author: HUDSON, Judge.

text:
    STATE of Minnesota, Respondent, v. Tina DeAnn LEJA, Appellant.
    No. C9-02-863.
    Court of Appeals of Minnesota.
    May 6, 2003.

      Mike Hatch, Attorney General, St. Paul, and Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, for respondent.
    John Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, Minneapolis, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge, HUDSON, Judge, and PORITSKY, Judge.

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

   OPINION

HUDSON, Judge.

This appeal is from a conviction and sentence for aiding second-degree murder and accomplice-after-the-fact. Appellant Tina Leja was sentenced to 210 months on the first offense and to a consecutive, stayed sentence of 81 months on the second offense. We conclude that appellant was properly convicted of aiding second-degree murder and that the trial court did not abuse its discretion in sentencing her for that offense; but that the conviction for accomplice-after-the-fact and the accompanying sentence cannot stand. Therefore, we affirm in part and vacate in part.

FACTS

Leja was charged with aiding second-degree murder, accomplice-after-the-fact, and other offenses, following the death of Bobby Dee Holder on July 5, 2001. The police investigation into Holder’s death revealed that Holder died when he visited the residence of Leja’s boyfriend, Darnell Smith. Holder’s torso was discovered partially buried on a rural Wisconsin property owned by Leja’s father. The rest of his dismembered body was never found. After the murder, Leja and Smith went to Mississippi, where they stayed, using fake names, until their arrest. Leja was tried separately from Smith and his brother, Chaka Smith, who was also charged in Holder’s murder.

The state’s theory was that Holder, who met Leja when he sold some custom tire rims to Darnell Smith, had developed a romantic interest in Leja, and had called her cell phone several times on the day of the murder. The state argued that Leja, at Darnell Smith’s request, lured Holder to Darnell Smith’s apartment by telling Holder that Smith was not home. When Holder arrived at the apartment, Darnell Smith and Chaka Smith jumped him, shot and stabbed him, and dismembered his body. Darnell Smith later instructed Leja and Andre Parker, another resident in Smith’s apartment building, to drive Holder’s body parts to Wisconsin, where Leja and Parker attempted to bury Holder’s torso on the property owned by Leja’s father.

The defense argued that Leja had no involvement in Holder’s murder and lived in fear of Darnell Smith, who coerced her into helping dispose of Holder’s body. The defense claimed that Leja left evidence where she hoped police would find it and tried in other ways to alert authorities to the crime without angering Smith. Neither party called Darnell Smith to testify.

The state’s key witnesses to the events of July 5, 2001, were Ramon Smith, another brother of Darnell Smith, and Ramon Smith’s girlfriend, Katrina Valley. They testified that they drove to Darnell Smith’s apartment that night around 9:30 or 10:00. They entered the apartment and were present in Darnell Smith’s bedroom when Leja received a call from Holder on her cell phone.

Valley testified that she saw Leja in the bedroom and saw Darnell Smith sitting on the bed cleaning a handgun. At some point, Leja received a call on her cell phone and Valley testified that Darnell Smith “scooted up behind” Leja and whispered something in her ear. Valley heard Leja tell the caller, “He’s not here right now. You can come over.” Valley testified that she and Ramon Smith left shortly after that.

Ramon Smith testified that when he entered the bedroom, Leja was talking on her cell phone. Ramon Smith testified that he saw Darnell Smith whispering in Leja’s ear as she talked on the phone, and heard Leja telling the caller, “He’s not here.” After Leja finished the phone call, Ramon Smith testified that Darnell Smith asked him to stay and help him beat up Holder. According to Ramon Smith, Leja heard this request and had no reaction to it. Ramon Smith testified that he and Valley “staged an argument” in order to get out of the situation.

The state’s critical witness with respect to the disposal of Holder’s body parts was Andre Parker. Parker described how Darnell Smith invited him into his bedroom and showed him Holder’s body parts stored in a cooler, then enlisted Parker to help dispose of them.

After an unsuccessful attempt to find a disposal site for the body in St. Paul, Smith had Parker help him put Holder’s body parts into Leja’s car. Smith then told Parker to drive Holder’s car and follow Leja in her car, and they set off for Wisconsin, where they left Holder’s car at a park-and-ride lot. Parker testified that he then got into Leja’s car and she drove to her father’s property, describing along the way how Smith had “forced her to manipulate Holder into coming to his residence,” and how Smith had assaulted and then shot Holder. Leja told Parker that during the murder she was standing in the corner of the room trying to stay out of the way.

Leja testified that she witnessed Holder’s murder and that she drove his body parts to her father’s Wisconsin property. Leja testified that Darnell Smith was very controlling, and that on July 5, 2001, she talked with a girlfriend at length about the relationship and came to a decision to end it. When she drove to Smith’s apartment that night, however, and described some of this conversation to Smith, he became very angry, ordering her to sit on the bed and hitting her with an alarm clock. Smith then checked Leja’s cell phone for incoming calls and saw Holder’s number.

Leja testified that when Holder called her later that night, Smith said to tell Holder that he was not at the apartment but that Holder could come by and pick up the tools he had left there. Leja testified that when she heard Holder’s car arrive, she met him at the front door. They entered the bedroom and she showed Holder the tools, which were against the wall. Smith then came into the bedroom and grabbed Holder, and he and Chaka Smith began hitting Holder. Leja testified that Holder struggled, making it out to the front door, but then she heard two shots, and the two men dragged Holder’s body into the bedroom. Leja testified that she fell asleep with Holder’s body still lying on the floor.

Leja corroborated much of Parker’s testimony about the drive to Wisconsin. Leja testified that they drove to Leja’s father’s property, which Leja testified she picked because she hoped her father would discover the body. Leja also testified that she disturbed things in the garage, and attempted to leave fingerprints to show that she had been there.

Leja admitted that she did not warn Holder that Darnell Smith was angry, nor did she ask Darnell Smith and Chaka Smith to stop assaulting Holder. Neither did she call the police on the trip to Wisconsin, although she had a cell phone and was at some point alone in her car. Leja admitted that she did not tell her family about her knowledge of Holder’s body parts, and that she lied to police when they questioned her. When Leja testified that she was “deliberately leaving a trail” for police after the murder, and was “[tjrying to get help,” the prosecutor asked her why, “when you were arrested by the police department in Mississippi, you said nothing?” Defense counsel objected and then asked for a mistrial, which the trial court denied after the prosecutor assured the trial court that because Leja’s attorney had advised her to remain quiet, he would not persist in that line of questioning. The trial court sustained the defense objection and instructed the jury to disregard the question.

Defense counsel requested instructions on both duress and necessity arguing that there was evidence from which the jury could conclude that Leja was under duress from Darnell Smith on July 5, 2001, and that her actions two days later in helping dispose of Holder’s body were justified by necessity. The trial court instructed the jury on the defense of duress but declined to give an instruction on necessity.

The jury found Leja guilty of aiding second-degree murder, accomplice-after-the-fact, and second-degree assault. The jury found Leja not guilty of conspiracy to commit second-degree assault. The trial court imposed a sentence of 210 months for aiding second-degree murder, an upward durational departure, citing the concealment of the victim’s body and Leja’s violation of a position of trust. The trial court imposed a consecutive, although stayed, sentence of 81 months for the ae-compliee-after-the-fact conviction.

ISSUES

I. Did the prosecutor commit prejudicial misconduct in asking appellant about her post-arrest silence?

II. Did the trial court err in failing to question jurors about possible outside influences?

III. Did the trial court abuse its discretion in admitting out-of-court statements?

IV. Can appellant be convicted of both second-degree murder for aiding in the offense and as an accomplice-after-the-fact for the same offense?

V. Is the evidence sufficient to support the conviction for aiding second-degree murder?

VI. Did the trial court abuse its discretion in its upward sentence departure?

ANALYSIS

I

Leja argues that the prosecutor’s question concerning her silence following arrest was a denial of her right to a fair trial. Leja contends that although the trial court sustained the objection to the question and instructed the jury to disregard it, it constituted prejudicial prosecu-torial misconduct and requires a new trial. We disagree.

In determining whether prosecutorial misconduct requires a new trial, this court looks to whether the misconduct likely played a substantial part in influencing the jury to convict. State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974). Misconduct that is “unusually serious” requires a new trial unless it is harmless beyond a reasonable doubt. Id.

In addition, the supreme court has held that counsel-advised silence is protected to the same extent as silence that follows a Miranda warning. State v. Billups, 264 N.W.2d 137, 139 (Minn.1978); see also State v. Dunkel, 466 N.W.2d 425, 428 (Minn.App.1991) (following Billups in holding counseled pre-arrest, pre-Miranda silence may not be used for impeachment).

Here, the prosecutor’s single question strongly implied that Leja had “said nothing” to police upon her arrest in Mississippi. But Leja never answered the question, and the jury was instructed to disregard it. The general rule is that the jury must be presumed to have followed the trial court’s instructions. See State v. Pippitt, 645 N.W.2d 87, 94 (Minn.2002). This is not a case of repeated questioning aimed at planting an improper inference. See State v. Harris, 521 N.W.2d 348, 352-53 n. 5 (Minn.1994) (questioning whether curative instruction would have prevented prejudice from repeated improper questioning). Rather, the prosecutor’s question was brief, although, as the last question on cross-examination and one followed by a lengthy bench conference, it was not “undramatic.” Cf. Dunkel, 466 N.W.2d at 429 (holding that brief, undramatic reference to defendant’s pre-arrest silence was harmless beyond a reasonable doubt). But the jury had already heard abundant evidence of Leja’s failure to cooperate with the police investigation into Holder’s death. They had heard evidence that Leja denied knowing anything about Holder’s body parts when she was first contacted by Wisconsin police, that she had not returned that officer’s calls, and that she disclosed nothing to him even when he reached her at work. Given that the prosecutor did not persist in this line of questioning and the trial court instructed the jury to disregard the question, we conclude that the prosecutor’s brief question concerning Leja’s silence when arrested in Mississippi was harmless beyond a reasonable'doubt.

II

Leja also argues that the trial court erred in failing to question the jury about its possible exposure to outside influences despite several occurrences of whispering in the courtroom and outbursts and conversation occurring in the hallway.

In reviewing a trial court’s refusal to question jurors about outside influences, the reviewing court looks to whether the trial court properly determined that “serious questions of possible prejudice were not raised.” State v. Varner, 643 N.W.2d 298, 306 (Minn.2002). Leja did not request the trial court to question the jury. But because the record confirms the possibility of outside influences and because the trial court has an independent duty to ensure that the jury is untainted, we do not apply the plain-error standard. See generally State v. Richards, 552 N.W.2d 197, 210 (Minn.1996).

The record indicates that at several points the trial court expressed concern about whispering and other distracting behavior occurring in the courtroom, and particularly in seats close to the jury, and about an outburst, as well as simple conversation occurring in the hallway. In response, the court instructed the jury to disregard anything of this nature that it heard either inside the courtroom or outside of it. The trial court also questioned a Wisconsin reporter who admitted talking to a juror on the first day of trial about parking, as well as other “chit-chat,” and who identified himself to the juror as a reporter. The trial court directed the reporter not to talk to the jurors or to say anything in a voice loud enough for them to hear.

While any private communication or contact with a juror is presumptively prejudicial, the only actual contact established in the record was the reporter’s talking to a juror about parking and other “chitchat.” See generally State v. Fields, 529 N.W.2d 353, 357 (Minn.App.1995) (noting presumption of prejudice), review denied (Minn. Apr. 27, 1995). This contact did not come from a person in authority who was more likely to sway a jury, and we must presume that this contact was cured by the trial court’s instructions to the jury to disregard any communications or overheard conversations. See id. Furthermore, the reporter’s answers to the trial court’s questions sufficiently rebutted the presumption that the contact was prejudicial.

Ill

Leja next argues that the trial court abused its discretion in admitting the out-of-court statements of Holder concerning his sexual attraction to Leja and Darnell Smith’s out-of-court statement, allegedly made in Leja’s presence, that he was going to attack Holder. We disagree.

An appellate court will largely defer to the trial court’s evidentiary rulings, which will be overturned only for a clear abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn.1989). Here, the trial court admitted Holder’s statements under the state-of-mind exception to the hearsay rule. Minn. R. Evid. 803(3).

With respect to Holder’s statements, the trial court allowed Mauricio Jones to testify, over a defense objection, that after meeting Leja, Holder said he would like to have sex with her and that he could have sex with her. The trial court may admit

[a] statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design ***)***.

Minn. R. Evid. 803(3) (emphasis added). Holder’s statements were an expression of his intent or design to have sex with Leja, which was highly relevant to prove the state’s theory that Holder was lured to his death by exploiting that intent. Therefore, the statements are an exception to the hearsay rule and the trial court did not clearly abuse its discretion in admitting them.

Leja also argues that the trial court abused its discretion in admitting Ramon Smith’s testimony that at the conclusion of Leja’s phone call with Holder, Darnell Smith asked him, in Leja’s presence, to stay and help him beat up Holder. The trial court ruled that Smith’s statement was admissible as non-hearsay because it was the statement of a co-conspirator made in furtherance of the conspiracy. Minn. R. Evid. 801(d)(2)(E). But this statement was also an expression of a plan or design and thus properly admitted under Minn. R. Evid. 803(3). Moreover, it appears that the statement was admitted not for its truth, but to show Leja’s knowledge of Smith’s plan. Therefore, the statement was not hearsay. See Minn. R. Evid. 801(c). Because we conclude that the statement was not hearsay and was admissible, we need not decide whether there was sufficient evidence that Leja was involved in a conspiracy making the statement admissible under Minn. R. Evid. 801(d)(2)(E). The trial court did not clearly abuse its discretion in admitting the statement.

IY

Leja contends that she cannot be convicted of both aiding second-degree murder and being an aecomplice-after-the-fact. She argues that because the accomplice liability imposed under Minn.Stat. § 609.05 for the first offense (second-degree murder) makes her a “principal” in the commission of that offense, she cannot also be guilty as an aecomplice-after-the-fact. We agree.

This court construes a question of law, including the proper construction of a statute, de novo. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996).

The aiding an offender (accomplice-after-the-fact) statute imposes criminal liability on a person who

harbors, conceals, or aids, another known by the actor to have committed a felony * * * with intent that such offender shall avoid or escape from arrest, trial, conviction, or punishment.

Minn.Stat. § 609.495, subd. 1(a) (2000). But as an accomplice in Holder’s murder, Leja was already charged with aiding Darnell Smith. And, under Minnesota law, Leja was charged as a principal in the second-degree murder offense because section 609.05 abolished the common law distinction between principals and accessories before the fact. Minn.Stat. Ann. § 609.05, advisory comm. cmt. (West 1987); see generally State v. Grilli, 304 Minn. 80-84, 230 N.W.2d 445, 449 (1975) (noting that if a person is liable for aiding and abetting under section 609.05, he is charged as a principal even though under the common law he would have been an accessory). Furthermore, the leading treatise on the defining of criminal offenses states: “A principal in either the first or second degree may not also become an accessory after the fact by his subsequent acts.” 2 Wayne R. LaFave and Austin W. Scott, Substantive Criminal Law, § 6.9(a) at 169 (West 1986).

In sum, it is not possible, as a matter of law, for a principal to be guilty of being an accomplice-after-the-fact. Because Leja was found guilty as a principal on the second-degree murder charge, Leja’s conviction as an accomplice-after-the-fact and the accompanying sentence must be vacated. In light of this conclusion, we need not address Leja’s claim that the trial court should have given an instruction on the defense of necessity since Leja sought this instruction only on the count charging her as an accomplice-after-the-fact.

Y

Leja argues that the evidence is insufficient to prove that she aided Darnell Smith in the murder of Holder. We disagree.

In reviewing a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). We assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn.1989). We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn.1988).

Leja’s argument that her role in Holder’s murder was limited to passive acquiescence and after-the-fact concealment ignores this court’s standard of review. We must assume that the jury credited Ramon Smith’s testimony that Darnell Smith, in Leja’s presence, said he was going to beat up Holder. In addition, Ramon Smith testified that Leja was present when Darnell Smith was cleaning and loading his gun. Moreover, there is the undisputed evidence that Leja falsely told Holder that Darnell Smith was not home and invited him to the apartment. Lastly, after the murder, Leja and Parker drove to Wisconsin where they buried Holder’s body parts on Leja’s father’s property at her suggestion. From this evidence the jury could reasonably conclude that Leja played a knowing and active role in the crime before its commission. Cf. State v. Ulvinen, 313 N.W.2d 425, 428 (Minn.1981) (reversing conviction for aiding and abetting of mother who did not actively encourage her son to murder his wife but merely passively acquiesced).

VI

Finally, Leja argues that the trial court abused its discretion in its upward durational departure for the aiding second-degree murder conviction. We disagree.

The decision to depart from the presumptive sentence rests within the trial court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn.1996).

The trial court imposed a sentence of 210 months for the aiding second-degree murder conviction, which represents a 60-month upward departure from the presumptive sentence of 150 months. The trial court cited the concealment of the victim’s body and Leja’s abuse of a position of trust as aggravating factors supporting the departure.

Leja argues that concealment of the victim’s body may be used as an aggravating factor only when the defendant uses her knowledge of the location in attempting to bargain with authorities. See State v. Schmit, 329 N.W.2d 56, 58 n. 1 (Minn.1983) (holding concealment of body without bargaining attempt was not a proper aggravating factor). But the supreme court since Schmit has affirmed departures and cited concealment of the body even when there was no attempt to use the information for bargaining purposes. See State v. Griller, 583 N.W.2d 736, 744 n. 29 (Minn.1998); State v. Folkers, 581 N.W.2d 321, 327 (Minn.1998). We have held that, even in the absence of bargaining, “the method of concealment and the indication of particular cruelty may still be considered.” State v. Murr, 443 N.W.2d 833, 836-37 (Minn.App.1989), review denied (Minn. Sept. 27, 1989). Here, the concealment of Holder’s body parts, some of which were never recovered, was particularly cruel to Holder’s family. We conclude that the trial court did not clearly abuse its discretion in imposing the 60-month upward departure. Because that departure is adequately supported by the aggravating factor of concealment of the body, we need not address Leja’s argument that she was not in a position of trust as to Bobby Holder.

DECISION

Leja is not entitled to a new trial because: (1) the prosecutor’s question about Leja’s post-arrest silence was harmless beyond a reasonable doubt; and (2) the district court properly admitted the out-of-court statements as hearsay exceptions and as non-hearsay, and sufficiently instructed the jury about outside influences. As a matter of law, however, Leja cannot be convicted of both aiding second-degree murder and as an aceomplice-after-the-fact for the same offense. The latter conviction and the accompanying sentence must be vacated. The evidence, however, sufficiently supports the aiding second-degree murder conviction, and the trial court did not clearly abuse its discretion in its upward sentencing departure for that offense.

Affirmed in part and vacated in part.

      . The prosecutor did not contest defense counsel's assertion that Leja remained silent upon arrest on the advice of her attorney.

      . Pursuant to Minn.Stat. § 609.05, subd. 1 (2000), "[a] person is criminally liable for a crime committed by another if the person intentionally aids ... the other to commit the crime.”


source: Caselaw Access Project

author: G. BARRY ANDERSON, Judge. ROBERT H. SCHUMACHER, Judge,

license: Public Domain

text:
    In the Matter of a PETITION FOR CLARIFICATION OF AN APPROPRIATE UNIT, Education Minnesota-Intermediate District No. 917, Local 3904, St. Paul, Minnesota, Relator, v. Intermediate School District No. 917, Rosemount, Minnesota, Respondent, Bureau of Mediation Services, Respondent.
    No. C7-02-1378.
    Court of Appeals of Minnesota.
    May 6, 2003.

      Christina L. Clark, Harley M. Ogata, Education Minnesota, St. Paul, for relator.
    Sara J. Ruff, Plymouth, for respondent Intermediate School District No. 917.
    Mike Hatch, Attorney General, St. Paul, for respondent Bureau of Mediation Services.
    Considered and decided by SCHUMACHER, Presiding Judge, and G. BARRY ANDERSON, Judge, and HUDSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Relator Education Minnesota petitioned respondent Bureau of Mediation Services for a unit clarification, seeking a determination that teaching positions filled by nonlicensed community experts pursuant to Minn.Stat. § 122A.25 (2002) should be included in the teacher bargaining unit. After a hearing, the bureau excluded the nonlicensed community experts from the unit. Education Minnesota brings this certiorari appeal, arguing that because teaching positions filled by nonlicensed community experts constitute teaching positions as defined by the Public Employee Labor Relations Act, Minn.Stat. § 179A.04, subd. 18(1) (2002), they are properly included within the teacher bargaining unit. Because the bureau properly determined that nonlicensed community experts should be excluded from the teacher bargaining unit, we affirm.

FACTS

Respondent Intermediate School District No. 917 (the school district) is a public employer subject to the Public Employee Labor Relations Act (PELRA), Minn.Stat. §§ 179A.01-.25 (2002). Relator Education Minnesota is the exclusive bargaining representative under PELRA for the bargaining unit of teachers employed by the school district.

Most of the teachers employed by the school district are licensed to teach special education. The school district offers primarily special education programs, as well as secondary vocational education. Because there is a severe shortage of special education teachers, the school district sought permission to hire nonlicensed community experts to fill vacant special education positions. During the 2001-2002 school year, the board of teaching gave the school district approval to hire nine community experts who did not have teacher’s licenses; eight of these community experts were hired to fill special education teaching positions. The school district gave the nonlicensed community experts a temporary contract, with salaries and responsibilities commensurate with those of a licensed teacher.

Generally, the school district has not placed nonlicensed community experts in the teacher bargaining unit, with the exception of one community expert who was a tenured occupational therapist and therefore a “teacher” within the meaning of MinmStat. § 179A.03, subd. 18(2) (2002). Relator petitioned the Bureau of Mediation Services for clarification or amendment of the appropriate teacher bargaining unit for the school district, requesting that all non-licensed community experts employed by the school district be included in the local teacher bargaining unit. After a hearing, the bureau ruled that the community experts were not teachers and that they were excluded from the teacher bargaining unit. This certiorari appeal followed.

ISSUE

Should nonlicensed community experts who are hired to fill teaching positions under Minn.Stat. § 122A.25, subd. 1 (2002), be excluded from the teacher bargaining unit under PELRA?

ANALYSIS

An appellate court will reverse a decision by an agency “only if it reflects an error of law, the determinations are arbitrary and capricious, or the findings are unsupported by the evidence.” County of Scott v. Pub. Employment Relations Bd., 461 N.W.2d 503, 504 (Minn.App.1990) (citations omitted), review denied (Minn. Dec. 20, 1990). The agency decision will be presumed correct and an appellate court will defer “to the agency’s expertise and special knowledge in the field of its technical training, education, and experience.” Id. (citation omitted). The construction of the Public Employee Labor Relations Act (PELRA), Minn.Stat. ch. 179A (2002), is a question of law, and the decision on this point is fully reviewable. Hibbing Educ. Ass’n v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985). “Administrative interpretations [as to the construction of a statute] are entitled to great respect, but they are not binding on the court.” Indep. Sch. Dist. No. 621 v. Pub. Employment Relations Bd., 268 N.W.2d 410, 412 n. 5 (Minn.1978) (citations omitted).

In construing laws, the purpose “is to ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2002). When the words are clear and unambiguous, “the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” Id. “[N]o room for judicial construction exists when the statute speaks for itself.” Anoka-Hennepin Educ. Ass’n v. Anoka-Hennepin Indep. Sch. Dist. No. 11, 305 N.W.2d 326, 329 (Minn.1981). If not explicit, the legislature’s intent may be determined by considering the need for and objectives of the law, among other factors. Minn.Stat. § 645.16.

We first examine the licensure requirements for a teacher employed in the public schools. Minn.Stat. § 122A.15, subd. 1 (2002). Generally, a qualified teacher must hold a valid license “to perform the particular service for which employed in a public school.” MinmStat. § 122A.16 (2002). Under an exception to this general rule, the board of teaching “may allow school districts * * * to hire nonlicensed community experts to teach * • 4 on a limited basis.” Minn.Stat. § 122A.25, subd. 1 (2002).

To obtain permission to hire such nonli-censed personnel for a licensed teacher position, the school district must apply to the board of teaching for permission. MinmStat. § 122A.25, subd. 2 (2002). The board will consider the need to hire the community expert, the qualifications of the particular person, the district’s unsuccessful efforts to hire licensed personnel, and other relevant information. Id.

Having set out the teacher licen-sure requirements, we now turn to the relevant provisions of PELRA. PELRA regulates labor relations in the public sector, including those between school districts and teachers. Indep. Sch. Dist. No. 621, 268 N.W.2d at 411. Under the act, public employees must meet and negotiate with an appropriate bargaining unit. MinmStat. § 179A.01(2) (2002). The Bureau of Mediation Services has the authority to determine appropriate bargaining units. Minn.Stat. § 179A.04, subd. 2 (2002). For school districts, an appropriate unit “means all the teachers in the district.” Minn.Stat. § 179A.03, subd. 2. “Teacher” is defined in relevant part as

any public employee * * * employed by a school district * * * in a position for which the person must be licensed by the board of teaching or the commissioner of children, families, and learning.

Id., subd. 18(1) (2002).

It is undisputed that the positions for which nonlicensed community experts are hired, if filled by a licensed teacher, would be included in the teacher bargaining unit. The bureau determined that when the board of teaching grants the school district authority to hire a nonli-censed community expert, it has determined that under limited circumstances, the position does not require a license. Consequently, the bureau determined the nonlicensed community experts are not teachers as defined by PELRA and are therefore excluded from the teacher bargaining unit represented by Education Minnesota.

Education Minnesota disputes this decision. It contends that bargaining units are composed of positions, not individuals. See Hibbing Educ. Ass’n, 369 N.W.2d at 529 (holding that licensure requirement of position, not job functions of employees, is determinative in resolving whether positions should be placed in teacher bargaining unit); see also Hill-Murray Fed’n v. Hill-Murray High School, 487 N.W.2d 857, 867-68 (Minn.1992) (holding that bureau’s unit determination, which excluded supervisory positions and music and religion teachers, was supported by the record). It contends that consequently, the controlling issue is whether the position requires licensure, not whether the particular person filling it is licensed. Therefore, it concludes that because the position itself requires licensure, the position— even if filled by the nonlicensed community expert — belongs within the teacher bargaining unit.

In Hibbing Educ. Ass’n, the supreme court was faced with the issue of whether certain paraprofessionals, some of whom were licensed teachers, who were hired for positions that did not require licensure, should be placed in a teacher bargaining unit or a separate bargaining unit. 369 N.W.2d at 529. The supreme court noted that under Minn.Stat. § 179A.03, subds. 2, 18, if the paraprofessionals were in a position requiring licensure, they belonged in the teacher bargaining unit; if not, they belonged in a separate bargaining unit. Id. The court concluded that because their positions did not require licensure, they did not belong in the teacher bargaining unit. Id.; see In re Petition for Clarification, 529 N.W.2d 717, 719 (Minn.App.1995) (holding that where teacher positions required licensure, albeit by legislation and the local school district rather than the board of teaching, employees in those positions belonged in the teacher bargaining unit), review denied (Minn. June 14, 1995).

In addressing the issue, we must first note that unlike Hibbing Educ. Ass’n, the positions at issue are not ones that unqualifiedly require licensure. Instead, the legislature has specifically authorized the board of teaching, in clear and unambiguous language, to approve hiring community experts who are not licensed for these positions. Minn.Stat. § 122A.25, subd. 1. Education Minnesota argues that the position itself — which is what it asserts we must look at — continues to require li-censure, even if the particular qualifications of the person change. But this court has held that where the legislature and the school district impose a licensure requirement on a position, it is considered a teaching position within the meaning of PELRA. In re Petition for Clarification, 529 N.W.2d at 719. Conversely, where the legislature and the board of teaching indicate no license is required — even temporarily — the position is not a teaching position for purposes of PELRA. Under the plain language of the relevant statutes, inclusion in the teacher bargaining unit requires licensure and the community experts, who are permitted employment as teachers despite their lack of licensure, are not teachers within the meaning of section 179A.03, subdivision 18. Like the paraprofessionals in Hibbing Educ. Ass’n, 369 N.W.2d at 529, whose positions did not require licensure, the nonlicensed community experts here who do not require a license are not properly within the teacher bargaining unit.

Relator, however, contends that the bureau’s decision is unsupported by substantial evidence on the record. First, relator argues that the bureau ignored extensive testimony from the board of teaching’s executive director and related documents which confirmed that positions filled by community experts were teaching positions that require licensure. But it is not disputed that the job postings for which the nonlicensed community experts were hired were for teaching positions or that the duties they perform were normally performed by teachers.

Next, relator claims that the decision was unsupported by substantial evidence because the bureau ignored the extensive and unrebutted testimony and written analysis by its grammar expert as to the meaning of Minn.Stat. § 179A.04, subd. 18(1). The bureau heard the expert’s testimony, but was not compelled to adopt it. Construction of the statute is a legal question subject to de novo review. Hibbing Educ. Ass’n, 369 N.W.2d at 529. Therefore, we are not compelled to adopt the testimony of the expert witness.

DECISION

The decision by the bureau of mediation services determining that nonlicensed community experts should be excluded from the teacher bargaining unit is affirmed.

Affirmed.

ROBERT H. SCHUMACHER, Judge,

(dissenting).

I respectfully dissent. A teacher for purposes of the Public Employee Labor Relations Act (PELRA) is defined as a public employee who is employed by a school district “in a position for which the person must be licensed.” Minn.Stat. § 179A.03, subd. 18(1) (2002); Hibbing Educ. Ass’n v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985). Here, the nonlicensed community experts are employed for the full school year under Minn.Stat. § 122A.25, subd. 1 (2002) in positions requiring licensure. They have the same duties, responsibilities, and salaries as licensed teachers. I would reverse the decision by the Bureau of Mediation Services and hold that as a matter of law teaching positions filled by nonlicensed community experts are for all intents and purposes teaching positions as defined by PELRA and are properly included in the teacher bargaining unit.

      . Education Minnesota cites a unit clarification order in which the parties apparently reached an agreement that a particular corn-munity expert was appropriately included in the teacher bargaining unit. We do not find this agreement controlling here.


author: RANDALL, Judge.

text:
    Jason Thomas JONES, Petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
    No. C4-02-1936.
    Court of Appeals of Minnesota.
    May 13, 2003.

      Derek A. Patrin, Gerald Miller & Associates, P.A., Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, Darren Dejong, Assistant Attorney General, Saint Paul, MN, for respondent.
    Considered and decided by WRIGHT, Presiding Judge, RANDALL, Judge, and SHUMAKER, Judge.
   OPINION

RANDALL, Judge.

Appellant challenges the district court’s order sustaining the revocation of his driver’s license arguing that his right to counsel was not vindicated because the dispatcher did not verify that appellant was out of time to contact an attorney when an attorney tried to reach him. Rather, the dispatcher prevented appellant from speaking to his attorney before deciding whether to submit to an alcohol-concentration test. Since appellant’s limited right to counsel was not vindicated, we reverse.

FACTS

On February 2, 2002, at approximately 12:05 a.m., the White Bear Lake Police Department (“WBLPD”), received three telephone calls reporting erratic driving. The callers indicated that the vehicle in question was a red pickup truck that “took out a stop sign and fire hydrant near an intersection.” Officer Scott Mueller was dispatched to the area and discovered appellant in his driveway, which is a short distance from the damaged hydrant and sign, talking to another officer. Appellant informed Mueller that the truck had not been driven for quite awhile. However, Mueller confirmed recent driving because the vehicle’s engine was warm. Eventually, appellant admitted he had driven the vehicle and that he had been drinking. Appellant indicated that he had consumed two beers, two mixed drinks and two shots at a bar. Appellant did not mention any postdriving consumption.

After failing field sobriety tests, appellant was arrested for driving while impaired (DWI) and was transported to WBLPD. Upon arrival at WBLPD, Officer Mueller brought appellant to the booking room and Mueller read appellant the implied consent advisory. Appellant indicated that he wanted to speak with an attorney and he was provided with a telephone, various telephone directories, and given approximately 38 minutes to contact an attorney. After being warned that his time was nearing an end, appellant made five or six phone calls to a friend and his sister. Thereafter, appellant called Gerald Miller & Associates, attorneys, and left a message with the answering service. Eric Nelson, an attorney then employed by Gerald Miller & Associates, received the message and immediately called WBLPD.

When Nelson called the WBLPD number that appellant had provided on the answering machine, there was no answer. Nelson then dialed information to get WBLPD’s main number and made a second attempt to contact appellant by dialing the main number. Nelson spoke with a dispatcher and identified himself as an attorney attempting to contact appellant. The dispatcher placed Nelson on hold. Shortly thereafter, the dispatcher informed Nelson that appellant’s time had ended and that Nelson would not be allowed to speak with appellant. Nelson again identified himself as an attorney and stated that he had just received the page within the last minute and did not understand why he was not being permitted to speak to appellant. The dispatcher placed Nelson on hold a second time and again informed him that appellant’s time had expired. As a result, Nelson was prevented from talking to appellant.

Officer Mueller was in the booking room the entire time, and testified at the hearing that no one ever contacted him, or asked him if appellant’s time was up. There was no evidence in the record showing that Officer Mueller, or anyone else who would know when appellant’s time was up, had any contact with the dispatcher. Appellant was unable to speak with legal counsel before his allotted 38 minutes were up. He was asked to submit to chemical testing for blood alcohol or have his driving privileges revoked. Appellant consented to the test and the results showed an alcohol concentration of 0.16.

The district court sustained revocation of appellant’s driver’s license under Minn. Stat. § 169.123 (2002), finding that appellant was clearly under the influence of alcohol at the time of driving due to his erratic driving conduct. Further, the court found that appellant’s right to counsel was vindicated because: (1) appellant was given a reasonable amount of time to contact an attorney; (2) appellant did not make a good faith and sincere effort to reach an attorney; and (3) appellant failed to make appropriate and productive use of his time. This appeal followed.

ISSUE

On these facts, did the state vindicate appellant’s right to counsel?

ANALYSIS

The critical issue we face is whether WBLPD officers vindicated appellant’s right to consult an attorney prior to having him submit to alcohol-concentration testing. The district court concluded that this is a mixed question of law and fact and the reasonableness of the length of time the officers gave the appellant to contact an attorney is not determinative. We agree. A mixed question of law and fact requires us “to apply the controlling legal standard to historical facts” as determined by the district court. State v. Wiernasz, 584 N.W.2d 1, 3 (Minn.1998).

Under the Minnesota Constitution, drivers have the right, “upon request, to a reasonable opportunity to obtain legal advice before deciding whether to submit to chemical testing.” Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn.1991) (interpreting Minn. Const. Art. 1, § 6). The right to counsel is limited in DWI cases to ensure that consultation does not unreasonably delay the administration of the test. However, police officers are obliged to inform an intoxicated driver of his right to counsel and must assist in vindicating that right. Gergen v. Comm’r of Pub. Safety, 548 N.W.2d 307, 309 (Minn.App.1996), review denied (Minn. Aug. 6, 1996). The right to counsel is considered vindicated when the driver is provided with a telephone prior to testing and given a reasonable amount of time to contact and consult with an attorney. Kuhn v. Comm’r of Pub. Safety, 488 N.W.2d 838, 841-42 (Minn.App.1992), review denied (Minn. Oct. 20, 1992). There are three factors that have been established to ascertain what constitutes a reasonable amount time: (1) the time of day; (2) the length of time the driver has been under arrest; and (3) whether the driver made a good faith and sincere effort to contact counsel. Id. at 842.

Here, the district court superficially relied on these factors to conclude that appellant’s right to counsel was vindicated. The court found that appellant was given a reasonable amount of time to contact counsel. Specifically, the court found:

Petitioner was given the opportunity to consult with legal counsel. His attempts to contact legal counsel were videotaped. According to the meter on the videotape, Petition was given from 1:10 am to 1:48 to contact counsel. Unable to do so after 38 minutes, Petitioner was asked to submit to a breath test or to have his privileges revoked for refusal; Petitioner submitted and the result was .16.

Appellant correctly indicates that the district court erroneously analyzed the issue by focusing its analysis only on whether appellant was given reasonable time to contact counsel and whether appellant made productive use of his time. Instead, the district court should have focused its analysis on the fact that the dispatcher twice denied Nelson access to appellant. The dispatcher placed Nelson on hold twice and each time informed Nelson that appellant’s time had expired. There was no evidence in the record that the dispatcher had ever contacted Officer Mueller or anyone else to determine appellant’s time was up. Officer Mueller testified that he had absolutely no contact with any WBLPD dispatcher during appellant’s 38 minute allotted time. The district court’s findings did not even mention the dispatcher’s actions.

The initial burden is on the commissioner to show that they assisted appellant to vindicate his right to counsel. In this case, the state met this initial burden by providing him a phone, phone directories, and 38 minutes in which to contact an attorney. However, this does not end the inquiry. Appellant did contact an attorney’s answering service and an attorney almost immediately called him back. With these facts of record in place, the burden of production shifts to the state to provide a reasonable explanation why the dispatcher, admittedly not involved in the testing, and not in contact with Officer Mueller, decided to deny attorney Nelson access to appellant.

The state argued that the Nelson’s call was immaterial because appellant did not make a good faith effort to contact an attorney. It is difficult for us to conclude that appellant did not make a good-faith effort when his effort actually produced a callback from an attorney. The state needed to provide a rational explanation to the trial court, explaining why the dispatcher denied Nelson access to appellant. The state failed to provide any explanation at all. At oral argument, the state posited that “perhaps” the dispatcher went to the testing room and saw that appellant was already taking the test and, thus, concluded that any consultation time was over. This would be a reasonable explanation; however, there is no evidence in the record to indicate that it happened that way.

A camera in the booking room recorded appellant’s entire calling period. The tape reveals an unidentified person entering the room with the phone books and then leaving. The state speculated at oral argument that the unidentified person reported back to the dispatcher. This would also be a reasonable possibility; but no evidence in the record shows this is what happened. The videotape revealed that Officer Mueller had a radio connected to his shoulder and was seen talking into it. If Officer Mueller or the dispatcher provided any testimony that they talked, or if Officer Mueller informed the dispatcher that appellant’s time was up, this would explain the dispatcher’s refusal to give Nelson access to appellant. Since Officer Mueller was responsible for setting and controlling appellant’s allotted time, it is the most likely explanation that he would have informed dispatch that appellant’s time was up. However, Officer Mueller, with praiseworthy candor, testified that he had no contact with dispatch.

The state made a solid showing that appellant was provided access to telephone books, a telephone, and allotted 38 minutes to contact counsel. However, it failed to produce any explanation as to why the dispatcher concluded that appellant’s time had expired and denied Nelson the opportunity to speak to appellant. On appellate review, we cannot add to the record what the state failed to supply. Because the dispatcher denied Nelson access to appellant, and the state failed to provide evidence why the dispatcher concluded appellant’s time was up, we are compelled to conclude that appellant’s limited right to counsel was not vindicated.

DECISION

Appellant’s attorney was denied access to appellant, and the state failed to produce a reasonable explanation for the denial. On this record, appellant’s right to counsel was not vindicated.

Reversed.


author: VANDE WALLE, Chief Justice.

text:
    2003 ND 66
    STATE of North Dakota, Plaintiff and Appellee, v. James Elwood NORMAN, Defendant and Appellant.
    No. 20020172.
    Supreme Court of North Dakota.
    April 24, 2003.

      Cynthia M. Feland, Assistant State’s Attorney, Bismarck, ND, for plaintiff and appellee.
    Kent M. Morrow, Severin, Ringsak & Morrow, Bismarck, ND, for defendant and appellant.
    Jonathan R. Byers, Assistant Attorney General, Attorney General’s Office, Bismarck, ND, for amicus curiae North Dakota Attorney General.
   VANDE WALLE, Chief Justice.

[¶ 1] James Elwood Norman appealed from a district court order denying his ipotion to quash an earlier order which required him to provide a deoxyribonucleic acid (“DNA”) sample under N.D.C.C. § 31-13-03. We affirm.

I

[¶ 2] In 1992, a jury found Norman guilty of class AA felony murder for killing his wife Pamela Norman. See State v. Norman, 507 N.W.2d 522, 523 (N.D.1993) (affirming conviction). He received a sentence of life in prison and is currently in the custody of the Department of Corrections and Rehabilitation (“Department”).

[¶ 3] The Legislature enacted N.D.C.C. ch. 31-13 in 1995 to provide for DNA testing and a DNA data base. See 1995 Sess. Laws ch. 325. As originally enacted, N.D.C.C. § 31-13-03 limited DNA testing to individuals convicted of certain sexual offenses or attempted sexual offenses. The Legislature amended § 31-13-03 in 2001 to expand DNA testing to include certain nonsexual felony offenses. See 2001 N.D. Sess. Laws ch. 302, § 1. The 2001 version of § 31-13-03 (emphasis added), states:

The court shall order any person convicted on or after August 1, 1995, of any sexual offense or attempted sexual offense in violation of sections 12.1-20-03, 12.1-20-03.1, 12.1-20-04, 12.1-20-05, 12.1-20-06, subdivision e or f of subsection 1 of section 12.1-20-07, or section 12.1-20-11 or any other offense when the court finds at sentencing that the person engaged in a nonconsensual sexual act or sexual contact with another person during, in the course of, or as a result of, the offense and any person who is in the custody of the department after July 31, 1995, as a result of a conviction of one of these offenses to have a sample of blood.or other body fluids taken by the department for DNA law enforcement identification purposes and inclusion in law enforcement identification data bases. The court shall order any person convicted after July 31, 2001, of a felony offense contained in chapter 12.1-16, 12.1-17, or 12.1-18, section 12.1-22-01, or chapter 12.1-27.2 and any person who is in the custody of the department after July 31, 2001, as a result of a conviction for one of these offenses to have a sample of blood or other body fluids taken by the department for DNA law enforcement identification purposes and inclusion in the law enforcement identification data bases. Notwithstanding any other provision of law, if the sentencing court has not previously ordered a sample of blood or other body fluids to be taken, the court retains jurisdiction and authority to enter an order that the convicted person provide a sample of blood or other body fluids as required by this section. Any person convicted after July 31, 1995, who is not sentenced to a term of confinement shall provide a sample of blood or other body fluids as a condition of the sentence or probation at a time and place specified by the sentencing court. The sentencing court shall assess the cost of the procedure against the person being tested. The department shall collect the cost of the procedure from the person being tested and transfer the amount collected to the state department of health for deposit in the general fund.

Norman’s conviction for class AA felony-murder is a felony offense contained in N.D.C.C. ch. 12.1-16.

[¶ 4] In December 2001, the State moved the district court to order Norman provide a DNA sample under N.D.C.C. § 31-13-03. Without a hearing or providing him notice, the court ordered Norman to “provide a sample of blood and body fluids ... for DNA law enforcement identification purposes and inclusion in law enforcement identification data bases in accordance with the provisions of N.D.C.C. ch. 31-13.” In practice, DNA samples in North Dakota are obtained using an oral swab.

[¶ 5] Norman moved to quash the order and for an injunction to stay the collection of the DNA sample. Upon Norman’s request, the district court appointed an attorney to represent him. The court postponed the testing until it ruled on his motion and ordered no sanctions be taken against him. Norman’s present counsel is the fourth appointed attorney in this case; the other three attorneys were allowed to withdraw because of conflicts.

[¶ 6] Among his many arguments against providing a DNA sample, Norman challenged the constitutionality of § 31-13-03 on ex post facto grounds; therefore, the Attorney General responded by filing a brief defending the statute’s constitutionality. Following a June 2002 hearing, the district court issued an order denying Norman’s earlier motion to quash the order which required him to provide a DNA sample. The court determined § 31-13-03 was retroactive and Norman was subject to its requirements. Furthermore, the appointment of counsel and the hearing had satisfied his rights to due process. Norman moved to stay the collection of the DNA sample pending this appeal, and the district court granted his motion.

[¶ 7] On appeal, Norman challenges N.D.C.C. § 31-13-03 on multiple grounds: the district court erred in finding § 31-13-03 is retroactive and in finding Norman’s 1992 murder conviction and status as an inmate require he provide a DNA sample; section 31-13-03 is an impermissible ex post facto law; the statute violates his Fifth Amendment right against self-incrimination; and the court erred in finding Norman would not suffer new legal consequences by refusing to provide a DNA sample.

II

[¶ 8] All fifty states have statutes establishing DNA testing and DNA data bases. Landry v. Attorney General, 429 Mass. 336, 709 N.E.2d 1085, 1087 (1999). The federal government also has a national index, or data base, of DNA samples which includes samples taken from persons convicted of crimes, recovered from crime scenes or unidentified human remains, and contributed from the relatives of missing persons. See 42 U.S.C. § 14132.

[¶ 9] Challengers to DNA data base statutes have raised issues such as cruel and unusual punishment, equal protection, prohibition against ex post facto laws, free exercise of religion, procedural and substantive due process, right to privacy, the Fifth Amendment right against self-incrimination, separation of powers, and the Fourth Amendment right against unreasonable search and seizure. See generally Robin Cheryl Miller, Annotation, Validity, Construction, and Operation of State DNA Database Statutes, 76 A.L.R. 5th 239 (2003). These cases demonstrate challengers often raise several of these issues on appeal, and generally, these arguments have been unsuccessful. Id.

[¶ 10] We recently upheld N.D.C.C. § 31-13-03, as amended in 2001, against an equal protection challenge. State v. Leppert, 2003 ND 15, ¶ 1, 656 N.W.2d 718. As stated in Leppert, “[c]ourts have generally upheld DNA testing of convicted persons against various constitutional challenges.” Id. at ¶ 10 (citing multiple cases in which DNA testing was upheld on appeal). But see id. at ¶ 22 (Maring, J., concurring in the result) (comparing two courts’ holdings in Fourth Amendment challenges to DNA sampling). This opinion is limited to the issues raised by Norman on appeal.

Ill

A

[¶ 11] Norman argues the district court erred in finding N.D.C.C. § 31-13-03 is retroactive. He asserts a plain reading of this portion of the statute demonstrates § 31-13-03 is clearly not retroactive:

The court shall order any person convicted after July 31, 2001, of a felony offense contained in chapter 12.1-16, 12.1-17, or 12.1-18, section 12.1-22-01, or chapter 12.1-27.2 and any person who is in the custody of the department after July 31, 2001, as a result of a conviction for one of these offenses....

Thus, Norman asserts § 31-13-03 applies only to a person who was both convicted after July 31, 2001, and in departmental custody after July 31, 2001. Because he was not convicted after July 31, 2001, the statute should not apply to him. If the statute was intended to specify two separate categories of people, punctuation, such as a comma, would have been inserted before the conjunction “and.”

[¶ 12] The State asserts N.D.C.C. § 31-13-03, by its clear and unambiguous language, is retroactive. As the Attorney General noted in its amicus curiae brief and the State asserted at oral argument, the use of the subject “any person” twice lends to an interpretation that two separate categories of people were intended by the statute: (1) individuals convicted after July 31, 2001, of the enumerated offenses, and (2) individuals in the Department’s custody after July 31, 2001, because of a conviction for those offenses. If only one category of people was intended, repetition of the subject “any person” would be unnecessary.

[¶ 13] Under N.D.C.C. § 1-02-10, “[n]o part of this code is retroactive unless it is expressly declared to be so.” A statute need not explicitly use the term “retroactive” for it to be applied to facts occurring before the effective date of the statute. Overboe v. Farm, Credit Servs., 2001 ND 58, ¶ 8, 623 N.W.2d 372. Section 1-02-10 is a rule of statutory construction, and as a rule of construction, it “is subservient to the goal of statutory interpretation: to ascertain and effectuate legislative intent.” State v. Davenport, 536 N.W.2d 686, 688 (N.D.1995) (quoting State v. Cummings, 386 N.W.2d 468, 471-72 (N.D.1986)). If we can rationally infer from other sources that the Legislature intended retroactive application of a statute, we do not need to resort to § 1-02-10 to determine legislative intent. Id. at 689 (citing Cummings, 386 N.W.2d at 472).

[¶ 14] As we have previously stated:

The interpretation of a statute is fully reviewable on appeal. Our primary objective in construing a statute is to ascertain the intent of the Legislature by looking at the language of the statute itself and giving it its plain, ordinary, and commonly understood meaning. Although courts may resort to extrinsic aids to interpret a statute if it is ambiguous, we look first to the statutory language, and if the language is clear and unambiguous, the legislative intent is presumed clear from the face of the statute.

Overboe, 2001 ND 58, ¶ 9, 623 N.W.2d 372 (citations omitted).

[¶ 15] Both parties assert § 31-13-03, on its face, clearly supports their respective positions. After examining the language of § 31-13-03, giving it its plain, ordinary, and commonly understood meaning, we agree the repeated use of the subject “any person” supports the conclusion that the Legislature intended the provision to include two separate categories of individuals: “The court shall order any person convicted after July 31, 2001, of a felony offense contained in chapter 12.1-16, 12.1-17, or 12.1-18, section 12.1-22-01, or chapter 12.1-27.2 and any person who is in the custody of the department after July 31, 2001 ...” N.D.C.C. § 31-13-03 (emphasis added). Although this interpretation seems most reasonable from a plain reading of the statute, Norman’s interpretation is not untenable. Cf. Hilton v. N.D. Educ. Ass’n, 2002 ND 209, ¶ 10, 655 N.W.2d 60 (stating a statute subject to different, but rational meanings is ambiguous). When a statute is ambiguous, we may resort to extrinsic aids, such as legislative history, to construe an ambiguous provision. Id.; N.D.C.C. § 1-02-39. In construing an ambiguous statute which affects public interest, we prefer an interpretation favoring the public. State v. Burr, 1999 ND 143, ¶ 12, 598 N.W.2d 147 (citation omitted).

[¶ 16] The entire legislative history of N.D.C.C. § 31-13-03, as amended in 2001, demonstrates cost was an important consideration in expanding the offenses included in the data base. The original bill would have applied to a greater number of felony offenses. Hearing on H.B. 1208 Before the Senate Judiciary Comm., 57th Leg. Assem. (Mar. 5, 2001) (testimony of Representative Lawrence Klemin). However, due to the costs of such testing, the final bill was limited to testing individuals convicted of the enumerated, primarily violent, felony offenses.

[¶ 17] Although the projected fiscal effects of this bill changed over the 2001 legislative session, the estimated number of offenders and cost for the first biennium were always greater than the estimated number of offenders and cost in the subsequent biennium. The Director of the Crime Laboratory Division of the Department of Health explained this “drop in numbers” resulted from “having to profile all current offenders in custody as of July 31, 2000(sic). That would get us caught up. It is estimated that we would have another 550 people to profile after that every year.” Hearing on H.B. 1208 Before the House Judiciary Comm., 57th Leg. Assem. (Jan. 24, 2001) (testimony of Kenan Bullinger, Crime Laboratory Director). The bill’s primary sponsor also explained why the number of individuals to be tested was greater the first year, compared to subsequent years, stating “[t]he reason the number is higher the first year is to take into account the present prison population and the present parole/probation population.” Hearing on H.B. 1208 Before the House Appropriations Comm., 57th Leg. Assem. (Feb. 14, 2001) (memo of Representative Lawrence Klemin).

[¶ 18] As noted, the cost of this amendment was a significant concern. To decrease the ultimate cost of the testing, the Legislature decreased the enumerated offenses the DNA testing statute would encompass. Although not testing “the present prison population and the present parole/probation population” also would have decreased costs, the legislative history does not indicate consideration of such an alternative proposal.

[¶ 19] The underlying purpose of this bill, reflected in the legislative history, demonstrates the Legislature’s intent to further expand the DNA data base. The goals were to increase success rates of solving crimes in North Dakota and other states, exonerate innocent suspects, and aid in identifying those who commit future crimes. Hearing on H.B. 1208 Before the House Judiciary Comm., 57th Leg. As-sem. (Jan. 24, 2001) (testimony of Representative Lawrence Klemin). These goals would be further advanced by including those inmates already incarcerated for the newly included offenses. Therefore, after reviewing the legislative history of N.D.C.C. § 31-13-03, we conclude the Legislature intended the expanded DNA testing to include individuals in the custody of the department after July 31, 2001, as a result of a conviction for one of the specified offenses.

[¶ 20] Furthermore, we conclude the court had no discretion in ordering Norman to provide a sample. Section 31-13-03 states “[t]he court shall order....” As we have previously stated:

Ordinarily, the word “shall” in a statute creates a mandatory duty. The word “shall” is “generally imperative or mandatory ... excluding the idea of discretion, and ... operating to impose a duty.” Where necessary to effect the intent of the legislature, however, the word “shall” will be interpreted as creating a duty that is merely directory. If the duty prescribed in the statute is essential to its main objectives, the word “shall” is to be construed as creating a mandatory duty.

Sweeney v. Sweeney, 2002 ND 206, ¶ 17, 654 N.W.2d 407 (citations omitted). After examining § 31-13-03 and its legislative history, we cannot conclude the Legislature intended this portion of the statute to be directory. Because we construe “shall” according to its ordinary meaning — creating a mandatory duty — the court was required to order Norman submit a sample for DNA testing after it determined § 31-13-03 applied to Norman. Therefore, the district court did not err in determining the statute was retroactive and applied to Norman because of his 1992 murder conviction and his current status as an inmate.

B

[¶21] Norman’s statement of the issues also contains an ex post facto challenge to N.D.C.C. § 31-13-03. We have stated the Legislature may apply statutes retroactively unless doing so would result in ex post facto application. State v. Shafer-Imhoff, 2001 ND 146, ¶ 42, 632 N.W.2d 825 (citing State v. Burr, 1999 ND 143, 598 N.W.2d 147). A law which imposes a collateral consequence of a conviction may be applied retroactively if the purpose is to protect some other legitimate interest, rather than to punish the offender. Burr, at ¶ 11. The constitutionality of a statute is a question of law, and we uphold the statute unless its challenger can demonstrate the statute’s unconstitutionality. Best Products Co. v. Spaeth, 461 N.W.2d 91, 96 (N.D.1990). A party raising a constitutional challenge “should bring up the heavy artillery or forego the attack entirely.” State v. Clark, 2001 ND 194, ¶ 9, 636 N.W.2d 660 (quoting Jarvis v. Jarvis, 1998 ND 163, ¶ 33, 584 N.W.2d 84).

[¶ 22] Norman purports to raise a generalized ex post facto challenge to N.D.C.C. § 31-13-03, but he fails to develop this argument or articulate this assertion from his retroactivity argument. This Court will only decide those issues which have been thoroughly briefed and argued. Olander Contr. Co. v. Gail Wachter Invs., 2002 ND 65, ¶ 32, 643 N.W.2d 29. “An issue not supported by argument in a brief will not be considered on appeal.” Murchison v. State, 1998 ND 96, ¶ 13, 578 N.W.2d 514. Accordingly, we do not decide Norman’s ex post facto argument.

[¶ 23] However, our research has revealed multiple cases, not cited in Norman’s appellate brief, in which courts have addressed and rejected ex post facto challenges to DNA testing statutes. For example, in Rise v. Oregon, 59 F.3d 1556, 1562 (9th Cir.1995), a group of convicted sex offenders presented an ex post facto argument in their challenge to Oregon’s DNA testing statute, arguing it increased their “punishment” for past convictions. The Rise court held the state could require the offenders to provide DNA samples because the purpose of the statute was “to create a DNA data bank to assist in the identification, arrest, and prosecution of criminals, not to punish convicted murderers and sexual offenders.” Id. (stating the Ex Post Facto Clause is not violated by every change in a convicted individual’s situation).

[¶ 24] Similarly, in Shaffer v. Saffle, 148 F.3d 1180, 1181 (10th Cir.1998), Shaffer, an inmate, challenged Oklahoma’s DNA testing scheme. In one argument, Shaffer asserted applying the statute to him violated the Ex Post Facto Clause because the law became effective after he was convicted. Id. at 1182. The Tenth Circuit rejected his argument. Id. The court noted other circuits had upheld similar testing schemes against similar challenges, holding these statutes do not violate the Ex Post Facto Clause because they have a legitimate, non-penal legislative purpose. Id. Furthermore, legislative intent clearly supported a retroactive application of the statute to inmates in Shaffer’s position. Id.

[¶ 25] Numerous other courts have followed similar reasoning and rejected ex post facto challenges. See, e.g., Gilbert v. Peters, 55 F.3d 237, 238-39 (7th Cir.1995); Ewell v. Murray, 11 F.3d 482, 486 (4th Cir.1993); Jones v. Murray, 962 F.2d 302, 309 (4th Cir.1992); United States v. Reynard, 220 F.Supp.2d 1142, 1162 (S.D.Cal.2002); Kruger v. Erickson, 875 F.Supp. 583, 589 (D.Minn.1994); Vanderlinden v. Kansas, 874 F.Supp. 1210, 1216 (D.Kan.1995), aff'd sub nom. Schlicher v. Peters, 103 F.3d 940 (10th Cir.1996); Matter of Appeal in Maricopa County Juvenile Action Nos. JV-512600 and JV-512797, 187 Ariz. 419, 930 P.2d 496, 500 (Ct.App.1996); Doe v. Gainer, 162 Ill.2d 15, 204 Ill.Dec. 652, 642 N.E.2d 114, 116-17 (1994); Cooper v. Gammon, 943 S.W.2d 699, 704, 707 (Mo.App.1997); Kellogg v. Travis, 188 Misc.2d 164, 728 N.Y.S.2d 645, 647 (2001 N.Y. Sup.Ct.); Dial v. Vaughn, 733 A.2d 1, 4-5 (Pa.Commw.Ct.1999). Cf. State v. Burr, 1999 ND 143, ¶ 36, 598 N.W.2d 147 (concluding North Dakota’s sex offender registration statute is regulatory, not punitive, and is not an ex post facto law); see also Smith v. Doe, — U.S.-,-, 123 S.Ct. 1140, 1154, 155 L.Ed.2d 164, - (2003) (holding retroactive application of Alaska’s sex offender registration law does not violate the Ex Post Facto Clause); United States v. Sczubelek, No. 94-8-SLR, 2003 WL 1818109, 2003 U.S. Dist. LEXIS 5721 (D. Del. April 2, 2003).

C

[¶ 26] Norman also contends the DNA testing violates his Fifth Amendment right against self-incrimination. In Schmerber v. California, 384 U.S. 757, 764-65, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the U.S. Supreme Court held blood test evidence, even if potentially incriminating, is neither testimony nor evidence relating to any communicative act. The Supreme Court concluded an involuntary seizure of a blood sample does not implicate the Fifth Amendment privilege. Id.; see also State v. Fasching, 453 N.W.2d 761, 763 (N.D.1990) (stating “[n]on-testimonial, ‘physical’ evidence can be obtained and used without regard to the Fifth Amendment privilege against self-incrimination”). Cf. Hampson v. Satran, 319 N.W.2d 796, 800 (N.D.1982) (stating the penitentiary’s urine testing program does not violate a prisoner’s Fifth Amendment right against self-incrimination because the testing program involves the gathering of real or physical evidence rather than testimonial or communicative evidence).

[¶ 27] Other courts have rejected claims which allege requiring an individual to provide a DNA sample amounts to compulsory self-incrimination. See Shaffer v. Saffle, 148 F.3d 1180, 1181 (10th Cir.1998); Boling v. Romer, 101 F.3d 1336, 1340 (10th Cir.1996) (concluding requiring DNA samples from inmates is not compulsory self-incrimination because DNA samples are not testimonial in nature); Johnson v. Commonwealth, 259 Va. 654, 529 S.E.2d 769, 779 (2000); Cooper v. Gammon, 943 S.W.2d 699, 705 (Mo.Ct.App.1997). We conclude obtaining a DNA sample by oral swab under N.D.C.C. § 31-13-03 does not violate the Fifth Amendment privilege against self-incrimination.

D

[¶ 28] Norman asserts the district court erred in finding he would not suffer negative consequences by refusing to provide a DNA sample. Norman claims by failing to submit a sample he will be held beyond his release date. He cites Jones v. Murray, 962 F.2d 302, 310 (4th Cir.1992), which held unconstitutional the portion of Virginia’s DNA sampling statute conditioning an inmate’s release or mandatory parole upon submitting a DNA sample. In Jones, the Fourth Circuit concluded detaining inmates who had reached their mandatory parole date violated the prohibition against ex post facto laws. Id. However, in examining the record in this case, we note the court made no findings regarding the impact on Norman should he refuse to submit to the testing. The record does not support any assertion that Norman’s release date will be delayed by his failure to submit.

[¶ 29] When Norman first refused to submit to testing, the director of prisons division did send him written notice, stating Norman’s failure to comply would “result in disciplinary action being taken, up to and including loss of job.” Norman did not address this type of negative consequence in his appellate brief. Due to the district court’s order, no sanctions were imposed on Norman. Furthermore, in challenges to DNA testing schemes, other courts have concluded disciplinary actions as a result of testing noncompliance are part of prison administration and regulation. See, e.g., Gilbert, 55 F.3d at 239; Kruger, 875 F.Supp. at 589 n. 7. In Jones v. Murray, the case cited by Norman, an ex post facto challenge on these grounds was rejected. Jones, 962 F.2d at 310. The court reasoned inmates refusing to provide a DNA sample who had not reached their mandatory parole date could be punished administratively, and such punishment would not violate the prohibition against ex post facto laws:

It is precisely because reasonable prison regulations, and subsequent punishment for infractions thereof, are contemplated as part of the sentence of every prisoner, that they do not constitute additional punishment and are not classified as ex post facto. Moreover, since a prisoner’s original sentence does not embrace a right to one set of regulations over another, reasonable amendments, too, fall within the anticipated sentence of every inmate. We therefore conclude that neither [the] blood-testing requirement, itself, nor the infliction of punishment within the terms of the prisoners’ original sentence for a violation of the requirement, is ex post facto. (citations omitted).

Jones, at 309-10; see also Ewell, 11 F.3d at 487 (stating an inmate’s refusal to comply with DNA sampling may be enforced using administrative punishments because DNA testing is administrative, not penal). Cf. Ennis v. Schuetzle, 488 N.W.2d 867, 871-72 (N.D.1992) (holding the warden had the statutory authority to revoke an inmate’s favored status in housing and work assignments for violating prison rules); Jensen v. Powers, 472 N.W.2d 223, 225 (N.D.1991) (stating the “[deprivation of a prisoner’s privileges does not infringe on any recognized right of a prison inmate”).

[¶ 30] We conclude Norman has not supported his claim that the district court erred in finding he would not suffer negative consequences for failing to submit, in the record or his brief.

IV

[¶ 31] We hold N.D.C.C. § 31-13-03 applies (1) to a person convicted after July 31, 2001, of a felony offense contained in chapter 12.1-16, 12.1-17, or 12.1-18, section 12.1-22-01, or chapter 12.1-27.2; and (2) to a person who is in the custody of the department after July 31, 2001, as a result of a conviction for one of these offenses. Because we have rejected the other issues raised by Norman, we affirm the district court order denying Norman’s motion to quash the earlier court order which required him to provide a DNA sample.

[¶ 32] LAURIE A. FONTAINE, D.J., CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and WILLIAM A. NEUMANN, JJ., concur.

[¶ 33] The Honorable LAURIE A. FONTAINE, D.J., sitting in place of SANDSTROM, J., disqualified.

      . In 2003, the Legislature amended the portion of § 31-13-03 at issue in this case to read:
      The court shall order any person convicted after July 31, 2001, of a felony offense contained in chapter 12.1-16, 12.1-17, or 12.1-18, section 12.1-22-01, or chapter 12.1— 27.2 or any person who is in the custody of the department after July 31, 2001, as a result of a conviction for one of these offenses to have a sample of blood or other body fluids taken by the department for DNA law enforcement identification purposes and inclusion in the law enforcement identification data bases.
      HB 1235, 58th Leg. Assem., Reg. Sess. (N.D. 2003) (emphasis added).

      . The states’ statutory schemes vary in their structure and the included offenses which mandate DNA testing. See, e.g., Alaska Stat. § 44.41.035 (establishing DNA testing for individuals convicted of crimes against a person, burglary, and a felony attempt to commit burglary, including minors 16 years of age or older adjudicated as a delinquent for an act that would be one of those crimes if committed by an adult); Cal.Penal Code §§ 295, 296 (including offenders of enumerated crimes found not guilty by reason of insanity); Conn. Gen.Stat. § 54-102g (limiting DNA testing to certain sexual offenders); Minn.Stat. § 609.117 (including multiple offenses from murder and assault to false imprisonment and indecent exposure); Miss.Code Ann. § 45-33-37 (including only sexual offenders); Mont. Code Ann. § 44-6-102 (including felony offenders and youths found to have committed a sexual or violent offense).