author: KLAPHAKE, Judge.

text:
    In re Appeal of DECISION OF COMMISSIONER OF HUMAN SERVICES IN the APPEAL OF Lillian FLYGARE FOR MEDICAL ASSISTANCE
    No. A06-559.
    Court of Appeals of Minnesota.
    Dec. 19, 2006.

      Christopher E. Sandquist, Gislason & Hunter, LLP, Mankato, MN, for appellant Lillian Flygare.
    Kenneth R. White, Assistant County Attorney, Nicollet County Attorney’s Office, St. Peter, MN, for respondent Nicollet County.
    Mike Hatch, Attorney General, Robin C. Vue-Benson, Assistant Attorney General, St. Paul, MN, for respondent Commissioner of Human Services.
    Considered and decided by KLAPHAKE, Presiding Judge, ROSS, Judge, and HARTEN, Judge.

         Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

KLAPHAKE, Judge.

Appellant Lillian Flygare, through her son and attorney-in-fact Marcus Flygare, challenges the denial of her application for medical-assistance benefits. Her application was initially denied after respondent Nicollet County determined that she has assets available from a trust established by her deceased husband. Following a hearing, an appeals referee recommended affirming the county’s decision; that recommendation was adopted by respondent Commissioner of Human Services. On appeal, the district court affirmed the commissioner’s determination of ineligibility.

Because we conclude that the trust is a support trust under Minnesota law, it is an available asset for purposes of determining appellant’s eligibility for medical assistance. And, because the trust provision restricting the trustee’s ability to make payments if appellant becomes eligible for public assistance is unenforceable as against public policy under Minn.Stat. § 501B.89 (2004), appellant can compel the trustee to provide for her support. We therefore affirm the district court’s determination that appellant is ineligible to receive medical-assistance benefits.

FACTS

On August 20, 1993, appellant’s husband, Ronald Flygare, executed his last will and testament. The will provided that if appellant survived him, a portion of his estate, designated as the “Marital Share,” would be paid directly to appellant; the marital share consisted of the amount of the estate that was allowed to pass tax free because it qualified for a marital deduction. The will further provided that the remaining assets of the estate designated as the “Family Share” would be deposited into a testamentary trust.

Ronald Flygare died on December 17, 1993. As provided by the will, the marital share of decedent’s estate was distributed to appellant outright. The family share was placed in trust, with appellant and her son, Marcus Flygare, appointed as trustees.

By 2004, appellant had less than $3,000 in personal assets remaining and because her health had deteriorated, she required additional care. On August 26, 2004, her son, acting as her attorney-in-fact and authorized representative, applied for medical assistance benefits through the county. At the time of her application, the principal in the trust totaled approximately $300,000.

On December 23, 2004, the county notified appellant that her application was denied. The county explained that because appellant had failed to prove that the trust was unavailable, the trust was counted as an asset and put appellant over the $3,000 limit. See MinmStat. § 256B.056 (2004).

On March 15, 2005, appellant challenged the county’s denial and a hearing was held before a referee. See Minn.Stat. §§ 256.045, 256.0451 (2004) (providing for administrative and judicial review of certain human services matters, including applications for medical assistance and setting forth hearing procedures). At the hearing, appellant’s attorney argued that the trust was intended to supplement rather than supplant public assistance and that it could not be considered an available resource for purposes of medical-assistance eligibility. The referee concluded that the trust is contrary to public policy because its unambiguous language expressly limits any payment from the “Family Share” of the trust to appellant “in the event she would be eligible for assistance under any government funded program.” See Minn.Stat. § 501B.89, subd. 1 (2004) (making unenforceable as against public policy trust provisions that allow for limitation or suspension of payments if beneficiary is determined eligible for public assistance). The referee’s recommendation that the county’s eligibility denial be affirmed was adopted by the commissioner on May 25, 2005.

On appeal, the district court affirmed the final determination of the commissioner. In a detailed memorandum, the district court concluded that the trust clearly violates Minn.Stat. § 501B.89 because it requires the trustee to withhold distributions to appellant should she become eligible for public assistance. The court further explained its rejection of appellant’s attempt to reform the trust so as to allow appellant to receive supplemental distributions from the trust while receiving public assistance. On appeal to this court, appellant concedes that the trust violates Minn. Stat. § 501B.89, but insists that when the unenforceable provision is removed and the remaining trust provisions are analyzed under common law, the trust must be characterized as a discretionary trust and therefore the assets are not available to appellant for purposes of determining her eligibility for medical assistance benefits.

ISSUE

Did the agency err in determining that appellant is ineligible for medical assistance benefits because the assets of the trust are available for her support?

ANALYSIS

Standard of Review

This court will review an agency’s medical-assistance eligibility determination independently, without deference to the district court’s review. Estate of Atkinson v. Minn. Dep’t of Human Servs., 564 N.W.2d 209, 213 (Minn.1997). We may reverse only if the challenging party establishes that the agency’s decision contains errors of law, is unsupported by substantial evidence, or is arbitrary and capricious. Minn.Stat. § 14.69 (2004); In re Kindt, 542 N.W.2d 391, 394 (Minn.App.1996).

Issues involving the interpretation of language in a statute or in a testamentary trust are issues of law that we review de novo. See Atkinson, 564 N.W.2d at 213 (acknowledging that this court is not bound by agency’s interpretation of governing statute, even though we often give deference to that interpretation); Smith v. Smith, 246 Neb. 193, 517 N.W.2d 394, 397-98 (1994). The issue of whether resources in a trust are available to a beneficiary for determining his or her eligibility for medical assistance purposes is also a question of law. In re Carlisle Trust, 498 N.W.2d 260, 263 (Minn.App.1993). The trust beneficiary has the burden to establish that a trust is not an available asset. Id.

Enactment of Minn.Stat. § 501B.89

Minnesota courts have long recognized that placing assets in a trust for the support of another person but withholding consideration of those resources for that person’s medical assistance eligibility is generally disfavored as against public policy. McNiff v. Olmsted County Welfare Dep’t, 287 Minn. 40, 44-45, 176 N.W.2d 888, 892 (1970). The broad policy is clear: persons who have the means should pay for their health care and not shelter available resources in order to enrich their heirs. See Kindt, 542 N.W.2d at 398.

In 1992, the Minnesota legislature enacted Minn.Stat. § 501B.89, to solidify its position concerning trusts that were structured to limit payments in cases where a beneficiary was eligible for public assistance. 1992 Minn. Laws ch. 513, art. 7, § 129. In particular, this statute states that

a provision in a trust that provides for the suspension, termination, limitation, or diversion of the principal, income, or beneficial interest of a beneficiary if the beneficiary applies for, is determined eligible for, or receives public assistance or benefits under a public health care program is unenforceable as against the public policy of this state, without regard to the irrevocability of the trust or the purpose for which the trust was created.

Minn.Stat. § 501B.89, subd. 1 (2004).

The statute was further amended during the 1993 legislative session to allow a narrow exception for “supplemental needs” trusts, which are designed to assist people with disabilities when public assistance programs would fall short of meeting their basic needs and reasonable living expenses. MinmStat. § 501B.89, subd. 2. To qualify as a special needs trust, the person must be disabled when the trust is created, the trust’s general purpose “must be to provide for the reasonable living expenses and other basic needs of a person with a disability when benefits from publicly funded benefit programs are not sufficient to provide adequately for those needs,” and the trust “must contain provisions that prohibit disbursements that would have the effect of replacing, reducing, or substituting for publicly funded benefits.” Minn.Stat. § 501B.89, subd. 2(d).

Minn.Stat. § 501B.89, including the 1993 amendments, applies to all trusts created after July 1, 1992. Because the trust at issue here was created in 1993, it is subject to this statute.

Flygare Trust Provisions

In relevant part, the trust provides:

D. The FAMILY SHARE shall be transferred to my trustees ... and shall be administered and distributed as follows:
First: The net income of this trust shall be paid to my spouse in quarterly or other convenient installments; provided that if my trustee, Marcus R. Flygare, determines that my spouse has adequate other income, said trustee may withhold all or any part of that income and may distribute all or any part thereof to and among my children and their issue in whatever proportions are deemed advisable by my said trustee. Any net income which is not so distributed shall be accumulated and added to principal for reinvestment.
Second: In addition to the benefits here-inbefore provided for my spouse, my trustee, Marcus R. Flygare, acting alone and without my spouse for the purposes of this subdivision ... may in his sole and exclusive discretion during the time this trust is being held for the benefit of my spouse, withdraw installments of principal from this trust from time to time and pay the same to or for the benefit of my spouse as my trustee, Marcus R. Flygare, deems necessary and advisable in order to provide for the proper support and maintenance of my spouse; provided, nevertheless, that no such sums of principal or income shall be paid to or applied for the benefit of my spouse, except for the assets available to the trustee, in the event my spouse would be eligible for assistance under any government funded program and in such event, no such trust funds shall be so expended, and to or for the benefit of my children, for their support and maintenance.

Appellant concedes that certain language in the trust violates Minn.Stat. § 501B.89, subd. 1, and cannot be given effect. Appellant insists that the offending language should simply be stricken or deleted from the trust document and that the settlor’s intent should be reevaluated without that stricken language. Appellant argues that reconsideration of the trust document without the stricken language makes it clear that the settlor intended the trust to be a discretionary trust, not a support trust, and that its assets should be deemed unavailable to appellant for purposes of determining her eligibility for medical assistance.

While the parties offered different anal-yses of the issues, at oral arguments appellant and the commissioner agreed that the initial focus should be on the type of trust involved: if the trust is a true discretionary trust, its assets are not available for purposes of determining eligibility for medical assistance and the analysis would end there; but if the trust is a support trust, its assets are available and Minn. Stat. § 501B.89 makes any provisions to the contrary unenforceable.

The issue of whether a trust is a support trust or a discretionary trust is generally an issue of law that we can determine de novo by examining the “four corners of the instrument.” McNiff, 287 Minn, at 43, 176 N.W.2d at 891; see In re Fiske’s Trust, 242 Minn. 452, 460, 65 N.W.2d 906, 910 (1954) (absent ambiguity, intention of settlor is ascertained from trust instrument in its entirety). A support trust directs the trustee to distribute trust income or principal as necessary for the support and maintenance of the beneficiary; a discretionary trust, on the other hand, gives the trustee complete discretion to distribute all, some, or none of the trust income or principal to the beneficiary as the trustee sees fit. Carlisle, 498 N.W.2d at 264 (citing Restatement (Second) of Trusts §§ 154,155 (1959)).

The trust here includes language giving the trustee some discretion, but that discretion is limited: the trustee is directed to act as he “deems necessary and advisable to provide for the proper support and maintenance of my spouse.” While the trustee maintains discretion to determine the total amount and perhaps the extent of proper support and maintenance, he must consider appellant’s basic needs and has no discretion with regard to making expenditures to meet those basic needs. See McNiff, 287 Minn, at 43, 176 N.W.2d at 891. The clear purpose of this trust was to insure that appellant’s basic needs are met: she thus has the ability to bring an action to compel the trustee to make payments as necessary to provide for her proper support and maintenance. See United States v. O’Shaughnessy, 517 N.W.2d 574, 577 (Minn.1994) (even when vested with complete discretion, trustee cannot violate settlor’s intent or trust’s purpose without committing abuse of discretion). We therefore conclude as a matter of law that this trust is a support trust rather than a discretionary trust.

Appellant relies heavily upon Carlisle and In re Horton, 668 N.W.2d 208 (Minn.App.2003), two cases involving trusts created prior to 1992 and enactment of Minn.Stat. § 501B.89, subd. 1. In Carlisle, 498 N.W.2d at 262, the trust expressly excluded payments for the basic necessities of life — food, clothing, and shelter' — -and the trustee was under no obligation to make any payments to the beneficiary. As a result, this court concluded that the trust was discretionary. Id. at 264-65. In Horton, 668 N.W.2d at 214, the trust provided that the trustee “may pay” amounts necessary to provide for the proper support and maintenance of the donor or his family. Nothing in the trust required that the trustee determine the needs of the beneficiaries or insure that those needs were met, and the entire document was in the permissive form. Id. at 215. As a result, this court concluded that the trust was discretionary. Id. at 214-15.

Here, the trust requires the trustee to consider appellant’s needs and make payments to meet those needs. Nothing in the trust gives the trustee discretion to ignore appellant’s needs or to refuse to make payments to provide for her basic support. Accordingly, we distinguish this trust from the trusts in Horton and Car-lisle. We therefore conclude that because the trust is properly characterized as a support trust, the agency did not err in determining that it is an available asset for purposes of determining appellant’s eligibility for medical assistance.

DECISION

We affirm the determination that appellant is not eligible for medical assistance benefits. The county properly determined that the trust of which she is a beneficiary is an asset that is available to provide for her support.

Affirmed.

      . The county, however, took a slightly different stance, one with which we do not entirely agree. The county asserts that if Minn.Stat. § 501B.89, subd. 1, applies, then the trust assets are available regardless of whether the trust is a discretionary or support trust.


source: Caselaw Access Project

author: HUDSON, Judge.

license: Public Domain

text:
    In the Matter of the CLAIM FOR BENEFITS BY Jeffrey R. MEULENERS.
    No. A06-14.
    Court of Appeals of Minnesota.
    Dec. 19, 2006.
    Ronald Meuser, Jr., Meuser & Associates, P.A., Eden Prairie, Minnesota, for relator Meuleners.
    Michael Fahey, Carver County Attorney, Kari L.S. Myrold, Assistant County Attorney, Chaska, Minnesota, for respondent Carver County.
    Mike Hatch, Attorney General, Bernard E. Johnson, Assistant Attorney General, St. Paul, Minnesota, for respondent Minnesota Public Safety Officers Benefit Eligibility Panel.

      Considered and decided by WRIGHT, Presiding Judge; HALBROOKS, Judge; and HUDSON, Judge.
   OPINION

HUDSON, Judge.

On certiorari appeal from the Public Safety Officers Benefit Eligibility Panel’s determination order denying relator’s application for continued employer-provided health-insurance benefits, relator argues that he is entitled to benefits because he suffered a disabling injury that forced him to retire or separate from service as a peace officer and the injury occurred while he was acting in the course and scope of his duties as a peace officer. Because the panel based its decision on factors not relevant to the statutorily required determination of whether the officer’s injury occurred in the course and scope of duties as a peace officer, we reverse.

FACTS

Relator was a Carver County deputy sheriff for approximately ten years before he suffered a disabling back injury in 2001 that forced him to separate from service as a peace officer. This disabling back injury, which occurred while the officer was serving an eviction notice, was not the first time relator had injured his back. Some of his prior back injuries occurred before relator became a peace officer, others occurred after he became a peace officer. The first injury occurred in December 1989 while relator was working as a civilian employee for Carver County. The second injury occurred in April 2000 after relator had become a peace officer, as he was getting into his squad car. The third injury, which eventually caused relator to end his career as a peace officer, occurred in December 2001 when relator slipped on icy stairs while serving an eviction notice.

In 2002, relator applied to the Public Employee Retirement Association (PERA) for a duty-related disability pension. PERA approved his application and awarded him the pension. After relator retired from his deputy-sheriff position in 2003, he began working for Carver County as a civilian employee. In this capacity, relator received, and continues to receive, employer-provided health benefits, in addition to the duty-related disability pension from PERA.

Relator also applied to the Public Safety Officers Benefit Eligibility Panel (the panel) for a determination that he was entitled to receive the continuation of health-insurance benefits under Minn.Stat. § 299A.465 (Supp.2005). After conducting a hearing, the panel agreed that relator was injured in the line of duty. Nevertheless, the panel unanimously voted to deny relator’s application after determining that his occupational duties or professional responsibilities did not put him at risk for the type of injury that he sustained. The panel based its decision on findings that (1) relator’s first injury occurred while he was employed as a civilian employee, not a law enforcement officer; (2) relator’s subsequent injuries occurred while he was employed either as a law enforcement officer or a civilian employee; and (3) relator is receiving a duty-related disability pension from PERA and is currently employed as a civilian employee with Carver County and currently receiving health-insurance benefits from Carver County. This certiorari appeal follows.

ISSUE

Did the Public Safety Officers Benefit Eligibility Panel err when it denied relator’s application for continued employer-provided health-insurance benefits by relying on factors that are not statutorily authorized or directly relevant to whether relator’s occupational duties or professional responsibilities put him at risk for the type of injury that he sustained?

ANALYSIS

Judicial review presumes the correctness of an agency decision. Gramke v. Cass County, 453 N.W.2d 22, 25 (Minn.1990). Courts will reverse or modify an agency decision if the agency’s findings and inferences are not supported by substantial evidence or its decision is arbitrary and capricious. Minn.Stat. § 14.69(e), (f) (2004); Markwardt v. State, Water Res. Bd., 254 N.W.2d 371, 374 (Minn.1977). An agency’s decision is not supported by substantial evidence if there is a “combination of danger signals which suggest the agency has not taken a hard look at the salient problems and the decision lacks articulated standards and reflective findings.” Cable Communications Bd. v. Nor-West Cable Communications P’ship, 356 N.W.2d 658, 668-69 (Minn.1984) (quotations omitted). An agency acts arbitrarily if it fails to articulate a rational connection between facts found and the decision made. In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 277 (Minn.2001). Appellate courts retain the authority to review de novo “errors of law which arise when an agency decision is based upon the meaning of words in a statute.” In re Denial of Eller Media Co.'s Applications for Outdoor Adver. Device Permits, 664 N.W.2d 1, 7 (Minn.2003).

Section 299A.465, subdivision 1, states that a peace officer’s employer will be required to provide continued health-insurance coverage to the officer and the officer’s dependents until the officer reaches the age of 65 when an officer

(a) suffers a disabling injury that: (1) results in the officer’s retirement ... or separation from service; (2) occurs while the officer ... is acting in the course and scope of duties as a peace officer ...; and (3) the officer has been approved to receive the officer’s duty-related disability pension.

Minn.Stat. § 299A.465, subd. l(a)-(c) (2004). In 2005, the legislature amended section 299A.465, by adding subdivision 6, which states that

[wjhenever a peace officer ... has been approved to receive a duty-related disability pension, the officer ... may apply to the panel[] ... for a determination of whether or not the officer ... meets the requirements in subdivision 1, paragraph (a), clause (2). In making this decision, the panel shall determine whether or not the officer’s ... occupational duties or professional responsibilities put the officer ... at risk for the type of ... injury actually sustained.

Minn.Stat. § 299A.465, subd. 6(a) (Supp.2005).

To determine if a statute has been properly applied, courts focus on the words of the statute to “ascertain and effectuate the intention of the legislature.” Minn.Stat. § 654.16 (2004); First Nat’l Bank of the N. v. Auto. Fin. Corp., 661 N.W.2d 668, 670 (Minn.App.2003). Where the meaning of statutory language is plain and free of ambiguity, “we apply that meaning as a manifestation of legislative intent.” First Nat’l Bank, 661 N.W.2d at 670. “Administrative interpretations are not entitled to deference when they contravene plain statutory language, or where there are compelling indications that the agency’s interpretation is wrong.” J.C. Penney Co. v. Comm’r of Econ. Sec., 353 N.W.2d 243, 246 (Minn.App.1984) (citation omitted). When statutory language is plain and unambiguous, changes or additions can only be made by the legislature. Id.

This court has never interpreted the relation between subdivisions 1(a) and 6 of section 299A.465. But the plain language of subdivisions 1(a) and 6 creates a two-part test for determining whether a former peace officer is entitled to continued employer-provided health-insurance benefits. First, the officer must be approved to receive a duty-related disability pension. Minn.Stat. § 299A.465, subds. 1(a), 6 (Supp.2005). If the officer satisfies this requirement, then the panel must determine whether the disabling injury occurred while the officer was acting within the course and scope of his or her duties as a peace officer. Id. In making this determination, the panel must decide whether the officer’s occupational duties or professional responsibilities put the officer at risk for the type of injury sustained. Minn.Stat. § 299A.465, subd. 6.

Here, it is undisputed that PERA granted relator a duty-related disability pension; the first prong of the test is therefore satisfied. The more difficult determination- — -and the crux of this appeal— is whether the second prong was satisfied. Even though the record reflects that the injury that forced relator to retire occurred while he was acting within the course and scope of his official duties, the panel concluded that the second prong of the test was not satisfied because relator’s occupational duties did not place him at risk for the type of injury he sustained. The panel based its decision on findings that (1) relator’s first injury occurred while he was employed as a civilian, not a law-enforcement officer; (2) relator’s subsequent injuries occurred while he was employed either as a law-enforcement officer or a civilian employee; and (3) Carver County was providing relator health-insurance benefits in his current capacity as a civilian employee. But the plain language of the statute does not authorize consideration of these factors; therefore, these factors do not support the panel’s conclusions under section 299A.465.

1. First injury occurred while relator employed as a civilian — preexisting condition

Section 299A.465 does not provide that a preexisting condition is a factor relevant to whether an injury occurred while an officer was acting within the course and scope of his or her duties as a peace officer. Under subdivision 6(a), the relevant inquiry is whether the officer’s occupational duties or professional responsibilities put the officer at risk for the type of injury sustained. Minn.Stat. § 299A.465. But the panel articulated no rationale for why— absent statutory authorization — the facts of this case warrant treating a preexisting condition as a relevant factor for disqualification.

2. Relator’s subsequent injuries occurred while he was employed either as a law-enforcement officer or as a civilian employee.

Relator testified that a combination of his preexisting condition and his current injury forced his retirement. But this is irrelevant to the limited inquiry the panel must make. Nowhere does the statute state that an officer’s occupational duties or professional responsibilities do not put an officer at risk for a disabling injury simply because the injury aggravates a condition that arose prior to the applicant becoming a peace officer. Moreover, we note that relator had been successfully performing the duties of a deputy sheriff for ten years prior to the December 2001 injury. Only after the December 2001 injury was relator determined to be physically unfit to continue as a peace officer.

3. Relator is employed as a civilian with Carver County and receiving health-insurance benefits.

The statute is silent on the issue of whether an officer, who in all other respects qualifies for continued health-insurance benefits, is disqualified merely because the officer is employed and currently receiving employer-provided health-insurance benefits. The panel may not usurp the legislature’s role and decide that, as a matter of policy, a certain class of disabled officers should be disqualified from benefits that the legislature intended all officers to receive for the risks they incur while guarding the peace and safety of the citizens of this state. Such a determination is for the legislature alone.

By relying on factors that are not directly relevant to whether relator’s occupational duties or professional responsibilities put him at risk for the type of injury sustained, the panel failed to determine whether relator suffered an injury while acting in the course and scope of his duties as a peace officer. Because the record clearly shows that relator’s disabling injury occurred while he was acting in the course and scope of his duties as a deputy sheriff, the panel’s decision was arbitrary and capricious and not supported by substantial evidence.

DECISION

The panel’s decision to deny relator’s application for continued employer-provided health benefits was arbitrary and capricious and not supported by substantial evidence.

Reversed.

      . The 2005 legislation also established the Public Officer's Benefit Eligibility Panel. Minn.Stat. § 299A.465, subds. 6, 7 (Supp.2005). The role of the panel is to determine whether the peace officer or firefighter seeking continuation of health insurance benefits suffered the disabling injury while acting in the course and scope of his or her official duties. Minn.Stat. § 299A.465, subd. 6. Subdivisions 6 and 7 of section 299A.465 expire on July 1, 2008.


author: LANSING, Judge.

text:
    STATE of Minnesota, Respondent, v. Stephron L. WASHINGTON, Appellant.
    No. A05-1071.
    Court of Appeals of Minnesota.
    Dec. 19, 2006.

      Mike Hatch, Attorney General, St. Paul, MN; and Jay M. Heffern, Minneapolis City Attorney, Deborah Styles-Brown, Assistant City Attorney, Minneapolis, MN, for respondent.
    Leonardo Castro, Chief Fourth District Public Defender, Barbara S. Isaacman, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by LANSING, Presiding Judge; KALITOWSKI, Judge; and DIETZEN, Judge.
   OPINION

LANSING, Judge.

Following a jury trial, Stephron Washington was convicted of two counts of fifth-degree domestic assault. Washington’s appeal focuses on three main issues. First, he argues that testimonial hearsay was admitted in violation of his Confrontation Clause rights. Second, he argues that the prosecutor committed prejudicial misconduct. Third, he argues that the district court erred by allowing the jury to have access to a 911 tape during deliberations. Washington also challenges four evidentia-ry rulings, the sufficiency of the evidence, and his sentence.

FACTS

At midnight, on April 12, 2005, an unidentified woman called 911 and asked to have police sent to her apartment. She told the 911 operator that she had been assaulted by her son’s father. Based on what the caller was saying and the sounds in the background, the 911 operator believed that the caller was being assaulted again during the call. The caller identified her assailant as Stephron Washington. Midway through the two-minute call, the caller said that Washington “ran out the back door.” She described Washington and the car he would likely be driving.

About five minutes after the 911 call, police arrived at the apartment building from which the calls were made and located the caller, LR. LR confirmed that she was the woman who had called 911. She appeared upset, and the officers asked if she was injured. She told them that Washington had bitten her arm and had hit her with a board. The board was a piece of the apartment’s doorframe that had been broken off and had a nail sticking out of it. Officers observed a bite mark on LR’s arm and a scratch from the nail. The officers believed they could recognize Washington from prior contacts, but they were unable to locate him. About a half-block from LR’s apartment, they found a Jeep Wagoneer that was registered to Washington.

Washington was detained on April 21, 2005. The next day LR recanted and denied that Washington had assaulted her. Although she maintained contact with the prosecutor’s office and called on the day of trial to say she was on her way to court to testify, she did not appear.

In a pretrial hearing, the district court concluded that LR’s statements in the 911 tape and during the onsite interview were nontestimonial. The district court noted that LR had just been assaulted during the 911 call and that police had not located Washington during the onsite interview. The district court therefore rejected Washington’s Confrontation Clause argument and permitted the state to introduce LR’s statements. The state also indicated that the police officers would testify that they had met Washington and could identify him. Washington did not object.

At trial, the state played the 911 tape and the officers testified to LR’s statements. A defense investigator testified that LR had denied that Washington assaulted her. Washington testified in his own defense and acknowledged being at the apartment on April 12, 2005, but denied assaulting LR. The state introduced Washington’s prior convictions for impeachment purposes.

A jury found Washington guilty of two counts of domestic assault and found him not guilty of fourth-degree criminal damage to property. Washington received concurrent sentences of ninety days in the workhouse with sixty-one days stayed for one year and jail credit of twenty-nine days.

ISSUES

I. Were LR’s statements to the 911 operator and the police officers made under circumstances objectively indicating that the primary purpose was to enable police to meet an ongoing emergency?

II. Did the prosecutor engage in prejudicial prosecutorial misconduct?

III. Was the 911 recording improperly allowed in the jury room?

IV. Did the district court abuse its discretion in its evidentiary rulings?

V. Was the evidence sufficient to permit the jury to find Washington guilty of domestic assault?

VI. Did the district court properly sentence Washington?

ANALYSIS

I

Under the state and federal constitutions, a criminal defendant has “the right to be confronted with the witnesses

against him.” U.S. Const. amend. VI; Minn. Const. art. I, § 6. The Confrontation Clause covers not just witnesses who testify at trial but also the admission of hearsay statements that are testimonial in nature. Crawford v. Washington, 541 U.S. 36, 50-51, 124 S.Ct. 1354, 1364, 158 L.Ed.2d 177 (2004). Testimonial statements of witnesses absent from trial are inadmissible unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine. Id. at 68, 124 S.Ct. at 1374; State v. Wright, 701 N.W.2d 802, 809 (Minn.2005), vacated, — U.S. —, 126 S.Ct. 2979, 165 L.Ed.2d 985 (2006).

Neither the United States nor the Minnesota Supreme Court has comprehensively defined “testimonial.” The “critical determinative factor in assessing whether a statement is testimonial is whether it was prepared for litigation.” State v. Caulfield, 722 N.W.2d 304, 309 (Minn.2006). But statements are nontesti-monial “when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” Davis v. Washington, — U.S. —, —, 126 S.Ct. 2266, 2273, 165 L.Ed.2d 224 (2006). Statements made to enable police to meet an ongoing emergency “need not be limited to the complainant’s predicament or the location where she is questioned by police.” State v. Warsame, 723 N.W.2d 637, 641 (Minn.App.2006). If statements include both testimonial and nontestimonial material, only the testimonial material must be excluded. Davis, 126 S.Ct. at 2277.

In Davis, the U.S. Supreme Court considered the admissibility of hearsay evidence of police interviews in two separate cases: a 911 call and an onsite interview of a 911 caller. 126 S.Ct. at 2277-78. The Court concluded that, in the 911-call case, the caller was requesting help against a genuine physical threat and that the 911 operator requested information that was necessary for the police to resolve the emergency. Id. at 2276. Consequently, the Court determined that the exchange between the caller and the 911 operator was nontestimonial. Id. at 2277. In the onsite-interview case, the interview occurred at some time after the reported events, and centered on the victim’s deliberate recounting of how the events began and progressed. Id. at 2278. During the questioning the police kept the alleged assailant in another room. Id. At the conclusion of the interview, the police had the complainant fill out and sign a “battery affidavit.” Id. at 2279. The Court reasoned that the primary purpose of the onsite interview, unlike the 911 call, was “to establish or prove past events potentially relevant to later criminal prosecution.” Id. at 2274. The Court therefore held that the onsite interview was testimonial. Id. at 2278.

Washington’s Confrontation Clause challenge in this case similarly involves a 911 recording and an onsite interview. Applying the Davis standard, we conclude that statements admitted from LR’s 911 call and the onsite interview were nontesti-monial.

Under the Davis standard, Washington’s challenge to the transcript of the 911 call is easily resolved because the statements were made under circumstances that are nearly identical to the circumstances of Davis. The caller reports that her “son’s dad just jumped on me in the hallway” and the record suggests that she was assaulted a second time during the call itself. The operator obtained a description of the assault and of the assailant. Although the operator requested more detail about that assailant than was requested in Davis, the questions sought and obtained descriptive information necessary for the police to identify the suspect and resolve the ongoing emergency. Therefore, as in Davis, the 911 conversation was made under circumstances objectively indicating that the primary purpose of the interrogation was to enable police to meet an ongoing emergency, and the 911 recording was nontestimonial.

Washington’s challenge to the admissibility of statements obtained from the onsite interview is less easily resolved because the factual circumstances of the on-site interview in this case do not parallel the factual circumstances of Davis. The officers testified that when they arrived at the apartment they saw that the door-frame was broken and pieces of it were on the floor inside the apartment. LR identified herself as the person who had called 911 and told them that Washington had kicked in the door, struck her with part of the broken doorframe, and had bitten her. The officers asked questions to determine the extent of her injuries and then asked questions about the vehicle that Washington would likely be driving if he had left the area. LR told them that she did not need an ambulance and that she did not want to be transported to a shelter facility, but she requested that officers watch her when she left the apartment to make sure that she was not assaulted again.

While waiting for LR to get her things together to leave the apartment, the officers checked the immediate area around the apartments to make sure that Washington was not there and then checked the surrounding streets for white vehicles the size of a Jeep Cherokee. They found an unoccupied white Jeep Wagoneer that was registered to Washington within one block of the apartment.

The limited statements to which the police testified at trial centered on observing the damage to LR’s doorframe, evaluating the extent of LR’s injuries, obtaining information that could help determine Washington’s whereabouts, and providing for LR’s safety. Unlike the circumstances of the onsite interview in Davis, the assailant was still at large and posed an ongoing threat. Davis recognizes that, in domestic assaults, officers who are called to investigate need to obtain information to assess the situation, ensure their own safety, and evaluate the possible danger to the complainant. Id. at 2279. These “exigencies may often mean that ‘initial inquiries’ produce nontestimonial statements.” Id. LR’s statements from the onsite interview that were admitted into evidence conveyed information that allowed the officers to reasonably respond to the emergent situation. The circumstances objectively indicate that the primary purpose of the interrogation was not to establish or prove past events potentially relevant to later criminal prosecution, but to enable police assistance to meet an ongoing emergency. Hence, the statements were nontestimonial and were properly admitted.

For these reasons we conclude that, under the Davis analysis, the victim’s statements in both the 911 call and the onsite interview were nontestimonial. We can find no basis for concluding that the Minnesota Constitution provides any additional protection. We therefore conclude that Washington was not denied his right to confront the witnesses against him.

II

The overarching problem presented by prosecutorial misconduct is that it may deny the defendant’s right to a fair trial. State v. Ramey, 721 N.W.2d 294, 300 (Minn.2006). We will reverse a conviction if prosecutorial error, considered in light of the whole trial, impaired the defendant’s right to a fair trial. State v. Swanson, 707 N.W.2d 645, 658 (Minn.2006).

If the defendant objects to the prosecutorial misconduct, a new trial will be granted unless the misconduct was harmless beyond a reasonable doubt. State v. Mayhorn, 720 N.W.2d 776, 785 (Minn.2006). Prosecutorial misconduct is harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error. Id.

If the defendant failed to object to the prosecutorial misconduct, a new trial will be granted only if the misconduct was plain error. Ramey, 721 N.W.2d at 299. The plain-error doctrine has three components: (1) error, (2) that is plain, and (3) that affects substantial rights. Id. at 298. An error is plain if it is clear or obvious under current law. Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997). An error would be clear or obvious if it contravenes caselaw, a rule, or a standard of conduct. Ramey, 721 N.W.2d at 302. A prosecutor’s misconduct affects substantial rights if there is a reasonable likelihood that it would have had a significant effect on the verdict of the jury. Id. The state bears the burden of showing that error does not affect substantial rights. Id. The state must therefore show that there was no reasonable likelihood that the misconduct would have had a significant effect on the verdict.

If the defendant establishes that the prosecutor’s actions constitute plain error, and the state is unable to meet the burden of showing that there is no reasonable likelihood of a significant effect, the appellate courts then assess whether the error should be addressed to “ensure fairness and the integrity of the judicial proceedings.” Id; Mayhorn, 720 N.W.2d at 785.

In his brief, Washington alleges a wide range of prosecutorial misconduct, primarily in closing argument. We have carefully reviewed the record as it relates to these allegations, and we conclude that Washington has failed to identify any prosecutorial misconduct.

Caselaw establishes that it is error for a prosecutor to disparage the defense or the defendant. State v. Bailey, 677 N.W.2d 380, 403 (Minn.2004); State v. Griese, 565 N.W.2d 419, 427 (Minn.1997). It is also error for the prosecutor to give his or her own opinion about the credibility of a witness. Mayhom, 720 N.W.2d at 791.

Washington contends that he was denied a fair trial by the prosecutor’s plain error of calling him a liar in closing argument when referring to his prior conviction for providing false information to a police officer.

We recognize that, in some cases, it is misconduct to suggest that the witness was lying because it injects into the trial the prosecutor’s own opinion on the credibility of a witness. In Mayhom, the prosecutor suggested that a witness was lying and also stated that Mayhorn “admits that he is a habitual liar.” Id at 788-89. The Minnesota Supreme Court concluded that it was prosecutorial misconduct to provide a personal assessment of the witness’s credibility. Id at 791. But we do not interpret that holding to apply in all circumstances in which a prosecutor suggests that a witness or a defendant is a liar.

In this case, unlike in Mayhorn, Washington’s prior conviction for providing false information had been admitted for impeachment purposes. The prosecutor’s statement therefore had a clear basis in the record. In arguing credibility, the prosecutor could properly point out to the jury that a person who has lied in the past is more likely to lie again. Under these circumstances, the prosecutor did not commit misconduct.

A prosecutor may also commit misconduct by giving personal assessments of the evidence. State v. Porter, 526 N.W.2d 359, 364 (Minn.1995). In some cases, the use of the first-person pronoun “I” during closing arguments can improperly interject personal opinion into an argument. Ture v. State, 681 N.W.2d 9, 20 (Minn.2004). In this case, however, the prosecutor’s use of the first-person statements did not interject personal opinion. Although the prosecutor’s closing argument contains a number of first-person statements, these statements are not directed to an evaluation of the validity of the evidence. The use of the first-person statements is more attributable to an awkward construction than to an attempt to gain unfair advantage or improperly use the weight of public office.

A prosecutor may not speculate about events that occurred either at the time of the alleged crime or thereafter, absent a factual basis in the record. State v. Bradford 618 N.W.2d 782, 799 (Minn.2000). In closing argument, the prosecu tor acknowledged that there was no evidence that LR’s account of the events changed because of Washington’s actions. Although the prosecutor may have suggested that Washington’s conversations with LR affected her recantation, this was a legitimate inference from the evidence that LR’s account of the events changed after Washington talked to her. The prosecutor may comment on reasonable inferences that can be drawn from the record. State v. Ashby, 567 N.W.2d 21, 28 (Minn.1997).

In addition, we note that Washington’s defense was that LR did not testify because her initial statements to the police were false. A prosecutor can properly anticipate the defense’s theory of the case and point out that the defense’s theory cannot explain certain facts. State v. Whittaker, 568 N.W.2d 440, 451 (Minn.1997). By emphasizing that Washington had talked to LR since the incident, the prosecutor properly responded to, and pointed out, weaknesses in the defense’s theory.

Washington points to three statements by the prosecutor that he claims mischaracterize the evidence or make arguments unsupported by the record. In fact, each of these statements has clear support in the record. First, the prosecutor said, “[Y]ou’ve heard it from this defendant. So no one is disputing that something occurred on this date.” This statement was properly based on Washington’s testimony that he went to LR’s apartment on April 11. Second, the prosecutor said LR was “crying, upset while the officers were there talking with her.” This statement is supported by the police testimony that “she was upset, she was crying.” Third, the prosecutor asked, “Didn’t he admit today that he had spoken to her several times since April 12th?” This statement is supported by Washington’s response when the prosecutor asked if he had communicated with LR more than once since April 12. Washington answered that he had.

Washington argues that it was misconduct for the prosecutor to replay the 911 tape during closing arguments. He provides essentially no argument why this was misconduct. Instead, he cites two cases, not involving prosecutorial misconduct, in which tapes were replayed during jury deliberations. The argument replicates his objection to the jury having access to the tapes in the jury room, which we address in the next section of this opinion.

Washington does not point to any particular incidents in which the prosecutor injected emotion into the case. Instead, he simply states, “As the excerpts from her closing clearly demonstrate, the prosecutor encouraged sympathy for LR in multiple ways.” In fact, we can find no evidence that the prosecutor encouraged sympathy for LR in any improper way.

Washington also argues that the prosecutor committed misconduct by improperly indoctrinating the jury during voir dire. Washington made a number of objections to the prosecutor’s questions and made a motion for a mistrial based on the questions. Although Washington objects to a long list of the prosecutor’s questions, we can find no evidence of error. The prosecutor’s questions were uniformly directed at the legitimate purpose of identifying bias. She could legitimately ask questions about how jurors would view a victim’s refusal to testify. See Minn. R.Crim. P. 26.02, subd. 4(1) (providing that “voir dire examination shall be conducted for the purpose of discovering bases for challenge for cause and for the purpose of gaining knowledge to enable an informed exercise of peremptory challenges”). We therefore conclude that the record reflects no error in voir dire.

Washington’s final misconduct argument is that the district court erred by not making a verbatim record of the jury voir dire. Under Minn. R.Crim. P. 26.02, subd. 4(1), a “verbatim record of the voir dire examination shall be made at the request of either party.” There is no evidence that a record was requested before voir dire began. Hence, the district court did not err by not providing for a verbatim record of the voir dire.

Under Mayhom and Ramey, the defendant must still demonstrate prosecutorial misconduct by establishing error that is obvious under current law. Washington has failed to meet this threshold in any of his allegations. We therefore conclude that Washington was not denied his right to a fair trial by prosecutorial misconduct and that a new trial is not required.

Ill

Under Minn. R.Crim. P. 26.03, subd. 19(1), the district court “shall permit the jury, upon retiring for deliberation, to take to the jury room exhibits which have been received in evidence, or copies thereof, except depositions and may permit a copy of the instructions to be taken to the jury room.” Despite the “shall” language, district courts must exercise caution and discretion when deciding whether an exhibit can be brought into the jury room. State v. Kraushaar, 470 N.W.2d 509, 515 (Minn.1991). Washington argues that the jury should not have been permitted access to the tape in the jury room because (1) the tape was a deposition, (2) having the tape in the jury room denied Washington effective assistance of counsel, and (3) having the tape in the jury room was unduly prejudicial. We disagree.

First, the tape was not a deposition under Minn. R.Crim. P. 26.03, subd. 19(1). A “deposition” under the rule is either a deposition taken to preserve testimony or a comparable document. Id. In this case, the primary purpose of the 911 call was to obtain police assistance, not to preserve testimony. And the 911 call was obviously not a planned statement in the manner of a deposition. Therefore, the 911 recording is insufficiently akin to a deposition to be barred by rule 26.03.

Second, having the tape in the jury room did not deny Washington effective assistance of counsel. If a court brings the jury into the courtroom and replays a recording, the defendant may have a right to be present and a right to effective assistance of counsel. United States v. Felix-Rodriguez, 22 F.3d 964, 967 (9th Cir.1994); United States v. Kupau, 781 F.2d 740, 743 (9th Cir.1986). The jury was not brought into the courtroom, and the defendant does not have a right to be present during the actual jury deliberations.

Third, permitting the jury to review the tape was not unduly prejudicial. In some cases, it might be unduly prejudicial to permit a jury to review a tape on its own because it could result in an improper focus on one aspect of the evidence. See, e.g., United States v. Binder, 769 F.2d 595, 600-01 (9th Cir.1985); Kraushaar, 470 N.W.2d at 517 (Tomljanovich, J., dissenting). But allowing a tape in the jury room will not result in undue prejudice in every case. See Binder, 769 F.2d at 600 (analysis depends on “facts and circumstances of the case”).

The 911 recording in this case was made shortly after the first assault, and the tape apparently recorded a second assault in progress. The recording was therefore highly probative of whether LR was actually assaulted. On this record we cannot conclude that the jury’s access to the tape resulted in undue prejudice or that the district court abused its discretion by allowing the jury to have access to the tape during their deliberations.

IV

Evidentiary rulings rest within the sound discretion of the district court. State v. Moua, 678 N.W.2d 29, 37 (Minn.2004). We will not reverse a district court’s evidentiary ruling unless it is a clear abuse of discretion resulting in prejudice. Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn.1994).

Washington raises four challenges to the district court’s evidentiary rulings. We conclude, however, that the district court did not abuse its discretion.

First, there was adequate foundation to admit the 911 tape. Under Minn. R. Evid 901(a), the “requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”

The state claimed that the tape was a recording of LR speaking. The police arrived at the apartment within five minutes of the 911 call. They spoke to LR and she acknowledged calling 911. She described the same assault. This was sufficient evidence to find that the 911 caller was LR. There was thus adequate foundation for the 911 tape.

Second, we disagree that the 911 operator provided improper opinion testimony that requires a new trial. The 911 operator testified that she believed the caller was being assaulted and also testified to her understanding of the recording. The 911 operator’s testimony was “rationally based” on her perceptions and was helpful to the jury. Therefore, her opinions were admissible under Minn. R. Evid. 701. In addition, we note that Washington failed to object to this testimony. The failure to object generally constitutes waiver of an evidentiary issue on appeal. State v. Vick, 632 N.W.2d 676, 684 (Minn.2001).

Third, we reject Washington’s argument that the officers’ references to having previously met him were irrelevant and unfairly prejudicial. The state had to prove that the defendant was the person who committed the crime. The officers’ familiarity with Washington was relevant because it allowed them to identify the defendant as the person who LR reported was at the apartment. Because LR did not testify, the officers were the witnesses who identified Washington. At the pretrial hearing, Washington was informed about this testimony and he did not object. The district court therefore did not abuse its discretion by permitting the testimony.

Washington’s fourth evidentiary challenge is to the state’s use, for impeachment purposes, of his prior convictions for receiving stolen property and providing false information to police. Because Washington did not object and has not demonstrated plain error, he has failed to preserve this issue for appeal. Vick, 632 N.W.2d at 684. In addition, we note that the convictions were first introduced by Washington’s attorney. The state thus had a right to respond, and the prosecutor could ask about the convictions. State v. Gutierrez, 667 N.W.2d 426, 435-36 (Minn.2003). We therefore can find no abuse of discretion.

V

In considering a claim of insufficient evidence, this court reviews the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the jurors to reach the verdict which they did. State v. Fields, 679 N.W.2d 341, 348 (Minn.2004). The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Taylor, 650 N.W.2d 190, 206 (Minn.2002).

Washington argues that there was insufficient evidence to convict him because LR changed her story. Although LR initially stated that she had been assaulted, she later denied being assaulted and she refused to testify. A reasonable jury, however, could conclude that LR was telling the truth at first and was not telling the truth later. Therefore, based on LR’s initial statements and strong circumstantial evidence that supported the initial statements, the evidence was sufficient to convict Washington.

VI

Washington argues that “because both convictions were based on the same behavior ... the sentences should have merged into one conviction.” Washington’s contention may have some merit, but his brief provides neither argument nor authority for his position. The issue is therefore waived. See State v. Krosch, 642 N.W.2d 713, 719 (Minn.2002) (finding waiver of issues not supported by argument or authority).

Washington’s argument about jail credit is similarly waived. The record contains no information on the jail credit that Washington should receive. If Washington’s jail-credit issue cannot be resolved administratively through the jail, he may file a motion to correct his sentence under Minn. R.Crim. P. 27.03, subd. 9. See State v. Stutelberg, 435 N.W.2d 632, 634 (Minn.App.1989) (permitting sentencing challenges under rule 27.03 despite previous, unsuccessful challenges).

DECISION

Washington was not denied his right to confront witnesses against him when the district court admitted LR’s statements into evidence. In addition, we conclude that Washington has failed to provide threshold evidence of plain error in the form of prosecutorial misconduct, the 911 recording was properly allowed in the jury room, the district court did not abuse its discretion when making evidentiary rulings, there was sufficient evidence to convict Washington, and Washington’s sentencing arguments are waived.

Affirmed.


author: KALITOWSKI, Judge.

text:
    Gary J. MILNER, et al., Respondents, v. FARMERS INSURANCE EXCHANGE, Appellant.
    No. A06-178.
    Court of Appeals of Minnesota.
    Dec. 26, 2006.

      Barry G. Reed, Timothy J. Becker, Anne Regan, Zimmerman Reed, PLLP, Minneapolis, MN, for respondents.
    Lewis A. Remele, Jr., Charles E. Lund-berg, Frederick E. Finch, Bassford Re-mele, Minneapolis, MN, for appellant.
    Considered and decided by KALITOWSKI, Presiding Judge; DIETZEN, Judge; and HUSPENI, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

   OPINION

KALITOWSKI, Judge.

Appellant Farmers Insurance Exchange challenges the district court’s denial of its posttrial motions claiming the district court (1) erred by not dismissing this case on the ground of res judicata; (2) exceeded its statutory authority by granting injunc-tive relief and awarding civil penalties to respondents; and (3) abused its discretion in its award of attorney fees to respondents.

FACTS

Respondents brought a multi-count class action suit against appellant alleging that appellant failed to pay them and a class of similarly situated employees overtime compensation pursuant to the Minnesota Fair Labor Standards Act (MFLSA). At the same time, a group of similarly situated employees was engaged in federal mul-ti-district litigation in Oregon against appellant based on alleged violations of both the federal Fair Labor Standards Act (FLSA) and the MFLSA.

Respondents here are Minnesota claims representatives employed by appellant who allege that they were incorrectly labeled as exempt from the MFLSA and therefore were entitled to back pay for overtime hours worked. Plaintiffs in the federal case are claims representatives from several states, including Minnesota, who were employed by appellant, who also claim they were incorrectly labeled as exempt from both the FLSA and state laws and therefore are due back pay for overtime hours worked. The two cases, which proceeded more or less concurrently and independently to judgment, had membership that largely overlapped. The federal plaintiff group has approximately 229 members and the state court class has 194 members. Of the 194, only 25 members were not members of both the federal plaintiff group and the state plaintiff group. The Minnesota district court specifically determined that the decision on appeal here applies only to these 25 Minnesota plaintiffs.

At trial the jury found that respondents, the 25 people to whom the district court’s order applies, did not prove the dollar value of unpaid hours worked. But the jury also found that appellant had violated the MFLSA by misclassifying respondents. Following the jury verdict, the district court issued an order permanently enjoining appellant from misclassifying its claims representatives and imposing a civil penalty to be paid to the 25 class members. The district court further decided that respondents had prevailed at trial and therefore awarded them attorney fees.

ISSUES

1. Did the district court err by not dismissing the case on grounds of res judi-cata?

2. Did the district court exceed its statutory authority by ordering injunctive relief and payment of civil penalties to respondents?

3. Did the district court abuse its discretion in its award of attorney fees to respondents?

ANALYSIS

I.

Appellate courts review application of res judicata de novo. Hauschildt v. Beckingham, 686 N.W.2d 829, 840 (Minn.2004). Under Minnesota law:

Res judicata applies as an absolute bar to a subsequent claim when (1) the earlier claim involved the same set of factual circumstances; (2) the earlier claim involved the same parties or their privies; (3) there was a final judgment on the merits; (4) the estopped party had a full and fair opportunity to litigate the matter.

Id. All four factors must be satisfied for res judicata to apply. Id. “Res judicata not only applies to all claims actually litigated, but to all claims that could have been litigated in the earlier action.” Id. “The common test for determining whether a former judgment is a bar to a subsequent action is to inquire whether the same evidence will sustain both actions.” Id. (quotation omitted).

Appellant argues that the district court erred by refusing to apply res judi-cata. It argues that because a judgment was issued in the federal court action before a judgment was issued in the state court action, the federal court disposition controls and precludes plaintiffs from further pursuit of the state court claim. We disagree.

Appellant does not dispute that, although the federal plaintiff group and the state class shared some members in common, not every member of the federal plaintiff group was also a member of the state class. But appellant contends that, because all state class members are in privity with each other and some state class members were in privity with the federal plaintiff group, all state class members, even those who are not members of the federal plaintiff group, are nonetheless in privity with the federal plaintiff group. We disagree.

“Privity requires a person so identified in interest with another that he represents the same legal right.” Beutz v. AO. Smith Harvestore Prods., Inc., 431 N.W.2d 528, 533 (Minn.1988). Here, the federal group did not represent the full interests of the state class members who had opted out of the federal litigation. The federal plaintiffs were seeking, in part, individual damages. And without being a party to the federal action, state class members could not, and did not, offer proof of their damages in federal court. We thus conclude that, because the federal plaintiff group did not represent the 25 state class members’ interests, the parties are not in privity and application of res judicata is inappropriate.

The parties disagree as to whether Oregon or Minnesota law controls. But we note that both states’ caselaw requires that the same parties or parties in privity must appear in both cases in order for res judi-cata to apply. Hauschildt, 686 N.W.2d at 840; Nelson v. Emerald People’s Util. Dist., 318 Or. 99, 862 P.2d 1293, 1297 (1993). Because we conclude that the plaintiffs in the federal case are not the same parties nor parties in privity with the plaintiffs/respondents in this case, we need not reach the issue of which law to apply. Under either law, this challenge fails.

II.

Appellant argues that the district court lacked statutory authority to impose injunctive relief and civil penalties under the MFLSA. We disagree.

Appellate courts review questions of statutory interpretation de novo. Meyer v. Best W. Seville Plaza Hotel, 562 N.W.2d 690, 692 (Minn.App.1997), review denied (Minn. June 26, 1997). “When interpreting a statute, [appellate courts] first look to see whether the statute’s language, on its face, is clear or ambiguous. A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000) (quotation omitted).

Appellant claims the district court erred in relying on Minn.Stat. § 177.27, subd. 8, as authority for its grant of injunctive relief and award of civil penalties. We disagree. Minn.Stat. § 177.27, subd. 8, applies when, as here, employees directly bring a civil action against the employer in district court. After specifying the remedies available under subdivision 8, subdivision 8 further states: “In addition, in an action under this subdivision the employee may seek damages and other appropriate relief provided by subdivision 7 and otherwise provided by law.” Minn.Stat. § 177.27, subd. 7, addresses the penalties the Commissioner of the Department of Labor may impose on an employer that has violated MFLSA. Included in the Commissioner’s authority is the power to issue a “cease and desist order” and to award “a civil penalty of up to $1,000 for each violation for each employee.” Minn.Stat. § 177.27, subd. 7.

Here, the district court correctly interpreted the legislature’s specific authorization in subdivision 8 for plaintiffs in a civil action to seek “other appropriate relief provided by subdivision 7,” as authority for the court to award both damages to the employees under subdivision 8, and an injunction and civil penalties under subdivision 7.

By its plain language, subdivision 8 exists in the statute to grant rights to employees to seek remedies in civil actions. And the plain meaning of the “in addition” language grants employees the opportunity to seek more remedies than those already enumerated in subdivision 8. The language is not limiting, but rather it is granting. We thus conclude that in order to give effect to the legislative language, the “in addition” language unambiguously permits a civil plaintiff to seek injunctive relief and civil penalties as well as damages.

Moreover, even if the language in subdivision 8 is ambiguous, the legislative history of this section supports our holding. See Minn.Stat. § 645.16 (2004) (providing that when words of a law are not explicit, legislative intent may be determined by a number of factors, including “the contemporaneous legislative history”).

The bill to amend the MFLSA, House File 2841, was first introduced in the House on January 29, 1996, by Representative Leighton. The bill then traveled through the Labor-Management Relations and Judiciary committees before being introduced in the Senate on March 11, 1996. In the House Judiciary Committee meeting on February 9, 1996, an assistant attorney general with the Minnesota Attorney General’s office spoke in support of the bill, saying that the subdivision 7 language “would allow for injunctive relief and it would allow for the imposition of a civil penalty where there has been a willful or repeated violation[ ].” She further stated that “[t]he goal of this is to, one, make the provision for civil cause of action parallel with the remedies provided for the commissioner, and also to make the employee whole in respect to compensatory damages.”

In the Labor-Management Relations Committee meeting held on February 5, 1996, a representative of the state attorney general’s office spoke in support of the bill. He stated that “there is a lot of emphasis throughout this legislation on the private cause of action to allow employees to empower employees to essentially take care of their own problems.” He further stated that “the private civil remedies are the same as the commissioner’s remedies.”

The bill returned from the Senate with a minor modification and was re-passed by the House on March 21, 1996. Although the bill was modified during the legislative process, the relevant provisions were not. Thus, the contemporaneous legislative history supports our interpretation of the plain language of the statute. Because the district court’s order granting injunctive relief and civil penalties is consistent with our reading of the statute, the court did not err.

Appellant argues that an injunction is inappropriate because the district court did not address whether respondent’s remedy at law is adequate and whether the injunction is necessary to prevent “great and irreparable injury.” Cheme Indus., Inc. v. Grounds & Assocs., Inc., 278 N.W.2d 81, 92 (Minn.1979). Here, the legislative history instructs us that the legislature intended that the district court’s powers mirror those of the Commissioner. Subdivision 7 requires that the Commissioner issue a case and desist order if the employer has violated the MFLSA. Minn. Stat. § 177.27, subd. 7. The Commissioner need not determine that the employee’s remedy at law is inadequate nor that the cease and desist order is necessary to prevent great and irreparable harm. Because here the district court is granted the same powers as the Commissioner, we conclude that the court may issue an injunction, the equivalent of a cease and desist order, without making the generally required findings.

Appellant further argues that even if the district court was entitled to assess civil penalties, the district court erred in determining that the civil penalties should be paid directly to individual plaintiff class members. We agree.

By definition, a civil penalty is “a fíne assessed for a violation of a statute or regulation.” Black’s Law Dictionary 1154 (7th ed. 1999). Furthermore, “[penalties ... are not recoverable or retainable as such by the person in whose favor they are framed.... ” Id. (quotation omitted); see also Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340,118 S.Ct. 1279, 140 L.Ed.2d 438 (1998) (presuming civil penalties are payable to the government, even where the statute is silent).

Here, Minn.Stat. § 177.27, subd. 7, is the source of the district court’s authority to award civil penalties in a subdivision 8 action as discussed above. Although subdivision 7 does not specify to whom civil penalties should be paid, the parties do not dispute that in a subdivision 7 proceeding any civil penalties would be paid to the state. Nothing in subdivision 8 suggests that the legislature intended something different for a subdivision 8 award of civil penalties.

Speaking in support of the bill before the House Committee on Labor-Management Relations meeting of February 5, 1996, a deputy counsel with the state attorney general’s office stated:

This legislation is primarily an effort to conform the enforcement and remedy provisions in our state wage and hour law to the enforcement and remedies provisions that exist for all of our other employment laws. There is nothing new here it’s simply an attempt to take the minimum wage and overtime laws and put them on the same plane as the other laws that govern the employment relationship in Minnesota.

Hearing on H.F. No. 2841 Before the House Comm, on Labor-Management Relations (Feb. 5, 1996) (statement of Mr. Strand).

Two statutes that govern the employment relationship in Minnesota in 1996 are the federal FLSA, 29 U.S.C. §§ 201-19 (1994), and the Minnesota Human Rights Act, Minn.Stat. §§ 363.01-.20 (1994). The FLSA states that “[cjivil penalties collected for violations ... shall be deposited in the general fund of the Treasury.” 29 U.S.C. § 216(e) (regarding child labor). The Minnesota Human Rights Act states that a respondent found to be in violation of the Act shall be made “to pay a civil penalty to the state. This penalty is in addition to compensatory and punitive damages to be paid to an aggrieved party.” Minn.Stat. § 363.071, subd. 2 (1994). In order to bring the MFLSA’s civil penalties provision into conformity with these other statutes, the civil penalties must be paid to the state rather than to the individual plaintiffs.

We conclude that the civil penalties collected pursuant to both subdivision 7 and subdivision 8 are payable to the state and not to individual litigants. We therefore modify the district court’s award of civil penalties by making them payable to the State of Minnesota, just as they would be if assessed by the Commissioner.

III.

“[T]he district court retains discretion to determine which party, if any, qualifies as a prevailing party” when considering a request for costs incurred. Benigni v. County of St. Louis, 585 N.W.2d 51, 54-55 (Minn.1998). We reject appellant’s argument that the district court erred in determining that respondents were the prevailing party. Although respondents did not prove the dollar value of unpaid hours worked, the jury found that appellant had violated MFLSA by misclas-sifying its employees. We thus conclude that it was within the district court’s discretion to determine that, having proven a statutory violation, respondents were the prevailing party.

We review an award of attorney fees and costs for abuse of discretion. Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn.1987). Here, the district court followed the lodestar-multiplier method for determining appropriate attorney fees. The lodestar method is appropriate in cases that secure a public or common benefit although damages may be small, where injunctive relief is sought, or where a fee-shifting statute applies. Johnston v. Comerica Mortgage Corp., 83 F.3d 241, 245 (8th Cir.1996). The lodestar attorney fees value is calculated by multiplying the reasonable hourly rate by the reasonable number of hours expended. Ray v. Miller Meester Adver., Inc., 664 N.W.2d 355, 371 (Minn.App.2003), aff'd, 684 N.W.2d 404 (Minn.2004). A multiplier can then be used to reflect the uniqueness of the case. See In re Xcel Energy, Inc., 364 F.Supp.2d 980, 999 (D.Minn.2005) (using lodestar cross check of a percent-of-benefit award).

Appellant argues that because the individual respondents failed to receive a damages award, the district court erred in determining the number of hours for which respondents’ attorneys were entitled to be paid by appellant. We disagree.

“[T]he reasonable value of attorneys’ fees is a question of fact, and the findings of the trial court must be upheld by a reviewing court unless clearly erroneous.” Amerman v. Lakeland Dev. Corp., 295 Minn. 536, 537, 203 N.W.2d 400, 400-01 (1973). Here, respondents’ attorney submitted voluminous documentation and the district court made particularized findings regarding what attorneys in what firms were entitled to fees, the amount of time to reimburse, and the reasonable hourly fee to assess. State by Head v. Paulson, 290 Minn. 371, 373, 188 N.W.2d 424, 426 (Minn. 1971) (providing factors a court should consider when awarding attorney fees).

Appellant argues that under Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), the district court should reduce an attorney fee award for unsuccessful claims that are unrelated to the successful claims. See Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619, 628 (Minn.1988) (adopting Hensley). Here, the record indicates that the district court extensively reviewed the attorney fees and costs requests. The court listed several factors that contributed to its decision that the hours worked were reasonable, including the current and future benefit to the plaintiff class and the duration and complexity of the litigation. Id. at 630 (“[W]hen the reasonableness of the ‘hours expended’ component of the fee claim is challenged, the trial court should scrutinize it, and either make findings or otherwise concisely explain why it felt the hours claimed are reasonable or unreasonable.”). The court determined that the requested attorney fee lodestar value should be reduced by 10%.

Although the district court did not specify the reason for the 10% reduction, we note that in this complex case the issue of damages was not unrelated to the other issues in this case. We further note that much of the case’s complexity is the result of zealous advocacy and the record reflects the copious efforts expended by both parties on pre- and post-trial matters. Thus, on this record, we cannot say that the district court clearly erred by awarding 90% of the requested lodestar attorney fees value.

Appellant also challenges the district court’s decision to apply a 1.5 multiplier to the lodestar attorney fee value to further reward respondents’ counsel for its exceptional success in this litigation. In support of this decision, the district court cited the current and future benefit to the plaintiff class, the duration and complexity of the litigation, and the attorneys’ pursuit of socially beneficial litigation.

Appellant argues that, compared to the results achieved at trial in the federal case, which included a substantial damage award for individual plaintiffs, the results in the state case were not exceptionally successful and therefore no multiplier is warranted. We agree.

Although Hensley and Anderson allow a multiplier to be applied to the lodestar attorney fee figure, applicability should be determined on a case-by-case basis. In deciding whether to apply a multiplier, “the most critical factor is the degree of success obtained.” Hensley, 461 U.S. at 436, 103 S.Ct. at 1941. “[I]n some cases of exceptional success an enhanced award may be justified.” Id. at 435, 103 S.Ct. at 1940. Here, the district court did not address the fact that the respondents pleaded $16 million in damages and the jury awarded $0. While respondents were successful in obtaining an injunction and civil damages, the record does not support a conclusion that this represents extraordinary success that warrants a multiplier, particularly in light of the fact that at trial the federal plaintiffs group received a damage award of $3.9 million. See generally In re Farmers Ins. Exch. Claims Representatives’ Overtime Pay Litigation, 336 F.Supp.2d 1077 (D.Or.2004), rev’d on other grounds, 466 F.3d 853 (9th Cir.2006).

We agree with the district court that this case was complex. But that complexity is reflected in the lodestar value, which includes the hours spent working on this case. We thus conclude that on this record the district court abused its discretion in applying a multiplier to respondents’ attorney fee award. We therefore remand the attorney fee award for an award of the lodestar attorney fees as determined by the district court without the 1.5 multiplier.

DECISION

We reject appellant’s argument that the district court erred by failing to apply res judicata and not dismissing this case.

Minn.Stat. § 177.27, subd. 8, through its reference to subdivision 7, allows a party to seek injunctive relief and civil damages in a private action. But civil penalties, whether received pursuant to a ease brought under subdivision 7 or 8, are payable to the state and not to individual litigants.

Because the case is complex, the issues are interconnected, and respondents successfully gained some, if not all, requested relief, the district court’s award of 90% of the requested lodestar value is appropriate. But because an attorney fees award that is greater than the lodestar value is appropriate only in cases of extraordinary success, we conclude that on this record an enhanced award is inappropriate.

Affirmed in part as modified, reversed in part, and remanded.


author: PER CURIAM.

text:
    2006 ND 251
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Monty J. STENSLAND, a Member of the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court, Petitioner v. Monty J. Stensland, Respondent.
    No. 20060299.
    Supreme Court of North Dakota.
    Dec. 12, 2006.
   PER CURIAM.

[¶ I] Monty J. Stensland was admitted to practice as an attorney at law in the courts of North Dakota on October 10, 1991, and his name has appeared on the roll of attorneys since that date.

[¶ 2] Stensland was served a Summons and Petition for Discipline alleging that Stensland was paid a $350 retainer to represent William Stuckey in a bankruptcy matter. The bankruptcy was to be filed before the middle of October, 2005, when new bankruptcy laws would go into effect. Stuckey was unable to contact Stensland as the time for filing the bankruptcy petition approached, and retained a different attorney to file a bankruptcy petition on Stuckey’s behalf. This petition was filed in the United States Bankruptcy Court at 3:45 p.m., October 14, 2005.

[¶ 3] The Petition for Discipline further alleges that at 5 p.m., on October 14, 2005, Stensland also filed a petition in the United States Bankruptcy Court on Stuckey’s behalf. Stuckey’s signature was required on several documents, and Stensland either signed the documents or at his direction, had another person sign the documents with Stuckey’s name. Additionally Stensland failed to list all of Stuckey’s real property on the bankruptcy petition.

[¶ 4] The Petition for Discipline asserts that Stensland’s conduct is a violation of N.D.R. Prof. Conduct 3.3, Candor Toward the Tribunal, (a lawyer shall not knowingly make a false statement of fact or law to a tribunal or offer evidence that the lawyer knows to be false); N.D.R. Prof. Conduct 8.4, Misconduct, (it is professional misconduct for a lawyer to knowingly assist a judge or judicial officer in conduct that is a violation of applicable canons of judicial conduct or other law); and N.D.R. Lawyer Discipl. 1.2(A)(2), (3), and (8), Grounds for Discipline, (a lawyer may be disciplined for committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer; engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; or engaging in conduct prejudicial to the administration of justice).

[¶ 5] Stensland filed an Answer to the Petition for Discipline, admitting that he was retained to represent Stuckey in a bankruptcy matter. Stensland asserts that the amount of attorneys fees and costs total more than the retainer Stuckey paid. Stensland asserts that communication was difficult because Stuckey only had a cellular phone, on which Stensland left several messages. Stensland asserts that on October 10, 2005, he left a voice message for Stuckey that the bankruptcy petition was ready for Stuckey’s signature. Stensland was never notified that Stuckey had hired another attorney.

[¶ 6] Stensland denied violation of N.D.R. Prof. Conduct 3.3, Candor Toward The Tribunal, in that the information contained in the bankruptcy documents was accurate, and the petition could be amended. Stensland denied violation of N.D.R. Prof. Conduct 8.4(d), Misconduct, in that the conduct of having Stuckey’s name printed in the unsworn declaration lines on the bankruptcy forms was not prejudicial to the administration of justice, but rather an act of poor judgment. Stensland denied violation of N.D.R. Lawyer Discipl. 1.2(A)(2) in that his conduct was not fraudulent because he did not know Stuckey had retained other counsel for the same legal work. Stensland denied violation of N.D.R. Lawyer Discipl. 1.2(A)(3) in that his conduct did not involve fraud, dishonesty or deceit because the information was substantively accurate.

[¶ 7] This matter was heard by a Hearing Panel of the Disciplinary Board on August 23, 2006. The Findings of Fact, Conclusions and Recommendations of the Hearing Panel was filed on October 26, 2006. The Hearing Panel found that Stuckey paid Stensland $350 to file a bankruptcy petition before the new law would take effect in October, 2005. Communication between Stensland and Stuckey was problematic prior to the filing of Stuckey’s bankruptcy; nevertheless, Stensland prepared the bankruptcy petition and had Stuckey’s name printed on the petition where a signature was required. Stuckey had not authorized the signing of his name on the petition. The petition was signed under penalty of perjury with a warning that making a false statement or concealing property is subject to a fine, imprisonment, or both. The petition failed to disclose all of Stuckey’s real property.

[¶ 8] The Hearing Panel concluded that Stensland’s conduct violated N.D.R. Prof. Conduct 3.3, Candor Toward The Tribunal, N.D.R. Prof. Conduct 8.4(f), Misconduct, and N.D.R. Lawyer Discipl. 1.2(A)(2), (3), and (8), Grounds for Discipline. The Hearing Panel considered N.D. Stds. Imposing Lawyer Sanctions 6.12, (Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.); and 9.22 (aggravating factors include prior disciplinary offenses). Stensland was previously disciplined for violation of N.D.R. Lawyer Discipl. 1.2(A)(8), and N.D.R. Prof. Conduct 1.3 and 1.4.

[¶ 9] The Hearing Panel recommends that Stensland be suspended from the practice of law for a period of 60 days and pay the costs of the disciplinary proceeding in the amount of $3,884.70. The Hearing Panel further recommends that Stens-land complete three approved continuing legal education hours in ethics and three approved continuing legal education hours in office management during his period of suspension and as a condition of reinstatement.

[¶ 10] This matter was referred to the Court under N.D.R. Lawyer Discipl. 3.1(F). No objections were filed to the Hearing Panel’s Findings of Fact, Conclusions and Recommendations. The Court considered the matter, and

[¶ 11] ORDERED, the Findings of Fact, Conclusions and Recommendations of the Hearing Panel are accepted.

[¶ 12] FURTHER ORDERED, Monty J. Stensland is suspended from the practice of law for a period of 60 days, effective January 15, 2007.

[¶ 13] FURTHER ORDERED, Monty J. Stensland pay the costs of the disciplinary proceeding in the amount of $3,884.70.

[¶ 14] FURTHER ORDERED, Monty J. Stensland complete three approved continuing legal education hours in the area of ethics and three approved continuing legal education hours in the area of office management.

[¶ 15] FURTHER ORDERED, Monty J. Stensland comply with N.D.R. Lawyer Discipl. 6.3.

[¶ 16] GERALD W. YANDE WALLE, C.J., DANIEL J. CROTHERS, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.

[¶ 17] Justice MARY MUEHLEN MARING, deeming herself disqualified, did not participate in this decision.