author: GILBERT, Justice. LANCASTER, Justice

text:
    STATE of Minnesota, Respondent, v. Timothy Warren KUHNAU, Petitioner, Appellant.
    No. C2-99-160.
    Supreme Court of Minnesota.
    March 1, 2001.

      John M. Stuart, State Public Defender, Bryan J. Leary, Spec. Asst. Public Defender, Minneapolis, for appellant.
    Michael A. Hatch, Atty. Gen., Robert Stanich, Asst. Atty. Gen., St. Paul, Gaylord A. Saetre, Todd County Atty., Long Prairie, for respondent.
   OPINION

GILBERT, Justice.

This appeal involves our review of a jury instruction given in a trial on a charge of conspiracy to commit the crime of first-degree sale of the controlled substance methamphetamine. Appellant Timothy Warren Kuhnau alleges error because the conspiracy instruction given at trial did not include all the elements of the substantive crime that was the object of the conspiracy. The instruction omitted the words “when Mr. Kuhnau knew or believed that the substance sold was methamphetamine.” This specific language was, however, included in the instructions given for the three sale of methamphetamine counts that were tried along with the conspiracy count. The jury returned a guilty verdict on the conspiracy count only.

During the fall of 1997, the Todd County Sheriffs Department and the West Central Minnesota Drug Task Force cooperated in an undercover investigation of several individuals suspected of selling methamphetamine in Long Prairie, Minnesota. Drug Task Force Special Agent Charles Sherbrooke and an informant began purchasing methamphetamine in October 1997. They first purchased methamphetamine from Timothy Kuhnau on October 22, 1997. Then, on November 5, 1997, Sherbrooke and the informant made three additional methamphetamine purchases from Kuhnau. At the last sale, Sherbrooke identified himself as a law enforcement officer and arrested Kuhnau. Kuhnau’s roommate, Joe Ferrian, and another man were subsequently arrested and charged as conspirators.

Kuhnau was then charged with one count conspiracy to commit controlled substance crime in the first degree (conspiracy to sell fifty grams or more of methamphetamine) in violation of Minn.Stat. §§ 152.096, subd. 1 (2000), and 152.021, subd. 1(3) (2000), and subd. 3 (2000), and two counts controlled substance crime in the second degree (sale of ten grams or more of methamphetamine) in violation of Minn.Stat. § 152.022, subd. 1(2) (1996), and subd. 3 (1996). Kuhnau was also charged with one count controlled substance crime in the fourth degree (sale of methamphetamine) in violation of Minn. Stat. § 152.024, subd. 1(1) (2000), and subd. 3 (2000) for selling methamphetamine on October 22,1997.

A jury trial was held and Kuhnau testified in his own defense. He testified that Ferrian was a drug dealer and the source of all the methamphetamine. Sometimes Ferrian would “cut” real methamphetamine but sometimes he would sell phony methamphetamine. Kuhnau testified as to the October 22, 1997 sale count stating that he did not know that the substance he sold was in fact methamphetamine. His defense for the November 5, 1997 sale and conspiracy counts was that he thought he was selling “bogus” or phony methamphetamine. The state tested the chemical compositions of the substances Kuhnau and his coconspirators sold, and all substances were found to be authentic methamphetamine. The drugs were then lost when the lab sent them back to the investigators. As a result, Kuhnau was not able to verify the accuracy of the state’s testing.

Near the end of his trial, Kuhnau urged the court to modify the proposed conspiracy instruction. He requested that the statutory definition of the conspiracy’s substantive crime be removed from the definition section and be inserted directly within the conspiracy instruction. He also requested that the instruction list the additional elements of the substantive crime that have to be found. The court refused Kuhnau’s requests. Although Kuhnau was charged by complaint with violating Mimi. Stat. § 152.096, subd. 1, the conspiracy instruction used by the court actually tracked Minn.Stat. § 609.175, subd. 2, and 10 Minn. Dist. Judges Ass’n, Minnesota Practice—Jury Instruction Guides, Criminal, CRIMJIG 5.06 (4th ed.1999). Additionally, later on in the definition section, the jury was instructed in regard to the elements of conspiracy CRIMJIG 5.07 and of the following CRIMJIGs: Overt Act (CRIMJIG 5.08), completed crime not necessary (CRIMJIG 5.09), Overt Act not agreed to by defendant (CRIMJIG 5.10), and nature of agreement required (CRIM-JIG 5.11).

During closing arguments, Kuhnau argued that if one party intended or agreed to sell phony drugs, that party did not have the intent to conspire to sell real methamphetamine. Kuhnau argued that because he did not agree to sell real methamphetamine, he could not be found guilty of conspiring to sell methamphetamine. The state was allowed to rebut Kuhnau’s closing argument on this issue. In rebuttal, the state argued that Kuh-nau’s statement of the law of conspiracy was inaccurate. The state then reiterated its argument that a conspiracy requires only an agreement to commit a crime and an overt act. The state urged the jurors to refer to their jury instructions on this point rather than what they heard. The instructions omitted the words “knew or believed that the substance sold was methamphetamine.”

After deliberating, the jury returned a guilty verdict on the conspiracy count only. The jury acquitted Kuhnau on one of the second-degree sale counts and on the fourth-degree sale count, but the jury was unable to reach a verdict on the remaining second-degree sale count. Following the verdict, Kuhnau moved for judgment of acquittal or, in the alternative, a new trial. The court denied Kuhnau’s post-trial motion. The court then sentenced him to the presumptive 134-month sentence. Kuh-nau appealed, and the court of appeals affirmed in an unpublished opinion.

Kuhnau appeals the court of appeals’ decision, arguing that the conspiracy instruction was in error because the elements of the conspiracy’s underlying offense' — first-degree sale of a controlled, substance — were not included in the conspiracy instruction. The state alleges that Kuhnau’s request to include those elements did not amount to an objection to the conspiracy instruction at trial and that because Kuhnau did not raise this issue until his motion for a new trial, the objection to the conspiracy instruction was not timely.

I.

From the outset, we note that although Kuhnau did not clearly articulate his objection to the conspiracy instruction at trial, a .detailed examination of the trial transcript convinces us that the objection to the jury instruction he raises now was embodied in his objection at trial. In making his objection at trial, Kuhnau argued that the statutory definition of a first-degree controlled substance offense be included directly within the conspiracy instruction. He further requested the court to “list the additional elements that have to be found so that at least it is clear to the jury that in fact there is more to be reckoned with here * * *.”

While this objection was not as explicit as it could have been,, the state’s response to Kuhnau’s objection is illustrative of each party’s understanding of its meaning. The state argued:

Getting on to the defendant’s allegations that number four on the first-degree conspiracy charge should include all of the elements of a controlled substance crime in the first degree would be totally inaccurate as to the law of conspiracy.

The state’s use of the phrase “all of the elements of a controlled substance crime” indicates an interpretation of Kuhnau’s objection as more than merely a request to move a statutory definition. Rather, the state interpreted Kuhnau’s objection as a request to include all the elements of the conspiracy’s substantive crime — including an element instructing the jury to determine whether Kuhnau “knew or believed the substance he sold was methamphet-ámine.” Accordingly, we hold that Kuh-nau’s objection was a request to incorporate this element into the conspiracy charge along with the other statutory elements of a first-degree controlled substance offense. We therefore conclude that Kuhnau properly objected to the substance of the conspiracy instruction at trial. Because Kuhnau objected to the substance of the jury instructions at trial, he has preserved his right to seek a substantive review of the conspiracy instruction given at his trial. Minn. R.Crim. P. 26.03, subd. 18(3).

II.

Our conclusion that Kuhnau objected to the conspiracy instruction at trial controls the standard of review we employ to analyze the remaining issues. We have previously held that a district court has the discretion to determine whether to give a requested jury instruction. State v. Broulik, 606 N.W.2d 64, 68 (Minn.2000). We afford a court significant discretion to craft the jury instructions. State v. Peou, 579 N.W.2d 471, 476 (Minn.1998). We have held that when a district court exercises its discretion and refuses to give a requested instruction, no error results if no abuse of discretion is shown. See State v. Blasus, 445 N.W.2d 535, 542 (Minn.1989). Thus, we review the court’s decision to refuse the requested instruction under an abuse of discretion standard, and the focus of our analysis is on whether the court’s refusal to give Kuhnau’s requested instruction resulted in error.

When we review jury instructions for error, we review the instructions in their entirety to determine whether they fairly and adequately explained the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn.1988). An instruction is in error if it materially misstates the law. See State v. Pendleton, 567 N.W.2d 265, 269-70 (Minn.1997). Furthermore, it is well settled that the court’s instructions must define the crime charged. State v. Crace, 289 N.W.2d 54, 59 (Minn.1979). In accordance with this, it is desirable for the court to explain the elements of the offense rather than simply to read statutes. Id.

Kuhnau argues that the instructions were in error because they failed to include all the elements of the crime underlying the conspiracy. Specifically, he argues that the instruction relating to the conspiracy to sell methamphetamine omitted the words “knew or believed that the substance sold was methamphetamine.” Both the state and Kuhnau agreed that this knowledge requirement constituted an element of the sale counts because it was included in the instructions on the three sale counts. However, the state argues that in regard to the conspiracy charge, knowledge that the substance to be sold in the future is a controlled substance is not an element of conspiracy to commit a first-degree controlled substance crime. A defendant who claims that the district court erred bears the burden of showing the error and any resulting prejudice. State v. Shoop, 441 N.W.2d 475, 480-81 (Minn.1989). In this context, we must decide if the court erred'in its instructions and then determine the resulting prejudice, if any.

We have long held that the crime of conspiracy requires (1) an agreement between two or more people to commit a crime and (2) an overt act in furtherance of the conspiracy. See State v. Peterson, 213 Minn. 56, 60, 4 N.W.2d 826, 828 (1942). A conscious and intentional purpose to break the law is an essential element of the crime of conspiracy and consists of two distinct crimes: the conspiracy and the substantive crime, which is the object of the conspiracy. See Sisson v. Triplett, 428 N.W.2d 565, 572 n. 6. (Minn.1988); State v. Burns, 215 Minn. 182, 186, 9 N.W.2d 518, 520 (1943). In Burns, we held that “criminal liability for conspiracy is predicated upon personal guilt * * *. A person cannot become a party to or criminally responsible for the criminal acts of another unless he knows their true character.” Id., 215 Minn, at 188, 9 N.W.2d at 521 (citations omitted). We have previously permitted conspiracy charges where there were defense allegations of a “feigned agreement” under Minn.Stat. § 609.175. But the issue of bogus or phony “controlled substance” relating to the substantive crime, which is the object of the conspiracy, is one of first impression for this court.

Minnesota Statutes § 152.096, subd. 1 provides in part: “Any person who conspires to commit any act prohibited by this chapter * * * is guilty of a felony and upon conviction may be imprisoned, fined or both, up to the maximum amount authorized by law for the act the person conspired to commit.” Thus, under this statute, the substantive crime is the “act prohibited” and the “act the person conspired to commit.” Furthermore, Bums requires both knowledge of an agreement and evidence of intent to commit the crime or act that is the object of the conspiracy. 215 Minn, at 188-89, 9 N.W.2d at 521. Therefore, our analysis in the instant case focuses on whether the conspiracy instruction given reflected these requirements. At trial, the conspiracy instruction instructed the jury that:

In order to convict Mr. Kuhnau of the offense of conspiracy to commit the crime of sale of a controlled substance in the first degree, the State must prove beyond a reasonable doubt all of the elements of the crime charged. The elements of the offense of conspiracy to commit the crime of sale of a controlled substance in the first degree in this case are:
1. That the defendant, Timothy Warren Kuhnau,
2. On November 5, 1997 in Todd County
3. Conspired with either Joseph Fer-rian, Juan Ortiz or Joseph Biskey or all three of them
4. To commit the crime of sale of a controlled substance in the first degree and
5. That Mr. Kuhnau or another party to the conspiracy took an overt act in furtherance of the conspiracy.

Four pages later in the instructions, the jury was also provided with the following statutory definition of a first-degree sale of a controlled substance offense:

Whoever unlawfully sells on one or more occasions within a 90-day period of time one or more mixtures of methamphetamine having a total weight of 50 grams or more is guilty of the crime of sale of a controlled substance in the first degree.

The comment to CRIMJIG 5.07 “Conspiracy-Elements” suggests that the defined crime and “if necessary, the ‘Elements’ instruction for the appropriate crime should be read. If it is desired to give the elements of the crime or to provide a further definition, this should be done immediately after reading this instruction.” 10 Minn. Dist. Judges Ass’n, Minnesota Practice—Jury Instruction Guides, Criminal, CRIMJIG 5.07 (4th ed.1999). The district court did follow the CRIMJIG comment suggestion of reading the defined criminal statute on conspiracy and also on the offense of sale of a controlled substance in the first degree. The court also instructed the jury on the elements of conspiracy immediately after reading the statutory definition of conspiracy, as suggested by the comment to CRIMJIG 5.07. In regard to the substantive crime, which was the object of the conspiracy, the conspiracy instruction only summarily stated “to commit the crime of sale of a controlled substance in the first degree.” The statutory definition of the substantive crime was read four pages later in the instructions and the first-degree sale elements were not included there or anywhere else.

Thus, while the substance of the particular crime underlying the conspiracy was contained in the definition portion of the court’s instructions to the jury, neither the summary recitation of the crime in paragraph four of the conspiracy instruction nor the subsequent statutory definition contained all of the essential elements of the substantive crime, which was the object of the conspiracy. Specifically omitted was the critical element language “whether Kuhnau knew or believed that the substance sold was methamphetamine under the facts presented.”

This missing element from the instructions on the substantive crime, which was the object of the conspiracy charge, has added significance in this case because lack of knowledge of authenticity was the appellant’s theory of defense. A defendant is entitled to an instruction on his theory of the case if there is evidence to support it. State v. Ruud, 259 N.W.2d 567, 578 (Minn.1977). Furthermore, this missing element was included in all the jury instructions relating to the other three counts of controlled substance violations — the “sale counts” or acts Kuhnau was charged with. Although all the prohibited acts were identical except for the differing degree of the charges, the only sale instruction that omitted this element-the one related to the conspiracy count— was the only one on which the jury returned a guilty verdict. In that the language of Minn.Stat. § 152.096, subd. 1, as charged in this case, targets the acts of sale of a controlled substance in the first degree, all the elements relating to that sale are necessarily the same as the other sale charges.

We finally review the instructions in their entirety to determine whether they fairly and adequately explained the law of the case. Flores, 418 N.W.2d at 155. We first note that all four instructions defining sale started out identically as follows: ‘Whoever unlawfully sells a mixture * * * of methamphetamine is guilty of the crime of sale of a controlled substance in the _ degree.” The district court next instructed the jury that in order to convict Kuhnau of each offense, “ * * * the State must prove beyond a reasonable doubt all of the elements of the crime charged.” Then, in regard to the elements of the two second-degree and one fourth-degree sale counts, the trial court instructed in part as follows: “The elements of unlawful sale of a controlled substance in the _ degree as set forth in count_of the complaint are: * * * (4) When Mr. Kuhnau knew or believed that the substance sold was methamphetamine.”

However, in regard to the elements of the. conspiracy charge, the district court only instructed that “[t]he elements of the offense of conspiracy to commit the crime of sale of a controlled substance in the first degree in this case are * * * (4) To commit the crime of sale of a controlled substance in the first degree * * *.” Four pages later, the statutory definition of the offense of sale of a controlled substance in the first degree was read to the jury without any further element instructions as to the substantive crime. Importantly, the definition did not include language requiring that Kuhnau knew or believed that the substance was a controlled substance.

The net effect of the given instruction was that the challenged instruction relating to the crime of sale of a controlled substance in the first degree did not require the jury to find all of the same elements of the substantive crime that were contained in the instructions on the other similar sale counts the jury had under consideration. This lower threshold of proof on the first-degree sale within the conspiracy charge juxtaposed to the other three sale counts that did contain the “knew or believed” element only highlights the significance of its critical omission. While the location and mere reading of the statutory definition of first-degree sale without its elements in themselves may not have constituted an abuse of discretion, under these facts, in comparison to the other three sale count instructions, the significance of the missing elements of the underlying crime is only increased.

We hold that when the instructions are viewed in their entirety, the district court abused its discretion by not instructing on all the sale counts in a similar fashion. The exclusion of the words “knew or believed that the substance sold was methamphetamine” from the instruction relating to the substantive crime of sale of a controlled substance in the first degree, which was the object of the conspiracy, was confusing and arguably created two differing explanations of the law of the case in regard to the same act: sale. It also deprived Kuhnau of his request to instruct the jury on his theory of the case in regard to bogus methamphetamine when there was evidence in the record supporting it. The conspiracy instruction’s omission of an element of the offense of sale in the first degree did not fairly and adequately explain the law of the case and was error.

Though erroneous, the mistaken instruction may not require a new trial if the error was harmless. An error in jury instructions is not harmless and a new trial should be granted if it cannot be said beyond a reasonable doubt that the error had no significant impact on the verdict. Pendleton, 567 N.W.2d at 270. We hold that the erroneous instruction did have a significant impact on the verdict, and Kuh-nau is entitled to a new trial. Even if the jury had believed Kuhnau’s testimony about the bogus methamphetamine, under the district court’s instructions relating to sale in the first degree, it could still have found Kuhnau guilty. Our conclusion is supported by the state’s rebuttal argument, which simply referred the jury to the given instructions, which omitted this “knew or believed” element of the substantive crime within the conspiracy instruction.

Reversed and remanded to the district court for further proceedings consistent with this opinion.

LANCASTER, Justice

(dissenting).

I respectfully dissent. I believe that the jury instructions given by the district court adequately stated the law and that the district court did not abuse its discretion in giving them.

District courts are given considerable latitude in selecting language for jury instructions. State v. Peou, 579 N.W.2d 471, 475 (Minn.1998). “When determining the adequacy of jury instructions, we have held that' ‘[a] refusal to give a requested jury instruction in a criminal case lies within the broad discretion of the trial court * * *.’ ” Id. (quoting State v. Auchampach, 540 N.W.2d 808, 816 (Minn.1995)). When reviewing jury instructions to determine whether a district court abused its discretion, the instructions must be read as a whole. Id. If, when viewed in their entirety, the instructions correctly state the law in such a way that can be understood by the jury, then the district court did not abuse its discretion and there is no reversible error. Id. When making this determination, the court must assume that “the jurors were intelligent and practical people.” Id.

The majority states that to convict Kuh-nau of conspiracy to commit sale of controlled substance in the first degree, the jury had to find that he possessed a “conscious and intentional purpose to break the law.” The state was required to prove that Kuhnau had knowledge of the conspiracy agreement and intent to commit the underlying substantive crime that is the object of the conspiracy, i.e., sale of a controlled substance in the first degree. That far, I am in agreement with the majority, but I disagree with the majority’s holding that the instructions given did not correctly reflect the law.

The majority concludes that the instructions did not correctly state the law because they did not include the intent element of the substantive crime, specifically the instructions omitted the language “whether Kuhnau knew or believed that the substance sold was methamphetamine under the facts presented.” The majority focuses its analysis of the jury instructions on what it characterizes as missing or omitted language. In doing so, it fails to account for all the language that was present in the instructions and, therefore, fails to analyze the instructions as a whole.

In addition to the language quoted by the majority, the jury instructions stated: “A person conspires with another person when he agrees with the other person to commit a crime.” The instructions further stated: “The existence of a conspiracy may be inferred from all of the evidence tending to show intentionally concerted action to accomplish the commission of a crime. ⅜ * ⅞ j-rp^g co.conSpirators’] actions must be the result of preconceived and mutual intention to commit a crime.” To convict Kuhnau of conspiracy, then, the instructions required the jury to find that he and his co-conspirators had an “intention to commit” sale of a controlled substance in the first degree.

Because the instructions required that Kuhnau intend to commit first-degree sale of a controlled substance, and because the crime of first-degree sale prohibits the sale of real drugs, the instructions necessarily encompassed the notion that a conspiracy conviction could not stand unless Kuhnau intended to sell real drugs. Put another way, when two or more people intentionally conspire to commit sale of a controlled substance in the first degree, it follows that they intend to sell real drugs. Accordingly, the district court’s instruction that “their actions must be the result of preconceived and mutual intention” adequately describes the requisite mental state for conspiracy to commit sale of a controlled substance in the first degree.

The majority also focuses on the substance that actually changed hands between Kuhnau and Officer Sherbrooke. A conspiracy charge does not require that any substance change hands; the crime is complete when there is an agreement to commit a crime (to sell drugs in this case) and an overt act in furtherance of the agreement is taken by one of the conspirators. If a substance actually changes hands, that certainly could be useful information for the jury in deciding whether the elements of conspiracy are met, but it is not itself an element of conspiracy. Here, the state misplaced the substance that changed hands prior to trial. Without the substance, the jury could well have concluded that the state did not prove beyond a reasonable doubt that the substance was methamphetamine. In fact, that seems likely given the not-guilty verdicts on the actual distribution counts for which transfer of real drugs is an element. Whether the substance was methamphetamine, however, is not dispositive of the question of what Kuhnau conspired to distribute. The defense argued vigorously at trial that he did not intend to sell real drugs. The argument did not succeed, but nothing in the district court’s instructions prevented the argument from being presented.

Because the instructions as given correctly reflect the law, and because they did not preclude Kuhnau from arguing his theory of defense, the district court did not abuse its discretion by submitting these jury instructions.

      . At Kuhnau’s trial, the jury was instructed in regard to the two second-degree and one fourth-degree sale counts that the elements of a sale of a controlled substance offense are:
      That the defendant, Timothy Warren Kuh-nau,
      At approximately_m. on, _, _in Todd County
      Sold a mixture containing _ grams or more of methamphetamine.
      When Mr. Kuhnau knew or believed, that the. substance he sold was methamphetamine. (emphasis added).

      . See CRIMJIG 20.02, which provides in part: "defendant knew or believed that the substance sold was (a) mixtures(s) containing ___" 10A Minn. Dist. Judges Ass’n, Minnesota Practice—Jury Instruction Guides, Criminal, CRIMJIG 20.02 (4th ed.1999).

      . See State v. St. Christopher, 305 Minn. 226, 229-31, -232 N.W.2d 798, 800-02 (1975). Moreover, Minn.Stat. § 609.175, subd. 2, provides in part "whoever conspires with another to commit a crime and in furtherance of the conspiracy one or more of the parties does some overt act in furtherance of such conspiracy ***."

        .Cf. Minn.Stat. § 152.097 (2000) (regulating simulated controlled substances).

      . We note that appellant was not charged with conspiracy to sell a simulated controlled substance in violation of Minn.Stat. § 152.097.

      . To conclude, as the dissent does, that the district court did not abuse its discretion would necessitate our complete disregard for the state's misleading and confusing statements made during closing arguments. The state argued that Kuhnau was inaccurate in his argument that he had to intend to sell methamphetamine to be guilty of a conspiracy to sell methamphetamine. For the reasons stated, it was the state that was inaccurate, not the defense. If the parlies are so confused, it is difficult to accept the dissent's position that the instructions were so clear as to be understood by the jury.

      . The majority characterizes portions of the state's closing argument as “misleading and confusing.” The state’s argument, to which no objection was made, does not render the instructions erroneous.


source: Caselaw Access Project

author: /s/ Alan C. Page Associate Justice

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Mitchell Ross ORNSTEIN, an Attorney at Law of the State of Minnesota.
    No. C4-01-274.
    Supreme Court of Minnesota.
    March 1, 2001.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed an application for suspension pursuant to Rule 12(c)(1), Rules on Lawyers Professional Responsibility, based on evidence that respondent cannot be found in the state or served personally with the Director’s petition for disciplinary action.

IT IS HEREBY ORDERED that respondent Mitchell Ross Ornstein be suspended from the practice of law. Within one year from the date of this order, respondent may move the court for vacation of the order of suspension and for leave to answer the petition for disciplinary action.

BY THE COURT

/s/ Alan C. Page Associate Justice


author: /s/Kathleen A. Blatz Chief Justice

text:
    Patricia COTLOW, Phillip Krass, Sharon LaComb, James Stein and Theodore Suss, individually and on behalf of all Citizens of Minnesota similarly situated, Plaintiffs, and John Walker, Howard Miller, Don Sudor, and Nkajlo Vangh, Plaintiff-Intervenors, v. Joan GROWE, Secretary of State of Minnesota; and Patrick O’Conner, Hennepin County Auditor, individually and on behalf of all Minnesota county chief election officers, Defendants, and The Seventy-Seventh Minnesota State House of Representatives and the Seventy-Seventh Minnesota State Senate, Defendant-Intervenors. Susan M. Zachman, Maryland Lucky R. Rosenbloom, Victor L.M. Gomez, Gregory J. Edeen, Jeffrey E. Karlson, Diana V. Bratlie, Brian J. LeClair and Gregory J. Ravenhorst, individually and on behalf of all citizens and voting residents of Minnesota similarly situated, Petitioners, v. Mary Kiffmeyer, Secretary of State of Minnesota, and Doug Gruber, Wright County Auditor, individually and on behalf of all Minnesota county chief election officers, Respondent.
    Nos. C8-91-985, C0-01-160.
    Supreme Court of Minnesota.
    March 2, 2001.
   ORDER

Cotlow, et al. v. Growe, et al., No. C8-91-985, is an action that was commenced in Hennepin County District Court in January 1991 challenging the constitutionality of the then-existing state legislative and congressional districts'based on population changes reported in the 1990 Census. After the 1991 legislative session at which the legislature enacted a state legislative redistricting plan, by order dated June 4, 1991, the Chief Justice appointed a three-judge special redistricting panel to hear and decide the Cotlow case. The panel found the plan enacted by the 1991 Legislature invalid in October 1991. The 1992 Legislature passed a revised state legislative plan and a congressional redistricting plan, both of which were vetoed by the governor. In the absence of legislatively-enacted redistricting plans, the panel entered final judgment adopting a revised state legislative redistricting plan on January 31, 1992, and in a Final Order dated April 15, 1992, adopted a plan for congressional redistricting, subject to a then-pending federal district court injunction. The Supreme Court subsequently held that the redistricting plans adopted by the panel should be used in future elections, rather than the plans adopted by a federal judicial panel. Growe v. Emison, 507 U.S. 25, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993). In the following legislative session, the legislature enacted into law the redistricting plans adopted by the Cotlow panel. See Act of April 11, 1994, ch. 406, 1994 Minn. Laws 94 (congressional redistricting); Act of May 9, 1994, ch. 612, 1994 Minn. Laws 130 (legislative redistricting).

On January 11, 2001, the plaintiffs in the Cotlow case filed a motion under Minn.R.Civ.P. 60.02(e) with the Cotlow special redistricting panel seeking to have the judgment in that case reopened and the injunction modified to hold the current legislative and congressional districts unconstitutional based on the 2000 Census. The presiding judge of the panel informed the Cotlow plaintiffs that the panel considered its appointment to be coextensive and coterminus with the legislative and congressional redistricting required by the 1990 Census and that its responsibility had therefore been concluded. The Cotlow plaintiffs have redirected their motion to the Chief Justice, requesting that the Cot-low special redistricting panel be reappointed or its appointment renewed for the purpose of hearing the Rule 60.02 motion.

Zachman, et al. v. Kiffmeyer, et al., No. C0-01-160, is a new action filed January 4, 2001, by a different set of plaintiffs in Wright County District Court alleging that the current legislative and congressional districts are unconstitutional based on the 2000 Census. The plaintiffs in Zachman have petitioned the Chief Justice to appoint a new three-judge special redistricting panel to hear and decide that case.

The Minnesota Attorney General has filed a motion in district court to dismiss the Zachman case as premature, on the grounds that the legislature has not yet had an opportunity to adopt redistricting plans based on the 2000 Census. The plaintiffs in both Cotlow and Zachman take the position that a special redistricting panel should be appointed and should declare the current districts unconstitutional, but the panel should then wait to see if the legislature enacts redistricting plans.

With respect to the Cotloiv plaintiffs’ request for renewal of the appointment of the Cotlow special redistricting panel, the presiding judge of the panel is correct that the panel’s appointment was coextensive and coterminus with the scope of that case. Based on the pleadings and the final orders and judgment of the panel, the Cot-low case concerned the validity of state legislative and congressional districts based on the 1990 Census. That matter was fully litigated and adjudicated. The Rule 60.02 motion and request for renewal of the Cotlow panel are based on population changes reported in the 2000 Census, changes not before the Cotlow panel and not within the scope of that action. Accordingly, the Cotlow plaintiffs’ request for renewal or reappointment of the Cotlow special redistricting panel is denied.

The Zachman challenge to the current district boundaries and the related petition for appointment of a new special redistricting panel is also based on changes in population reported in the 2000 Census. The Chief Justice has authority to appoint a special redistricting panel under Minn.Stat. §§ 2.724 and 480.16 (2000). No party has objected to adjudication of a court challenge to legislative and congressional redistricting based on the 2000 Census by a special redistricting panel. For reasons of judicial economy, as well as fairness and balance in the adjudication of the particularly important and sensitive issues inherent in redistricting, a three-judge panel should be appointed to hear and decide the Zachman case and any other redistricting challenges that may be filed based on the 2000 Census. Accordingly, the petition of the Zachman plaintiffs for appointment of a three-judge special redistricting panel is granted.

As the parties acknowledge, however, redistricting is primarily a legislative function. See Growe v. Emison, 507 U.S. at 34, 113 S.Ct. 1075 (“[Rjeapportionment is primarily the duty and responsibility of the State through its legislative or other body * * *.”) (quoting Chapman v. Meier, 420 U.S. 1, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975)). In 1991, the redistricting panel was not appointed until June, after the legislature had an opportunity to enact redistricting plans. At this point, the 2001 Legislature is still in session and has not had that opportunity.

Both the Cotlow and Zachman plaintiffs urge the immediate appointment of a panel so that the existing district lines can be declared unconstitutional and the legislature thereby put on notice that new plans must be adopted. The legislature has established a Geographic Information Systems Office to maintain the data, facilities, and technical capacity to draw electoral boundaries, Minn.Stat. § 3.305, subd. 5 (2000), and has been making preparations for redistricting that would be required by the 2000 Census for more than a year. See Minnesota Geographic Information Systems Office, Minnesota Redistricting Timetable, at http://www.commis-sions.leg.state.mn/gis/html/redtime.htm (last updated Oct. 27, 2000). Accordingly, there is no need for an immediate declaration of unconstitutionality in order to apprise the legislature of the necessity for redistricting. While the need to have state legislative and congressional district lines drawn in time for the 2002 election cycle imposes undeniable time constraints on this process, it is important that the primacy of the legislative role in the redistricting process be honored and that the judiciary not be drawn prematurely into that process.

For these reasons, while the Zach-man petition to appoint a special redistricting panel to hear and decide issues relating to redistricting that must ultimately be resolved by the judicial branch is granted, the appointment of the panel is stayed. When it is determined that panel action must commence in order that the judicial branch can fulfill its proper role in assuring that valid redistricting plans are in place in time for the 2002 state legislative and congressional elections, the stay will be lifted and a panel appointed.

Based on all the files, records and proceedings herein,

IT IS HEREBY ORDERED that:

1. The motion of the Cotlow plaintiffs for reappointment or renewal of the prior appointment of the Cotlow special redistricting panel be, and the same is, denied.

2. The motion of the Zachman plaintiffs for the appointment of a three-judge special redistricting panel to hear and decide challenges to the validity of state legislative and congressional districts based on the 2000 Census be, and the same is, granted.

3. Appointment of the special redistricting panel is stayed until further order of the Chief Justice.

BY THE COURT:

/s/Kathleen A. Blatz Chief Justice

      . The panel issued several subsequent orders relating to costs and disbursements, culminating in a final Order on Costs Including Attorney Fees, and Disbursements dated May 17, 1992.

      . The legislative redistricting plan enacted by the legislature in 1994’ made three adjustments to the plan used in the 1992 elections to avoid dividing the cities of Willernie and New Hope and to simplify the division of Ham Lake. Id.

      .Data from the 2000 Census necessary to complete redistricting is not expected to be available until some time in March, 2001.


author: PETERSON, Judge.

text:
    In the Matter of Rodger Dean ROBB II.
    No. C8-00-1367.
    Court of Appeals of Minnesota.
    Feb. 1, 2001.
    Review Denied April 17, 2001.

      Gregory R. Solum, Edina, MN; and Warren J. Maas, Brooklyn Park, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, Carolyn A. Peterson, Assistant County Attorney, Minneapolis, MN, for respondent.
    Considered and decided by PETERSON, Presiding Judge, LANSING and STONEBURNER, Judges.
   OPINION

PETERSON, Judge.

In this appeal from an indeterminate commitment as a sexual psychopathic personality and as a sexually dangerous person, appellant Rodger Dean Robb II challenges the sufficiency of the evidence to support his commitments and several evi-dentiary rulings. We affirm his commitment as a sexually dangerous person and reverse his commitment as a sexual psychopathic personality.

FACTS.

Robb admitted to sexual contact with several adolescent boys from approximately 1970 through 1981. According to the testimony of two victims, admissions by Robb, and police reports, Robb used his position as a band teacher in 1976 to molest several boys. The assaults involved Robb grabbing the boys’ genitals and fondling them. In 1976, Robb was convicted of disorderly conduct for molesting a ten-year-old boy.

In 1979, Robb was charged with three counts of second-degree criminal sexual conduct for sexually molesting three boys on separate occasions. Robb again used his position as a band teacher to make unwanted sexual advances and touch the boys’ genitals. In October 1979, Robb pleaded guilty to one count of second-degree criminal sexual conduct in exchange for dismissal of the other two counts. He was sentenced to not more than fifteen years, with execution of the sentence stayed on the condition that he enter and complete the Intensive Treatment Program for Sexual Aggressives (“ITPSA”) at the State Security Hospital.

While Robb was a resident at the ITP-SA in late 1980, he sexually molested a 15-year-old resident by fondling the boy’s genitals while he was asleep. Robb also established relationships with several adolescent residents, which led the treatment staff to monitor him closely. In 1981, Robb fondled an adolescent resident, then performed fellatio on him and masturbated him. As a result, he was terminated from the ITPSA program, his probation was revoked, and his 21-month sentence was executed. He was paroled from prison in April 1982.

In 1993, Robb was charged with one count of first-degree criminal sexual conduct and two counts of third-degree criminal sexual conduct for sexually assaulting three adolescent boys in 1992 and 1993. Robb pleaded guilty to all three counts and was sentenced to 98 months in prison.

In one of the 1993 incidents, Robb forced a 12-year-old boy onto Robb’s bed, pulled down his pants, and masturbated him. Robb later masturbated the boy on ten to fifteen different occasions, performed fellatio on him four or five times, and had the boy masturbate him on three occasions. With three other victims, Robb created an environment in his apartment that was enticing to young boys. He gave the boys snacks, the street drug “rush”, marijuana, or alcohol, and allowed them to play video games. On several different occasions, Robb masturbated the boys or performed fellatio on them. Robb showed some of the boys pornographic videos. During one incident, Robb pushed one of the victim’s arms down, pinned his hands against his stomach, and performed fellatio on him. One of the boys reported that Robb used “mental manipulation” on them to get them to comply with Robb’s requests. Robb often persisted in his sexual actions even after the boys told him to stop.

Robb initially admitted several of the allegations, but he often changed his statements and denied allegations he had previously admitted. Robb has an extensive treatment history, but he failed to complete any treatment program because he felt his issues as a homosexual were not being addressed. In addition, he consistently denied any wrongdoing and asserted that sex with minors was okay as long as the minor consented. His belief system made treatment of his sexual deviance extremely difficult.

In April 1999, a petition to commit Robb as a sexual psychopathic personality and as a sexually dangerous person was filed. The court appointed Dr. Harry M. Hober-man, a psychologist, as an examiner. At Robb’s request, the court appointed Dr. Stephen A. Parker, a psychologist, as a second examiner. Both examiners testified at the commitment hearing. Two of the victims who were assaulted in 1976 testified. Hoberman testified that Robb met the criteria for commitment as a sexual psychopathic personality and as a sexually dangerous person. Parker testified that Robb fell just short of the requirements for commitment as a sexual psychopathic personality because he did not quite demonstrate an utter lack of power to control his sexual impulses. Parker testified that Robb met the criteria for commitment as a sexually dangerous person.

ISSUES

1. Does Robb meet the statutory requirements for commitment as a sexual psychopathic personality and as a sexually dangerous person?

2. Was Robb committed to the least restrictive alternative treatment program?

3. Did the trial court make a prejudicial erroneous evidentiary ruling?

ANALYSIS

1. Sufficiency of the Evidence

To commit a person as a sexual psychopathic personality or as a sexually dangerous person the statutory requirements for commitment must be proved by clear and convincing evidence. Minn.Stat. § 253B.18, subd. 1 (Supp.1999); see Minn. Stat. § 253B.185, subd. 1 (Supp.1999) (provisions of section 253B.18 apply to commitments as sexual psychopathic personality and sexually dangerous person).

When evidence as to the existence of a psychopathic personality is in conflict, the question is one of fact to be determined by the trial court upon all the evidence.

In re Martenies, 350 N.W.2d 470, 472 (Minn.App.1984) (citation omitted), review denied (Minn. Sept. 12, 1984). The trial court’s findings of fact will not be reversed unless clearly erroneous. In re Monson, 478 N.W.2d 785, 788 (Minn.App.1991).

Citing In re Blodgett, 510 N.W.2d 910 (Minn.1994), and In re Rickmyer, 519 N.W.2d 188 (Minn.1994), Robb argues that the trial court erred when it committed him as a sexual psychopathic personality and as a sexually dangerous person because neither the trial court record nor his history of sex offenses includes a single instance of violent sexual behavior. He contends that his nonviolent behavior does not make him dangerous to others as required by the sexual-psychopathic-personality statute, and fails to establish the likelihood that he will engage in acts of future harmful sexual conduct required by the sexually dangerous person statute.

A. Sexual-Psychopathic-Personality Commitment

In 1939, the psychopathic-personality statute was challenged on the grounds that it was unconstitutionally vague. State ex rel. Pearson v. Probate Court of Ramsey County, 205 Minn. 545, 287 N.W. 297 (1939), aff'd, 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744 (1940). In response to the vagueness challenge, the Minnesota Supreme Court construed the statutory definition of psychopathic personality to apply only to

those persons who by a habitual course of misconduct in sexual matters have evidenced an utter lack of power to control their sexual impulses and who as a result are likely to attack or otherwise inflict injury, loss, pain, or other evil on the objects of their uncontrolled and uncontrollable desire-

Id. at 555, 287 N.W. at 302.

In 1994, the legislature amended the psychopathic-personality statute. 1994 Minn. Laws 1st Spec. Sess. ch. 1, art. 1, §§ 2, 6. The amendment changed the defined term from “psychopathic personality” to “sexual psychopathic personality” and explicitly incorporated into the statutory definition the construction given the statute by the supreme court in Pearson that the person has, by a habitual course of misconduct in sexual matters, evidenced an utter lack of power to control the person’s sexual impulses.

The amended statute states:

“Sexual psychopathic personality” means the existence in any person of such conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of personal acts, or a combination of any of these conditions, which render the person irresporisible for personal conduct with respect to sexual matters, if the person has evidenced, by a habitual course of misconduct in sexual matters, an utter lack of power to control the person’s sexual impulses and, as a result, is dangerous to other persons.

Minn.Stat. § 253B.02, subd. 18b (1998) (emphasis added).

Earlier in 1994, before the legislature amended the psychopathic-personality statute, the supreme court released the Blodgett and Rickmyer opinions relied on by Robb. In these opinions, the supreme court explained the meaning of the psychopathic-personality statute and described the behavior that is encompassed by the statutory definition. Because the psychopathic-personality statute that the supreme court interpreted in Blodgett, as it had been construed in Pearson, was not substantively changed when the legislature enacted the sexual-psychopathic-personality statute in 1994, the court’s explanation of the psychopathic-personality statute also interprets the sexual-psychopathic-personality statute.

The supreme court described Blodgett’s behavior as follows:

Blodgett broke into the home of the parents of his ex-girlfriend, entered the room where his ex-girlfriend was sleeping, and sexually assaulted her. ⅝ ⅜ ⅜ * * ⅜ Blodgett sexually assaulted a woman in the parking lot of a supermarket while attempting to steal her car. Blodgett grabbed the woman, pushed her into the front seat, shoved his hand in her mouth, hit her on the side of the head, put his hand between her legs and squeezed and rubbed her genital area. When the woman resisted and screamed for help, Blodgett asked her, “Do you want to die?” Five weeks later, ⅝ * * Blodgett raped a 16-year-old girl both vaginally and anally.

Blodgett, 510 N.W.2d at 911.

The court stated that in the context of a psychopathic-personality commitment,

the compelling government interest is the protection of members of the public from persons who have an uncontrollable impulse to sexually assault.

Id. at 914. The court then concluded that

In this case it has been clearly and convincingly established that Blodgett is dangerous, and that there is a substantial likelihood that he will sexually assault again, as he has in the past.

Id.

The supreme court explained that

[t]he psychopathic personality statute identifies a volitional dysfunction which grossly impairs judgment and behavior with respect to the sex drive. Compare Minn.Stat. Sec. 253B.02, subd. 13 (1992) (defining mental illness). The psychopathic personality is sometimes equated with the medically recognized “anti-social personality disorder”; it is, however, limited to sexual assaultive behavior and excludes mere sexual promiscuity. It also excludes other forms of social delinquency. Whatever the explanation or label, the “psychopathic personality” is an identifiable and documentable violent sexually deviant condition or disorder.

Id. at 915 (footnotes omitted). The court further explained that, to determine whether a person is dangerous to others, the court considers, among other things, “the nature and frequency of the sexual assaults” and “the degree of violence involved.” Id.

Robb cites these statements as authority for his argument that he cannot be committed as a sexual psychopathic personality because his history of sexual offenses does not include a single instance of violent sexual behavior. He contends that under Blodgett, to be dangerous to other persons as required by the sexual-psychopathic-personality statute, a sex offender’s behavior must include violent sexual assaults.

The supreme court’s explanation of the psychopathic-personality statute in Blodgett plainly indicates that to fall within the statutory definition of psychopathic personality, a person must have a violent sexually deviant condition or disorder and the person’s behavior must be sexual as-saultive behavior. The court explicitly stated that the definition “excludes mere sexual promiscuity.” Id. And just as plainly, the supreme court’s explanation of its conclusion that Blodgett is dangerous is based on the fact that Blodgett’s past behavior was not just sexual behavior; it included sexual assaults and demonstrated that there is a substantial likelihood that he will sexually assault again. Consequently, we conclude that under Blodgett, to demonstrate that a person is dangerous to other persons as required by the sexual-psychopathic-personality statute, it must be shown that the person is likely to commit violent sexual assaults.

However, a wide range of conduct can be described as violent sexual assaults. In Rickmyer, the supreme court held that not every course of sexual assaults is sufficient to demonstrate that a person is dangerous to other persons as required by the psychopathic-personality statute and further explained what kind of behavior meets the requirements of the statute. 519 N.W.2d at 189-90.

Rickmyer’s behavior led to several convictions for sexual contact with young boys. Id. at 189. In 1981, he pleaded guilty to two counts of simple assault. Id. In 1989, he pleaded guilty to “indecent exposure, having exposed his erect penis to some boys in a motel room,” and to fifth-degree assault after “spanking a young boy on the buttocks.” Id. Additional spanking incidents occurred as late as 1991. Id. Police reports that were received into evidence indicated that Rick-myer “had twice fondled the buttocks of an 8-year-old boy at a public playground,” that a 10-year-old boy reported that Rick-myer “had touched his private parts ‘a lot of times’ and put his hands inside the boy’s underwear and squeezed his buttocks,” and that another child stated that Rick-myer “had tried to touch his buttocks and had spanked ‘a lot’ of kids at the playground.” Id.

The trial court committed Rickmyer as a psychopathic personality based in part on the court’s finding that

[t]here is a substantial likelihood that [Rickmyer] will further engage in acts of a sexual nature capable of inflicting serious physical or mental harm to others.

Id. at 190 (quotations omitted). Rickmyer argued on appeal that because he is a nonviolent pedophile, he should not be considered a psychopathic personality. Id. at 189. Rickmyer also argued that the evidence did not support the trial court’s determination that he is likely to inflict serious physical or mental harm to others. Id. at 190. The supreme court did not address Rickmyer’s argument that because he is nonviolent, he should not be considered a psychopathic personality. Instead, the court reiterated its statement in Blod-gett that

the psychopathic personality “is an identifiable and documentable violent sexually deviant condition or disorder,” and among the factors to be considered are the nature of the sexual assaults and the degree of violence involved.

Id. (citation omitted).

The court then reversed Rickmyer’s commitment because

the record does not support the trial court’s findings that [Rickmeyer] has inflicted or is likely to inflict serious physical or mental harm on his victims. [Rickmeyer’s] unauthorized sexual “touchings” and “spankings,” while repellant, do not constitute the kind of injury, pain, “or other evil” that is contemplated by the psychopathic personality statute.

Id.

Robb contends that, in Rickmyer, the supreme court held that a nonviolent sex offender cannot exhibit a risk of future danger where there is no violence. Respondent draws a very different conclusion from Rickmyer and argues that because the opinion refers to both physical and mental harm, a showing of physical violence is not required to demonstrate that a person is dangerous to other persons. We do not agree that the supreme court drew the bright line that either party claims.

In Rickmyer, the supreme court repeated the description of the psychopathic personality that it provided a few months earlier in Blodgett, which refers to violent sexual deviance and sexual assaults, but the court did not determine whether Rick-myer’s behavior was nonviolent. Absent an express determination of this critical fact, we cannot conclude that the supreme court simply accepted Rickmyer’s characterization of his sexual offenses as nonviolent and reversed his commitment because his behavior was not violent. And although the court referred to both physical and mental harm, it did not conclude that Rickmyer could be found to be dangerous to other persons even though it was not shown that his behavior was violent. The court did not conclude that Rickmyer could be found to be dangerous.

The supreme court simply did not directly respond to Rickmyer’s argument that as a nonviolent pedophile, he should not be considered a psychopathic personality. Instead, the court considered the kind of harm Rickmyer’s behavior caused and concluded that because Rickmyer had not inflicted and was not likely to inflict serious physical or mental harm on his victims, the harm he caused was not the kind of harm contemplated by the psychopathic-personality statute, and Rickmyer could not be committed as a psychopathic personality.

Because it is conceivable that nonviolent behavior could inflict serious physical or mental harm, it is reasonable to read Rick-myer as having eliminated a need to show violent behavior to demonstrate that a person is dangerous to others. It may be sufficient to show only that a person’s behavior, either violent or nonviolent, is likely to inflict serious physical or mental harm. But because the supreme court repeated in Rickmyer the description of the psychopathic personality it had provided only months earlier in Blodgett and specifically stated that two of the factors to be considered when determining whether a person has a psychopathic personality are the “nature of the sexual assaults and the degree of violence involved,” we conclude that the supreme court did not eliminate the need to show that a person is likely to commit violent sexual assaults in order to demonstrate that the person is dangerous to other persons. Under Blodgett and Rickmyer, behavior that makes a person “dangerous to other persons” as required by the sexual-psychopathic-personality statute is limited to violent sexual assaults that create a substantial likelihood of serious physical or mental harm being inflicted on the person’s victims.

Blodgett and Rickmyer do not provide a bright line for determining when sexual assaults create a substantial likelihood of serious physical or mental harm, but the facts and holdings of the two cases provide some indication of when this line is crossed.

Rickmyer’s conduct involved the use of some physical force, but it is not apparent that anything he did was likely to cause serious physical harm. He might have caused temporary pain, but he did not cause any actual physical injury. Rick-myer’s conduct involved numerous sexual contacts with young boys. Although these contacts likely caused mental harm to Rickmyer’s victims, there is no indication that the harm was greater than the harm that could be expected to be caused by any sexual assault. Because the supreme court held that the record did not support a finding that Rickmyer inflicted or was likely to inflict serious mental harm, serious mental harm must mean greater mental harm than would be expected in a sexual assault.

Blodgett’s behavior differed markedly from Rickmyer’s. In terms of physical harm, Blodgett pushed and hit one of his victims and shoved his hand in her mouth. This conduct easily could have caused physical harm, and it would not have required unusual circumstances for the harm to be serious. In terms of mental harm, it is readily apparent that Blodgett’s behavior was likely to inflict serious mental harm. Blodgett attacked one of his victims while she slept in her parent’s home. He attacked another victim in a public place and threatened to kill her. And he subjected a third victim to multiple forms of sexual penetration. All of these acts were highly likely to have a serious, lasting effect on the victim’s sense of security and to cause a continuing sense of fear. The physical and mental harm likely to be caused by Blodgett’s behavior was greater than the physical and mental harm likely to be caused by other sexual assaults that involve some physical force.

Because of the significant similarities between Robb’s behavior and the behavior described in Rickmyer, we conclude that Robb’s behavior is not the kind of behavior contemplated by the sexual-psyehopathie-personality statute. Like Rickmyer, Robb did not physically injure any of his victims. He sometimes restrained his victims, which could be considered to be a form of violence, but the restraint was limited and did not cause physical injury. Also like Rickmyer, Robb’s behavior resulted in multiple sexual-assault convictions, which demonstrates that his behavior was sexual assaultive behavior. Finally, although Robb’s sexual assaults inflicted mental harm on his victims, such as influencing how one victim trusts people, especially his children’s teachers, and leaving one victim very distraught and visibly upset, this mental harm was not greater than the mental harm likely to be caused by a sexual assault.

Like Rickmyer, Robb’s unauthorized sexual behavior was repellant, but it did not inflict the kind of harm that is contemplated by the sexual-psychopathic-personality statute. Therefore, we reverse Robb’s commitment as a sexual psychopathic personality.

B. Sexually Dangerous Person Commitment

Robb also argues that his nonviolent behavior is not sufficient to establish that he will engage in acts of harmful sexual conduct as required by the sexually dangerous person statute.

When the legislature amended the psychopathic-personality statute in 1994, it also enacted an entirely new statute that permits the civil commitment of a sexually dangerous person. This statute provides:

(a) A “sexually dangerous person” means a person who:
(1) has engaged in a course of harmful sexual conduct as defined in subdivision 7a;
(2) has manifested a sexual, personality, or other mental disorder or dysfunction; and
(3) as a result, is likely to engage in acts of harmful sexual conduct as defined in subdivision 7a.
(b) For purposes of this provision, it is not necessary to prove that the person has an inability to control the person’s sexual impulses.

Minn.Stat. § 253B.02, subd. 18c (1998).

The subdivision 7a referred to in the definition of “sexually dangerous person” provides:

(a) “Harmful sexual conduct” means sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another.
(b) There is a rebuttable presumption that conduct described in the following provisions creates a substantial likelihood that a victim will suffer serious physical or emotional harm: section 609.342 (CRIMINAL SEXUAL CONDUCT IN THE FIRST DEGREE), 609.343 (CRIMINAL SEXUAL CONDUCT IN THE SECOND DEGREE), 609.344 (CRIMINAL SEXUAL CONDUCT IN THE THIRD DEGREE)

Minn.Stat. § 253B.02, subd. 7a (1998).

The supreme court has clarified that the sexually dangerous person statute

allows civil commitment of sexually dangerous persons who have engaged in a prior course of sexually harmful behavior and whose present disorder or dysfunction does not allow them to adequately control their sexual impulses, making it highly likely that they will engage in harmful sexual acts in the future.

In re Linehan, 594 N.W.2d 867, 876 (Minn.1999).

Unlike the sexual-psychopathic-personality statute, which has been construed by the supreme court to require a showing that a person’s behavior is violent in order to demonstrate that the person is dangerous to other persons, the sexually dangerous person statute does not require a showing of violence. Instead, the statute requires a showing that the person “is likely to engage in acts of harmful sexual conduct.” Minn.Stat. § 258B.02, subd. 18c(3). And the statute defines “harmful sexual conduct” as “sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another.” Minn.Stat. § 253B.02, subd. 7a(a). It does not require that the sexual conduct be violent. Therefore, a showing of violent behavior is not required to show that it is highly likely that Robb will engage in harmful sexual acts in the future.

Robb also argues that demonstrating the course of harmful sexual conduct required by the sexually dangerous person statute requires proof of egregious harm as is required under the sexual-psychopathic-personality statute, and the harm he caused was not egregious harm. But, unlike the psychopathic-personality statute, which requires a showing of sexual assaultive conduct that is likely to cause physical or mental harm that is greater than the harm typically caused by a sexual assault, the sexually dangerous person statute contains a rebuttable presumption that committing certain criminal offenses creates a substantial likelihood that a victim will suffer serious physical or emotional harm. Therefore, if a person commits one of the listed criminal offenses, it is presumed that the person’s conduct is harmful sexual conduct. This presumption applies to Robb because he has been convicted of three of the listed offenses.

Robb contends that the evidence of the minimal physical and emotional harm he caused rebutted the statutory presumption. Although we have already indicated that the harm caused by Robb’s conduct was not the egregious harm contemplated by the psychopathic-personality statute, we do not agree that the harm was sufficiently limited to rebut the statutory presumption. In one of the offenses to which Robb pleaded guilty, he forced a 12-year-old boy onto a bed, pulled down his pants, and masturbated him. In another offense, Robb pushed his victim’s arms down, .pinned his hands against his stomach, and performed fellatio on him. One of Robb’s victims reported that Robb used “mental manipulation” on his victims. This conduct is not less serious than conduct that typically occurs in the commission of the offenses of which Robb was convicted, and Robb did not demonstrate that his victims suffered less emotional harm than other victims of the same offense would likely suffer.

Robb also argues that because he lived in the community for ten years without supervision and without committing any sex offenses, there was not a basis to find that he was not able to adequately control his sexual impulses or that he engaged in a course of harmful sexual conduct. It is true that Robb was released from prison in 1982 and was not convicted of another sex offense until 1993. In 1993, Robb pleaded guilty to one count of first-degree criminal sexual conduct and two counts of third-degree criminal sexual conduct for sexually assaults that occurred in 1992 and 1993. But the fact that Robb did not commit any sex offenses from 1982 until 1992 does not mean that there is not a basis for concluding that he could not adequately control his sexual impulses in 1999. The decision to commit Robb was based on his condition at the time of commitment, not his condition seven to seventeen years earlier. His conduct since 1992 demonstrated that he engaged in a course of harmful sexual conduct and that he could not adequately control his sexual impulses.

2. Least-Restrictive Alternative

Robb argues that the trial court erred when it rejected the least-restrictive alternative treatment plan that he proposed at the commitment review hearing. We disagree.

In 1998, the Minnesota Supreme Court determined that there was no statutory requirement that a person committed as a sexually dangerous person must be committed to the least-restrictive alternative treatment program. In re Senty-Haugen, 588 N.W.2d 266, 269 (Minn.1998). The legislature has since amended the statute to give the patient an opportunity to prove that a less-restrictive treatment program is available. Under the statute, however, the burden of proving that a less-restrictive program is available is on the patient. The statute provides:

The court shall commit the patient to a secure treatment facility unless the patient establishes by clear and convincing evidence that a less restrictive treatment program is available that is consistent with the patient’s treatment needs and the requirements of public safety.

Minn.Stat. § 253B.18, subd. 1(a); see also Minn.Stat. § 253B.185, subd. 19.

Robb offers no clear and convincing evidence that a less-restrictive treatment program is available that is consistent with his needs and the requirements of public safety. Robb suggested several alternative treatment programs, but he presented no evidence that any other program would be willing to accept him under a judicial commitment for sex offender treatment. Dr. Hoberman testified that Alpha Human Services, an alternative Robb proposed, was inadequate for Robb’s treatment-needs, had no security, and was close to a public school. Dr. Parker considered outpatient possibilities for Robb, but believed that Robb should be strictly supervised under such conditions. Both Dr. Parker and Dr. Hoberman testified that Robb’s course of treatment would be long and difficult, based partially on his reluctance to participate in treatment. Robb’s proposed alternative provided for only a limited amount of intensive supervision and outpatient treatment. There was not clear and convincing evidence that an adequate less-restrictive alternative treatment program was available.

Robb also claims that to the extent the statute places on him the burden of proving that he is entitled to be placed in a less-restrictive alternative treatment program, the statute is unconstitutional. But Robb provided no analysis or argument in support of this claim.

An assignment of error based on mere assertion and not supported by any argument or authorities in appellant’s brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection.

Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (citation omitted).

Robb cites two opinions as support for his claim that the statute is unconstitutional, but he does not offer any analysis or argument indicating how these opinions support his claim. Under Schoepke, Robb has waived this claim by failing to provide any supporting argument.

3. Evidentiary rulings

Absent erroneous interpretation of the law, the question of whether to admit or exclude evidence is within the trial court’s discretion. Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45—46 (Minn.1997). “Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrate prejudicial error.” Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn.1990) (citation omitted).

Robb makes a broad argument that the trial court erred by admitting police reports and Department of Corrections documents that contained disclosures he made to his treating psychologists. His argument appears to be that he was prejudiced by allowing the court examiners to view these documents because once the documents formed the basis for an examiner’s opinion, the documents became part of the record.

Minn. R. Evid. 703 provides:

(a) The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
(b) Underlying expert data must be independently admissible in order to be received upon direct examination; provided that when good cause is shown in civil cases and the underlying data is particularly trustworthy, the court may admit the data under this rule for the limited purpose of showing the basis for the expert’s opinion. Nothing in this rule restricts admissibility of underlying expert data when inquired into on cross-examination.

The trial court concluded that the police reports are the type of document that is routinely relied on by experts in commitment cases. The trial court admitted the documents under Minn. R. Evid. 803(6), the business records exception to the hearsay rule, and, therefore, did not consider whether the underlying data in the documents were particularly trustworthy as required by Minn. R. Evid. 703(b). But under Minn. R. Evid. 803(6), business records may not be admitted if “the method or circumstances of preparation indicate lack of trustworthiness.” Consequently, the trial court did consider the trustworthiness of the documents before admitting them. Robb has not demonstrated on appeal how the trial court’s analysis under rule 803(6) rather than rule 703(b) was prejudicial.

Robb argues that various psychological assessments and probation pre-sen-tence reports should be excluded from evidence because no Tennessen warnings were given to him at the time he provided data contained in the reports. Minn.Stat. § 13.04, subd. 2 (1998) provides:

An individual asked to supply private or confidential data concerning the individual shall be informed of: (a) the purpose and intended use of the requested data within the collecting state agency, political subdivision, or statewide system; (b) whether the individual may refuse or is legally required to supply the requested data; (c) any known consequence arising from supplying or refusing to supply private or confidential data; and (d) the identity of other persons or entities authorized by state or federal law to receive the data. This requirement shall not apply when an individual is asked to supply investigative data, pursuant to section 13.82, subdivision 5, to a law enforcement officer.

The warning required by this statute is known as a “Tennessen warning.” And although Robb might have been entitled to receive the warning when he provided data, Robb has cited no authority that indicates that the failure to receive the warning makes documents that contain the data he provided inadmissible in a court proceeding. Minn.Stat. § 13.08 (1998) provides civil remedies for violating any provision of chapter 13, but these remedies do not make government data inadmissible as evidence.

Finally, Robb argues that certain records should be protected by the privilege for communications between him and his therapists. “The medical privilege is a statutory privilege and not a constitutional right.” In re D.M.C., 331 N.W.2d 236, 238 (Minn.1983) (citing State v. Enebak, 272 N.W.2d 27, 30 (Minn.1978)). Minn.Stat. § 253B.23, subd. 4 (1998), provides:

Any privilege otherwise existing between patient and physician, patient and psychologist, patient and examiner, or patient and social worker, is waived as to any physician, psychologist, examiner, or social worker who provides information with respect to a patient pursuant to any provision of this chapter.

Consequently, the privilege Robb claims is waived in commitment proceedings.

DECISION

Because Robb’s behavior was not the kind of behavior that is contemplated by the sexual-psychopathic-personality statute, we reverse his commitment as a sexual psychopathic personality. Because the requirements for commitment under the sexually dangerous person statute were proved by clear and convincing evidence, we affirm Robb’s commitment as a sexually dangerous person. Robb did not meet his burden of proving that a less-restrictive treatment program is available that is consistent with his treatment needs and the requirements of public safety. The trial court’s evidentiary rulings do not include any prejudicial error.

Affirmed in part and reversed in part.

      . Minn.Stat. § 526.09 (1992), the statute that was in effect before the legislature acted in 1994, also required that the person is "dangerous to other persons.”

      . This statement is confusing because, read literally, it says that Rickmyer’s acts are not the kind of harm contemplated by the psychopathic-personality statute. But in Pearson, which the statement quotes, the court said that the psychopathic-personality statute applies to persons who are likely to commit an act that inflicts injury, loss, pain or other evil. In other words, the psychopathic-personality. statute contemplates acts that cause harm, not acts that are harm. This slight misstatement does not, however, obscure the court’s holding that Rickmyer could not be committed as a psychopathic personality because the record did not demonstrate that his conduct caused or was likely to cause the kind of harm that is contemplated by the psychopathic-personality statute.


text:
    STATE of Minnesota, Appellant, v. Eric Dean HAWKINS, Respondent.
    No. CX-00-1144.
    Court of Appeals of Minnesota.
    Feb. 7, 2001.

      Mike Hatch, Attorney General, St. Paul; and Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, for appellant.
    Dave Knutson, Acting Chief Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, Minneapolis, for respondent.
    Considered and decided by PETERSON, Presiding Judge, LANSING, Judge, and STONEBURNER, Judge.
   OPINION

PETERSON, Judge.

This appeal is from a pretrial order suppressing crack cocaine found during a search of appellant Eric Dean Hawkins after he was arrested for a misdemeanor offense. The state argues that there was probable cause to arrest Hawkins for a felony drug offense and, therefore, the crack cocaine was properly seized during a search incident to arrest. We reverse.

FACTS

The district court found that at about 1:40 a.m. on May 12, 2000, Minneapolis police officer Daniel Willis and his partner were on patrol near the intersection of Bloomington Avenue South and 27th Avenue South in Minneapolis. The court found that Willis testified that he saw Hawkins riding a bicycle near the intersection and that Hawkins was whistling and waving at approaching vehicles. The court also found that Willis testified that he watched Hawkins for about 15 minutes, and during that time, Willis saw Hawkins conduct several hand-to-hand transactions with other individuals. Once each transaction was completed, Willis testified, the other individuals left quickly.

Willis arrested Hawkins for loitering with intent to commit an illegal act in violation of Minneapolis Ordinance 385.50, which is a misdemeanor offense. The officers searched Hawkins and discovered crack cocaine in his sock.

Hawkins was charged by complaint with one count of fifth-degree controlled substance crime in violation of Minn.Stat. § 152.025, subd. 2(1) (1998). Hawkins filed a motion to suppress the crack cocaine discovered in his sock, arguing that police lacked probable cause to arrest him. At the hearing on the suppression motion, Willis testified that he could not see whether Hawkins had anything in his hand or whether anything was exchanged, and he never saw Hawkins remove anything from his mouth or a pocket. Willis also testified that the hand-to-hand transactions he saw Hawkins participate in took place too quickly to be consistent with an innocent activity and that they were consistent with hand-to-hand transactions in other narcotics cases. Willis explained:

If someone were * * * making change or something they probably would hold it out to count it out, or if they were buying something [legitimate] they’d make sure that the change they had in their hand was appropriate, or if they were shaking hands they probably would have stood around and talked too a little bit, but it was real brief. They came up, there was a short conversation, a hand to hand transaction, and then they parted ways.
In my opinion if you were going to greet somebody you’d have normal conversation with him at a point, or it wouldn’t be that brief. This was an act which is in my opinion trying to be not obvious but be sneaky at the same time, where he’d come up, there would be a short conversation about what you are going to do, what deal you are going to make, the slide of hands, hand transaction, and then the parties would part. It’s real brief, to the point. There is no standing around talking about old times or anything like that, it’s for a purpose and the purpose is to transact narcotics.

Willis testified that he had been involved in about 30 to 35 narcotics cases, about half of which involved hand-to-hand exchanges. He did not recall observing any hand-to-hand exchanges that turned out to be something other than a narcotics transaction. Willis stated that waving down vehicles and whistling at them is a common trait of street-level narcotics dealers, a way of getting people’s attention and letting people know that the dealers are selling narcotics.

The district court concluded that the officers lacked probable cause to arrest Hawkins and, therefore, the search incident to arrest was impermissible. The court explained:

Officer Willis and his partner lacked probable cause to arrest [Hawkins]. The officers only observed [Hawkins] for a short period (15 minutes according to Willis’ testimony), and [Hawkins’s] conduct could have been perfectly benign. The fact that [Hawkins] was bicycling on or near the corner of Bloomington and 27th Ave and making “hand to hand exchanges,” without more, does not necessarily mean that he was engaging in illegal activity. The facts simply do not reach the level required to constitute probable cause.

The court alternatively concluded that even if the officers had probable cause to arrest Hawkins for a misdemeanor, the search was unconstitutional because Minn. R.Crim.P. 6.01 required the officers to issue a citation instead of arresting Hawkins.

ISSUE

Did probable cause exist to arrest Hawkins for a felony offense?

ANALYSIS

In a pretrial appeal, this court will reverse the district court’s suppression of evidence only if the state demonstrates clearly and unequivocally that (1) the district court erred in its judgment and (2) the error will have a critical impact on the outcome of the trial. State v. Joon Kyu Kim, 398 N.W.2d 544, 547, 551 (Minn.1987) (stating critical impact is shown where the state’s case is destroyed without the suppressed evidence or where the absence of the evidence significantly reduces the likelihood of a successful prosecution).. The parties do not dispute that the critical impact requirement is met because suppression of the cocaine will result in dismissal of the charges.

The state argues that although Hawkins was arrested for a misdemeanor — loitering with intent to commit an illegal act — the real issue before us- is whether probable cause existed to. arrest Hawkins for a felony. Hawkins argues that the prosecution is trying to recast the issue presented to the district court by suggesting that the officers really intended to make a felony arrest on probable cause for controlled-substance violations. Hawkins acknowledges that the prosecution raised the felony-arrest issue before the district court, but he contends that the prosecutor did not brief the issue or examine the state’s witness on the theory. Hawkins argues that the case was presented to the district court as an arrest for a misdemeanor loitering offense and nothing more. We disagree.

It does not appear that any issues were briefed for the district court; there are no briefs in the district court record. Also, the prosecutor’s examination of Willis was directed toward establishing what Willis saw before arresting Hawkins, not to establishing why Willis arrested Hawkins for a misdemeanor, rather than a felony. Instead, the prosecutor made the following argument to the court:

Under these circumstances, considering Officer Willis’ training and extensive experience in observations of such drug activity before, he at that point had probable cause to arrest the Defendant for trafficking in narcotics. This is a felony, not a misdemeanor, and whether Officer Willis arrested the Defendant for loitering, which is a misdemeanor, or for the felony offense of trafficking in narcotics, is irrelevant to the Court’s decision because if he had authority to make a felony arrest, it doesn’t matter what the actual offense stated was for which he arrested the Defendant. If he had authority to make the felony arrest and he had probable cause for such arrest, he had authority to search the Defendant incident to that felony arrest without regard to Rule 6[.]01, without regard to the Bernardo case. Without regard to anything else he can search him incident to a valid felony arrest.

The prosecution has not recast the issue presented to the district court. The state argued to the district court that even though Hawkins was arrested for a misdemeanor, there was probable cause to arrest him for a felony, and, therefore, the fact that he was arrested for a misdemean- or is irrelevant. The state makes the same argument on appeal; it does not suggest that the officers really intended to make a felony arrest.

We apply an objective standard for determining the lawfulness of an arrest or a search by taking into account the totality of the circumstances to determine whether the police have probable cause to believe that a crime has been committed, and if the objective standard is met, we will not suppress evidence or invalidate an arrest “even if the officer making the arrest or conducting the search based his or her action on the wrong ground or had an improper motive.” State v. Olson, 482 N.W.2d 212, 214 (Minn.1992). See State v. Johnson, 314 N.W.2d 229, 230 (Minn.1982) (“The fact that it later turns out that the officers were wrong does not mean that they did not have probable cause at the time they made their assessment.”).

State v. Perkins, 582 N.W.2d 876, 878 (Minn.1998).

To establish probable cause, the police must show that they “reasonably could have believed that a crime has been committed by the person to be arrested.”

State v. Riley, 568 N.W.2d 518, 523 (Minn.1997) (quoting State v. Sorenson, 270 Minn. 186, 196, 134 N.W.2d 115, 123 (1965)); see also In re Welfare of G.M., 560 N.W.2d 687, 695 (Minn.1997) (“test of probable cause to arrest is whether the objective facts are such that under the circumstances, a person of ordinary care and prudence would entertain an honest and strong suspicion that a crime has been committed”). The lawfulness of the arrest is determined by an objective standard that takes into account the totality of the circumstances, including the expertise and experience of the arresting police officers. Perkins, 582 N.W.2d at 878; Riley, 568 N.W.2d at 523.

When probable cause exists, police may arrest a felony suspect without a warrant in any public place. State v. Walker, 584 N.W.2d 763, 766 (Minn.1998). If the arrest is valid, police may conduct a warrantless search of the suspect as an incident to the arrest without additional justification. Id.

In explaining its conclusion that there was not probable cause to arrest Hawkins, the district court stated that Hawkins’s conduct “could have been perfectly benign.” The court also stated that “making ‘hand to hand exchanges,’ without more, does not necessarily mean that [Hawkins] was engaging in illegal activities.” This explanation demonstrates that the district court applied the wrong standard for determining whether there was probable cause to arrest Hawkins and by doing so, required a greater showing than was needed to establish probable cause. The fact that there might have been an innocent explanation for Hawkins’s conduct does not demonstrate that the officers could not reasonably believe that Hawkins had committed a crime.

When determining whether there is probable cause, the

ultimate inquiry is not whether there is some hypothesis of ⅜ * * “innocence” which is reasonably consistent with the circumstances shown, for such an analysis is more appropriate to the “beyond a reasonable doubt” standard used on the merits. Here, we are dealing with “probable cause,” which requires “far less evidence.”

United States v. Sanchez, 689 F.2d 508, 515-16 (5th Cir.1982). See also, State v. Zachodni, 466 N.W.2d 624, 630 (S.D.1991) (facts need not be “conclusive” nor exclude all “possible non-criminal causes” to constitute probable cause); Peterkin v. United States, 281 A.2d 567, 569 (D.C.App.1971) (mere possibility that “innocent explanations for the activity may be imagined” does not diminish “reasonable likelihood of illegality appearing, from the circumstances, to prudent men possessing the knowledge and experience of the officers”).

The prosecution argues that probable cause existed to arrest Hawkins for felony sale or possession of drugs in violation of Minn.Stat. §§ 152.023, subd. 1(1) (sale of narcotics); 152.024, subd. 1(1) (sale of schedule I, II, or III controlled substance except marijuana); 152.025, subd. 1(1), (2) (sale of marijuana or schedule IV controlled substance); 152.025, subd. 2(1) (possession of a controlled substance).

Citing State v. Evans, 373 N.W.2d 836, 838 (Minn.App.1985), review denied (Minn. Nov. 1, 1985), Hawkins argues that the district court properly concluded that the officers lacked probable cause to arrest him. In Evans, officers patrolling a park known to be a site of drug-related activities saw the defendant and three other people passing a single marijuana cigarette. Id. This court concluded that the circumstances did not give rise to a reasonable belief that any of the persons possessed more marijuana than was required for a petty misdemeanor violation and, therefore, the officers lacked probable cause to arrest the defendant for possession of marijuana with intent to distribute. Id.

The facts supporting probable cause in this case are stronger than those in Evans. The officers watched Hawkins for about 15 minutes riding a bicycle around an intersection. Hawkins whistled and waved at approaching vehicles, which Willis testified is a common way for street-level narcotics dealers to get people’s attention and let them know that they are selling narcotics. Hawkins also conducted two hand-to-hand transactions with other individuals in a manner that Willis concluded was consistent with a drug transaction and not with innocent behavior. These facts, considered together, are sufficient to permit a prudent person to reasonably believe that Hawkins had engaged in the sale of drugs. See State v. Martinson, 581 N.W.2d 846, 852 (Minn.1998) (although each factor was consistent with innocent behavior, factors taken together justified reasonable suspicion of criminal activity); State v. Anderson, 439 N.W.2d 422, 426 (Minn.App.1989), review denied (Minn. June 21, 1989) (observation of apparently innocent acts can be significant to a trained officer and the officer is entitled to assess probable cause in light of his experience). Therefore, there was probable cause to arrest Hawkins for a felony offense.

Because we conclude that there was probable cause to arrest Hawkins for a felony offense, we also conclude that the search that led to the discovery of the crack cocaine was a valid search incident to the arrest. It is not necessary to address the state’s alternative argument that probable cause existed to arrest Hawkins for a misdemeanor.

DECISION

Because the evidence was sufficient to establish probable cause that Hawkins had engaged in the sale of drugs, Hawkins’s arrest was a valid felony arrest and the search that led to the discovery of the crack cocaine was a valid search incident to the arrest. The district court clearly erred when it determined that there was not probable cause to arrest Hawkins.

Reversed.

      . Willis testified that he and his partner were on patrol near Bloomington Avenue South and 27th Street. There is no dispute that the intersection Willis referred to is the intersection of Bloomington Avenue South and 27th Street East in Minneapolis.