author: CRIPPEN, Judge.

text:
    In re the Matter of Lori Ann FRANK-BRETWISCH, Petitioner, Respondent v. William RYAN, Appellant.
    No. A06-1864.
    Court of Appeals of Minnesota.
    Dec. 4, 2007.

      Patricia A. O’Gorman, Cottage Grove, MN, for respondent Frank-Bretwisch.
    Kathy Krider Hart, Eagan, MN, for appellant.
    Lisa D. Kontz, Hastings, MN, for respondent Dakota County.
    Considered and decided by ROSS, Presiding Judge; KALITOWSKI, Judge; and CRIPPEN, Judge.
   OPINION

CRIPPEN, Judge.

On appeal from the denial of his motion to increase respondent Lori Ann Frank-Bretwisch’s stipulated sub-guideline child-support obligation, appellant William Ryan challenges the determination of the district court that there was no substantial change in circumstances rendering respondent’s existing support obligation unreasonable and unfair. Because the findings of the district court are inadequate, particularly in failing to address the child’s best interests, we reverse and remand.

FACTS

A February 1997 parentage order adjudicated appellant the father of the parties’ child, who was born in February 1991. At some point, not made clear in the record, the child was in respondent’s sole physical custody, and appellant, who had joint legal custody, enjoyed some parenting time. Between February 1997 and August 2004, the parties litigated numerous child-support disputes. Appellant moved for physical custody of the child and, in April 2005, the child moved into appellant’s home.

In May 2005 child-support proceedings, appellant sought to have respondent’s bonus income included in her net monthly income for child-support purposes. The CSM’s order stated that, although respondent received bonuses in 2003 and 2004, the bonus income was not guaranteed or regular and reliable, and would not be included in her income for child-support purposes. The CSM also found that respondent had a net monthly income of $4,386, appellant was receiving net monthly unemployment compensation of $1,010, respondent had reasonable monthly living expenses of $9,501, and appellant’s reasonable monthly expenses were $3,760. Setting appellant’s obligation for the period between November 2004 and May 2005, the CSM determined that “[t]he parties’ comparative expenses and income do not warrant a departure from the Guidelines.”

Before an August 2005 evidentiary hearing on appellant’s motion to modify physical custody, the parties read into the record an agreement regarding custody, child support, and parenting time. Under the agreement, the child would be in appellant’s sole physical custody and respondent would pay sub-guideline monthly child support of $350. The agreement also stated that appellant and respondent then had net monthly incomes of $0 and $4,386 (excluding bonuses), respectively. The district court’s September order adopted the parties’ agreement. For reasons that are unclear, this order does not acknowledge that respondent’s support obligation is a significant downward deviation from the child-support guidelines, states no reasons for the deviation, and cites as the only basis for the award the circumstances of respondent earning $4,386 monthly and appellant having no income. Neither party sought review or appeal of the order.

In February 2006, appellant moved to increase child support, requesting again that respondent’s bonuses be included in the calculation of her income and asking that a support obligation be set at the guideline amount for her current, increased net monthly income, effective September 1, 2005. He asserted that respondent had materially misrepresented her income to the court in the proceedings generating the September 2005 order.

In an April 2006 order, the CSM detailed respondent’s income and bonus histories, as well as the prior litigation, and found that respondent’s gross annual income for 2006 was $86,400, up 11% from the previous year, that respondent had not materially misrepresented her income, and that appellant had neglected to seek inclusion of respondent’s bonus income when support was set in September 2005. The CSM, in her 2006 order, expressed “grave concerns” over “the propriety of the amount of support ordered and the lack of justification for a downward deviation.”

The district court, when reviewing the CSM’s 2006 decision, found the CSM’s grave concerns notable and added that it shared those concerns. The court added that it was “very concerned about the reasonableness of the current child support obligation in light of the costs for the basic necessities of the child and the substantial income of [respondent],” and that “[i]n the end, it is the child who will suffer if there are insufficient funds to meet her basic requirements.” But the district court noted that “both parties were represented by counsel [in 2005] and fully advised of the situation and various outcomes.” Similarly, the CSM found that appellant “has always known” that respondent’s compensation structure included bonuses “and the approximate amount of her income[,]” that there were “grave concerns” about appellant’s “candor to the court” in making his motion to include respondent’s bonuses in her income for support purposes when he had recently stipulated to not including respondent’s bonuses in her income, and that the “primary reason” for his motion to modify respondent’s support obligation “is because he feels he made a bad deal.”

Noting the brief amount of time that passed between the parties’ stipulation and appellant’s motion, the CSM ruled that there was not, at that time, a substantial change in circumstances rendering respondent’s existing support obligation unreasonable and unfair, and denied appellant’s motion. In August 2006, the district court affirmed the CSM, noting that the 2005 decision could no longer be reviewed.

ISSUE

Did the district court abuse its discretion in denying appellant’s motion to modify respondent’s child-support obligation?

ANALYSIS

Child-support orders may be modified upon a showing of substantially changed circumstances making the terms of an existing support order unreasonable and unfair. Minn.Stat. § 518.64, subd. 2 (2004). If applying the child-support guidelines to the parties current circumstances produces a guideline support obligation that is at least 20 and $50 per month different from the obligation in the current order, it is presumed that there has been a substantial change in circumstances, and there is an additional, rebut-table presumption that the existing support order is unreasonable and unfair. Id., subd. 2(b)(1). When, as here, the support obligation sought to be modified was set below the guideline amount, the change in circumstances necessary to justify increasing support to the guideline amount is limited at best. See Murray v. Murray, 425 N.W.2d 315, 317 (Minn.App.1988) (noting almost any change in circumstances would be substantial when original support set at less than one-half of the recommended guidelines support); Compart v. Compart, 417 N.W.2d 658, 662 (Minn.App.1988) (stating that in considering a substantial change, a court should consider the inequities of the original child support order).

The district court has broad discretion regarding whether to modify support, and its decision will not be altered on appeal absent an abuse of that discretion, which occurs if the district court resolves the matter in a manner that is against logic and the facts on the record. Putz v. Putz, 645 N.W.2d 343, 347 (Minn.2002).

As often will be the case after a downward deviation, the statutory modification presumptions are triggered because respondents current circumstances would produce a support award much more than 20 higher and $50 greater than the prior award. Minn.Stat. § 518.64, subd. 2(b)(1). Although the district court failed to find respondents current net monthly income, her gross income has increased and it is inescapable to conclude that her current net monthly income is more than $4,386 (the amount found in May 2005) and well in excess of the amount that would produce the most recent support award of $350. Under the guidelines, respondents income, even in 2005, would have produced a support award of more than $1,000. See Minn.Stat. § 518.551, subd. 5(b) (2004).

Thus, there is a statutory presumption that there has been a substantial change in circumstances, and an additional, rebutta-ble statutory presumption that the terms of the existing support order are unreasonable and unfair, under MinmStat. § 518.64, subd. 2(b)(1). Although the parties 2005 stipulation is relevant to issues of fairness and reasonableness, at least in terms of the interests of the parents, nothing in section 518.64 suggests that the presumptions are inapplicable in the aftermath of a stipulated award.

Determining whether the increase in respondents income actually renders the existing support order unreasonable and unfair is unnecessarily complicated by the fact that the September 2005 order setting respondents support obligation at a sub-guideline amount lacks the statutorily required findings addressing the setting of support at an amount deviating from the guideline amount. See Minn.Stat. § 518.551, subds. 5(a) (requiring adoption of a stipulated support obligation if each party is represented by counsel, unless the stipulation does not meet the conditions of [Minn.Stat. § 518.551, subd. 5(i)]); 5(i) (requiring findings on the factors listed in Minn.Stat. § 518.551, subd. 5(c) if support is set at a nonguideline amount); 5(c) (2004) (listing factors a decision maker is to consider when addressing whether to set support at an amount deviating from the guidelines and the amount of a non-guideline support obligation). Pertinent to the facts in this case, the main factors the district court must consider in setting or modifying child support are all of the earnings of both parents, including both real and personal property, and the child’s financial needs and resources, physical and emotional condition, and educational needs. Minn.Stat. § 518.551, subd. 5(c).

Consistent with precedent and the record respecting court adoption of the 2005 stipulation, both the CSM and the district court were understandably uncomfortable with the continued effectiveness of the 2005 order. As this court has observed:

Whether there is a substantial change in circumstances rendering an existing support obligation unreasonable and unfair generally requires comparing the parties’ circumstances at the time support was last set or modified to their circumstances at the time of the motion to modify. Unless a support order provides a baseline for future modification motions by reciting the parties’ then-existing circumstances, the litigation of a later motion to modify that order becomes unnecessarily complicated because it requires the parties to litigate not only their circumstances at the time of the motion, but also their circumstances at the time of the order sought to be modified.

Maschoff v. Leiding, 696 N.W.2d 834, 840 (Minn.App.2005) (citations omitted).

Thus, respondent’s burden, created by presumptions favoring appellant, was further enlarged by the defective and incomplete process that occurred when the support obligation was previously determined. Having in mind this character of the issue in the case, and having reviewed the findings of the district court, it is evident that the determination against modification cannot be adequately reviewed without a remand for additional findings. See, e.g., Erickson v. Erickson, 385 N.W.2d 301, 303-04 (Minn.1986) (requiring findings adequate to permit review).

The current fairness and reasonableness of the 2005 award cannot be determined without findings that address respondents net income; respondents needs, relevant to the question of whether her ability to pay is hampered; appellants needs, showing the deficiency of the current award, if any, in meeting those needs; other considerations suggesting cause for a downward deviation; and changes in any of these circumstances since September 2005. See Minn.Stat. § 518.64, subd. 2(a) (stating the terms of a child support order may be modified upon a showing of factors that include substantially increased or decreased earnings of a party (or needs of a party or child), any of which makes the terms unreasonable and unfair); see also Minn.Stat. § 518.551, subd. 5(c)(i).

But the district court also must address a primary consideration, beyond the interests of the parents, to permit our review of its exercise of discretion in determining whether respondent has rebutted the presumption of unfairness and unreasonableness prompted by the increase of her income. The orders denying appellants motion to modify support fail to address whether a significantly sub-guideline obligation is in the child’s best interests. An extensive line of precedent shows long and unambiguous judicial commitment to the precept that a child’s best interests are the courts paramount consideration in addressing child-related questions. See, e.g., Olson v. Olson, 534 N.W.2d 547, 549 (Minn.1995) (stating [a]s in all matters involving court-established family relationships of children, we begin with reference to our paramount commitment to the best interests of the children. We said a century ago, The cardinal principle in such matters is to regard the benefit of the infant as paramount.... Flint v. Flint, [], and we have reiterated that premise in many recent cases); State ex rel. Flint v. Flint, 63 Minn. 187, 189, 65 N.W. 272, 273 (1895) (observing that a child’s best interests outweigh the interests of a parent, even if the parents interest is recognized by statute).

Thus, the fairness and reasonableness of the 2005 award goes to matters beyond the interests of each parent, to the paramount consideration of the child’s best interests. This observation becomes critical in circumstances like these, when the primary argument against modification regards the earlier stipulation of the parties and when the order approving that stipulation does not address the paramount consideration of the child’s best interests or any consideration other than the income of each parent.

Taking into account the interests of the child, as well as those of both parents, a determination of the current fairness and reasonableness of the 2005 award requires that the district court address the needs of the child, ordinary and extraordinary, with an eye toward the standard of living enjoyed by the child before the custody change, and showing the deficiency of the current award, if any, in meeting those needs; reasons, if any, from the child’s vantage point, for a downward deviation; other considerations insofar as they bear on the effect of the award on the best interests of the child; and changes in any of these circumstances since September 2005. See Minn.Stat. §§ 518.64, .551, subd. 5(c)(i). In sum, we remand for the district court’s further findings, especially as it gives the court occasion to focus its attention on the best interests of the child.

Appellant also argues that the district court wrongfully overlooked respondent’s bonus income. The CSM noted that appellant did not ask that bonus income be considered when the stipulation was concluded in 2005. Although the parties stipulated to respondent’s income in September 2005, this followed a CSM’s decision earlier in the same year that the bonus income was too irregular to be considered in determining a support award. Among the circumstances occurring after the 2005 award, respondent received still another bonus. On remand, it should be determined whether current circumstances show regular bonus income. And as the CSM recognized, a separate award, dependent on the actual receipt of a bonus, may be appropriate even when it is too irregular to be calculated as income. Novak v. Novak, 406 N.W.2d 64, 68 (Minn.App.1987), review denied (Minn. July 22, 1987). Such an award is within the scope of considerations to be entertained on remand when the court determines if respondent has adequately shown the fairness of the 2005 order in the aftermath of her further income increase.

Appellant’s remaining arguments need not be addressed in light of the remand of the case to the district court.

DECISION

The district court abused its discretion in finding that there had been no substantial change in circumstances. ■ Because the prior order and the orders denying the modification motion lack adequate findings, it is impossible to assess the reasonableness and fairness of the prior order under current circumstances. We reverse the denial of modification and remand for further findings as provided in this opinion. The district court has the discretion to determine whether it needs to reopen the record to make these determinations.

Reversed and remanded.

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

      . Generally, courts apply the law in effect at the time they make their decision unless doing so will alter vested rights or result in manifest injustice. Interstate. Power Co. v. Nobles County Bd. of Comm’rs, 617 N.W.2d 566, 575-76 (Minn.2000); McClelland v. McClelland, 393 N.W.2d 224, 226-27 (Minn.App.1986), review denied (Minn. Nov. 17, 1986). Here, since the district court made its decision, the legislature’s renumeration and substantial alteration of the child-support statutes has become effective. See 2006 Minn. Laws ch. 280, § 44 (reciting effective date of amended child-support laws); compare Minn. Stat. §§ 518.551, .64 (2004) with Minn.Stat. §§ 518A.26-.78 (2006). Although we apply the prior law, we recognize that much of the language affecting this case is restated in the later enactment.


source: Caselaw Access Project

author: HUSPENI, Judge.

license: Public Domain

text:
    In the Matter of the WELFARE OF S.H.H., Child.
    No. A06-2098.
    Court of Appeals of Minnesota.
    Dec. 4, 2007.

      John M. Stuart, State Public Defender, Susan Andrews, Assistant Public Defender, Minneapolis, MN, for appellant.
    Lori Swanson, Attorney General, St. Paul, MN, Kip O. Fontaine, Clearwater County Attorney, Scott G. Collins, Assistant County Attorney, Bagley, MN, for respondent.
    Considered and decided by KLAPHAKE, Presiding Judge; SHUMAKER, Judge; and HUSPENI, Judge.
   OPINION

HUSPENI, Judge.

Appellant challenges his delinquency adjudication after a trial arising from an incident of damage to property, claiming that the district court’s determination of guilt beyond a reasonable doubt is based entirely on the uncorroborated testimony of an accomplice. Because we find that the testimony at issue was the testimony of an accomplice and because it was uncorroborated by any other evidence on the record, we reverse.

FACTS

While Kenneth Oraskovich was getting a haircut, the back window of his truck was shattered. He called the police to investigate the matter. When an officer arrived, he noticed 16-year-old C.F. hanging out of a nearby window and asked him to come down. C.F. told the officer that appellant S.H.H. had fired a B.B. gun out of his apartment window, damaging the truck. C.F. owned the B.B. gun and was on probation for its previous use. At trial, C.F. testified that S.H.H. and his brother were visiting and that they had been shooting out the window at a neighbor when S.H.H. missed and hit a truck window. The record indicates that neither S.H.H. nor his brother knew about the broken window until after they went home and were confronted by the investigating officer. They also both testified that S.H.H. never shot the B.B. gun. Based on the testimony of C.F., S.H.H. was charged and adjudicated delinquent of first-degree criminal damage to property under Minn.Stat. § 609.595, subd. 1(3) (2004), for the damage to the truck window. This appeal follows.

ISSUES

I. Is C.F. an “accomplice” such that his testimony must be corroborated under Minn.Stat. § 634.04 (2004)?

II. Is there corroborative testimony on record that provides sufficient evidence to uphold appellant’s adjudication of delinquency?

ANALYSIS

Appellant contends that the district court erred by improperly adjudicating him delinquent based solely on the uncorroborated testimony of an accomplice. The question of how such testimony is to be evaluated in the context of a trial to the court without a jury is one of first impression. Review of cases addressing the failure of a district court to submit an accomplice-testimony instruction to the jury is informative, however. Even absent an objection or request for such an instruction, the district court has an independent obligation to caution jurors about the nature of accomplice testimony whenever a witness against the defendant might reasonably be considered an accomplice. State v. Henderson, 620 N.W.2d 688, 700 (Minn.2001); State v. Shoop, 441 N.W.2d 475, 479 (Minn.1989); State v. Moon, 717 N.W.2d 429, 436 (Minn.App.2006), review denied (Minn. Sept. 19, 2006). If the district court fails to give such an instruction, this court applies a harmless-error analysis. Shoop, 441 N.W.2d at 479. But the issue in this case concerns the application of a statute to the facts as found by the district court. Such a review is a question of law, which we review de novo. O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.1996) (stating that the application of a statute to undisputed facts is a question of law); State v. Bunde, 556 N.W.2d 917, 918 (Minn.App.1996) (recognizing that the application of statutory criteria to facts as found by the district court is subject to de novo review).

Minn.Stat. § 634.04 (2004) applies to juvenile cases. In re the Welfare of K.A.Z., 266 N.W.2d 167, 169 (Minn.1978). It provides:

A conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

Minn.Stat. § 634.04. Thus, a conviction may not be based on the uncorroborated testimony of an accomplice. Minn.Stat. § 634.04; Henderson, 620 N.W.2d at 700.

Appellant and the state dispute whether state witness C.F. qualifies as an accomplice for the purposes of Minn.Stat. § 634.04. Generally, if a witness could have been indicted and convicted of the same crime as the accused, he or she is considered to be an accomplice whose testimony must be corroborated under the statute. In re the Welfare of D.M.K, 343 N.W.2d 863, 866 (Minn.App.1984).

Further, a person can be considered an accomplice for purposes of Minn. Stat. § 634.04 if the person “intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime” under Minn.Stat. § 609.05, subd. 1 (2004). See D.M.K, 343 N.W.2d at 867. Under section 609.05, “liability attaches when one plays some knowing role in the commission of a crime and takes no steps to thwart its completion.” State v. Swanson, 707 N.W.2d 645, 658-59 (Minn.2006) quoting State v. Pierson, 530 N.W.2d 784, 788 (Minn.1995).

State v. Parker, 282 Minn. 343, 164 N.W.2d 633 (1969), is an instructive case on the scope of accomplice liability. In Parker, the victim was attacked while he was giving a ride to three strangers. 282 Minn, at 346^7, 164 N.W.2d at 635-36. The defendant drove the car while one of his accomplices severely beat the victim in the back seat. Id. The defendant did nothing to prevent the beating or robbery, or to oppose the beating or subsequent robbery of the victim as those acts occurred. Id. at 355, 164 N.W.2d at 641. The court held that although the defendant had claimed not to have played an active role in a robbery and beating, he could be held liable as an accomplice because his presence and failure to object to the crime aided the primary offender in the commission of the crime. Id.; c.f. State v. Gruber, 264 N.W.2d 812, 819 (Minn.1978) (finding the evidence inadequate to support a charge of aiding and abetting an offense when the defendant supplied a gun and car keys to the offender hours before they were used to commit manslaughter and there was no evidence that the defendant intended that the gun be used in the crime).

Although the district court found that C.F. was not the one who actually damaged the truck, “a person may aid or abet without actively participating in the overt act,” and this fact does not exclude him from culpability as an accomplice based on these facts. Parker, 282 Minn. at 355-56, 164 N.W.2d at 641. As in Parker, C.F.’s participation in the events can be inferred from his presence during the commission of the crime, his knowledge of the irresponsible use of the B.B. gun, his lack of objection to appellant’s alleged behavior, the fact that he provided the B.B. gun with the intent that it be used to shoot out of the window, and his own use of the B.B. gun. In fact, he admitted at trial that he orally encouraged appellant to use the B.B. gun to shoot at his neighbor, which resulted in the damage to the truck window. Because of his direct involvement in and encouragement of the perpetration of the crime at issue, we find that C.F. is an accomplice for the purposes of Minn.Stat. § 634.04.

II.

Minn.Stat. § 634.04 requires that accomplice testimony be corroborated. The statute embodies the “common law’s long-standing mistrust of the testimony of the accomplice. The accomplice may testify against another in the hope of or upon the promise of immunity or clemency or to satisfy other self-serving or malicious motives.” Shoop, 441 N.W.2d at 478. “Evidence that merely shows the commission of the crime or the circumstances thereof is not sufficient to corroborate accomplice testimony.” State v. Johnson, 616 N.W.2d 720, 727 (Minn.2000). Corroborating evidence may be direct or circumstantial; it is viewed in the light most favorable to the verdict, and “while it need not establish a prima facie case of the defendant’s guilt, it must point to defendant’s guilt in some substantial way.” Id.; see also Minn.Stat. § 634.04.

C.F. gave the only testimony indicating that appellant shot the B.B. gun through the truck window. Both appellant and his brother testified that appellant had not had the gun. There is no evidence other than C.F.’s testimony in the record showing that the window was broken while appellant and his brother were at C.F.’s apartment, much less that the gun was held by appellant at the time of the incident. Our thorough review of the record convinces us that C.F.’s testimony was uncorroborated by any other evidence in the record. Standing alone, it is insufficient to permit a determination that appellant was guilty beyond a reasonable doubt.

We are cited no authority, nor has our independent research revealed any, that would permit relaxation or suspension in a trial to the court without a jury of the requirement that testimony of an accomplice be corroborated. A policy decision relaxing or suspending the requirements of Minn.Stat. § 634.04 is one not properly made by this court. See Minn.Stat. §§ 645.08, 645.16-645.17 (2006).

Finally, in a delinquency adjudication, as in a criminal case, the Due Process Clause requires the state to prove beyond a reasonable doubt every fact necessary to establish the charged crime. In re Winship, 397 U.S. 358, 364-67, 90 S.Ct. 1068, 1073-74, 25 L.Ed.2d 368, (1970). In the absence of C.F.’s testimony, there are no facts implicating appellant in the commission of damage of property under Minn. Stat. § 609.595, subd. 1(3) (2004), for breaking the truck window. Because C.F. was an accomplice such that reliance solely on his testimony was improper, the remaining evidence on the record is insufficient to uphold appellant’s adjudication of delinquency. We therefore vacate that adjudication.

DECISION

Because appellant’s adjudication of delinquency is based on the uncorroborated testimony of an accomplice, there was insufficient evidence to support a finding of guilt beyond a reasonable doubt.

Reversed.

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


author: LANSING, Judge.

text:
    BLUME LAW FIRM PC, an Arizona professional corporation, Respondent, v. Jason E. PIERCE, et al., Defendants, Raymond R. Pierce, et al., Appellants.
    No. A06-2311.
    Court of Appeals of Minnesota.
    Dec. 4, 2007.

      Frederick R. Kopplin, Kopplin Law Offices, P.A., Minneapolis, MN and Lee R. Johnson, Johnson & Greenberg, PLLP, St. Louis Park, MN, for appellants.
    Considered and decided by PETERSON, Presiding Judge; LANSING, Judge; and KLAPHAKE, Judge.
   OPINION

LANSING, Judge.

The district court denied Raymond and Linda Pierce’s motion to vacate an Arizona judgment docketed in Minnesota under the Uniform Enforcement of Foreign Judgments Act. We conclude that the district court properly rejected the Pierces’ jurisdictional argument. But because the record indicates that the Arizona judgment may have been obtained through fraud, we reverse and remand.

FACTS

Raymond and Linda Pierce are Minnesota residents who occasionally visit their son who resides in Arizona. During one of their visits, Raymond Pierce purchased a motorcycle. The motorcycle’s title lists Raymond Pierce with an Arizona address.

In 2004 the Pierces’ son obtained legal services from the Blume Law Firm. The son pledged the motorcycle as security for the firm’s legal fees. The Pierces apparently had no contact with the law firm or connection to the security agreement until after the Blume Law Firm sued.

In June 2005 the Blume Law Firm sued the son and the Pierces in Arizona superi- or court for unpaid legal fees. The complaint raised four counts. The first three counts relate to legal fees owed to the law firm. The fourth count involves the title to the motorcycle. The Pierces submitted an answer in which they denied that the Arizona court had jurisdiction over them. The Blume Law Firm then brought a summary-judgment motion and submitted an affidavit claiming that both the son and Raymond Pierce had agreed to be responsible for the attorneys’ fees and had signed a promissory note and security agreement. The Pierces failed to respond to the summary-judgment motion.

The Arizona court granted the law firm’s motion and awarded the law firm $28,000 in damages and $1,500 in legal fees. The district court order provided that the law firm could apply for transfer of title to the motorcycle. The Pierces did not appeal.

The Blume Law Firm docketed the judgment in Minnesota under the Uniform Enforcement of Foreign Judgments Act. The Pierces then obtained counsel and moved to vacate the docketing of the judgment in Minnesota, arguing primarily that Arizona did not have jurisdiction. Their son also brought a pro se motion to vacate the Arizona judgment. After the Arizona court denied the son’s motion, the Minnesota district court similarly denied the motion to vacate. The district court reasoned that the jurisdictional issue had been raised in Arizona and could not be reliti-gated in Minnesota. The Pierces now appeal.

ISSUES

I. Can the Pierces raise their personal-jurisdiction challenge in Minnesota after raising the issue in an Arizona court and then failing to pursue the issue or to appeal the adverse decision?

II. Can the Arizona judgment be set aside under the fraud exception to the general requirements of the Full Faith and Credit Clause?

ANALYSIS

The Uniform Enforcement of Foreign Judgments Act provides that judgments from other states are “subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as a judgment of a district court or the Supreme Court of this state, and may be enforced or satisfied in like manner.” Minn.Stat. § 548.27 (2006). But our power to vacate foreign judgments is limited by the Full Faith and Credit Clause. United Bank of Skyline, N.A. v. Fales, 405 N.W.2d 416, 417-18 (Minn.1987).

The federal constitution provides that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” U.S. Const, art. IV, § 1. Because of the Full Faith and Credit Clause, Minnesota must, in general, recognize and enforce final judgments from other states. Matson v. Matson, 333 N.W.2d 862, 868 (Minn.1983); see also Minn.Stat. §§ 548.26-33 (2006) (establishing procedure for enforcing judgments from other states). The central issue in this case is whether the Full Faith and Credit Clause requires Minnesota courts to enforce the Arizona judgment. This involves a question of law, which we review de novo. See Brown-Wilbert, Inc. v. Copeland Buhl & Co., P.L.L.P., 732 N.W.2d 209, 215 (Minn.2007) (noting that questions of law are reviewed de novo).

I

The Pierces’ primary argument is that Minnesota courts should disregard the Arizona judgment because the Arizona court did not have jurisdiction. A judgment is not entitled to full faith and credit if the original forum did not have jurisdiction. Pennoyer v. Neff, 95 U.S. 714, 729, 24 L.Ed. 565 (1877).

But the Full Faith and Credit Clause forbids relitigation of jurisdictional issues in two situations. First, if the jurisdictional question has been “fully and fairly litigated” in the original forum, the second state is bound by the original determination. Durfee v. Duke, 375 U.S. 106, 111, 84 S.Ct. 242, 245, 11 L.Ed.2d 186 (1963). Second, personal jurisdiction — unlike subject-matter jurisdiction — can be waived. Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702-04, 102 S.Ct. 2099, 2104-05, 72 L.Ed.2d 492 (1982). If the parties submitted to the jurisdiction of the original forum, the parties cannot subsequently challenge personal jurisdiction. See Chicago Life Ins. Co. v. Cherry, 244 U.S. 25, 29-30, 37 S.Ct. 492, 493, 61 L.Ed. 966 (1917) (discussing waiver of personal jurisdiction).

Even if we assume that the personal-jurisdiction issue was not fully and fairly litigated in Arizona, we conclude that the Pierces waived their right to challenge personal jurisdiction.

A party can submit to a court’s jurisdiction through express or implied consent. Ins. Corp. of Ireland, 456 U.S. at 703, 102 S.Ct. at 2105. The submission to jurisdiction need not be voluntary. Id. at 704-05, 102 S.Ct. at 2105. A party can waive personal jurisdiction by failing to raise it. Minn. R. Civ. P. 12.08(a). But other actions can constitute a waiver as well. Nat’l Homes Corp. v. Totem Mobile Home Sales, Inc., 140 Ariz. 434, 682 P.2d 439, 443 (1984), review denied (Ariz. May 22, 1984). The law of the forum determines whether an action constitutes a waiver of personal jurisdiction. See Cherry, 244 U.S. at 29-30, 37 S.Ct. at 493 (explaining that “what acts of the defendant shall be deemed a submission to [a court’s] power is a matter upon which states may differ”). Under Arizona law, a jurisdictional defense is waived if a party raises the defense but fails to obtain a timely ruling on the defense. Nat’l Homes Corp., 682 P.2d at 443.

In this case, the Pierces asserted the jurisdictional defense in their answer. But they then failed to pursue the defense. They did not obtain a ruling on the issue before the Arizona trial court and they did not appeal the Arizona court’s decision. When the Pierces answered the Arizona complaint, they were obligated to pursue their argument in the Arizona court. Because they failed to do so, the Pierces submitted to Arizona jurisdiction and waived their jurisdictional defense.

Although we conclude that the Pierces’ actions waived their right to challenge personal jurisdiction, we recognize that their jurisdictional arguments have considerable merit. When multiple claims are raised, personal jurisdiction must be established for each claim. Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 274-75 & n. 5 (5th Cir.2006). Specific personal jurisdiction exists only if the litigation arises out of the defendant’s contacts with the forum. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 2181-82, 85 L.Ed.2d 528 (1985). The dispute over the title to the motorcycle— which was purchased in Arizona and titled in Arizona — presumably arises out of the Pierces’ activities in Arizona. But the dispute over their son’s attorneys’ fees appears to have little connection to the Pierces’ activities in Arizona. The attorney for the Blume Law Firm alleged that “[a] valid promissory note and security agreement was entered into by Jason Pierce and Raymond Pierce providing for the payment of a principal sum of $28,000.00 that sum being secured by a motorcycle.” But the record contains no promissory note signed by either Raymond or Linda Pierce for any payment to the Blume Law Firm and it does contain a promissory note for attorneys’ fees signed by their son, Jason Pierce. The record contains no evidence supporting the allegation that the Pierces agreed to pay their son’s attorneys’ fees. Thus, the Blume Law Firm’s other three claims do not appear to arise out of the Pierces’ activities in Arizona.

Nonetheless, we conclude that the Pierces waived their jurisdictional defense. Because of the requirements of the Full Faith and Credit Clause, they cannot relit-igate the issue in Minnesota.

II

Although the Pierces did not directly raise the argument in the district court or directly on appeal, the documents purporting to sustain the judgment and the inability of the Blume Law Firm attorney to provide any explanation for the contradictory documents compel us to address the fraud exception to the general requirements of the Full Faith and Credit Clause. We “may review any ... matter as the interest of justice may require.” Minn. R. Civ.App. P. 103.04. Review of a new issue can be appropriate when “the issue was ‘implicit in’ or ‘closely akin to’ the arguments below.” Watson v. United Servs. Auto. Ass’n, 566 N.W.2d 683, 688 (Minn.1997). In this case, the Pierces’ jurisdictional argument and our fraud analysis are based on the same facts. The primary difference is that personal jurisdiction is subject to waiver but fraud is not.

A judgment obtained through fraud is not entitled to full faith and credit. Trautman v. Standard Oil Co., 263 N.W.2d 809, 815 (Minn.1978). In addition, even if full faith and credit applies, we must only give the Arizona judgment the same respect that Arizona courts would give it. State v. Schmidt, 712 N.W.2d 530, 536-37 (Minn.2006). The forum state “has at least as much leeway to disregard the judgment, to qualify it, or to depart from it as does the State where it was rendered.” New York ex rel. Halvey v. Halvey, 330 U.S. 610, 615, 67 S.Ct. 903, 906, 91 L.Ed. 1133 (1947). Under Arizona law, the judgment against the Pierces can be set aside for fraud upon the court. Ariz. R. Civ. P. 60(c).

We believe that the Pierces’ argument is best interpreted as alleging that the Blume Law Firm obtained the Arizona judgment through fraud. In an affidavit submitted in Arizona, the attorney for the Blume Law Firm alleged that “[a] valid promissory note and security agreement was entered into by Jason Pierce and Raymond Pierce providing for the payment of a principal sum of $28,000.00 that sum being secured by a motorcycle.” The Arizona court subsequently held that Raymond and Linda Pierce were liable for the principal sum of $28,000.

The Pierces assert that Raymond Pierce never agreed to pay his son’s attorneys’ fees. The record supports this assertion. The promissory note and security agreement referred to in the Blume Law Firm’s affidavit are contained in the record. But these documents are only signed by the Blume Law Firm’s client, Jason Pierce. The record contains no indication that Raymond Pierce ever agreed to pay his son’s attorneys’ fees. At oral argument before this court, the Blume Law Firm was unable to provide any explanation why Raymond Pierce should be responsible for this debt. And the record does not contain even a bare allegation that Linda Pierce has any responsibility for the debt.

Our concern about the Arizona judgment, however, is not that it may have held the Pierces responsible for a debt they did not incur. Under the Full Faith and Credit Clause, we cannot question the merits of the foreign judgment. See Fauntleroy v. Lum, 210 U.S. 230, 237, 28 S.Ct. 641, 643, 52 L.Ed. 1039 (1908) (stating that court must give full faith and credit to foreign judgment even if based on mistake of law).

Instead, our concern is that the Blume Law Firm may have obtained that judgment through an attorney’s misrepresentation and overreaching. If, as it appears from the record before this court, the Blume Law Firm’s conduct amounted to fraud, the Arizona judgment would not be entitled to full faith and credit and the docketing of the judgment should be vacated in Minnesota. Because the Pierces submitted strong evidence that the Arizona judgment was obtained through misrepresentations by the Blume Law Firm, we reverse the denial of the Pierces’ motion to vacate.

Nonetheless, the fraud issue was not directly addressed below, and we therefore remand for further proceedings on the fraud issue. On remand, the Blume Law Firm should be given a chance to substantiate its claim that Raymond Pierce entered into a valid promissory note or other agreement to pay the principal sum of $28,000 and to provide a basis for why Linda Pierce could be liable. If the Blume Law Firm is unable to substantiate its claim, the district court should then determine whether the law firm’s conduct amounts to fraud that would justify disregarding the judgment.

DECISION

Because further proceedings are necessary to determine whether the Arizona judgment should be disregarded on the basis of fraud, we reverse and remand.

Reversed and remanded.


author: MINGE, Judge.

text:
    STATE of Minnesota, Respondent, v. Dennis James SPRAGGINS, Appellant.
    No. A06-1694.
    Court of Appeals of Minnesota.
    Dec. 4, 2007.

      Lori Swanson, Attorney General, St. Paul, MN, and Michael 0. Freeman, Hen-nepin County Attorney, Jean E. Burdorf, Assistant County Attorney, Minneapolis, MN, for respondents.
    Barry V. Voss, Barry V. Voss, P.A., Minneapolis, MN, for appellant.
    Considered and decided by HUDSON, Presiding Judge; WILLIS, Judge; and MINGE, Judge.
   OPINION

MINGE, Judge.

Appellant challenges his retrial, recon-viction, and sentence as a violation of the prohibition against double jeopardy. Because the district court erred in vacating his initial guilty plea, we reverse that decision, vacate the conviction and sentence resulting from the retrial, and remand for further consideration of the petition for postconviction relief.

FACTS

Pursuant to an agreement, appellant Dennis Spraggins pleaded guilty to first-degree aggravated robbery and second-degree assault, and accepted a 60-month sentence. In turn, the state agreed not to charge him with first-degree assault and to dismiss an additional count of aggravated robbery at sentencing. The agreed-on sentence constituted an upward durational departure from the presumptive sentence range of 48-52 months. On June 7, 2004, the district court accepted the agreement, convicted Spraggins of the crimes specified, and imposed a 60-month executed sentence.

On June 20, 2005, Spraggins filed a petition for postconviction relief, arguing that based on the United States Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), reh’g denied, (Minn. Aug. 23, 2004), the upward durational departure of his sentence was unconstitutional and that it should therefore be modified to reflect the presumptive sentence of 48 to 52 months. The state proposed impanelling a sentencing jury to determine whether the 60-month sentence was supported by aggravating factors.

At the postconviction hearing, the district court sua sponte withdrew Spraggins’ guilty plea over his objection, vacating his conviction. In making its ruling, the district court stated that by challenging the sentence, “the essential terms of the plea negotiation [were] not being met by the defendant and, therefore, my approval of the plea negotiation and the plea is ■withdrawn.” The district court returned the matter for trial on the initial complaint.

Spraggins moved to dismiss the complaint as a violation of double jeopardy. The motion was denied. Spraggins then entered a Lothenbach stipulation for a bench trial on aiding and abetting aggravated robbery in the first degree and reserved his right to appeal the district court’s denial of his motion to dismiss. Spraggins was convicted after the new trial and sentenced to 44 months. This appeal follows.

ISSUES

I. May the court of appeals address the matter of the district court’s vacation of appellant’s plea?
II. Was the vacation of appellant’s plea over his objection a proper exercise of judicial authority?

ANALYSIS

I.

Spraggins did not directly appeal the sua sponte vacation of his guilty plea, conviction, and initial sentence by the district court, but rather argued that the district court’s decision to take such an action and his subsequent trial violated his double-jeopardy rights. Under Minn. R.Crim. P. 28.02, subd. 11, “[t]he court may review any ... matter as the interests of justice so require.” Moreover, the scope of appellate review has been extended to also include “substantive questions of law that were properly raised during trial.” Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minn., 664 N.W.2d 303, 310 (Minn.2003). Here, Spraggins challenged the order vacating his conviction in his brief and at oral argument. Furthermore, both parties discussed the issue of whether the district court erred in its determination to vacate the plea, conviction, and sentence. Therefore, we consider the question of whether the district court erred in vacating Spraggins’s plea and sentence.

II.

The authority of a court to sua sponte vacate a guilty plea and conviction is a question of law, which is reviewed de novo. See, e.g., State v. Chauvin, 723 N.W.2d 20, 23 (Minn.2006); see also State v. Brown, 606 N.W.2d 670, 674 (Minn.2000); State v. Jumping Eagle, 620 N.W.2d 42, 43 (Minn.2000). Relevant precedent in this state does not contemplate the vacation of a guilty plea on the district court’s own initiative, and it is an issue not yet addressed by Minnesota easelaw.

In Minnesota, principles of contract law are applied to determine the terms and enforcement of plea agreements. In re Ashman, 608 N.W.2d 853, 858 (Minn.2000). The contractual interpretation of plea agreements was reaffirmed by the Minnesota Supreme Court in State v. Lewis, 656 N.W.2d 535, 538-39 (Minn.2003). In Lewis, the defendant successfully challenged his sentence based on State v. Misquadace, 644 N.W.2d 65 (Minn.2002). Lewis, 656 N.W.2d at 536. The supreme court recognized that a defendant who challenges a sentence based on Misqua-dace is not required to withdraw from his or her plea agreement and stand trial on the original charges, but that because the sentence and conviction are interrelated components of a plea agreement, a district court may consider them in tandem when a defendant successfully attacks his or her sentence. Id. at 538-39. The Minnesota Supreme Court concluded that “where the district court finds no compelling or substantial circumstances supporting an upward departure in the sentence that was agreed upon in a plea agreement, it may consider motions to vacate the conviction and the plea agreement.” Id. (emphasis added).

It remains to be determined whether a district court may revoke plea agreements on its own initiative. The role of the district court in plea agreements is limited.

Inevitably the judge plays a part in the negotiated guilty plea ... it is important that he carefully examine the agreed disposition, and it is equally important that he not undermine his judicial role by becoming excessively involved in the negotiations themselves ...
... The judge’s role is not that of one of the parties to the negotiation, but that of an independent examiner to verify that the defendant’s plea is the result of an intelligent and knowing choice....

State v. Johnson, 279 Minn. 209, 216 n. 11, 156 N.W.2d 218, 223 n. 11 (1968). The insulation of district court judges from plea negotiations is well settled. E.g., State v. Anyanwu, 681 N.W.2d 411, 414-15 (Minn.App.2004) (finding that when the district court had promised the defendant a particular sentence, the defendant must be afforded the opportunity to withdraw his guilty plea because the district court had “abandoned its independent role and become an advocate.”). As a judicial overseer rather than party to the contract, the district court’s role is limited to an administrative capacity after the acceptance of the plea agreement.

“[0]nee a plea is accepted and a judgment of conviction is entered upon it, the general policy favoring finality of judgments applies to some extent, at least, in criminal as well as in civil cases. The tender and acceptance of a plea of guilty is and must be a most solemn commitment.” Chapman v. State, 282 Minn. 13, 16, 162 N.W.2d 698, 700 (1968). When accepted and entered by a district court, a plea of guilty constitutes a conviction. Bubar v. Dizdar, 240 Minn. 26, 29, 60 N.W.2d 77, 79 (1953). The conviction can only be reopened in limited circumstances. For example, a district court may exercise discretion in revoking the plea agreement at the behest of the defendant to correct a manifest injustice. Minn. R.Crim. P. 15.05, subd. 1; Chapman, 282 Minn, at 16, 162 N.W.2d at 701. Because of the presumption of finality, the setting aside of a plea should be done only for substantial and compelling reasons and after notice and the opportunity for briefing and hearing by all the parties!' Due consideration should be given to whether subsequent criminal proceedings would implicate double-jeopardy concerns.

Other jurisdictions have uniformly held that courts do not have the authority to vacate a defendant’s guilty plea over his objection. E.g., State v. De Nistor, 148 Ariz. 407, 694 P.2d 237, 242 (1985) (holding that the court may’ not sua sponte vacate the acceptance of a guilty plea and set the issue for trial because such an action would violate the defendant’s double-jeopardy rights); People v. Hardin, 67 A.D.2d 12, 16, 414 N.Y.S.2d 320 (1979) (stating that, in the absence of fraud, the court has no power to set aside a plea without the defendant’s consent); Commonwealth v. Kotz, 411 Pa.Super. 319, 601 A.2d 811, 814-15 (1992) (holding that “[ajbsent [ ] an application/motion by the defendant [to withdraw his guilty plea,] a guilty plea, which is spoken of in terms of a verdict of guilty, may not be removed by a trial court sua sponte)”; Perkins v. Court of Appeals For the Third Supreme Judicial District of Texas, 738 S.W.2d 276, 283 (Tex.Cr.App.1987) (holding that once the district court accepted the plea of guilty .and approved the plea bargain agreement, he had no power to vacate the defendant’s plea over his objection).

The United States Court of Appeals for the Ninth Circuit also considered the authority of a district court to vacate a defendant’s guilty plea over his objection in United States v. Patterson, 381 F.3d 859 (9th Cir.2004). In that case, the Ninth Circuit found that where it is not the defendant’s choice to have the plea set aside, the district court is not free to vacate the plea. Id. at 865. The court stated:

... [Although the district court is free to reject the plea agreement after accepting a guilty plea, it is not free to vacate the plea either on the government’s motion or sua sponte. Instead, when the court accepts a guilty plea but rejects the plea agreement, it becomes the defendant’s choice whether to stand by the plea or to withdraw the plea ... The only course available for the district court, upon rejecting the plea agreement, is to advise the defendant of his rights, including the right to withdraw the guilty plea.
... The district court here clearly accepted [the defendant’s plea; when it did so, jeopardy attached ... The district . court did not have authority to vacate the plea over [the defendant’s objections.

Id. (internal quotations omitted) (emphasis added).

Here, Spraggins has never complained that his original plea of guilty pursuant to the agreement was not- knowingly, intelligently, and willingly entered, or that it must be withdrawn to correct a manifest injustice. He has not retracted that original guilty plea, and he does not seek restoration of those constitutional rights that he relinquished in consideration of the plea agreement. Even though he challenged the sentence, the state was spared the time and expense of trying his crimes on the merits. The state, for its part of the plea agreement, was committed to recommend the agreed-on sentence to the district court; yet this did not guarantee that its recommendation would be adopted. Minn. R.Crim. P. 15.04, subd. 3(2); State v. Pero, 590 N.W.2d 319, 324 (Minn.1999). The state is not necessarily entitled to obtain the full length of the sentence requested pursuant to an agreement.

Although the district court may consider under Lewis, 656 N.W.2d at 539, whether a sentence modification changes such an integral part of the plea “contract” that the conviction itself should also be overturned; that is a question that demands full participation by the parties and careful consideration by the district court.. Here, the original agreement reflected critical trade-offs: In return for the guilty plea and acceptance of the longer sentence, the state agreed not to bring and to drop or reduce certain charges. Spraggins avoided the risk of a more serious record and the longer sentence that may have accompanied such a record. However, Sprag-gins’s postconviction challenge does not inexorably require the remedy imposed by the district court. He was challenging only eight months of his 60-month sentence.

We are also mindful of the context in which Spraggins petitioned for postconviction relief regarding his sentence. Blakely had recently been decided. Spraggins had framed a promising constitutional attack on his sentence under Blakely and State v. Shattuck, 704 N.W.2d 131 (Minn.2005). But Spraggins did not seek to otherwise disturb his guilty plea or conviction. Although the state argues that the appellant should have abided by his sentence in accordance with his agreement regardless of the constitutional remedies available to him, many other challenges to sentences conducted in violation of Misquadace have been heard and not considered to be a repudiation of a plea agreement more generally. See, e.g., Hankerson v. State, 723 N.W.2d 232 (Minn.2006); Misquadace, 644 N.W.2d at 72; State v. Geller, 665 N.W.2d 514 (Minn.2003). In fact, the supreme court has recognized that a defendant is not required to withdraw his guilty plea in order to challenge an invalid sentence. Lewis, 656 N.W.2d at 538. A conflicting stance could impermissibly chill a defendant’s right to appeal a sentence, even in the face of legally valid postconviction claims. See, e.g., U.S. v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138 (1968); North Carolina v. Pearce, 395 U.S. 711, 724, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656 (1969) (overruled on other grounds); State v. Holmes, 281 Minn. 294, 298, 161 N.W.2d 650, 653 (1968). A defendant has a right to challenge a sentence imposed after a final judgment at any time. Minn. R.Crim. P. 28.02, subd. 2; Ballweber v. State, 457 N.W.2d 215, 218 (Minn.App.1990). Such a challenge must be considered on the merits without the risk of the revocation of an otherwise-valid guilty plea absent the consent of the defendant.

We are not unmindful of the uncertainty and frustration that district courts in this state experienced in the months that appellate courts developed procedures to cope with the impact of Blakely on pending criminal proceedings. In this transition, the district court may have perceived that Spraggins would reap an underserved windfall in obtaining a reduced sentence. However, the use of sentencing juries has now been recognized as proper, and the district court may use such a procedure on remand in this case. See Hankerson, 723 N.W.2d at 232.

We conclude that the district court erred in sua sponte vacating Spraggins’s guilty plea, and we reverse and remand for consideration of his petition for postconviction relief. Because we have restored the proceeding to postconviction stage, we vacate the conviction and sentence resulting from the continued proceeding and we do not reach Spraggins’s double-jeopardy claim.

DECISION

Because the district court, as an overseer of the plea-agreement contract, did not have the authority to vacate Sprag-gins’s plea sua sponte and over his objection, we reverse and remand for consideration of his postconviction petition consistent with this opinion.

Reversed.

      . When a new trial results from a motion made by the defendant, the defendant can be said to have implicitly volunteered for retrial on the merits such that double-jeopardy concerns are waived. See, e.g., Oregon v. Kennedy, 456 U.S. 667, 672-73, 102 S.Ct. 2083, 2088, 72 L.Ed.2d 416 (1982) (recognizing that the defendant’s election to terminate the first trial by his own motion can limit the defendant’s double-jeopardy rights) (citing United States v. Dinitz, 424 U.S. 600, 607-11, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976)); see also State v. Gwara, 311 Minn. 106, 109, 247 N.W.2d 417, 419 (1976) (stating that where jeopardy attached and mistrial was declared without the defendant’s consent, the state may not re-try the defendant unless the mistrial was dictated by manifest necessity or the ends of public justice); State v. White, 369 N.W.2d 301, 304 (Minn.App.1985) (stating that “[i]f a mistrial is declared with the defendant’s consent, he is deemed to have waived any double-jeopardy claim he might otherwise have.”). The defendant has a valued right to complete his trial before the first jury. Kennedy, 456 U.S. at 673, 102 S.Ct. at 2088.

      . The Minnesota Supreme Court acknowledged that granting such a motion may raise double-jeopardy concerns. Lewis, 656 N.W.2d at 539 n. 3. Although not yet considered by the appellate courts of the state of Minnesota, we note that retrial under circumstances such as those in the case before us have been found to be a violation of a defendant's double-jeopardy rights in other jurisdictions. E.g., United States v. Patterson, 381 F.3d 859 (9th Cir.2004); State v. De Nistor, 143 Ariz. 407, 694 P.2d 237, 242 (1985).

      . Spraggins points out that even his partner-in-crime had obtained a reduction in his sentence on a parallel legal argument. See State v. Fuller, No. A04-1665, 2006 WL 90906 (Minn.App. Jan. 17, 2006).


author: WRIGHT, Judge.

text:
    STATE of Minnesota, Respondent, v. Christian N. FRANKS, Appellant.
    No. A06-1242.
    Court of Appeals of Minnesota.
    Dec. 4, 2007.

      John M. Stuart, State Public Defender, Bridget Kearns Sabo, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Lori Swanson, Attorney General, St. Paul, MN and Mark A. Ostrem, Olmsted County Attorney, Katherine M. Wallace, Assistant County Attorney, Rochester, MN, for respondent.
    Considered and decided by WRIGHT, Presiding Judge; SHUMAKER, Judge; and STONEBURNER, Judge.
   OPINION

WRIGHT, Judge.

Appellant challenges his conviction of engaging in a pattern of harassing conduct, arguing that the conviction is not supported by sufficient evidence. In the alternative, appellant argues that the district court erred by sentencing him on the four counts of violation of an order for protection rather than the single count of engaging in a pattern of harassing conduct because the latter is a more-serious offense. Appellant also challenges the imposition of permissive consecutive sentences for the four violation-of-an-order-for-protection offenses based on his contentions that (1) the district court erroneously concluded that these offenses are crimes against a person, and (2) the aggregate length of the sentences imposed unfairly exaggerates the criminality of his conduct. We affirm.

FACTS

Appellant Christian Franks and J.R. met in 1996 and were married in June 2002. They have two sons together, born in 1996 and 2001, respectively. In late January 2003, the couple separated, and Franks moved out. In early February, Franks returned to the home that the couple had shared, threatened to kill J.R., and dragged her around the house while he searched for a shotgun.

As a result of this incident, J.R. obtained an order for protection (OFP) against Franks on February 10, 2003. The OFP prohibited Franks from “contact, either direct or indirect, with [J.R.] or the children, whether in person, with or through other persons, by telephone, letter, or in any other way,” except under limited circumstances that are not relevant here. Although Franks was aware of the OFP, he broke into J.R.’s home on February 21, 2003, and sexually assaulted her. Franks was arrested and subsequently charged with terroristic threats for the altercation in early February and third-degree criminal sexual conduct, first-degree burglary, and violation of an OFP for the incident on February 21.

In October 2003, Franks pleaded guilty to the charges of terroristic threats, third-degree criminal sexual conduct, and first-degree burglary. The state dismissed the charge of violation of an OFP pursuant to a plea agreement. In January 2004, Franks was sentenced to a total of 78 months’ imprisonment for the three convictions. Consequently, when J.R. obtained a subsequent OFP in February 2004, which renewed the restrictions of the original OFP, a copy of the OFP was served on Franks in prison.

Between March 5 and August 2, 2004, Franks wrote a series of letters from prison. On March 5, 2004, and June 18, 2004, Franks sent letters to his sons. In those letters, Franks acknowledged that J.R. was “mad” at him and urged his sons to persist in seeking J.R.’s consent to their visitation with Franks. Franks also sent J.R. two letters postmarked July 22, 2004, and August 2, 2004. In these letters, Franks acknowledged his understanding that J.R. did not want him to know about her life, repeatedly referred to the February assaults, and purported to apologize. But he also accused J.R. of “playing a game with [him].”

Franks also sent a letter to J.R.’s parents in 2004, asking them to convince J.R. to permit visitation with the children. In two letters sent to J.R.’s friend during the summer of 2004, Franks lewdly detailed his sexual history with J.R. and discussed friends of J.R. with whom he had sex during his relationship with J.R. Franks also inquired about J.R.’s personal life and indicated that he “[did not] care” if J.R. was told about Franks’s sexual encounters with her friends.

Based on this conduct, Franks was charged with four counts of felony violation of an OFP, Minn.Stat. § 518B.01, subd. 14(d)(1) (2002), and one count of engaging in a pattern of harassing conduct, Minn.Stat. § 609.749, subd. 5(a) (2002). Following a bench trial in September 2005, the district court found Franks guilty on all counts. The district court imposed permissive consecutive sentences for the four counts of violation of an OFP for a total term of imprisonment of 51 months and 3 days. The district court declined to impose a sentence for the conviction of pattern of harassing conduct. This appeal followed.

ISSUES

I. Is there sufficient evidence in the record to support Franks’s conviction of engaging in a pattern of harassing conduct?

II. Did the district court err by imposing sentences for the OFP violations rather than the pattern-of-harassing-conduct conviction?

III. Did the district court properly impose permissive consecutive sentences for each conviction of violation of an OFP?

ANALYSIS

I.

Franks argues that the evidence is insufficient to support his conviction of engaging in a pattern of harassing conduct, Minn.Stat. § 609.749, subd. 5(a) (2002). When reviewing a challenge to the sufficiency of the evidence, we conduct a painstaking analysis of the record to determine whether the fact-finder could reasonably find the defendant guilty of the offense based on the facts in the record and the legitimate inferences that can be drawn from those facts. State v. Chambers, 589 N.W.2d 466, 477 (Minn.1999). In doing so, we view the evidence in the light most favorable to the verdict and assume that the fact-finder believed the evidence supporting the verdict and disbelieved any contrary evidence. Id. We will not disturb a guilty verdict if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn.1988).

To sustain Franks’s conviction of engaging in a pattern of harassing conduct, there must be sufficient evidence supporting each of the following elements of the offense: (1) the defendant committed two or more designated predicate offenses, such as violation of an OFP; (2) the defendant knew or had reason to know that this conduct would cause the particular victim to feel terrorized or to fear bodily harm under the circumstances; and (3) the conduct caused the victim to feel terrorized or fear bodily harm. See Minn.Stat. § 609.749, subd. 5(a); State v. Richardson, 633 N.W.2d 879, 887 (Minn.App.2001) (requiring “proof beyond a reasonable doubt of all elements of the pattern [of] harassment statute”). Franks concedes the first element. But he challenges the sufficiency of the evidence to support the district court’s finding of proof beyond a reasonable doubt on the last two elements.

Section 609.749, subdivision 5(a), requires proof that Franks knew or had reason to know that his conduct “would cause [J.R.] under the circumstances to feel terrorized or to fear bodily harm.” Because section 609.749, subdivision 5, does not require specific intent, it is sufficient for the victim’s fear to be reasonably foreseeable. See State v. Mullen, 577 N.W.2d 505, 510 (Minn.1998) (stating that statute requires only general intent). Because a couple’s relationship history bears heavily on what the defendant may know or have reason to know about the victim’s likely response to the defendant’s conduct, the district court was required to examine the nature of the relationship between Franks and J.R. to determine whether Franks knew or had reason to know that his conduct would cause J.R. “under the circumstances to feel terrorized or to fear bodily harm.”

The district court found that, “in light of their relationship, [Franks] knew or had good reason to know that [J.R.] would feel terrorized as a result of [Franks’s] conduct, notwithstanding [Franks’s] incarceration.” Franks’s history of violence against J.R. and his demonstrated disregard for criminal consequences provide the necessary context for evaluating this element of the offense. Indeed, it is the relationship history between Franks and J.R. that informs J.R.’s response to Franks’s letters and is probative of Franks’s ability to anticipate J.R.’s likely response.

The record contains an abundance of evidence in support of the district court’s finding regarding the second element. Franks had a history of terrorizing J.R. Shortly after J.R. terminated their relationship, Franks threatened to kill J.R. while dragging her around the house as he searched for a shotgun. At trial, Franks admitted threatening J.R. by saying, “If I can’t have you, no one can.” Franks also admitted that J.R.’s fear of harm was well-founded on that occasion and that he knew J.R. obtained an OFP shortly after this incident.

Later that same month, despite being aware of the OFP, Franks pried open J.R.’s basement window in the middle of the night, entered the house, and sexually assaulted her. Franks testified that, when J.R. told him that his actions would constitute “rape,” “I told her I didn’t give a f— on that because I was going to prison anyway for the incident three weeks pri-or_ I told her I’d beat her a — if she didn’t have sex with me” Franks’s conduct and statements demonstrate his disregard for J.R. as well as for the criminal consequences of his actions.

J.R. filed for an extension of the OFP in January 2004, notwithstanding Franks’s incarceration, because she remained “very scared of him.” And the evidence establishes that Franks, who had received a copy of the extended OFP that maintained the terms of the original OFP until February 2005, also knew from other sources that J.R. wanted to avoid all contact with him and to prevent Franks from knowing anything about her life.

Franks’s letters, several of which violated the OFP and formed the basis of the four predicate offenses, also evince his awareness that J.R.’s fear persisted and motivated J.R. to prevent him from learning about her personal life. Undeterred, Franks made several personal comments and inquiries to J.R. and those close to her. For example, in a letter to J.R.’s friend, Franks asked for details about J.R.’s boyfriend and made numerous sexually explicit comments. The disturbing nature of these comments is particularly relevant to establish Franks’s knowledge of the effect on J.R. because Franks wrote the sexually explicit letters while in prison for sexually assaulting J.R. This evidence lends additional support to the district court’s finding that Franks knew or should have known that J.R. would feel threatened by correspondence of this nature.

When viewed in the light most favorable to the guilty verdict, the record amply demonstrates that, when Franks continued to contact J.R. both directly and indirectly without regard for the criminal consequences of his actions, he was aware that she feared him and desired to avoid any contact with him. Consequently, the evidence is more than sufficient to support the district court’s finding that, “in light of the history of their relationship,” Franks knew or “had good reason to know” that J.R. would feel terrorized by his actions.

Franks also argues that there is insufficient evidence to support a determination that J.R. actually felt terrorized or feared bodily harm. We disagree. J.R.’s testimony regarding her fear, along with the testimony of the police officer who interviewed J.R. regarding the OFP violations, supports this element of the offense. Moreover, J.R.’s extension of the OFP in February 2004 when Franks was incarcerated is probative of the terror that contact from Franks caused.

While we acknowledge that the evidence that J.R. felt terrorized or feared bodily harm is not as robust as the evidence supporting the first two elements, we nevertheless conclude that there is more than sufficient evidentiary support for the guilty verdict.

II.

Franks next argues that the district court erred in imposing sentences on the four counts of violating an OFP rather than the single count of engaging in a pattern of harassing conduct, which is predicated on the OFP violations. The district court’s interpretation of a sentencing statute presents a question of law, which we review de novo. State v. Holmes, 719 N.W.2d 904, 907 (Minn.2006). But the district court’s decision as to which offense is the most serious for purposes of sentencing rests within the district court’s discretion and will remain undisturbed absent an abuse of discretion. State v. Alt, 529 N.W.2d 727, 731 (Minn.App.1995), review denied (Minn. July 20, 1995).

“[I]f a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses.” MinmStat. § 609.035, subd. 1 (2002). Therefore, Franks could not be sentenced on the four counts of violating an OFP and the single count of engaging in a pattern of harassing conduct. Neither party disputes the applicability of section 609.035. But Franks contends that, because engaging in a pattern of harassing conduct is the more-serious offense, the district court was required to impose a sentence based on that conviction.

In State v. Kebaso, the Minnesota Supreme Court observed that “section 609.035 contemplates that a defendant will be punished for the most serious of the offenses arising out of a single behavioral incident because imposing up to the maximum punishment for the most serious offense will include punishment for all offenses.” 713 N.W.2d 317, 322 (Minn.2006) (quotation omitted). And although the supreme court has “never explicitly outlined how appellate courts should determine which of multiple offenses is the most serious under section 609.035,” it has addressed the importance of the severity level set forth in the sentencing guidelines and the maximum potential sentence. Id. Moreover, as a general matter, the district court is expected to “sentence the conviction that carries the highest penalty.” State v. Skipintheday, 704 N.W.2d 177, 182 (Minn.App.2005), aff'd, 717 N.W.2d 423 (Minn.2006).

Here, the district court’s choice between sentencing Franks on the four offenses of violation of an OFP or the one offense of engaging in a pattern of harassing conduct does not fit neatly into the law governing the district court’s selection of the offenses to be sentenced.. Section 609.035 authorizes punishing an individual for “only one of the offenses” arising from that individual’s conduct. MinmStat. § 609.035, subd. I. But it does not address circumstances when one conviction is for an offense that requires a course of criminal conduct and the other convictions constitute that course of conduct as predicate or lesser included, offenses that may be sentenced consecutively. Thus, the issue presented here requires us to determine whether the multiple OFP violations, as predicate offenses to the pattern-of-harassing-conduct conviction, may be considered collectively when compared with the conviction for engaging in a pattern of harassing conduct for the purpose of applying section 609.035. In doing so, we must reconcile the dual goals of section 609.035 — penalizing the severity of the offense conduct and avoiding multiple punishments for the same offense.

We conclude that, when section 609.035 requires a district court to choose between consecutively sentencing multiple convictions for the less-severe predicate offense and a single conviction for a more-severe offense that includes the less-severe predicate offenses, the district court’s decision to consecutively sentence the less-severe predicate offenses should be afforded the customary deference. See Alt, 529 N.W.2d at 731 (emphasizing district court’s discretion in choosing which offense is most serious). This is particularly so when, as here, the sentencing guidelines permit the collective punishment for the predicate offenses to result in a longer aggregate sentence that more accurately represents the criminality of the defendant’s conduct.

“The purpose of section 609.035 is to ensure[ ] that punishment is commensurate with the crime committed.” Kebaso, 713 N.W.2d at 322 (alteration in original) (quotation omitted). When applied to the instant facts, section 609.035 precludes the imposition of sentences on the OFP violations and the offense of engaging in a pattern of harassing conduct. But it does not proscribe imposing a sentence on each of the four OFP violations because they are distinct incidents. Minn.Stat. § 609.035, subd. 1. Furthermore, an “appellate court will not interfere with a [district] court’s discretion in sentencing unless the sentence is disproportionate to the offense.” State v. Hough, 585 N.W.2d 393, 397 (Minn.1998). Thus, when section 609.035 prevents the district court from imposing a sentence on both a set of predicate offenses and the offense which is factually and legally dependent on the predicates, it is within the discretion of the district court to conclude that sentences imposed on the predicate offenses, which in aggregate are more severe than that imposed on the single offense, best reflect the criminality of the defendant’s conduct.

The district court properly considered Franks’s OFP violations collectively to determine that they were the most serious. Since multiple OFP violations were required here to establish the predicate offenses for the offense of engaging in a pattern of harassing conduct, those convictions are logically parallel to the pattern-of-harassing-conduct conviction. Although engaging in a pattern of harassing conduct can be established by showing only two predicate offenses in a five year period, Minn.Stat. § 609.749, subd. 5(b), Franks committed at least four such offenses within a period of only five months. Thus, the four OFP violations collectively are more representative of the criminality of Franks’s conduct. And the district court’s imposition of a 51-month sentence for four OFP violations, rather than a 23-month sentence to which it would have been limited for the single offense of engaging in a pattern of harassing conduct, demonstrates the appropriateness of the sentence for the offense conduct. See Kebaso, 713 N.W.2d at 322 (endorsing selection of longest sentence actually imposed when vacating sentences under section 609.035). Because the district court’s sentencing decision comports with section 609.035 by punishing the most serious course of conduct, the district court did not abuse its broad discretion.

III.

Franks also challenges the district court’s imposition of permissive consecutive sentences for his convictions of the OFP violations, arguing that the OFP violations are not crimes against a person under Minn. Sent. Guidelines II.F.2 (2003). He also maintains that the imposition of permissive consecutive sentences unfairly exaggerates the criminality of his conduct.

Construction of a provision of the sentencing guidelines presents a question of law, which we review de novo. State v. Zeimet, 696 N.W.2d 791, 793 (Minn.2005). Although we independently review whether an offense is a crime against a person for the purpose of imposing permissive consecutive sentences, id., we will not disturb a district court’s imposition of permissive consecutive sentences for an offense properly deemed a crime against a person absent an abuse of discretion, State v. McLaughlin, 725 N.W.2d 703, 715 (Minn.2007).

Minnesota Sentencing Guidelines II.F. provides that, when an offender is convicted of multiple current offenses, concurrent sentencing ordinarily is presumptive. But consecutive sentences may be imposed permissively without a departure when there are “[m]ultiple current felony convictions for crimes against persons.” Minn. Sent. Guidelines II.F.2. This rule applies when, as here, the presumptive disposition for the offenses is commitment to the commissioner of corrections. Minn. Sent. Guidelines II.F. Comment II.F.04 clarifies that permissive consecutive sentences may be imposed “even when the offenses involve a single victim involving a single course of conduct.” Consequently, if violation of an OFP is a “crime against a person,” it is within the discretion of the district court to impose consecutive sentences for multiple convictions of this offense.

When Franks committed the offenses at issue here, the sentencing guidelines did not designate which offenses were crimes against a person. By the date of his sentencing hearing, however, the sentencing guidelines had been amended to include a list of offenses eligible for permissive consecutive sentences. Minn. Sent. Guidelines VI (Supp.2005). Both violation of an OFP and engaging in a pattern of harassing conduct were designated as crimes against a person. Id. Because the sentencing guidelines in effect when the offense is committed govern, State v. Goldenstein, 505 N.W.2d 332, 348 (Minn.App.1993), review denied (Minn. Oct. 19, 1993), the district court correctly declined to rely on the amended guidelines. Rather, the district court made an independent determination that violation of an OFP is a crime against a person.

Without the benefit of the designation set forth in the Minnesota Sentencing Guidelines, our inquiry looks beyond the crime’s classification to the underlying offense conduct to ascertain whether the crime, as committed, is a crime against a person. State v. Myers, 627 N.W.2d 58, 62-63 (Minn.2001). A crime against a person need not be an act of physical violence. State v. Rannow, 703 N.W.2d 575, 578 (Minn.App.2005). A crime that inflicts emotional torment or harm on another may qualify as a crime against a person, especially when a perpetrator knowingly causes another fear by disregarding court-ordered protections sought by the victim to keep that perpetrator away. See id. (finding that violation of restraining order is a crime against person).

In Rannow, the defendant pleaded guilty to five felony violations of a restraining order based on his repeated calls to a former co-worker. Id. On appeal, he argued that the district court abused its discretion by imposing consecutive sentences for each conviction based on the district court’s determination that violation of a restraining order is a crime against a person, thereby qualifying for permissive consecutive sentencing. Id. at 577. In affirming the consecutive sentences, we observed that, because the defendant also had harassed the former co-worker over an extended period, the defendant’s conduct “posed a threat, to another person, and, therefore, each restraining-order violation constitutes a crime against a person.” See id. at 578. The subsequent designation of violation of an OFP and restraining order as a crime against a person supports this conclusion.

Franks’s OFP violations are precisely the type of emotional harm referred to in Rannow. After Franks threatened J.R.’s life, dragged her around the house in search of a shotgun, and violated the first OFP by breaking into her home and sexually assaulting her, J.R. secured an extended OFP against Franks, notwithstanding his imprisonment. Franks ignored the OFP and subjected J.R. to frequent letters, repeated references to the sexual assault, attempts to exploit her vulnerable financial situation, and belittlement of her toward their children. On this record, the district court correctly determined that Franks’s OFP violations are crimes against a person and, as such, may support permissive consecutive sentences under Minnesota Sentencing Guidelines II.F.2.

Finally, Franks argues that the district court erred in imposing permissive consecutive sentences because such a disposition unfairly exaggerates the criminality of his conduct. We will not reverse a district court’s imposition of permissive consecutive sentences for offenses properly deemed crimes against a person absent an abuse of discretion. McLaughlin, 725 N.W.2d at 715; see also State v. Norris, 428 N.W.2d 61, 70-71 (Minn.1988) (reviewing for unfair exaggeration of criminality of defendant’s conduct).

Franks’s sentence is not a departure from the sentencing guidelines, which presumptively suggests that it does not unfairly exaggerate the criminality of his conduct. Moreover, as discussed above, the district court carefully considered the nature of the offenses, properly determined Franks’s four violation-of-an-OFP convictions to be crimes against a person, and found that presumptive consecutive sentencing on the four predicate offenses better reflects the appropriate penalty for Franks’s crimes than a single sentence on the offense of engaging in a pattern of harassing conduct. This aspect of the district court’s sentencing decision falls within its broad discretion. And in light of the record and the district court’s careful consideration, we conclude that the sentences imposed do not unfairly exaggerate the criminality of Franks’s conduct. Rather, they represent a sound exercise of the district court’s discretion.

DECISION

The evidence is sufficient to support appellant’s conviction of engaging in a pattern of harassing conduct. The district court did not abuse its discretion in sentencing appellant for the four offenses of violation of an OFP rather than the single offense of engaging in a pattern of harassing conduct. The district court’s imposition of permissive consecutive sentences of 51 months’ imprisonment based on its correct determination that violation of an OFP is a crime against a person was not an abuse of discretion.

Affirmed.

      . The district court did not expressly find that J.R. was terrorized or feared bodily harm. But following a bench trial, when a district court omits a finding on any issue of fact essential to sustain the general finding of guilt, it "shall be deemed to have made a finding consistent with the general finding.” Minn. R.Crim. P. 26.01, subd. 2.

      . For example, in Alt, when analyzing which ''conviction” should be the basis for the sentence, we observed that section 609.035 protects a defendant by permitting the district court to impose only ''a single sentence.” 529 N.W.2d at 731; see also State v. Brown, 597 N.W.2d 299, 305 (Minn.App.1999) (stating that section 609.035 “limits punishment to a single sentence”), review denied (Minn. Sept. 14, 1999).

      . The district court imposed permissive consecutive sentences for the OFP violations. That these offenses fall within the limited category of crimes that qualify for such permissive consecutive sentencing lends additional support to the district court’s assessment of the appropriate sentence for the severity of the criminal conduct.