenges her conviction of second-degree DWI for refusing to submit to chemical testing (test refusal), a violation of Minn.Stat. § 169A.20, subd. 2 (2004). Under that section, “[i]t is a crime for any person to refuse to submit to a chemical test of the person’s blood, breath, or urine under section 169A.51 (chemical tests for intoxication), or 169A.52 (test refusal or failure; revocation of license).” Id. Net-land’s challenge is founded primarily on two constitutional arguments: (1) that section 169A.20, subdivision 2, is unconstitutional on its face because it requires a surrender of the Fourth Amendment protection against unreasonable searches and seizures as a condition of driving in Minnesota; and (2) that constitutional due-process guarantees of fundamental fairness prohibit convicting Netland of “refusing” to submit to a chemical test that she was attempting to take and seeking an alternative means of administration. Although we reject Netland’s facial challenge to the statute, a thorough review of the record convinces us that Netland was denied the guarantees of procedural due process.

I.

Netland argues that Minn.Stat. § 169A.20, subd. 2, which makes it a crime for a driver to refuse to submit to chemical testing for the presence of alcohol, unconstitutionally conditions the privilege of driving on the surrender of rights guaranteed by the Fourth Amendment to the United States Constitution. The constitutionality of a statute presents a question of law, which we review de novo. State v. Melde, 725 N.W.2d 99, 102 (Minn.2006). In doing so, we presume that Minnesota statutes are constitutional and will strike down a statute as unconstitutional only if absolutely necessary. Id. The party challenging the constitutionality of a statute must “demonstrate [ ] beyond a reasonable doubt that the statute violates some constitutional provision.” Miller Brewing Co. v. State, 284 N.W.2d 353, 356 (Minn.1979).

Under Minnesota’s implied-consent law, any person who drives a motor vehicle within the state consents to have her or his blood, breath, or urine chemically tested for the purpose of determining the presence of alcohol. Minn.Stat. § 169A.51, subd. 1(a) (2004). An officer may require a person to submit to chemical testing if there is probable cause that the person was driving while under the influence of alcohol and has been lawfully placed under arrest for doing so. Id., subd. 1(b)(1) (2004). A person who refuses to submit to a properly requested test is subject to both civil and criminal penalties. Minn.Stat. §§ 169A.52, subd. 3(a) (revoking driving privileges for one year upon test refusal), 169A.20, subd. 2 (making test refusal a crime), 169A.25-169A.26 (penalizing criminal test refusal as gross misdemeanor) (2004).

At the same time, it is well-established that a state-created privilege “cannot be made to depend upon the surrender of a right created and guaranteed by the federal Constitution.” Frost v. R.R. Comm’n, 271 U.S. 583, 596, 46 S.Ct. 605, 608, 70 L.Ed. 1101 (1926). Chemical testing under the implied-consent law constitutes a “search” within the meaning of the Fourth Amendment. As such, any consent to be searched that is obtained “must be received, not extracted.” State v. Dezso, 512 N.W.2d 877, 880 (Minn.1994); see also In re Welfare of J.W.K., 583 N.W.2d 752, 755 (Minn.1998) (applying Fourth Amendment protections to physical act of drawing blood and medical data obtained from subsequent chemical analysis). Netland argues that the legislature has improperly conditioned the privilege of driving on surrendering one’s right to refuse consent to a warrantless search by imposing criminal penalties on one who exercises the right to refuse.

Both the United States and Minnesota constitutions protect an individual’s right to be free of unreasonable searches and seizures. U.S. Const, amend. IV; Minn. Const, art. I, § 10. Generally, a warrantless search is “unreasonable” per se. State v. Hanley, 363 N.W.2d 735, 738 (Minn.1985). The “overriding function” of this constitutional guarantee is to “protect personal privacy and dignity against unwarranted intrusion by the State.” Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966). But this constitutional guarantee does not protect against all intrusions. Rather, it protects only against unreasonable intrusions or searches “which are not justified in the circumstances, or which are made in an improper manner.” Id. at 768, 86 S.Ct. at 1834. Thus, the general rule that only-searches pursuant to a warrant are “reasonable” is subject to several “specifically established and well delineated exceptions.” Hanley, 363 N.W.2d at 738 (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967)).

An individual’s consent to be searched is a well-settled exception to the warrant requirement. Id. To be valid, such consent must be “freely and voluntarily” given. State v. George, 557 N.W.2d 575, 579 (Minn.1997). Although “an officer has a right to ask to search[,] ... an individual has a right to say no.” Id. Because an individual does not have the right to say no to a chemical test and, indeed, is subject to criminal penalties for doing so, the “consent” implied by law is insufficiently voluntary for Fourth Amendment purposes. Cf. State v. Mellett, 642 N.W.2d 779, 785 (Minn.App.2002) (acknowledging that criminalizing refusal is a “means of coercion”), review denied (Minn. July 16, 2002). But voluntary consent is not the only exception to the warrant requirement.

The presence of “exigent circumstances” also is an exception that can justify an otherwise unreasonable warrantless search. State v. Johnson, 689 N.W.2d 247, 251 (Minn.App.2004), review denied (Minn. Jan. 20, 2005). Exigent circumstances exist when there is a danger of the imminent destruction of evidence. State v. Shriner, 739 N.W.2d 432, 436 (Minn.App.2007). For that reason, the “evanescent quality” of alcohol in an allegedly impaired driver’s blood may present an exigent circumstance. See id. at 436, 438 (declining to adopt rule that evanescent quality of alcohol establishes exigent circumstances per se and holding that exigent circumstances of implied-consent search depends on totality of circumstances); see also Schmer-ber, 384 U.S. at 770-71, 86 S.Ct. at 1835-36 (stating that “the percentage of alcohol in the blood begins to diminish ... as the body functions to eliminate it from the system”).

Thus, contrary to Netland’s argument, the State of Minnesota does not condition a person’s driving privileges on surrendering a constitutional right. Before “the [chemical] test may be required of a person,” the implied-consent law requires the requesting officer to have probable cause to believe a person is driving while impaired. Minn.Stat. § 169A.51, subd. 1(b). And if, as it often will be, a warrantless search is necessary to prevent evidence of the driver’s intoxication from imminent destruction by physiological processes, the exigent-circumstances exception authorizes the search. See Shriner, 739 N.W.2d at 439 (emphasizing that “the exigent-circumstances requirement is not a high threshold”). Since the Fourth Amendment does not grant the right to refuse a search supported by probable cause and authorized by exigent circumstances, the implied-consent law does not require a driver to surrender the right to be free from unreasonable searches.

Moreover, section 169A.20, subdivision 2, does not criminalize withholding “consent,” implied or otherwise, to being searched. Rather, it criminalizes “refusing] to submit” to a search, supported by probable cause, in which the body’s natural physiological processes make the destruction of evidence imminent. Under these circumstances, whether the driver consents to the test is wholly irrelevant because “reasonableness,” not “consent,” is the necessary condition under which chemical testing withstands a constitutional challenge. Because Minn.Stat. § 169A.20, subd. 2, neither authorizes an unreasonable search nor conditions a privilege on surrendering a constitutional right, Netland’s challenge to the constitutionality of this statute fails.

II.

Netland also challenges her conviction as a violation of due process. She argues that it is fundamentally unfair to convict her of test refusal when she was imploring Officer Hagen for an opportunity to take an alternative test. Whether the facts establish a violation of due process presents a question of constitutional law, which we review de novo. Bendorf v. Comm’r of Pub. Safety, 727 N.W.2d 410, 413 (Minn.2007).

The constitutional right to due process requires a person accused of a crime to “be treated with fundamental fairness” and “afforded a meaningful opportunity to present a complete defense.” State v. Quick, 659 N.W.2d 701, 712 (Minn.2003) (citing U.S. Const. amend. XIV, § 1; Minn. Const. art. I, § 7). “Due process of law is a summarized constitutional guarantee of respect for those personal immunities which ... are so rooted in the traditions and conscience of our people as to be ranked as fundamental or are implicit in the concept of ordered liberty.” Rochin v. California, 342 U.S. 165, 169, 72 S.Ct. 205, 208, 96 L.Ed. 183 (1952) (quotations omitted). Because due process of law is “a historic and generative principle,” it eludes any definition more precise than the simple idea “that convictions cannot be brought about by methods that offend a sense of justice.” Id. at 173, 72 S.Ct. at 210 (quotation omitted).

A criminal conviction for test refusal violates due process if the circumstances of the requested test and alleged refusal are fundamentally unfair. Cf. Melde, 725 N.W.2d at 103 (“a misleading implied consent advisory violates federal due process”); State v. Polsfuss, 720 N.W.2d 1, 4 (Minn.App.2006) (“It is a violation of fundamental fairness when a breath test is obtained through coercion.”). Net-land argues that convicting her for “refusing to submit” to Officer Hagen’s request for chemical testing is fundamentally unfair because (1) she took the Intoxilyzer test, but Officer Hagen “deemed” her failure to provide an adequate sample a refusal; (2) Officer Hagen terminated the test early because he “felt she wasn’t trying” and, therefore, precluded her from receiving the full four-minute opportunity that the test affords a test taker to give an adequate sample; and (3) despite indicating to Officer Hagen that she was not refusing and asking Officer Hagen to give her a blood or urine test after he terminated the Intoxilyzer test, he refused to do so.

“It is a crime for any person to refuse to submit to a chemical test of the person’s blood, breath, or urine under section 169A.51 (chemical tests for intoxication), or 169A.52 (test refusal or failure; revocation of license).” Minn.Stat. § 169A.20, subd. 2. This statutory provision serves Minnesota’s compelling interest in protecting its residents from the “severe threat” that impaired drivers pose to public health and safety. State v. Wiltgen, 737 N.W.2d 561, 570 (Minn.2007); Mellett, 642 N.W.2d at 784. Although an officer cannot force a DWI arrestee to submit to chemical testing, Minn.Stat. § 169A.52, subd. 1, the legislature has provided drivers with incentives to cooperate by attaching stringent negative consequences to test refusal. State v. Spilde, 536 N.W.2d 639, 641 (Minn.App.1995). Under the civil implied-consent statutes, refusing to submit to a proper request for chemical testing automatically revokes driving privileges for a year. Minn.Stat. § 169A.52, subd. 3. And the threat of criminal sanctions provides an even more powerful incentive, penalizing test refusal more severely than driving while impaired. Minn.Stat. §§ 169A.25-169A.27 (making refusal one offense degree higher than impaired driving for same number of aggravating factors). Thus, section 169A.20, subdivision 2, eliminates any advantage an arrestee might gain from refusing to be tested. Melde, 725 N.W.2d at 106 n. 6.

The law governing the crime of test refusal is complex in part because it is defined by reference to provisions of the civil implied-consent statute. See Spilde, 536 N.W.2d at 641-42 (noting difficulty of analyzing effects of “complex interrelationship” between criminal refusal and civil implied-consent statutes). Thus, our analysis must apply the constitutional guarantee of due process to the civil implied-consent statutes insofar as they are incorporated into the crime of test refusal. Caselaw interpreting the civil implied-consent statutes offers only limited guidance in this task because due-process guarantees differ in criminal and civil contexts. See Polsfuss, 720 N.W.2d at 4 (recognizing different due-process guarantees in each context); State v. Wagner, 637 N.W.2d 330, 337 (Minn.App.2001) (noting that proceedings are “related only to the extent that they both generally grow out of the same set of facts” (quotation omitted)).

Fundamental fairness prohibits imposing criminal sanctions on a person who has been deprived of a meaningful opportunity to obey the law. Our legal system is premised on the idea of free will: because every person is presumed capable of conforming his or her conduct to the requirements of the law, “when any person freely chooses to violate the law[,] ... that person may justly be held responsible.” State Farm Fire & Cas. Co. v. Wicka, 474 N.W.2d 324, 330 (Minn.1991); see also Calder v. Bull, 3 U.S. (3 Dall.) 386, 388, 1 L.Ed. 648 (1798) (noting that “[t]his fundamental principle flows from the very nature of our free republican governments”). This deep-rooted concept of fairness manifests itself throughout the criminal-justice system. See, e.g., State v. Christensen, 439 N.W.2d 389, 391 (Minn.App.1989) (explaining that due process requires statutes to provide people with “a reasonable opportunity to know what is prohibited, so that [they] may act accordingly” quoting Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972)), review denied (Minn. June 6, 1989); Calder, 3 U.S. (3 Dall.) at 388 (explaining Ex Post Facto Clause as prohibition against punishing person for violating law without first giving that person the opportunity to conform to law). Thus, our analysis of Netland’s due-process challenge requires us to determine whether Netland was deprived of a meaningful opportunity to conform her conduct to the requirements of section 169A.20, subdivision 2.

The undisputed evidence demonstrates that Netland never told Officer Hagen that she was unwilling to submit to a chemical test. Each of the numerous tones throughout the audio recording of the breath test conclusively establishes that Netland blew hard enough for the Intoxi-lyzer to detect her breath, even though the Intoxilyzer ultimately found these samples to be deficient. After Officer Hagen informed Netland that he deemed her failure to provide an adequate breath sample to be a refusal, Netland told him that she was not refusing and “wanted to keep trying.” Officer Hagen initially permitted her to continue. But he terminated the test after several more unsuccessful attempts because he “felt [Netland] wasn’t trying to give a[n] appropriate sample.” Officer Hagen acknowledged that Netland told him that she would be willing to submit to a blood or urine test. But he “felt she wasn’t trying ... [to] giv[e] a valid, long breath” and declined to offer an alternative blood or urine test because “it would lead to ... charging her with a test refusal.” Netland, however, on her own initiative secured a private company to come to the jail and test her urine.

The state argues that Officer Ha-gen provided Netland with a meaningful opportunity to provide a breath sample but that she failed to take advantage of that opportunity by providing an inadequate sample. To decide whether Netland was provided a meaningful opportunity to conform her conduct to the requirements of section 169A.20, subdivision 2, we must first determine what those requirements are. Statutory interpretation presents a question of law, which we review de novo. Munger v. State, 737 N.W.2d 604, 609 (Minn.App.2007). We are required to interpret section 169A.20, subdivision 2, in a way that “ascertain[s] and effeetuate[s]” the legislature’s intent. Minn.Stat. § 645.16 (2004). To do this, we first examine its “specific statutory language and [are] guided by its natural and most obvious meaning.” State v. Edwards, 589 N.W.2d 807, 810 (Minn.App.1999), review denied (Minn. May 18, 1999). If we find that this language is clear and unambiguous, we go no further. Id.

The state urges us to construe the term “refuse” in section 169A.20, subdivision 2, as incorporating Minn.Stat. § 169A.51, subd. 5 (2004), which is a provision of the civil implied-consent law stating that failure to provide two “adequate” breath samples in a row or providing two “deficient” tests “constitute^ a refusal.” Essentially, the state assumes that if (1) “[i]t is a crime for any person to refuse to submit to a chemical test of the person’s blood, breath, or urine under section 169A.51”; and (2) section 169A.51 states that “failure of a person to provide two separate, adequate breath samples in the proper sequence constitutes a refusal”; then it follows that (3) it is a crime for any person to fail to provide two separate, adequate breath samples in the proper sequence under section 169A.51, subdivision 5. The state’s construction offers only superficial appeal; it is inconsistent with the plain language of either statute.

An “adequate” sample is one in which the breath-testing machine “analyzes the sample and does not indicate the sample is deficient.” Minn.Stat. § 169A.51, subd. 5(b). For the Intoxilyzer to analyze a breath sample, the test subject must activate the machine’s internal sequence by blowing at least 0.175 liters of air into the mouthpiece during the first second. Activation triggers a tone indicating that the Intoxilyzer is analyzing the subject’s breath. And for the Intoxilyzer to accept the sample as sufficient, the subject must maintain this tone by continuing to blow, at an uninterrupted flow-rate of at least 0.15 liters per second, until the subject has provided a total volume of at least 1.1 liters of air. Dropping below 0.15 liters per second for even “a fraction of a second” interrupts the tone, indicating a “deficient sample” and requiring the subject to start over. Failure to provide two separate, adequate samples in sequence “constitutes a refusal.” Id., subd. 5(c). And even if the subject provides the Intoxilyzer with an otherwise adequate pair of samples, the test is “deficient” if the samples are not “within 0.02 alcohol concentration” of each other; two such deficient breath tests also “constitute a refusal.” Id., subd. 5(d), (f).

The state’s argument, however, ignores critical qualifying language in paragraphs (c) and (d) of subdivision 5. Under the plain language of paragraphs (c) and (d) of subdivision 5, failure to provide two adequate breath samples within 0.02 of each other “constitutes a refusal.” But the plain language also provides that this “constitutes a refusal” only “[f]or purposes of section 169A.52 (revocation of license for test failure or refusal).” Id., subd. 5(c), (d). In other words, the legislature has explicitly restricted these conditions to a civil implied-consent context.

Further, the state’s suggested definition is at odds with the plain meaning of the language defining the crime itself. “Plain meaning embodies ordinary use of the language in the context of the whole-act structure, applying the usual conventions of grammar and syntax.” First Nat’l Bank of the N. v. Auto. Fin. Corp., 661 N.W.2d 668, 670 (Minn.App.2003). The word “refuse” is the main verb of section 169A.20, subdivision 2; it is that which “is a crime for any person to” do. The ordinary meaning of “refuse” connotes a distinctly volitional quality — “[t]o indicate unwillingness to do, accept, give, or allow.” The American Heritage Dictionary of the English Language 1519 (3d ed.1992). This is inconsistent with a construction that finds “refusal” based on a machine’s measurements without reference to the test subject’s will.

The syntax of section 169A.20, subdivision 2, demonstrates that it does not incorporate implied-consent provisions as a standard for determining whether the defendant refused because the phrase “under [the implied-consent statutes]” modifies “chemical test,” not “refuse.” As used in this section, “refuse” is a transitive verb. It is not merely “a crime for any person to refuse,” but rather it is “a crime for any person to refuse to submit to a chemical test ... under section 169A.51 (chemical tests for intoxication), or 169A.52 (test refusal or failure; revocation of license).” This phrase is used to set the legal standard for “determinfing] what is a proper test request for which criminal liability may be imposed.” State v. Olmscheid, 492 N.W.2d 263, 266 (Minn.App.1992). A defendant is guilty of refusal if he is unwilling to allow himself to be subjected to a chemical test of his blood, breath, or urine under conditions when it “may be required” by those statutes. See Minn.Stat. § 169A.51, subd. 1.

In sum, to be convicted of test refusal, a defendant must indicate an unwillingness to submit to chemical testing, despite a proper request to do so. Thus, it follows that fundamental fairness prohibits holding a driver criminally liable for test refusal unless the driver has been afforded a fair opportunity to submit to chemical testing but has freely indicated an unwillingness to do so.

Here, it is undisputed that Netland repeatedly told Officer Hagen that she was willing to submit to chemical testing. It is also undisputed that Netland blew enough air into the Intoxilyzer to activate and sustain a tone. Other than the fact that Netland did not continuously sustain a tone long enough for any of her samples to be “adequate,” there was nothing to indicate that she was unwilling to submit to the breath test. While Officer Hagen “deemed” her to have refused after the Intoxilyzer indicated that her sample was deficient, Officer Hagen acknowledged that Netland told him, “Officer, look, I’ll give you a blood test or give me another test.” Because the circumstances indicate that Netland was willing to submit to a chemical test — any chemical test — Officer Hagen was obligated to give her an opportunity to do so.

It is true, as the state points out, that the requesting officer has discretion to select which test — breath, blood, or urine— the subject will initially be required to take. Minn.Stat. § 169A.51, subd. 3 (2004); see also Moe v. Comm’r of Pub. Safety, 574 N.W.2d 96, 98 (Minn.App.1998) (holding in a civil implied-consent context that “[d]ue process does not require an arresting officer to offer an initial choice among tests”), review denied (Minn. Apr. 14, 1998). In the civil implied-consent context, “[i]f a person fails to provide an adequate breath sample, the officer, absent a determination of physical inability, is not required to offer the driver an additional test.” Smith v. Comm’r of Pub. Safety, 401 N.W.2d 414, 416 (Minn.App.1987), review denied (Minn. Apr. 29, 1987). But this is not a civil implied-consent case.

We emphasize that a criminal prosecution for test refusal and a civil implied-consent proceeding “are related only to the extent that they both generally grow out of the same set of facts.” Wagner, 637 N.W.2d at 337 (quotation omitted). “[T]he criminal defendant and the petitioner in the implied-consent proceeding are the same person but with different interests at stake.” Id. The minimum level of fairness that our system of law requires to deprive a driver of driving privileges is not the same as that required to impose a criminal sanction. See In re Winship, 397 U.S. 358, 372, 90 S.Ct. 1068, 1077, 25 L.Ed.2d 368 (1970) (due process, as “an expression of fundamental procedural fairness, requires a more stringent standard for criminal trials than for ordinary civil litigation” (footnote omitted)).

Indeed, section 169A.51, subdivision 3, explicitly contemplates several situations in which fairness requires the officer to offer an alternative test. Although the officer initially has the discretion to choose which test to offer, “[a]ction may be taken against a person who refuses to take a blood [or] ... urine test only if an alternative test was offered.” Minn.Stat. § 169A.51, subd. 3. Presumably, because these tests are more invasive than a breath test, a person who is unwilling to submit to one of these types of tests should be not be penalized unless offered an alternative. Workman v. Comm’r of Pub. Safety, 477 N.W.2d 539, 540 (Minn.App.1991). If, for example, a driver refuses to take a blood test because of a fear of needles but is willing to submit to another type of test, the state may not proceed against the driver for test refusal — civilly or criminally- — unless the driver is offered an alternative test. Moreover, the commissioner of public safety may not deprive a person of driving privileges for refusing a breath test that the driver is physically incapable of taking. See Minn. R. 7502.0430 (2005).

Officer Hagen testified that he always offers a breath test unless the subject is not physically capable because it is conveniently located at the jail, gives an immediate result, and “doesn’t put a burden on ... medical [or] lab people.” But he admitted on cross-examination that a blood test “would take less than 15 minutes” to complete at a nearby hospital and a urine test could be performed at the jail. If properly performed, the evidence derived from a chemical test is equally usable whether it takes the form of “the number of grams of alcohol per 100 milliliters of blood[,] ... per 210 liters of breathy or ... per 67 milliliters of urine.” See Minn. Stat. §§ 169A.03, subd. 2 (defining “alcohol concentration”), 169A.45, subd. 1 (“the court may admit evidence of the presence or amount of alcohol in the person’s blood, breath, or urine as shown by an analysis of those items”) (2004). Officer Hagen acknowledged that Netland specifically told him that she would be willing to take a blood or urine test, but he declined to offer an alternative test and charged her with test refusal. Netland never said that she refused to take a breath test, however. To the contrary, she asked for another chance with the Intoxilyzer after Officer Hagen deemed her to have refused. After it was apparent that Officer Hagen had grown tired of what he perceived to be her unwillingness to properly blow into the Intoxilyzer, Netland asked for the opportunity to take a blood test — a test in which Officer Hagen’s concerns about Netland “playing games” would not be at issue because a nurse would take the sample. Finally, when Officer Hagen declined that, Netland secured and submitted to a urine test at her own expense.

In addition, the record is controverted as to whether Officer Hagen gave Neltand the full amount of time allowed by the Intoxilyzer to take the breath test. Both expert testimony and our prior implied-consent decisions acknowledge that the four-minute requirement is programmed into the Intoxilyzer so that the subject will have a sufficient opportunity to provide a reliable sample for analysis. E.g., Genia v. Comm’r of Pub. Safety, 382 N.W.2d 284, 286 (Minn.App.1986). According to Netland’s expert testimony, although a standard Intoxilyzer test is four minutes, Officer Hagen deemed Netland to have refused after approximately three minutes and 30 seconds. Officer Hagen maintained that he gave Netland four minutes. But he acknowledged on cross-examination that it would be “unfair” to Netland if, in fact, he had not.

A person’s conduct can indicate an unwillingness to submit to an alcohol-concentration test as much as the words “I refuse.” Busch v. Comm’r of Pub. Safety, 614 N.W.2d 256, 259 (Minn.App.2000); see also State v. Hardimon, 310 N.W.2d 564, 566 (Minn.1981) (noting that intent generally must be inferred “from [a person’s] words (if any) and actions in the light of all the surrounding circumstances”). The crime of test refusal punishes the decision a defendant makes freely after being warned of its consequences. See Spilde, 536 N.W.2d at 641 (describing refusal as a “choice”); Minn.Stat. § 169A.51, subd. 2(2) (requiring person to be informed that-refusal is a crime when test is requested). The failure to offer an alternate test under the totality of circumstances present here deprived Netland of the opportunity to make this choice freely, which fundamental fairness requires. The alternate test requested by Netland would have facilitated the purpose of section 169A.20, subdivision 2, namely, to provide the state with scientific evidence of the amount of alcohol in the driver’s body. Because Netland was not given a meaningful opportunity to demonstrate her willingness to submit to chemical testing, we hold that Netland’s conviction was obtained in violation of due process.

III.

Netland also argues that the district court erroneously denied her motion for a mistrial. A district court has the discretion to determine “whether, for compelling reasons, ‘the ends of substantial justice cannot be attained without discontinuing the trial.’ ” State v. Long, 562 N.W.2d 292, 296 (Minn.1997) (quoting Gori v. United States, 367 U.S. 364, 368, 81 S.Ct. 1523, 1526, 6 L.Ed.2d 901 (1961)). A mistrial should not granted “unless there is a reasonable probability that the outcome of the trial would be different.” State v. Spann, 574 N.W.2d 47, 53 (Minn.1998). The district court is in the best position to evaluate whether this is the case. State v. Marchbanks, 632 N.W.2d 725, 729 (Minn.App.2001). We therefore review a district court’s denial of a motion for a mistrial for an abuse of discretion. State v. Mahkuk, 736 N.W.2d 675, 689 (Minn.2007).

Netland moved for a mistrial immediately after jury selection. Although the record does not reflect precisely what was said, it is clear that, during voir dire, the district court read the specific offenses with which Netland was charged-third-degree DWI and second-degree DWI (test refusal). Netland, who had already stipulated to her prior DWI conviction, argued that any jurors who were familiar with the distinctions among the degrees of DWI offenses “may be tipped off ... that [Net-land] has a prior DWI.” The district court denied the motion, explaining that “[t]hose charges are in the complaint,” and there was no mention of a prior DWI conviction. Whether reading the specific degree of DWI charged prejudices a defendant by indirectly informing the jury of a previously stipulated conviction appears to be an issue of first impression.

Evidence of a defendant’s prior DWI conviction usually is inadmissible in a prosecution for the same because of its “great potential for being improperly used.” State v. Berkelman, 355 N.W.2d 394, 397 n. 2 (Minn.1984) (citing Minn. R. Evid. 404(b)). If the jury is aware that the defendant has already been convicted of impaired driving, there is a “considerable” risk that the jury will draw the conclusion that the defendant has simply done it again. Id. But the prior conviction also may be an essential element of the crime with which the defendant is charged. Id. at 396. By stipulating to the prior conviction, a defendant removes it as an issue, effectively presenting to the jury what appears to be “an ordinary DWI case.” Id. at 397 n. 2.

The definitions of the four degrees of DWI are set forth throughout several sections of chapter 169A. Section 169A.20, subdivision 1, defines the offense of operating a motor vehicle under the influence of alcohol, and subdivision 2 defines the offense of test refusal. Although each subdivision defines a primary genus of a DWI offense, section 169A.20 does not define the degree attached to the offense. Rather, it refers to other sections to define the various degrees of a DWI offense. Minn. Stat. § 169A.20, subd. 3 (2004) (referring to Minn.Stat. §§ 169A.24-169A.27 (2004)). Other than first-degree DWI, the degree of offense is a function of the aggravating factors present in a particular case. Minn. Stat. §§ 169A.27, 169A.26, subd. 1(b) (no aggravating factors: fourth-degree impaired driving, third-degree test refusal), 169A.26, subd. 1(a), 169A.25, subd. 1(b) (one aggravating factor: third-degree impaired driving, second-degree test refusal); 169A.25, subd. 1(a) (two aggravating factors: second-degree impaired driving).

A DWI conviction within the past ten years is an “aggravating factor.” Minn. Stat. § 169A.03, subds. 3(1), 22 (2004). But there also are two other aggravating factors: (1) “having an alcohol concentration of 0.20 or more as measured at the time, or within two hours of the time, of the offense,” and (2) “having a child under the age of 16 in the motor vehicle at the time of the offense if the child is more than 36 months younger than the offender.” Minn.Stat. § 169A.03, subd. 3(2), (3). Thus, even if a juror is familiar with the distinctions among the various degrees of DWI, the degree alone conveys no information about which aggravating factor applies to the defendant.

The district court did not inform the jury that Netland’s prior DWI conviction was the particular aggravating factor underlying the specific degrees of DWI charged. The district court did not instruct the jury that the state was required to prove an aggravating factor as an element of either offense. Indeed, there was no mention of Netland’s prior DWI conviction, and the jury ultimately acquitted Netland of the third-degree DWI charge. The district court was in the best position to determine that there was not a compelling reason to believe that the ends of justice required discontinuing the trial after the specific offenses for which Netland was on trial were read. The district court’s decision to deny Netland’s motion for a mistrial was a sound exercise of the district court’s discretion.

IV.

Netland also argues that the district court improperly admitted the results of the incomplete Intoxilyzer test because the state failed to lay an adequate foundation. Evidentiary rulings rest within the district court’s sound discretion. State v. Plantin, 682 N.W.2d 653, 658 (Minn.App.2004), review denied (Minn. Sept. 29, 2994). We will not reverse unless the district court has clearly abused that discretion. Id. The appellant has the burden of establishing both an abuse of discretion and prejudice resulting from it. Id.

A partial Intoxilyzer test may be “competent evidence bearing upon the question of whether the person violated section 169A.20.” Minn.Stat. § 169A.45, subd. 4 (2006). The district court has the discretion to determine whether partial-test evidence is competent. State v. Kieley, 413 N.W.2d 886, 888 (Minn.App.1987) (citing State ex rel. Dugal v. Tahash, 278 Minn. 175, 177, 153 N.W.2d 232, 234 (1967)). A district court may conclude that evidence is competent if it appears capable of correctly establishing the facts to which it is relevant. See Dugal, 278 Minn, at 177-78, 153 N.W.2d at 234 (discussing test to determine competency of witness).

Netland cites Kieley for the proposition that partial-test evidence is competent only if the state established a sufficient foundation to prove that her alcohol concentration was at least as high as the test results. Her reliance on Kieley is misplaced because the partial test result in Kieley was used to prove that the defendant was actually intoxicated when she was driving' — the offense of which Netland was acquitted. 413 N.W.2d at 887-88. With respect to test refusal, however, that the Intoxilyzer test was incomplete was competent circumstantial evidence that Netland was unwilling to provide a reliable sample of her breath; whether she was actually impaired by alcohol is irrelevant. Thus, the district court did not abuse its discretion by admitting the partial test result.

DECISION

Because neither the criminal test-refusal statute nor the civil implied-consent law conditions the driving privilege on surrendering the Fourth Amendment right to withhold consent from a warrantless search, Minn.Stat. § 169A.51 (2004) is not unconstitutional. A valid test request under Minn.Stat. § 169A.51 meets the constitutional requirements for a warrantless search based on exigent circumstances, not a driver’s consent. Under the circumstances presented here, when the driver was deemed to refuse to submit to a chemical test based on providing an inadequate breath sample and the driver sought both additional time to provide an adequate sample and an alternate mode of chemical testing, the failure to provide an alternate method of chemical testing renders a conviction for refusal to submit to a chemical test a violation of the fundamental fairness guarantees of due process.

Reversed.

      . Although the district court caption spells Netland's first name "Jacqueline," Netland’s trial testimony indicates that she spells her first name "Jakklyn." Accordingly, we use the spelling provided in Netland’s testimony.

      . This clarifies our implicit reasoning in Mel-lett, which upheld the criminal-refusal statute against another Fourth Amendment challenge. See 642 N.W.2d at 783 n. 2, 785 (citing Schmerber, 384 U.S. at 757, 86 S.Ct. at 1826).

      . Indeed, using paragraphs (c) and (d) of section 169A.51, subdivision 5 to define "refuse” would effectively turn section 169A.20, subdivision 2, into a strict-liability crime. For example, a person could provide nothing but individually adequate samples and still have "refused” if no two consecutive samples fall "within 0.02 alcohol concentration” of each other. While the legislature has the authority to create strict-liability crimes, such crimes generally are disfavored; therefore, "legislative intent to impose strict criminal liability must be clear.” In re Welfare of C.R.M., 611 N.W.2d 802, 805 (Minn.2000). We cannot conclude that the legislature intended to impose strict criminal liability with a bare reference to section 169A.51 and an affirmative statement to the contrary that limits that definition of refusal to civil implied-consent penalties.

      . For example, without probable cause to believe that the defendant had been driving while impaired, an officer has no authority to request a chemical test, and the defendant could not be convicted of refusing to yield to nonexistent authority. State v. Ouellette, 740 N.W.2d 355, 360-61 (Minn.App.2007), pet. for review filed (Minn. Oct. 31, 2007); Olmscheid, 492 N.W.2d at 265 (holding that probable-cause requirement of section 169A.51, subdivision 1(b), is element of crime of refusal).

      . In this context, we reject Netland’s argument that the unfairness discussed above implies that the evidence was insufficient to find that she had "refused" to submit to the Intox-ilyzer test. The legal standard used to review a due-process challenge is distinct from the legal standard used to review a challenge to the sufficiency of the evidence. When reviewing the sufficiency of the evidence, we assume that the jury drew all reasonable inferences in favor of the conviction, believing the evidence supporting the state’s theory of the case and rejecting any contrary evidence. State v. Jackson, 726 N.W.2d 454, 460 (Minn.2007). While, under the circumstances, it was fundamentally unfair to punish Netland for "refusing” to provide an adequate breath sample, that Netland did not, in fact, provide an adequate breath sample was circumstantial evidence that she was unwilling to submit to the test offered. For purposes of reviewing the sufficiency of the evidence, we must assume that the jury reached this conclusion and also believed Officer Hagen's testimony that Net-land was attempting to prevent the machine from accurately measuring the alcohol concentration in her breath.

      . First-degree DWI specifically requires either: (1) three or more qualified prior DWI incidents, or (2) a prior felony conviction for first-degree DWI. Minn.Stat. § 169A.24.


source: Caselaw Access Project

author: WILLIS, Judge.

license: Public Domain

text:
    HUBBARD COUNTY HEALTH AND HUMAN SERVICES, petitioner, Respondent, Beth A. Hadrava, petitioner, Respondent, v. Shane L. ZACHER, Appellant.
    No. A06-2228.
    Court of Appeals of Minnesota.
    Dec. 11, 2007.

      Greg Larson, Hubbard County Attorney, Erika Randall, Assistant County Attorney, Park Rapids, MN, for respondent Hubbard County Health and Human Services.
    Beth A. Hadrava, Laporte, MN, pro se respondent.
    Allison Maxim, Gary A. Debele, Walling, Berg & Debele, P.A., Minneapolis, MN, for appellant.
    Considered and decided by HUDSON, Presiding Judge; WILLIS, Judge; and MINGE, Judge.
   OPINION

WILLIS, Judge.

Appellant challenges the district court’s order affirming an order of the child-support magistrate establishing appellant’s child-support obligation, arguing that the district court erred by including in the determination of appellant’s income for child-support purposes the undistributed earnings of a Subchapter S corporation that appellant reported on his individual tax returns but did not actually receive. Because we conclude that additional findings of fact are necessary, we reverse and remand.

FACTS

Appellant Shane L. Zacher and respondent Beth A. Hadrava are the parents of three children, all of whom live with Ha-drava. On November 30, 2005, respondent Hubbard County Health and Human Services began an action against Zacher to establish Zacher’s child-support obligation for the three children. A child-support magistrate (CSM) heard the matter and, in July 2006, established Zacher’s child-support obligation.

Zacher has been employed by Next Innovations, Ltd. since 2002 and became a shareholder in March 2005. Since January 1, 2005, Next Innovations has been organized as a Subchapter S corporation. The earnings or losses of a Subchapter S corporation pass through to its shareholders and are reported by the shareholders on their individual tax returns.

Zacher’s brother and father are the other two shareholders of Next Innovations. In addition to his gross wages during the 2005 tax year, Zacher reported income of $53,098 on his individual tax returns as his allocable portion of Next Innovations’ earnings. Next Innovations’ accountant testified that only Zacher’s father, as the majority shareholder, has the authority to force a distribution of Next Innovations’ earnings, and that, between January 1, 2005, and the June 2006 hearing, Next Innovations had made no distributions to its shareholders. The accountant further testified that Zacher, therefore, did not actually receive the $53,098 in corporate earnings that he reported on his tax returns. Zacher testified, and the accountant confirmed, that it was “very likely” that Next Innovations would eventually make a distribution to reimburse its shareholders for the taxes they paid in 2005 on the corporations’ earnings, although, as of the date of the hearing, such a distribution had not been made.

In its July 2006 order, the CSM found that because Zacher is a shareholder in Next Innovations, his share of Next Innovations’ earnings “is a regular source of income....” The CSM explained that Zacher’s 2005 tax returns were the best available and current evidence of Zacher’s gross monthly income and that, “[although his income is subject to fluctuation, it does appear that the business [Zacher] is engaged in and is shareholder in is successful and is experiencing growing revenues.” Accordingly, the CSM included Zacher’s share of Next Innovations’ undistributed earnings in his determination of Zacher’s net monthly income, and based on that figure, determined that Zacher should have paid $1,400 per month in child support for the period January 1, 2005, through March 31, 2006, and that, because of the birth of the third child in March 2006, his ongoing child-support obligation should be $1,575 per month, beginning April 1, 2006.

The district court affirmed the CSM’s determination of child support, and Zacher appeals.

ISSUE

Did the district court err by including the undistributed earnings of a Subchapter S corporation as income to a minority shareholder for the purpose of determining his child-support obligation?

ANALYSIS

A district court has broad discretion to provide for the support of the parties’ children, and that decision will only be reversed if the district court abused its discretion. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn.1984). Thus, we review a district court’s decision confirming a CSM’s order under an abuse-of-discretion standard. Davis v. Davis, 631 N.W.2d 822, 825 (Minn.App.2001). A district court abuses its discretion when it establishes a child-support obligation in a manner that is against logic and the facts in the record or when it misapplies the law. See Rutten, 347 N.W.2d at 50 (holding that the district court abuses its discretion when it sets support in a manner that is against logic and the facts in the record); Ver Kuilen v. Ver Kuilen, 578 N.W.2d 790, 792 (Minn.App.1998) (explaining that “[a]n abuse of discretion occurs when the [district court] improperly applies the law to the facts”).

A presumptively appropriate child-support obligation is calculated by multiplying an obligor’s “net monthly income” by the percentage applicable to that income in the statutory guidelines table. See Minn.Stat. § 518.551, subd. 5(b) (2004). “Income” is defined as “any form of periodic payment to an individual.... ” Minn.Stat. § 518.54, subd. 6 (2004). See also Duffney v. Duffney, 625 N.W.2d 839, 843 (Minn.App.2001) (“Generally, if a payment is periodic it is income.”). And the designation of a particular source of funds as “income” for child-support purposes is a question of law, which we review de novo. Sherburne County Soc. Servs. v. Riedle, 481 N.W.2d 111, 112 (Minn.App.1992).

The CSM’s order explains that the decision to include Zacher’s share of Next Innovations’ earnings in the determination of his income was based on Zacher’s status as a shareholder. Zacher contends that his share of Next Innovations’ earnings is not “income” within the meaning of section 518.54, subdivision 6, because he did not actually receive his share of those earnings.

The question of whether undistributed earnings of a Subchapter S corporation should be included as income to a minority shareholder for the purpose of establishing his child-support obligation is a matter of first impression in Minnesota. But the issue has been addressed in other jurisdictions. For example, in Florida, the undistributed earnings of a Subchapter S corporation are not income to a minority shareholder if they have been retained for “corporate purposes” but are income when they have been retained to enable a shareholder to avoid a child-support obligation. Zold v. Zold, 911 So.2d 1222, 1231-33 (Fla.2005). Similarly, in Indiana, undistributed earnings of a Subchapter S corporation are not income to a minority shareholder unless there is a finding that “the corporation is being used to shield income.” Tebbe v. Tebbe, 815 N.E.2d 180, 184 (Ind.Ct.App.2004). And in Kansas, undistributed earnings of a Subchapter S corporation also are not income to a minority shareholder when it has not been established that the corporate earnings had been “manipulated” or that the shareholder “acted in any way to shield income.” In re Marriage of Brand, 273 Kan. 346, 44 P.3d 321, 327-28 (2002).

We conclude that the primary question that a district court must resolve in deciding whether the undistributed earnings of a Subchapter S corporation are income to a minority shareholder who is a child-support obligor is whether the corporation retained the earnings for a business reason or retained them to enable the obligor to “shield income” or “manipulate” the amount of money he receives in order to reduce or avoid his child-support obligation. In a case involving an issue similar to that here, this court has noted concern for the possibility that a shareholder might manipulate the earnings of a Subchapter S corporation to reduce his child-support obligation. Williams v. Williams, 635 N.W.2d 99, 103 (Minn.App.2001). In Williams, which involved a dispute over whether to include distributions of a Sub-chapter S corporation as “other compensation” of the shareholder for purposes of determining child support, this court recognized “the potential for the employee-shareholder [of a Subchapter S corporation] to manipulate” income of a Subchap-ter S corporation “to avoid or reduce child-support obligations....” Id. at 103.

Determining whether undistributed earnings of a Subchapter S corporation were' retained for a business reason or retained to manipulate a shareholder’s income is a fact question. We therefore reject Zacher’s argument that Next Innovations’ undistributed earnings are not income as a matter of law because he did not actually receive payment and because he is a minority shareholder who has no authority to force a distribution of the earnings. We conclude instead that the question of whether the undistributed earnings of a Subchapter S corporation are income to a minority shareholder for child-support purposes must be determined on a case-by-case basis. The degree of control that Zacher has over corporate operations is certainly relevant, but the fact that he is a minority shareholder and did not actually receive his portion of the earnings is not alone determinative.

The district court made no findings regarding whether the undistributed earnings of Next Innovations were retained for a business reason. Therefore, additional findings are necessary to determine whether Zacher’s share of the undistributed earnings of Next Innovations should be considered to be income to him.

We note that some jurisdictions put the burden of establishing that there is a business reason for retaining earnings on the shareholder if he is in a position to control the retention and disbursement of earnings — for example, when he is a majority shareholder — but on the child-support obligee if the obligor shareholder has a minority interest and thereby less ability to control the retention and distribution of corporate profits. See Brand, 44 P.3d at 328; Fennell v. Fennell, 753 A.2d 866, 869 (Pa.Super.Ct.2000). Other jurisdictions put the burden on even a minority shareholder. See Zold, 911 So.2d at 1233 (holding that a minority shareholder of a Subchapter S corporation must prove that undistributed earnings were retained for “corporate purposes rather than imper-missibly retained to avoid ... child support. ...”); Walker v. Grow, 170 Md.App. 255, 907 A.2d 255, 270 (2006) (holding that the burden is on a minority shareholder seeking to exclude the undistributed earnings to prove that the earnings are not available for child-support purposes). The Florida Supreme Court has explained that the burden is properly on even a minority shareholder “because he or she has the ability to obtain information to establish the propriety of the corporation’s actions.” Zold, 911 So.2d at 1233. We think this is the better rule. Because Zacher has the ability to obtain information relating to whether there is a business reason for Next Innovations to retain its earnings, he bears the burden of proof on that issue.

But resolving the question of whether the undistributed earnings of Next Innovations should be considered to be income to Zacher for child-support purposes does not necessarily end the inquiry. The ultimate determination of a child-support obligation is based on the obligor’s ability to pay. Strandberg v. Strandberg, 664 N.W.2d 887, 889 (Minn.App.2003). And the statute allows the district court to consider “all ... resources of the parents” in deciding whether to deviate from the guidelines. Minn.Stat. § 518.551, subd. 5(c)(1) (2004). Therefore, even if the district court determines that there is a business reason for Next Innovations to retain earnings, and therefore the undistributed earnings are not income to Zacher for purposes of child support, the district court must then consider whether Zacher’s interest in Next Innovations is a resource that should be taken into consideration in determining his ability to pay child support. On remand, the district court may in its discretion reopen the record.

DECISION

We conclude that further findings of fact are necessary to determine whether the undistributed earnings of Next Innovations are income to Zacher for child-support purposes or whether his interest in Next Innovations is a resource for the purpose of child-support. We therefore reverse the district court’s order setting Zacher’s child-support obligation and remand for further proceedings consistent with this opinion.

Reversed and remanded.

      . The legislature amended and renumbered section 518.551, subdivision 5(b), as well as the other provisions in chapter 518 dealing with child support in 2005. See 2005 Minn. Laws ch. 164, § 29, at 1924. In 2006, the legislature provided that the 2005 amendments to the provisions relating to the calculation of child support would apply only to actions or motions filed after January 1, 2007. See 2006 Minn. Laws ch. 280, § 44, at 1145. Because this action was filed before the effective date of the 2005 amendments, we review the decision under the 2004 statute.


author: SABERS, Justice.

text:
    2007 SD 117
    STATE of South Dakota, Plaintiff and Appellee, v. Rex GARD, Defendant and Appellant.
    No. 23920.
    Supreme Court of South Dakota.
    Argued On Oct. 1, 2007.
    Decided Nov. 14, 2007.

      Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Thomas E. Adams of Voelker and Adams, Deadwood, South Dakota, Attorneys for defendant and appellant.
   SABERS, Justice.

[¶ 1.] Rex Gard entered into a partnership to develop properties with Dr. Barry Smith and Dr. Rick Little. During the course of this partnership, Gard opened credit accounts in the names of his partners, allegedly without their permission. He also received money from the partnership to pay the partnership’s bills, but kept the money instead. He was indicted on multiple charges of theft, forgery and a single count of conspiracy. A jury found Gard guilty of thirteen counts of theft, six counts of forgery, and the sole count of conspiracy to commit grand theft. After the judge consolidated the theft counts into a single count and ordered the various sentences to run consecutively, Gard’s prison sentence totaled 65 years. He appeals raising multiple issues. We affirm.

FACTS

[¶ 2.] Gard was a contractor in Wyoming doing business as Planet Builders. Gard befriended Smith from Spearfish, South Dakota. In 2003, Smith hired Gard to finish building his home after Smith had problems with his contractor. Gard moved to South Dakota with his Planet Builders crew and finished the construction on Smith’s home.

[¶ 3.] According to the State, after Gard completed Smith’s home he “wanted further projects.” The State claimed Gard came up with the idea of building townhouses, while Gard claimed it was a mutual decision. In any event, Smith and Little took steps to form a corporation, S & L Enterprises, in order to construct houses for profit.

[¶ 4.] S & L Enterprises never fully developed. The State claimed Gard was unhappy about being left out of the partnership because he and his company, Planet Builders, would be doing all the construction work. Gard convinced Smith and Little to include him and hire Planet Builders to do the construction. Thereafter, the group formed Dakota Development Properties (Dakota Development). Gard owned 30% of the company, while Smith and Little each owned 35%.

[¶ 5.] Smith and Little purchased two lots in the Sandstone Addition in Spearfish, South Dakota. Dakota Development planned to build a duplex on one lot, and the company obtained a construction loan through BankWest for the project. There was conflicting testimony regarding the manner in which Gard was to be paid. Gard claimed he was to receive payment through the construction loan, while Smith testified that Gard agreed to receive 30% of the project once it was sold, plus equity in the company. Little testified he thought Gard would receive payment through Planet Builders, plus 30% of the profit after the sale of the duplex, and equity in the company.

[¶ 6.] In February or March of 2004, Smith was diagnosed with cancer. Little became responsible for most of the day-today operations of Dakota Development. Little testified that Gard was to invoice for construction expenses and Little would write company checks to pay the invoiced amounts. Most of the time, Gard did not pay the construction expenses and instead kept the money. On some occasions, Gard would inflate the costs of supplies, receive the inflated price and not pay the bill.

[¶ 7.] In July of 2004, the construction loan was almost gone, the work by Planet Builders cost more than the original estimate, and Little discovered a “stack of bills” in the company post office box that had not been paid. Some bills had been turned over to collection agencies. After Little discovered the late bills, Gard claimed Little told him to only invoice for labor and that Little would pay the other expenses and materials bills directly to the suppliers. According to Gard, he had already purchased $17,000 in materials using checks from his personal accounts and was forced to stop payment on one of the checks due to Little’s new billing rule.

[¶ 8.] Little and Smith confronted Gard about the unpaid bills. He initially claimed the bills were paid or that it was an accounting error by his wife, Karen Jacks. Despite Little and Smith’s repeated attempts to gain access to the checkbook, Gard refused. Smith and Little also discovered that Gard and Jacks had opened multiple accounts using the doctors’ personal information and signing their names.

[¶ 9.] Little testified that he received a phone call in September of 2004, where Gard admitted money was missing. However, Gard attempted to blame first Jacks and then Smith. Little informed the Spearfish police about the missing money and detectives interviewed Jacks. During an interview, Jacks claimed they had permission to use the doctors’ personal information and sign their names. Detectives obtained a warrant and seized computers and paperwork from Gard’s home.

[¶ 10.] On October 5, 2004, Gard was charged with two counts of grand theft by misappropriation of funds by contractor, subcontractor or supplier. On November 4, 2004, he was indicted on the same counts. Three subsequent superceding indictments were filed, which resulted in Gard being charged with fourteen counts of grand theft, one count of conspiracy to commit grand theft, and seven counts of forgery.

[¶ 11.] A trial was held on October 18-25, 2006. The jury convicted Gard of thirteen counts of theft, six counts of forgery, and conspiracy to commit grand theft. At sentencing, the judge consolidated the thirteen counts of theft into one conviction. Gard admitted to a part II habitual offender information, which enhanced all counts. He was sentenced to the maximum enhanced penalty for all counts and the sentences were to run consecutively on all counts, except the conspiracy and one forgery count. This resulted in a 65-year prison sentence. Gard appeals. We restate the issues as follows:

1. Whether the circuit court erred by not dismissing the grand theft charges because Gard was an owner of Dakota Development and unable, as a matter of law, to steal from it.
2. Whether the circuit court erred by denying Gard’s motion to consolidate the forgery charges.
3. Whether the circuit court erred by not dismissing the forgery charges because the element of intent was absent.
4. Whether the circuit court erred by not dismissing forgery counts 17 and 19 because all the elements of forgery were not established.
5. Whether Gard’s sentence of 65 years in prison, effectively a life sentence, fails to consider the question of rehabilitation and constitutes cruel and unusual punishment.

STANDARD OF REVIEW

[¶ 12.] When reviewing a sufficiency of evidence claim, we determine “whether there is sufficient evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt; in making this determination, the Court will accept the evidence, and the most favorable inference fairly drawn therefrom, which will support the verdict.” State v. Owen, 2007 SD 21, ¶ 35, 729 N.W.2d 356, 367 (quoting State v. Mesa, 2004 SD 68, ¶ 9, 681 N.W.2d 84, 87). “A guilty verdict will not be set aside if the state’s evidence and all favorable inferences that can be drawn therefrom support a rational theory of guilt.” State v. Swalve, 2005 SD 17, ¶ 5, 692 N.W.2d 794, 797 (quoting State v. Phair, 2004 SD 88, ¶ 16, 684 N.W.2d 660, 665 (quoting State v. Downing, 2002 SD 148, ¶22, 654 N.W.2d 798, 800)).

[¶ 13.] 1. Whether the court erred by not dismissing the grand theft charges because Gard was an owner of Dakota Development and unable, as a matter of law, to steal from it.

[¶ 14.] The State claims Gard has waived this issue by failing to raise it to the circuit court. The record indicates Gard did not make a motion to dismiss based upon his claim that he was unable to steal from his own company or bring this claim to the circuit court’s attention in any other manner. The motion to dismiss related to the charge for the excise tax reimbursement by Dakota Development that Gard never paid the State of South Dakota. However, Gard claims that this issue is properly in front of this Court by virtue of his not guilty plea. He claims his conviction places every element into question and this issue is capable of review.

[¶ 15.] While SDCL 23A-22-4 provides that “[a] plea of not guilty puts in issue every material fact constituting” the charged offense, it does not automatically preserve for appeal all of the issues relating to material elements of the crime. “Ordinarily an issue not raised before the trial court will not be reviewed at the appellate level.” State v. Hays, 1999 SD 89, ¶ 16, 598 N.W.2d 200, 203 (citing State v. Henjum, 1996 SD 7, ¶ 13, 542 N.W.2d 760, 763). “The trial court must be given an opportunity to correct any claimed error before we will review it on appeal.” Id. “To preserve issues for appellate review litigants must make known to trial courts the actions they seek to achieve or object to the actions of the court, giving their reasons.” State v. Dufault, 2001 SD 66, ¶ 7, 628 N.W.2d 755, 757 (quoting State v. Nelson, 1998 SD 124, ¶ 7, 587 N.W.2d 439, 443; SDCL 23A-44-13). Failing to raise an issue, thereby allowing the circuit court an opportunity to correct the claimed error, results in waiver of the issue. Id. Gard’s failure to ask the circuit court to dismiss the theft charges on the specific ground that it was legally impossible for him to steal from his own partnership would waive the claim on appeal.

[¶ 16.] However, this is a question which may arise again and one of public interest. Both parties fully briefed and argued the issue at oral arguments; therefore, we will address the issue. See In re J.D.M.C., 2007 SD 97, ¶27, 739 N.W.2d 796, 805 (citing Nature’s 10 Jewelers v. Gunderson, 2002 SD 80, ¶ 19, 648 N.W.2d 804, 808-09 (Konenkamp, J., dissenting) (citing Hormel v. Helvering, 312 U.S. 552, 557-58, 61 S.Ct. 719, 721-22, 85 L.Ed. 1037, 1041 (1941); Sharp v. Sharp, 422 N.W.2d 443, 445-46 (S.D.1988))).

[¶ 17.] Gard claims there is insufficient evidence to convict him of grand theft by embezzlement because he was an owner of Dakota Development. He claims that under State v. Reddick, 2 S.D. 124, 48 N.W. 846 (1891), a partner cannot steal from his own partnership. Therefore, Gard argues the judge erred by denying his motion to dismiss the grand theft charges.

[¶ 18.] SDCL 22-30A-1 provides that “[a]ny person who takes, or exercises unauthorized control over, property of another, with intent to deprive that person of the property, is guilty of theft.” Reddick, decided over 100 years ago, declared that a partner who misappropriates partnership funds does not commit embezzlement because “each partner is the ultimate owner of an undivided interest in the partnership property[.]” 2 S.D. 124, 48 N.W. at 847. The Reddick court explained that

none of such property can be said, with reference to either partner, to be the property of another, and as no one can be guilty of ... embezzling what belongs to him and of which he is legally entitled to the possession, the courts have uniformly held that a general partner cannot be convicted of embezzling partnership property which comes into his possession or under his control by virtue of his being such partner and joint owner.

Id. at 847. However, the rule that a partner cannot embezzle from his partnership has been rejected by the American Law Institute. People v. Sobiek, 30 Cal.App.3d 458, 466, 106 Cal.Rptr. 519, 525, cert. denied, 414 U.S. 855, 94 S.Ct. 155, 38 L.Ed.2d 104 (1973). Additionally, the South Dakota code now defines “property of another” to include “property in which any person other than the actor has an interest upon which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property[.]” SDCL 22-1-2(36); see also Sobiek, 30 Cal.App.3d at 466, 106 Cal.Rptr. 519 (noting that “[i]n Model Penal Code section 223.0(7) (POD 1962), ‘property of another’ is defined to include property in which any person other than the actor has an interest which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property.”).

[¶ 19.] While the outcome of Reddick may have been the holding in the majority of courts in 1891, the law in most states today is that a partner can be found guilty of embezzlement when he misappropriates funds from his partnership. See Sobiek, 30 Cal.App.3d at 465-67, 106 Cal.Rptr. 519; State v. Sylvester, 516 N.W.2d 845, 849 (Iowa 1994); State v. Siers, 197 Neb. 51, 248 N.W.2d 1, 6 (1976) (Uniform Partnership Act’s legal entity theory of partnerships and statutory definition of embezzlement that includes property that is partly owned by another, permits a partner to be prosecuted for embezzlement from his partnership); State v. Larsen, 834 P.2d 586, 590 (Utah Ct.App.1992) (noting the legislature abandoned common law and passed statutes which allowed a partner to be convicted of theft when he steals partnership funds or property); State v. Webb, 64 Wash.App. 480, 824 P.2d 1257, 1263 (1992) (same).

[¶ 20.] For example, Iowa, like South Dakota, once held a partner could not be convicted for embezzling partnership funds. See Sylvester, 516 N.W.2d at 846-47. More recently, the Iowa Supreme Court held that a partner could be found guilty if he embezzled from the partnership. Id. at 848. The Iowa court found the adoption of the Uniform Partnership Law defined “the nature of a partner’s right in partnership property.” Id. at 847.

[¶ 21.] South Dakota adopted the Uniform Partnership Act (UPA) in SDCL ch 48-7A in 2001. In fact, a provision of the UPA specifically recognizes property acquired by a partnership is the partnership’s property and not property of the individual partners. SDCL 48-7A-203. As the Iowa court recognized, the trend in case law has been “away from recognizing a partnership as an aggregation of individuals and toward recognizing partnerships as separate legal entities.” Sylvester, 516 N.W.2d at 849.

[¶ 22.] Changes in the law, such as SDCL 22-1-2(36) and the UPA have modified the law from the manner it existed when Reddick was decided. Therefore, a partner who misappropriates funds from the partnership can be convicted of embezzlement. Reddick is overruled, to the extent it conflicts with this decision.

[¶ 23.] Gard also challenges whether sufficient evidence exists to convict him of embezzlement. Gard was convicted of theft by embezzlement because he opened several credit accounts for Dakota Development using the personal information of both Smith and Little. He then invoiced Dakota Development for charges and did not pay the credit accounts. Gard claims he had permission to open these accounts and he did not have the intent to steal, but only intended to further the goals of the company by finishing the construction projects. He also alleges that he paid for much of the needed construction supplies with his own money and was merely getting reimbursed for his expenses when he invoiced Dakota Development.

[¶24.] In support of his theory, he cites SDCL 22-30A-16, which provides that “[i]t is an affirmative defense to a prosecution for theft that the defendant: ... (2) Acted under an honest and reasonable claim of right to the property involved or that the defendant had a right to acquire or dispose of the property as he or she did.” The State provided evidence that Gard knew he did not have an honest and reasonable right to open the credit accounts, charge goods and not pay the bills. Specifically, John Ellingson, a salesman at Knecht’s Home Center, testified Smith told Gard he could not sign his name on applications and that it was illegal. Little also testified that he told Gard not to use his name on credit applications. The State also introduced evidence that showed Gard invoiced for construction bills, yet the construction bills were never paid and Gard pocketed the money to further his gambling habit.

[¶ 25.] The jury heard the testimony and evidence and resolved the conflicting testimony against Gard. We view the evidence in the light most favorable to the verdict and there is sufficient evidence in the record to sustain a finding of guilt beyond a reasonable doubt. We affirm.

[¶ 26.] 2. Whether the court erred by denying Gard’s motion to consolidate the forgery charges.

[¶ 27.] After the verdict, Gard moved to consolidate the theft and forgery charges. The circuit court consolidated the theft charges because it seemed to be one scheme and plan by one invoice to fraudulently deprive Dakota Development and his partners of money. Nonetheless, the circuit court refused to consolidate the forgery charges. Gard alleges the circuit court should have consolidated his forgery charges into one count because the forgeries were really one act.

[¶ 28.] Gard relies on State v. Johnston, 478 N.W.2d 281 (S.D.1991). In Johnston, this Court reversed eighteen of nineteen grand larceny convictions when Johnston had nineteen of his neighbor’s cattle in his pasture. Id. at 285. There was no evidence that the cattle were taken at separate times or all at once and we followed the “well-established rule that in a series of takings from the same individual, there is a single theft if the takings are pursuant to one continuing impulse, intent, plan or scheme, but multiple counts if each taking is the result of a separate independent impulse or intent.” Id. at 283. Thus, there was insufficient evidence to support nineteen separate grand larceny convictions, since there was no evidence whether the cattle were taken “with a single sustained criminal intent or if each taking [was] the result of a separate independent impulse or intent.” Id.

[¶ 29.] Johnston also alleged the nineteen violations of the brand statutes should be consolidated into one. He claimed that the “continuing plan or scheme” theory he advanced in the grand larceny argument also applied to seventeen counts of misuse or alteration of a brand. However, this Court rejected that argument saying that “the violation of the brand registration and use statutes is not a theft” and “ ‘a continuing plan or scheme’ theory is not applicable to this argumente,]” but determined the review is limited to whether or not there is sufficient evidence “to sustain a finding of guilty beyond a reasonable doubt on each count.” Id. at 284.

[¶ 80.] In State v. La, the defendant unsuccessfully attempted to consolidate his two theft convictions. 540 N.W.2d 180, 185 (S.D.1995). In contrast to Johnston, there was sufficient evidence on the record to establish two separate thefts. La asked the victim on two separate occasions to buy a non-existent interest in a poker table where La worked. Id. While affirming the lower court, this Court noted that the jury was instructed regarding each separate offense and proceeded to enter two separate guilty verdicts. Id.

[¶ 31.] Here, there is evidence to show six distinct credit applications that Gard applied for by signing his partner’s names without their permission. The jury heard the evidence and entered a guilty verdict on each of the six counts. There is nothing in the record that demonstrates the circuit court erred by refusing to consolidate the forgery counts.

[¶ 32.] 3. Whether the court erred by not dismissing the forgery charges because the element of intent was absent.

[¶ 33.] The State contends Gard waived this issue by not raising it. Gard did not move for a dismissal of the forgery charges, claiming the intent element was absent. We do not address this issue, which is raised for the first time on appeal. Hays, 1999 SD 89, ¶ 16, 598 N.W.2d at 203 (citations omitted).

[¶ 34.] 4. Whether the court erred by not dismissing forgery counts 17 and 19 because all the elements of forgery were not established.

[¶ 35.] Gard claims that he cannot be convicted of forgery count 17 involving Lowe’s because there was no evidence regarding the location of the crime. The indictment alleged the crime occurred in Lawrence County, but Gard claims there was no evidence presented at trial to support that allegation.

[¶ 36.] Venue is to be found by the trier of fact and need only be demonstrated by a preponderance of the evidence. State v. Sullivan, 2002 SD 125, ¶ 7, 652 N.W.2d 786, 788. A conviction will stand where proper venue can be inferred from the evidence. State v. Graycek, 335 N.W.2d 572, 574 (S.D.1983).

[¶ 37.] While Gard claims he filled out the Lowe’s credit application at the counter at the Lowe’s in Pennington County, there is evidence that Gard at least partially committed the crime in Lawrence County. Gard testified that he filled out the application at the store and he called Little from the store to get his social security number. However, Gard later admitted that he could not have called Little because it was Sunday and Little would not have been at his office that day. Kathy Reasor, the credit coordinator for Lowe’s, testified that she heard Gard speaking with an associate about setting up a credit account, that Gard received an application, but did not fill it out that day. She testified that she processed the application when Gard returned with it on a different day. When processing the application, she inquired why Little was requesting credit, but he was not there. Gard told her that Little was too busy to bring the application back and he told Gard to bring it back to Lowe’s to process it.

[¶ 38.] Furthermore, there was testimony from Robert McKinstry, manager of UBC, that a similar procedure was used when applying for credit from UBC. McKinstry testified that Gard took the application and returned later to see if the credit account had been set up. When informed they had not received the application back, Gard called a phone number (later identified as his home phone number) and asked the person to fax the application to UBC.

[¶ 39.] If an “offense is committed partly in one county and partly in another county ... the venue is in either county.” SDCL 23A-16-8. The State need only prove venue by a preponderance of the evidence. Graycek, 335 N.W.2d at 574; State v. Greene, 86 S.D. 177, 192 N.W.2d 712, 715 (S.D.1971). The testimony of Reasor and McKinstry shows there is sufficient evidence to infer at least part, if not most, of the forgery crime occurred in Lawrence County by a preponderance of the evidence.

[¶ 40.] Gard also claims that he cannot be convicted of forgery count 17 involving Knecht’s because there was no evidence he intended to defraud. In addition to the general claims of issue 3, Gard also alleges the intent element is absent because the partners knew he was ineligible for credit, that the company would operate on credit, Smith was out of town and Gard needed to purchase supplies and Smith ratified the signature upon his return.

[¶ 41.] The State claims Gard failed to preserve this issue for appeal because he did not move for a judgment of acquittal on count 17 and the circuit court did not have an opportunity to decide the issue. We agree and as noted above, we do not decide this issue as it is raised for the first time on appeal.

[¶42.] 5. Whether Gard’s sentence of 65 years in prison, effectively a life sentence, fails to consider the question of rehabilitation and constitutes cruel and unusual punishment.

[¶ 43.] Gard received the statutory maximum for all crimes and concedes the Legislature and sentencing court were acting within their individual powers to assign and impose the sentence. He argues that imposition of these sentences consecutively amounts to a cruel and unusual punishment and fails to consider rehabilitation.

[¶ 44.] We use the following proportionality test to review a challenge to a sentence on Eighth Amendment cruel and unusual punishment grounds:

[T]o assess a challenge to proportionality we first determine whether the sentence appears grossly disproportionate. To accomplish this, we consider the conduct involved, and any relevant past conduct, with utmost deference to the Legislature and the sentencing court. If these circumstances fail to suggest gross disproportionality, our review ends.

State v. Bonner, 1998 SD 30, ¶ 17, 577 N.W.2d 575, 580 (citing Harmelin v. Michigan, 501 U.S. 957, 1000, 111 S.Ct. 2680, 2704, 115 L.Ed.2d 836, 868 (1991)).

[¶ 45.] The sentencing court noted that Gard had two prior felonies for theft convictions and several other complaints had been lodged against Gard during the performance of his business. In Wyoming, Gard was being investigated for almost $300,000 in unaccounted money. He has a history of theft that spans twenty years. The court noted that he is the type of person that preys on other people. Gard stole money from his partners, one of whom was seriously ill with cancer and unable to look out for himself. At oral argument, Gard’s counsel acknowledged Gard would be eligible for parole at age 70. Given the fact that Gard’s sentences were within the statutory máximums, his history of prior theft convictions and other complaints, the sentence does not constitute gross disproportionality.

[¶ 46.] Typically, our review does not address rehabilitation unless the sentence suggests gross disproportionality, which this sentence does not. See State v. Milk, 2000 SD 28, ¶ 10, 607 N.W.2d 14, 17. In any event, the sentencing court did consider rehabilitation when it said, “You don’t have much of a conscience. I’m satisfied that if you got out tomorrow, you’d probably be doing it again one of these days. Whether you ever grow out of it, I don’t know. I hope you do.” Gard did not present any evidence that he could rehabilitate. See State v. Ramos, 1996 SD 37, ¶ 19, 545 N.W.2d 817, 821-22. Given the record, Gard has not demonstrated the sentence constitutes cruel and unusual punishment.

[¶ 47.] Affirmed.

[¶ 48.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

       Jacks was Gard’s girlfriend at the time the company was formed, and they later married.


author: KONENKAMP, Justice.

text:
    2007 SD 119
    William R. RUSH, Individually, North American Truck & Trailer, Inc., and Carolina Commercial Truck Sales, L.L.C., Plaintiffs and Appellants, v. U.S. BANCORP EQUIPMENT FINANCE, INC., Defendant and Appellee.
    No. 24387.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 27, 2007.
    Decided Nov. 14, 2007.

      Laura L. Koob, Brian L. Radke of Rad-ke Law Office, P.C., Sioux Falls, South Dakota, Attorneys for plaintiffs and appellants.
    Roger W. Damgaard of Woods, Fuller, Shultz & Smith, P.C., Sioux Falls, South Dakota, Attorneys for defendant and ap-pellee.
   KONENKAMP, Justice.

[¶ 1.] In this appeal from a summary judgment, a debtor contends that its creditor should have protected the debtor’s financial circumstances by perfecting the creditor’s security interest. From the language of the contract documents, we conclude that the security interest was for the protection of the creditor, and its failure to perfect that interest created no claim for the debtor. Therefore, we affirm summary judgment for the creditor.

Background

[¶ 2.] William Rush is the president of North American Truck & Trailer and Carolina Commercial Truck Sales, LLC. Rush, North American, and Carolina will be collectively referred to as “plaintiffs.” US Bancorp Equipment Finance Inc. provided financing to North American in the form of a sale-leaseback arrangement for the purchase of twenty Volvo trucks. North American purchased the trucks and then sold them to US Bancorp which, in turn, agreed to lease the trucks to North American. North American then subleased the trucks to Carolina by executing a document similar to the lease between US Ban-corp and North American. North American assigned its interest in this sublease to US Bancorp, and Carolina executed a security agreement in favor of US Bancorp, granting a security interest in the trucks. Carolina, in turn, leased the trucks to the end user, Oklahoma Southern Transportation, Inc.

[¶ 3.] Oklahoma Southern took possession of the trucks, and Carolina received the manufacturer’s statements or certificates of origin (MSO). The MSOs identified Carolina as the lessor, Oklahoma Southern as the lessee, and US Bancorp as the lienholder. According to US Bancorp, it was the responsibility of Oklahoma Southern to title and license the trucks, but Oklahoma Southern licensed the trucks without first obtaining titles. It was able to do this through a loophole in Oklahoma law. Because Oklahoma Southern licensed the trucks without titling them, US Bancorp’s interest in the trucks did not become perfected.

[¶ 4.] In 2000, Oklahoma Southern filed for Chapter 11 bankruptcy. At the same time, plaintiffs became aware that Oklahoma Southern did not obtain titles to the trucks, and therefore, US Bancorp’s security interest was not perfected. The trucks became property of the bankruptcy estate and Oklahoma Southern stopped paying on the lease to Carolina. Plaintiffs were nevertheless required to pay on their lease to US Bancorp. In 2001, Carolina moved for relief from the automatic stay to foreclose on and repossess the trucks. The trustee objected to the motion because Carolina was an unsecured creditor. Carolina was ultimately able to settle with the trustee, whereby Carolina paid $25,000 for the release of the trucks.

[¶ 5.] Plaintiffs brought suit against US Bancorp asserting that the bank had a duty under the parties’ various contractual agreements to ensure that US Bancorp’s security interest was properly perfected. According to plaintiffs, had US Bancorp properly perfected its security interest, plaintiffs would have been able to immediately repossess the trucks or have them released from the bankruptcy estate. Because US Bancorp failed to ensure that the security interest in the trucks was properly perfected, plaintiffs asserted that they suffered financial losses.

[¶ 6.] US Bancorp moved for summary judgment. In granting the motion, the circuit court concluded that “there was no duty, contractual or otherwise, on the part of the Bank to either ensure that the trucks were titled in the name of the bank” or to perfect “its security interest in the trucks.” The court also concluded that there was no special relationship between the parties, other than that of creditor and debtor. Finally, the court declined to consider the course of dealings between the parties because the contract language specifically prohibited it. Plaintiffs appeal asserting that (1) US Bancorp had a duty to title the twenty trucks and perfect its security interest; and (2) the course of dealings between the parties placed that duty on the bank.

Standard of Review

[¶ 7.] “When reviewing a grant of summary judgment, we decide only whether there were genuine issues of material fact and whether the law was correctly applied.” Heib v. Lehrkamp, 2005 SD 98, ¶ 19, 704 N.W.2d 875, 882 (citing SDCL 15-6-56(c); Keystone Plaza Condominiums Ass’n v. Eastep, 2004 SD 28, ¶ 8, 676 N.W.2d 842, 846). “We view the evidence in a light most favorable to the nonmoving party.” Toben v. Jeske, 2006 SD 57, ¶ 9, 718 N.W.2d 32, 35 (citing Wilson v. Great Northern Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968)). The moving party has the burden of showing “the absence of any genuine issue of material fact and entitlement to judgment as a matter of law.” Yarcheski v. Reiner, 2003 SD 108, ¶ 15, 669 N.W.2d 487, 493 (citing S.D. Dept. of Rev. v. Thiewes, 448 N.W.2d 1, 2 (S.D.1989)).

Analysis and Decision

[¶ 8.] Plaintiffs first claim that the “Warranties and Covenants of the Debtor” clause of the security agreement imposed a duty on US Bancorp to perfect its security interest in the trucks. The language of that clause stated:

At the request of the Secured Party, Debtor will execute, acknowledge and deliver to Secured Party in recordable or fileable form, any document or instrument required by the Secured Party to further the purpose of this Agreement, or to perfect its interest in the Collateral or to maintain such perfected interest in full force and effect.

Plaintiffs also invoke the power of attorney clause in the master lease to argue that the bank had two specific duties: (1) “authority to complete and execute financing statements”; and (2) “conform the description of the Property in any such financing statement or other documentation.”

[¶ 9.] We see nothing in the language of the security agreement or power of attorney clause that imposed an affirmative duty on the bank to perfect. Just the opposite, the language of the security agreement imposed a duty on the debtor to assist the creditor in the creditor’s effort to perfect, if the creditor so desired. The power of attorney clause gave the bank the “authority” to do certain things to perfect its security interest, but did not impose any duty on it to perfect.

[¶ 10.] In aid of their position, plaintiffs advance the maxim expressio un-ius est exclusio altreius, the expression of one thing is the exclusion of another. See Accounts Mgmt., Inc. v. Litchfield, 1998 SD 24, ¶ 9, 576 N.W.2d 233, 236. Because the security agreement did not state that Carolina was obligated to perfect US Ban-corp’s security interest, according to plaintiffs, it was clearly US Bancorp’s duty. Moreover, plaintiffs claim that the agreement was ambiguous and that it should have been construed against US Bancorp, which could have drafted it to have Carolina ensure that US Bancorp’s security interest was perfected.

[¶ 11.] Although the contract did not specifically state that plaintiffs had a duty to ensure that the bank’s security interest was perfected, it is clear that no duty was imposed upon US Bancorp to perfect. Perfection is for the benefit of the secured party. Plaintiffs concede as much in their appellate argument. In accord with their agreement, duties were imposed on plaintiffs to assist the bank if it chose to perfect. However, nothing mandated that the bank perfect. There was nothing ambiguous about their agreement, and, therefore, we need not consider whether it should have been construed against the drafter.

[¶ 12.] Finally, plaintiffs claim that because the contract documents were silent on procedures for titling of the trucks, the course of dealing between the parties should have controlled. According to plaintiffs, US Bancorp had a system for tracking all the titles on its various lease agreements. Plaintiffs insist that they relied on this course of dealing whereby US Bancorp would take steps necessary to track the titles of the twenty trucks. Plaintiffs also claim that the clause prohibiting the supplanting or altering of the parties’ agreement by their course of dealing was unconscionable and should not have been used against them.

[¶ 13.] The parties expressly agreed that the contract would not be qualified or supplemented by their course of dealing. Other than claiming that this clause was unconscionable, plaintiffs have not cited any UCC, Oregon, or South Dakota law that would invalidate such a clause. See SDCL 15 — 26A—60(6); Void v. Broin & Associates, Inc., 2005 SD 80, ¶ 9 n. 1, 699 N.W.2d 482, 485 n. 1 (citations omitted). Oregon and South Dakota law specifically permit the alteration of gap-filling rules. See OrRevStat 71.1020; SDCL 57A-1-102(3); UCC 1-102(3).

[¶ 14.] Affirmed.

[¶ 15.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.

      . Plaintiffs also assert that the power of attorney clause created a fiduciary relationship between them and US Bancorp. US Bancorp argues that plaintiffs failed to argue this to the circuit court and, therefore, waived the argument for appeal. Plaintiffs contend that because US Bancorp claimed that there was no special relationship between the parties and the court held there was no special relationship, the issue was preserved. Although the court stated that there was no special relationship between the parties, there was nothing in the court’s statement to indicate that it considered whether there was a fiduciary relationship. Plaintiffs have failed to assert the fiduciary relationship argument below, and, therefore, it is waived on appeal. See In re B.Y. Dev., Inc., 2000 SD 102, ¶ 17, 615 N.W.2d 604, 611 (citing In re Sales Tax Liability of Simpson, 500 N.W.2d 624, 626 (S.D. 1993); Sharp v. Sharp, 422 N.W.2d 443, 445 (S.D.1988)).

      . The parties' agreement states that Oregon law applies. Plaintiffs argue that South Dakota law should apply because US Bancorp failed to assert Oregon law in the circuit court. While it is not clear from the record whether either party asserted Oregon law, the parties’ agreement clearly states that Oregon law controls. Also, the circuit court recognized the applicability of Oregon law based on the parties' agreement and cited an Oregon statute.