author: GILBERT, Justice. HANSON, Justice MEYER, Justice

text:
    Derrick Ramon DUKES, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. C9-02-491.
    Supreme Court of Minnesota.
    May 15, 2003.
    Rehearing Denied June 16, 2003.

      Deborah K. Ellis, St. Paul, for Appellant.
    Michael A. Hatch, Minnesota Attorney General, Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, St. Paul, for Respondent.
   OPINION

GILBERT, Justice.

This is our third review of this case and involves our review after remand of a post-conviction court’s denial of a petition for relief. Our first review, Dukes I, was Dukes’ direct appeal of his conviction for the attempted aggravated robbery and attempted first-degree felony murder of Bennie Chaney, and first-degree felony murder of Joe McKinney for which he was sentenced to consecutive sentences of life imprisonment for first-degree murder and 180 months for attempted first-degree murder. State v. Dukes, 544 N.W.2d 13 (Minn.1996) (hereinafter Dukes I)- We affirmed the conviction. Id. at 15

Our second review, Dukes II, was Dukes’ appeal of the denial of his petition for postconviction relief. Dukes v. State, 621 N.W.2d 246 (Minn.2001) (hereinafter Dukes II)- In Dukes II, Dukes argued, among other claims, (1) the posteonviction court erred in dismissing as procedurally barred his claim that he had received ineffective assistance of counsel because his attorney had conceded his guilt as to the attempted aggravated robbery charge without Dukes’ consent, and (2) the post-conviction court erred in denying him a new trial on the basis of an accomplice’s recantation of plea testimony that had been used to convict Dukes. Id. at 252, 257. We remanded to the postconviction court on these two issues. Id. at 255, 258. After holding an evidentiary hearing on October 10, 2001, the postconviction court made findings of fact and conclusions of law and entered an order denying relief, dated February 7, 2002. Now we are presented with Dukes III, the appeal of that denial. We affirm.

The facts of the underlying crimes in this case are set out in detail in Dukes I. 544 N.W.2d at 15-18. The essential facts are as follows. On April 1, 1994, Dukes and two accomplices, Kevin Lewis, n/k/a Hannabal Shaddai, and Steve Morrison, drove in Dukes’ car from Dukes’ home in Minneapolis to St. Paul. Morrison and Dukes were both armed with handguns. Bennie Chaney testified that the trio pulled up to the curb in front of him, that a man in the front passenger seat held up a gun, cocked it, and said something Chaney interpreted to mean hand over your money. Chaney ran behind the car and in the street. When he was about 30 yards away, he turned to see that the car was still parked at the curb. Hoping to scare them away, Chaney mimed going into his jacket for a gun at which point Morrison opened the back door, shouted something to Chaney, and fired two shots in his direction. Chaney escaped unharmed and at Dukes’ trial Chaney identified Dukes as one of the men in the car.

Other witnesses then noticed the car as Dukes, Lewis, and Morrison continued driving through the neighborhood, eventually stopping across the street from a car owned by Joe McKinney. McKinney was seated in the driver’s seat talking to some neighborhood children. Morrison and Lewis got out of Dukes’ car and approached McKinney’s car. Morrison walked up to the driver’s window, brandished a gun, and demanded money. Meanwhile, Lewis had positioned himself on the other side of McKinney’s car armed with Dukes’ gun. When McKinney made a motion with his hand, both Morrison and Lewis fired and Lewis’ shot hit McKinney in the back of the head. McKinney died early the next morning from the wound. Dukes was arrested and charged with the attempted aggravated robbery and first-degree attempted murder of Chaney and the first-degree murder of McKinney.

Before Dukes’ trial, Lewis pleaded guilty to second-degree murder and attempted first-degree murder and in his plea hearing he testified to roughly the events outlined above. As part of the plea, Lewis was to receive a reduced sentence and he agreed to testify at the trials of Dukes and Morrison. At the beginning of Dukes’ trial, however, on September 13, 1994, Lewis withdrew his plea and refused to testify. The district court allowed the prosecution to read the redacted transcript of Lewis’ plea hearing into the record.

During Dukes’ trial, the prosecutor presented a strong case, establishing that ballistics matched the bullet that lolled McKinney to Dukes’ gun, that Dukes’ car was used during the crimes, and that Dukes had been identified by eyewitnesses. Additionally, the prosecution relied on Lewis’ plea transcript.

Defense counsel conceded some obvious facts that were bound to appear as evidence in his short, opening statement. He told the jury that there were “two bungled holdups that resulted in the accidental, unintentional unexpected death of Joe McKinney.” He described these acts as “disorganized crime” but told the jury that the essential proof of attempt, intent, and aiding and abetting would not be proved beyond a reasonable doubt. Counsel did concede in opening statement that there was an attempt to “rob intentionally * * * by two of the co-defendants. The evidence will not show that Derrick Dukes was aiding and abetting these people.” The defense counsel further argued that though there were two crimes committed that day, they were not committed by Dukes and there was no first-degree murder. Defense counsel then stated that if Lewis and Morrison were on trial, he would urge the jury to find them guilty of attempted robbery and unintentional murder. Finally, he stated that Dukes was not an aider and abettor of these two men: “Derrick Dukes was duped.”

Defense counsel also conducted cross-examination to impeach the memory and credibility of the prosecution’s witnesses; criticized the use of leading questions by the prosecution in eliciting Lewis’ plea; criticized the presentation of an aecom-plice’s testimony; pointed out that the jury never heard or saw the accomplice; and questioned the reliability of the ballistics. Additionally, defense counsel called Dukes’ mother, stepfather and girlfriend, who all testified that Dukes had money, and a friend of Dukes who testified that Dukes stated that he went to St. Paul believing he was helping Morrison run an errand and had no idea what his accomplices had planned.

In his closing argument, Dukes’ attorney discussed the prosecution’s failure to prove Dukes’ intent to rob or murder either victim, and the lack of proved intent to kill by either of his accomplices. He also made four statements that Dukes now alleges amount to implied concessions of guilt. The jury convicted Dukes of all counts, and in Dukes I we affirmed, noting the strength of the prosecution’s case against Dukes. 544 N.W.2d at 20 (“We believe the evidence of intent was strong enough that the jury could not rationally have acquitted appellant on the first-degree charge, where appellant and his accomplices planned the robbery, armed themselves with loaded handguns, proceeded to St. Paul for the express purpose of executing their plan, located two victims, and finally, in the course of their robbery spree, shot McKinney in the back of the head at close range.”). No ineffective assistance of counsel claims were raised during that appeal.

Three years later, in September 1999, Dukes raised the issue of ineffective assistance of counsel for the first time in his petition for postconviction relief. He offered expert witness testimony of attorney Phillip Resnick, a well-respected member of the National Association of Criminal Defense Lawyers. Resnick testified to a number of examples of error, including his belief that counsel had conceded Dukes’ guilt. Resniek stated that it was clear to him that trial counsel had switched strategies and should have stuck to the “duped driver” defense. Dukes then testified that he and his trial attorney had agreed to present the duped driver defense and go for an acquittal on all charges. Dukes also offered a handwritten affidavit dated June 24, 1998 and signed by Lewis, n/k/a Han-nabal Shaddai, in which Shaddai claims that the statement he made during his plea hearing was “a he.” The district court denied Dukes’ petition for postconviction relief.

In Dukes II, Dukes appealed the denial of posteonviction relief and we affirmed the denial of most claims but remanded two issues to be heard on their merits. 621 N.W.2d at 250. The first of these remanded issues related to the assertion that Dukes’ attorney had conceded his guilt as to the aggravated robbery count without his permission. Id. at 252. We stated that Dukes’ attorney’s closing statements “could be interpreted as conceding” guilt. Id. at 253 (emphasis added). We remanded this issue to the postconviction court because additional fact-finding and testimony from Dukes, his trial attorney, and other witnesses was needed. Id. at 255. Also remanded was Dukes’ claim that the postconviction court erred in denying a new trial because of Lewis’ recantation of his plea testimony. Id. at 257-258. We stated that the postconviction court appeared to have applied the test for newly discovered evidence instead of the test for newly discovered falsified testimony, and we remanded for the court to apply the appropriate test to this claim. Id.

During the remand proceedings in the district court, Dukes’ trial attorney, Richard Coleman, testified as to the first issue. Coleman stated that he and Dukes had agreed that the defense was to be that Dukes drove the car but was unaware that crimes would be committed. He testified that Dukes at no time agreed to change the defense strategy from going for not guilty verdicts on all charges, and further stated that he did not intend to concede guilt and, in fact, did not concede guilt during closing arguments. The expert defense witness again testified that, in his opinion, the closing argument was not a reasonable attempt at getting not guilty verdicts on all counts because counsel had conceded guilt. No additional testimony was given regarding the second remanded issue. The postconviction court again denied Dukes’ petition for relief.

The court found as follows in its Findings of Fact, Conclusions of Law, and Order Denying Relief:

6. Because trial counsel did not intend to concede guilt, there is no evidence in the record that counsel discussed such a strategy or that Petitioner explicitly agreed to such a strategy.
7. Petitioner’s trial counsel testified that he did not intend to make and did not make any statements that could be considered as concessions of Petitioner’s guilt.
8. Counsel’s strategy was consistent throughout the trial.
9. The statements in the final argument, considered in the totality of the circumstances and were not necessarily concessions of Petitioner’s guilt as to any element, [sic]
10. The legal and factual bases for the claim that Petitioner was denied the effective assistance of counsel at trial because his counsel may have made concessions of guilt during final argument were known and available to Petitioner at the time of his direct appeal.
11. Petitioner has not shown why the claim should in fairness be considered in a subsequent post conviction proceeding.

The postconviction court then concluded as follows:

1. Petitioner is proeedurally barred from raising the claim that his conviction was obtained by the use of false testimony at trial. The legal and factual bases necessary to raise the claim were available at the time of the direct appeal. Fairness does not require consideration of the issue.
⅜ ⅝ ‡ ⅜
3. Petitioner was not denied the effective assistance of counsel at trial.
4. The result of the trial was reliable. Petitioner has not shown that he was prejudiced by counsel’s final argument.
5. The legal and factual bases for the claim that Petitioner was denied the effective assistance of counsel at trial were known to Petitioner at the time of the direct appeal. The claim is proeedurally barred from consideration in a post conviction proceeding.

Dukes appealed the postconviction court’s denial of relief.

I.

A postconviction court’s decision will not be overturned unless there has been an abuse of discretion. Voorhees v. State, 627 N.W.2d 642, 648 (Minn.2001). Because a petition for postconviction relief is a collateral attack on a judgment that has a presumption of regularity, the petitioner must establish, by a fair preponderance of the evidence, facts that warrant postconviction relief. Pederson v. State, 649 N.W.2d 161, 163 (Minn.2002). Accordingly, we review each of Dukes’ allegations of error under an abuse of discretion standard.

Dukes presents two ineffective assistance of counsel claims: the first is that his attorney changed trial strategies by abandoning the “duped driver” defense; and the second is that his attorney made unconsented to concessions of Dukes’ guilt in his closing argument. We begin by addressing the first of these claims.

Ineffective assistance of counsel claims are evaluated in accordance with the two-prong test that the Supreme Court articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that we adopted in State v. Eling, 355 N.W.2d 286, 293 (Minn.1984): “First, the defendant must show that counsel’s performance was deficient. * * * Second, the defendant must show that the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

In deciding an ineffectiveness claim the court should

judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

Id. at 690, 104 S.Ct. 2052. We also believe judicial scrutiny of counsel’s performance must be highly deferential. As the Supreme Court noted:

Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy’ ⅜ * *.

Id. at 689, 104 S.Ct. 2052.

With that deferential standard we address Dukes’ first allegation that he was denied effective assistance of counsel because his attorney changed strategies, by abandoning the “duped driver” defense, •without obtaining Dukes’ approval or consent. Dukes contends that he and his attorney agreed to argue that he had been “duped” into being involved in the robbery scheme, as defense counsel did in the final sentence of the opening statement. In Dukes II, we stated that Dukes’ counsel had not used the same strategy throughout trial. 621 N.W.2d at 254. However, after evaluating the testimony of defense counsel, the postconviction court found that trial counsel’s strategy was consistent throughout the trial.

We note that defense counsel did shift his rhetorical emphasis and dropped from his closing argument the use of the term “duped,” which he had used in the opening statement in relation to the intent issue. His arguments were, however, consistent to the extent that in his opening statement he described Dukes as having been duped and not an aider or abettor and in his closing argument he described Dukes as a “21 year old kid” and “knucklehead,” present when an unintentional, unexpected and unplanned death occurred. While these statements do differ and in hindsight may not represent exactly the same strategy throughout the trial, the semantic difference between being duped and “a knucklehead” is slight. The deletion from the closing statement of one word that was used in the opening statement was sound trial strategy and well within the bounds of reasonable, professional judgment and the wide range of professional, competent assistance. Furthermore, short of an implied admission of guilt, we have never held that a changed trial strategy in itself gives rise to an ineffective assistance of counsel claim and decline to do so now.

Dukes next argues that he was denied effective assistance of counsel because his trial counsel conceded his guilt during closing arguments. The district court found, in postconviction proceedings, that there was no evidence in the record that defense counsel discussed conceding guilt or that Dukes agreed to such a strategy. Dukes argues that his counsel nonetheless made statements during closing arguments that amounted to implied concessions of guilt. We must determine whether the district court abused its discretion in finding that these statements of defense counsel “were not necessarily concessions of [petitioner's guilt as to any elements.”

As discussed above, the appropriate test for an ineffective assistance of counsel claim is the two-prong Strickland test: deficient performance and resulting prejudice. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. In Dukes II, however, we restated the rule we first announced in State v. Wiplinger, that prejudice is presumed when counsel concedes defendant’s guilt without client consent (or acquiescence). Dukes II, 621 N.W.2d at 254 (citing State v. Wiplinger, 343 N.W.2d 858, 860 (Minn.1984)). We will limit our inquiry here to whether there was an uncon-sented to concession of guilt. In all the cases where we have addressed the issue of unconsented to concessions since our Wiplinger decision, we have concluded that the defendant objected to the concession, acquiesced or consented to the concession, or that there was no admission of guilt. See State v. Provost, 490 N.W.2d 93, 97 (Minn.1992).

We do not condone a defense counsel’s concession of guilt without client permission or acquiescence. Wiplinger, 343 N.W.2d at 860. We have consistently held that even implied concessions require client consent. See, e.g., Dukes II, 621 N.W.2d at 254; State v. Pilcher, 472 N.W.2d 327, 337 (Minn.1991) (concluding defendant acquiesced to concessions); State v. Moore, 458 N.W.2d 90, 96 (Minn.1990) (concluding defendant’s immediate objection to the concessions proved lack of consent or acquiescence); State v. Shoop, 441 N.W.2d 475, 480 n. 3 (Minn.1989) (citing Wiplinger as an example of an error that renders a trial “fundamentally unfair”); State v. Sanders, 376 N.W.2d 196, 205 (Minn.1985) (citing Wiplinger as example of error that warrants a new trial); State v. Eling, 355 N.W.2d 286, 294 (Minn.1984) (citing Wiplinger for the proposition that defense counsel cannot impliedly admit defendant’s guilt). Yet, while we can never condone a lawyer admitting a defendant’s guilt without his consent or acquiescence, we must be cautious in defining an “implied admission” to not allow the semantics of every questioned word, statement or misstatement of counsel by inadvertence, negligence or perhaps cleverness to be an automatic ground for a new trial.

In State v. Vick, we alluded to what constitutes an “implied admission” when we held that there had not been an implied admission because “[n]othing in [defense counsel’s] statements [during closing argument] would lead a reasonable person to conclude that Vick’s attorney admitted Vick’s guilt. Because Vick’s attorney’s comments, viewed in context, do not constitute a confession, a new trial is not warranted on this basis.” 632 N.W.2d 676, 688 (Minn.2001) (emphasis added).

To reach this definition of an implied admission we compared the facts in Vick, in which we determined there had been no concession of guilt, to those in Wiplinger, in which we held that counsel had impliedly conceded defendant’s guilt. Vick, 632 N.W.2d at 688. In Vick, defense counsel traced the evidence presented by the prosecution and stated during closing argument “if you assume that Mr. Vi[e]k is guilty, then the arguments of [the prosecutor] make perfect sense.” Id. By contrast, in Wiplinger, where the defendant was charged with the sexual assault of a 10-year-old girl, defense counsel asked the victim questions during cross-examination attempting to elicit that defendant had not threatened her or used force on her and had, in fact, been “gentle” “[throughout all of this.” Wiplinger, 343 N.W.2d at 859. The defendant’s attorney thereby impliedly conceded contested facts that helped prove defendant’s guilt even though defendant’s position had been that he had never touched the victim. Id. at 861. We found that the questions counsel asked, when viewed in conjunction with defendant’s claim that he had never touched the victim, constituted implied concessions of guilt. Id.

With that in mind, as we did in Wiplinger and Vick, we examine the context of the contested statements Dukes’ counsel made to determine whether they amount to implied concessions. The challenged statements of defense counsel must be reviewed in the context of the totality of the circumstances of the trial. When the individual words are taken out of the context of a 717-page trial transcript and 20-page closing statement and lifted out of the transcript to be viewed in isolation, they take on more or even a different meaning than when viewed in context.

Dukes alleges that the following statements made during closing argument amount to implied concessions of guilt: (1) “[cjlearly it would seem to be Mr. Dukes is aiding and abetting an attempted aggravated robbery of Bennie Chaney”; (2) “[Lewis’ plea testimony] put Derrick Dukes right into it right up to his hips. You know it. I know it. He’s in deep trouble on Count 1”; (3) while there is extreme doubt as to intent on the murder charges, “perhaps not so much as Count 1”; and (4) the “fault” and “blame” for McKinney’s death lie “at the feet of Kevin Lewis and his aiders and abettora” (emphasis added).

In prelude to these contested statements in defense counsel’s closing argument, the jury heard unrebutted evidence that it was Dukes’ car that was used during the crimes, Dukes’ gun that was used to kill McKinney, and that Dukes had been identified by more than one eyewitness as having been in the car at the scene of the crimes. As we noted in Dukes I, the case presented by the prosecution was exceedingly strong and left Dukes’ attorney with few credible arguments to present during closing argument. The record left no question as to whether the wrongful deeds took place or who was present when these misdeeds occurred. In fact, in his opening statement, defense counsel conceded that the two men in Dukes’ car were guilty of both attempted robberies and unintentional murder, but argued that the evidence would show that Dukes was duped.

Also in the opening statement, Dukes’ counsel focused specifically on Count I, attempted aggravated robbery, and attempted to distinguish Dukes’ activities from those of the two codefendants. Defense counsel stated, “The evidence will show there was an attempt to rob intentionally. There was an attempt to rob Chaney, there was an attempt to rob McKinney by two of the co-defendants. The evidence will not show that Derrick Dukes was aiding and abetting these people.” In defense counsel’s closing statement, there was some discussion about “concerted action,” but such comments are consistent with Dukes’ counsel’s opening statement about the activities of the two codefendants and the lack of evidence showing that Dukes was aiding and abetting them.

Defense counsel started his closing argument by reminding the jury what he had said in opening statements about the two bungled holdups and the unexpected, unintentional and unplanned death. He argued for acquittal on the murder charge. He stressed that Lewis had lied in the transcript of his plea hearing in order to obtain a favorable plea, and that he had not even testified in Dukes’ case. Defense counsel further reminded the jury that there was no evidence of what Morrison, the other person charged in this crime, had said in support of the state’s theory because he never testified.

In the context of these argument themes, defense counsel made the four contested statements. The first of these, “[cjlearly it would seem to be Mr. Dukes is aiding and abetting an attempted aggravated robbery of Bennie Chaney,” referred to the first victim of the attempted robbery. Dukes argues that this statement was a concession of his guilt on the robbery charge. However, this statement was made following defense counsel’s review of the prosecutor’s case. Dukes’ attorney used a three-step closing argument strategy: (1) he reviewed the arguments of the opposing party, (2) he admitted that if those arguments are to be believed, his client should probably lose, and (3) he then explained why those arguments should not be believed. Dukes essentially argues that the second step of this strategy amounts to an implied concession. These arguments may not be the most eloquent or effective way to deal with obvious, incul-patory and largely unrebutted facts of two attempted aggravated robberies and shootings, and Dukes’ counsel may have conceded more than necessary. However, they were uttered in a rhetorical context in response to the prosecution’s evidence that defense counsel had just reviewed.

Furthermore, the closing argument started and ended with strong denials of Dukes being in on the planned robberies. Defense counsel commented that the facts were complicated, discussed arguments between Dukes and Morrison, one of the alleged coconspirators, reviewed the testimony about there having been a break in the action before rejoining or continuing the robbery, and made statements about Dukes not being in on the concerted action. Counsel also attacked the memory and credibility of Bennie Chaney to try to nullify the importance of his compelling testimony. He further argued that while Dukes may not be innocent, he was not guilty of the charged crimes. Considerable discretion must be granted to defense counsel under such circumstances and great caution must be exercised by our postconviction and appellate courts in retroactively evaluating these statements and their impact.

We hold that in light of the totality of the evidence before the jury, the postcon-viction court did not abuse its discretion in finding this first statement that “[e]learly it would seem to be Mr. Dukes is aiding and abetting an attempted aggravated robbery of Bennie Chaney” was not necessarily a concession of guilt.

The second alleged concession was made after a discussion of the lack of credibility of the recanted testimony of Dukes’ accomplice, and it too is acceptable strategic defense rhetoric. Counsel noted that the accomplice testimony attempted to shift the blame to Dukes on Count I, attempted aggravated robbery, by stating that if that testimony is to be believed, “Dukes is in it right to his hips.” However, counsel argued repeatedly that the accomplice testimony brought in through Lewis’ plea transcript was not credible. We hold that such a strategy does not amount to an implied concession of guilt and affirm the postconviction court.

The third alleged concession was part of a comparative analysis of the strength of the evidence the prosecution presented on the robbery versus the murder charges. Defense counsel recited the evidence that had been presented to counter the prosecutor’s evidence on the aiding and abetting charges and concluded with the following: “Perhaps not as persuasive, and I wouldn’t want to insult your intelligence on that issue, but there should be extreme doubt in your mind regarding the intent to kill of Chaney, and the intent to kill McKinney, perhaps not so much as Count 1 [the attempted aggravated robbery charge].” In Dukes II, we expressed concern about the impact on the attempted murder and murder charges of possible concessions to the aggravated robbery charge. 621 N.W.2d at 253-54. We further noted that counsel only argued that the jury should find the murder and attempted murder were unintentional, while failing to make such a statement about the robbery charge. Id. at 254. Upon remand, the postconviction court found there was no evidence in the record that counsel either discussed such a strategy or that petitioner explicitly agreed to such a strategy. That finding is not challenged in this appeal. However, the postconviction court also noted that Dukes’ counsel testified he did not intend to concede guilt nor should his statements be considered as concessions of Dukes’ guilt. The court further found that these statements “considered in the totality of the circumstances * * * were not necessarily concessions of [p]eti-tioner’s guilt as to any element.” The postconviction court then concluded as a matter of law that Dukes was not denied effective assistance of counsel at trial.

Defense counsel’s contested comments may have been more appropriate had the district court granted his request for a lesser-included offense. Absent the lesser-included offense, this argument at best amounts to a poor comparison of the evi-dentiary strength on each count and, again, may have conceded more than necessary. However, our review indicates while counsel did argue that Dukes was not guilty on all three counts, there appears to have been more emphasis on arguments for acquittal on the murder and attempted murder charges than on the lesser charge of aggravated robbery. Counsel’s argument that there should be “extreme doubt” on the intent to kill highlighted the importance of the more serious charges by using the words extreme doubt when only proof beyond a reasonable doubt was required to return a not guilty verdict. The off-handed statement, “perhaps not so much on Count I,” is still in reference to the higher “extreme doubt” standard, which is more than is legally required, and is a rhetorical comparison between Counts I, II and III and mentioned in passing.

Our scrutiny of such a statement must be highly deferential in light of the strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Dukes, in this case, has not overcome the presumption that under the circumstances the challenged action, while perhaps not the best trial strategy, still “might be considered sound trial strategy.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. We hold that this statement was not an implied concession of guilt nor was the argument outside the wide range of professional, competent assistance.

Finally, within 50 words of the end of his argument, defense counsel made the last contested statement in reference to McKinney’s death: “[the fault and the blame] do[ ] lie at the feet of Kevin Lewis and his aiders and abettors.” In that no party or witness alleged that there were more than three men in the car, the only people who could fall under the heading of “Kevin Lewis’ aiders and abettors” are Morrison and Dukes. Dukes argues, therefore, that this statement amounts to a concession of guilt on the murder charge.

The court instructed the jury on five elements requiring proof beyond a reasonable doubt to find Dukes guilty of first-degree murder: (1) there was a death; (2) the time and the place that the death occurred; (3) the actions of the defendant and/or his accomplices caused the death; (4) the act occurred while they were attempting to or carrying out an attempted aggravated robbery; and (5) the defendant and/or accomplices acted with the intent and purpose to kill or believed that their actions would have that result. The court instructed the jury that if any of these elements had not been proved, Dukes was not guilty of murder in the first degree.

Defense counsel conceded the first three of these elements with Dukes’ consent. Conceding these elements was not only a reasonable defense strategy to which Dukes consented, but the concessions were to undisputed evidence and were so obvious that to somehow attempt to deny them would remove all credibility of any rational defense argument.

Dukes asserts that by stating “[the fault and blame] do[] lie at the feet of Kevin Lewis and his aiders and abettors,” his defense counsel conceded the fifth element, that Dukes and his accomplices acted with the intent to kill Joe McKinney. However, defense counsel vigorously argued unintentional act of killing throughout the trial. This effort occurred repeatedly in the opening statement, in the cross-examination of witnesses and in the closing statement. The words “fault and blame” arose in the overall context of defense counsel’s attempt to address the death of Joe McKinney. In doing so, he conceded that there was fault and blame that was attributable to Lewis and his aiders and abettors, but again emphasized and reiterated that “it was unintentional, not intentional.” These words may not have exemplified the best advocacy tactic available to defense counsel, but they were consistent with his argument that Dukes, though not innocent, was not guilty of the crimes with which he had been charged. In so arguing, defense counsel was attempting to draw a fine line on the nature of the wrongdoing between criminal responsibility and civil responsibility. Defense attorneys faced with difficult cases commonly argue that there is a difference between moral blameworthiness and criminal culpability.

The words fault and blame do connote some wrongdoing, but these words do not necessarily amount to concessions of criminal guilt. A defense attorney may sometimes be wise to bolster his credibility by admitting that a defendant has done an action while denying the crime with which the action deals. Criminal wrongdoing involves more than merely the objective circumstances that were presented to the jury and encompasses the requisite intent component. Instead, “fault and blame” may imply neglect, imperfection in character, failure to do what is right, moral transgressions and wrongdoing of an excusable kind. Defense counsel’s use of these words was, therefore, consistent with the instruction that provided “The defendant is not guilty of knowing participation in a crime if his participation was inadvertent, accidental or negligent.”

Also consistent with this instruction was defense counsel’s repeated statements that the death was unexpected, unintentional and unplanned so as to require an acquittal by the jury on the murder charges. Defense counsel even cited portions of Lewis’ testimony contained in Lewis’ plea transcript that when he shot, he was only trying to scare McKinney. Defense counsel followed up by saying it was not reasonably foreseeable that someone would get shot intentionally. He brought this argument to a close by arguing that if there was aiding and abetting, it was of an unintentional act and, though there might be corroborating evidence supporting both an inference of intent and of lack of intent, both inferences are reasonable so the jury must acquit Dukes of the murder charges. Defense counsel emphasized that the jury should have “extreme doubt” in regard to the intent to kill. Accordingly, we conclude that the use of these two words— fault and blame — in the context in which they were made and in light of all of the other arguments relating lack of intent, do not amount to an improper concession of criminal guilt so as to give rise to an ineffective assistance of counsel claim. In this trial, to hold otherwise would serve to render meaningless the law as instructed and the well-established facts presented throughout the trial. The ultimate purpose of such representation is that the adversarial process function properly to ensure a fair trial and just result. Eling, 355 N.W.2d at 293. That was accomplished here. We affirm the postconviction court on the grounds stated herein.

II.

We next address the issue of whether Dukes is entitled to a new trial as a result of Lewis’ recantation of his plea hearing testimony, which had been used to help convict Dukes. In Dukes II, we remanded to the postconviction court to apply the three-prong Larrison test for newly discovered falsified testimony. 621 N.W.2d at 257-58. On remand, the post-conviction court applied the Larrison test to Lewis’ recantation of his plea testimony and determined that Dukes was not entitled to a new trial. As discussed in reference to the first issue, we review the findings of a postconviction court under an abuse of discretion standard. Voorhees, 627 N.W.2d at 648.

We adopted the Seventh Circuit’s Larrison test in Sutherlin v. State: “Under the Larrison rule, the petitioner must meet three criteria: (1) the court must be ‘reasonably well satisfied’ that the testimony was false; (2) without the false testimony, the jury might have reached a different conclusion; and (3) the petitioner was taken by surprise at trial or did not know of the falsity until after trial.” 574 N.W.2d 428, 433 (Minn.1998) (citing Larrison v. United States, 24 F.2d 82 (7th Cir.1928)). We stated in Ferguson v. State, however, that “Larrison’s third prong should not be an absolute condition precedent to granting a new trial.” 645 N.W.2d 437, 445 (Minn.2002). Instead, the appropriate focus of the test is on the first and second prongs: the validity of the recantation and its potential effect on the outcome of the trial. Id. The postconviction court here found (1) at trial, this court ruled there were sufficient guarantees of trustworthiness to admit the plea transcript, and an affidavit 4 years later stating it was “a lie” was not enough to satisfy the postconviction court that the plea testimony was false; (2) there was sufficient evidence to convict Dukes even without the testimony because he had been identified pretrial and in court, it was his car and his mother said he was the only one allowed to drive his car, he had the motive of getting money for his girlfriend, the murder weapon was in his coat, and he was caught lying to police during the investigation; and (3) if the information in Lewis’ plea transcript had been “a lie,” Dukes would have known that at the time of trial and cannot now claim to be surprised by Lewis’ recantation. Accordingly, the postconviction court found that Dukes failed to pass the Larri-son test.

We are satisfied that the postconviction court did not inappropriately rely on the third prong of the Larrison test, and we cannot conclude that the postconviction court abused its discretion in determining that the Larrison test was not met. If an accomplice’s affidavit 4 years after trial stating nothing more specific than that his earlier testimony had been “a lie” was a sufficient ground for a new trial, then the Larrison test for determining when allegedly false testimony should result in a new trial would be unnecessary because any allegation that prior testimony was false would entitle an appellant to a new trial. We do not believe the rule should be read so broadly.

Accordingly, we affirm.

HANSON, Justice, files opinion concurring in part, dissenting in part, in which MEYER, J., joins.

HANSON, Justice

(concurring in part, dissenting in part).

While I concur in the decision that the postconviction court did not abuse its discretion in determining that Lewis’ recantation of his plea-hearing testimony did not warrant a new trial, I respectfully dissent with respect to the decision that the post-conviction court did not abuse its discretion in denying Dukes’ ineffective assistance of counsel claim. More specifically, I disagree with the majority’s determination that the district court did not abuse its discretion in finding that statements made by Dukes’ trial counsel during closing argument “were not necessarily concessions of petitioner’s guilt as to any element.”

I.

I agree that the case presented by the prosecution was strong and that Dukes’ trial counsel was left with few credible arguments to present during closing. But, viewing the closing argument as a whole, I have difficulty determining exactly what argument Dukes’ trial counsel intended to make. The argument does not focus on any coherent defense. In this context, trial counsel’s statements emphasizing the strength of the evidence against Dukes take on greater than normal significance. While recognizing that the postconviction court was also the trial court, and had the advantage of hearing the argument first hand, I would conclude that the words actually used by trial counsel, as recorded in the transcript of the closing argument, are not capable of being interpreted in any way other than as a concession of guilt to Count I, the charge of attempted aggravated robbery.

It is true, as the majority observes, that Dukes’ trial counsel sometimes used a three-step process in argument, (1) repeating the argument of the state, (2) conceding the conclusion that must be drawn if the state’s argument were correct and (3) explaining why the state’s argument was not correct. But Dukes’ trial attorney did not use that three-step process in discussing Dukes’ guilt for attempted aggravated robbery under Count I.

This is most clear in connection with the first contested statement that “[cjlearly it would seem to be Mr. Dukes is aiding and abetting an attempted aggravated robbery of Bennie Chaney.” Standing alone, one might posit that this statement was a rhetorical recitation of the state’s argument, which trial counsel did not accept and would refute. But when this statement is viewed in context, there is no suggestion that the statement was rhetorical or that counsel did not accept it. More importantly, trial counsel never did refute it.

The statement was made in the midst of this argument:

Now we get to the weakest evidence in the case. It’s Dukes’ ear, with two guys who pull up to a guy, and one of the men in the car say, “Give me your money” or try to rob him, Bennie Chaney. Clearly it would seem to be Mr. Dukes is aiding and abetting an attempted aggravated robbery of Bennie Chaney. Can you make the leap to him aiding and abetting an attempted intentional killing of Bennie Chaney during an attempted aggravated robbery? This gets complicated. Well, you may say there was an attempted aggravated robbery. And you may say that there was an aiding and abetting. But what evidence do you have that Steve Morrison intended to kill him?

(Emphasis added.)

I do not find any point in the closing argument where Dukes’ trial counsel attempts to refute the state’s argument that Dukes was aiding and abetting an attempted aggravated robbery of Bennie Chaney. Trial counsel later argued that there was evidence that Dukes was not aiding and abetting in the second attempted robbery, of Joe McKinney. In that connection, trial counsel emphasized that there was a disagreement between Dukes and Morrison after the attempted robbery of Bennie Chaney that could be interpreted as terminating Dukes’ participation in the robbery plan. But the premise of that argument is that Dukes did participate in the plan to rob Bennie Chaney. In fact, trial counsel begins that argument by saying: “They had decided after the failed robbery to go home.” (Emphasis added.) He concludes that argument by saying: “Now, the evidence would allow you to infer, I agree, yes, it was still a concerted action [to proceed with the second attempted robbery], but there is less evidence than on the intent to show that perhaps Dukes was not [rejoining the attempted robbery of McKinney].” (Emphasis added.) The reference to “still a concerted action” with regard to McKinney assumes that there was concerted action with regard to Chaney.

Although the other three challenged statements might not, by themselves, constitute an implied concession, they each add to the concession made by the first challenged statement. Thus, not only did Dukes’ trial counsel fail to refute the first challenged statement that “[c]learly it would seem to be Mr. Dukes is aiding and abetting an attempted aggravated robbery of Bennie Chaney,” he actually reinforced that concession by the second challenged statement that:

Count 1 [attempted aggravated robbery], both Lewis’ plea and Lewis’ explanation to McConnon put Derrick Dukes right into it right up to his hips. You know it. I know it. He’s in deep trouble in Count 1.

Further reinforcement was provided by the third challenged statement “but there should be extreme doubt in your mind regarding the intent to kill Chaney, and the intent to kill McKinney, perhaps not so much as Count 1.”

In this context, I cannot view the first challenged statement of Dukes’ trial counsel as a rhetorical statement, but must conclude that it was an affirmative concession that was never qualified and never refuted. Accordingly, the postconviction court’s finding that the statements “were not necessarily concessions of [p]etitioner’s guilt as to any element” was an abuse of discretion.

This concession of guilt was a violation of Dukes’ right to assistance of counsel in several ways. First, it was a direct concession of guilt to Count I, attempted aggravated robbery. There is no evidence that Dukes’ consented to or acquiesced in the concession of guilt to Count I.

Second, a concession of guilt to attempted aggravated robbery also acts as a concession of guilt to an important element of the attempted murder and murder charges contained in Counts II and III. As we noted in Dukes II, “a concession of guilt to aggravated robbery essentially concedes most of the elements necessary to convict Dukes of the murder and attempted murder charges.” 621 N.W.2d 246, 253 (Minn.2001). It is technically true that there was one remaining element to be proven for each of those crimes, that someone, Lewis or Morrison, had the requisite “intent to effect the death of the person or another.” Minn.Stat. § 609.185(a)(3) (2002). But we noted in Dukes II that the element of intent “was proven by Lewis’ admission in his plea testimony.” Id.

Moreover, we have often recognized, in the felony murder context, that a jury can infer the intent to effect death from the mere fact that a defendant took a gun to a robbery. Thus, in State v. Campbell, 281 Minn. 1, 13, 161 N.W.2d 47, 55 (1968), we said:

Where, as here, defendant prepared himself for the robbery by taking a gun which he has first examined to make certain that it contains live ammunition, thus prepared to shoot anyone who obstructs the robbery or his escape, the inference of premeditation and intent to shoot and kill is not only permissible, but virtually inescapable.

In fact, Dukes’ trial counsel underscored this problem with the intent element of the attempted murder and murder charges in closing argument when he stated:

Now, it is true, it is true under liability for crimes of another that if the crime is reasonably foreseeable that takes place during the intended crime, and in this case the intended crime being robbery, then you’re guilty of that, too. And it is reasonably foreseeable to think if you bring a gun to a hold-up and someone gets shot and dies, that you are likewise responsible for it.

Based upon the postconviction court’s finding that Dukes’ trial counsel did not discuss with Dukes the strategy of conceding guilt to any element and did not obtain Dukes’ explicit agreement to such a strategy, this concession requires a new trial. In the absence of any finding by the post-conviction court that Dukes consented to or somehow acquiesced in trial counsel’s concession of guilt, prejudice is presumed and a harmless error analysis is not appropriate. Dukes II, 621 N.W.2d at 254; State v. Wiplinger, 343 N.W.2d 858, 861 (Minn.1984).

II.

The posteonviction court also concluded that Dukes was procedurally barred from raising his claim of ineffective assistance of counsel in a postconviction proceeding because the legal and factual bases for that claim were known to Dukes at the time of his direct appeal. This conclusion is directly contrary to our holding in Dukes II that these claims fell within an exception to the general rule that claims raised or known at the time of direct appeal will not be considered on a petition for postconviction relief. 621 N.W.2d at 254-55. There, we recognized that the procedural bar does not apply to claims that require the court to hear testimony concerning the communications between the defendant and trial counsel. We said that “[t]he claim of whether Dukes consented to his counsel’s admission of Dukes’ guilt to aggravated robbery is exactly the type of claim that needs additional fact-finding before it can be resolved.” Id. at 255.

It might be the better practice, in future cases, to require that a defendant, who wishes to pursue a claim of ineffective assistance of trial counsel that cannot be determined on the trial record, first move to stay the direct appeal to permit postcon-viction proceedings or be deemed to have waived the claim. But we did not require that procedure in Dukes II and our determination that Dukes was not precluded from raising the claim of ineffective assistance of counsel in a postconviction petition stands as the law of the case.

Because Dukes’ trial counsel conceded Dukes’ guilt of attempted aggravated robbery, Dukes did not consent to or acquiesce in that concession, and Dukes was not precluded from seeking review of the issue in postconviction proceedings, I would reverse the district court and order a new trial.

MEYER, Justice

(concurring in part, dissenting in part).

I join in the concurrence and dissent of Justice Sam Hanson.

      . The opening statement consisted of 4 pages in the trial transcript.

      . Dupe: “one that is easily deceived * * * because lacking power to discriminate: fool a puppet or tool, esp. of a powerful person or idea.” Webster’s Third International Dictionary 702 (1993).

      . Knucklehead: "a Stupid blunderer: dumbbell.” Webster's, Supra, at 1253.

      . "Appellant’s claim of minimal involvement simply does not hold up against a record of plans being made at his home, the use of his car, his furnishing at least one of the weapons used, and his chauffeuring Lewis and Morrison as they pursued their shooting rampage. * * * [T]he evidence supporting the verdict is substantial." Dukes I, 544 N.W.2d at 20.

      . The dissent concedes that the "other three challenged statements might not, by themselves, constitute an implied concession, they each add to the concession made by the first challenged statement.”

      . The dissent suggests that this three-step process was not followed because "I do not find any point in the closing argument where Dukes' trial counsel attempts to refute the state's argument that Dukes was aiding and abetting an attempted aggravated robbery of Bennie Chaney.” We direct the dissent to the following passage. After discussing the evidence the state presented against Dukes on Count 1, attempted aggravated robbery, defense counsel goes on to address the weaknesses in that evidence:
      But you have some troubling things in there, perhaps not as troubling as the intent to kill and the other two counts. But it really goes to the heart of the aiding and abetting.
      And I can just point out some things on that, perhaps not as persuasive as I might wish. You have the opportunity of people to put a gun in Mr. Dukes' coat down at the bar because they know he's being taken out. And supposedly one or both of the aider and abettors were there. No other jackets are found in this storage room, although it’s used as a cloak room by all the bouncers at the bar. You have the fact that Lewis told Tomika, Derrick didn’t have anything to do with this. And you have the fact that Linda Fleischman said Derrick came home and said, "We got to go to the police.” Or, "I want to go to the police.”
      In this passage, defense counsel criticizes the very evidence he earlier suggested that, if believed, made it appear that Dukes was aiding and abetting the aggravated robbery. Additionally, contrary to what the dissent argues, in referencing the six verdict forms, defense counsel argued for not guilty verdicts on all counts by saying that "Mr. Dukes is not innocent, but they also indicate that he’s not guilty.”

      . During Dukes' trial after both parties rested, defense counsel attempted, with Dukes’ vociferous urging, to get jury instructions for the lesser-included charge of second-degree unintentional murder while attempting to commit a felony offense. See Minn.Stat. § 609.19, subd. 2(1) (2002). This would have allowed him to argue that even if Dukes knew about and was complicit in either of the two robbery attempts, the murder and attempted murder were unintentional so Dukes should be acquitted of the first-degree murder charges. In Dukes I, we affirmed the district court judge's refusal to give that instruction. 544 N.W.2d at 20.

      . Webster’s Third International Dictionary 229; 829 (1993) (defining blame and fault).

      . Kevin McConnon testified that Lewis gave him an explanation of the day of the attempted robberies that contradicted Lewis' plea testimony.


source: Caselaw Access Project

author: RANDALL, Judge.

license: Public Domain

text:
    STAR TRIBUNE, published by The Star Tribune Company, Respondent, v. CITY OF ST. PAUL, Minnesota, and its Department of Police, Appellant.
    No. C5-02-1931.
    Court of Appeals of Minnesota.
    May 13, 2003.

      Mark R. Anfinson, Minneapolis, for respondent.
    Manuel J. Cervantes, City Attorney, Reyne M. Rofuth, Assistant City Attorney, Saint Paul, for appellant.
    Mark W. Gehan, Collins, Buckley, Saun-try & Haugh, P.L.L.P., Saint Paul, for amicus curiae.
    Considered and decided by WRIGHT, Presiding Judge, and RANDALL, Judge, and SHUMAKER, Judge.
   OPINION

RANDALL, Judge.

Respondent Star Tribune brought an action against the City of St. Paul under the Minnesota Government Data Practices Act, MinmStat. ch. 13 (2002), seeking access to information the St. Paul Police Department gathered regarding racial profiling in traffic stops from April to December 2000. While the City made a summary report public, the officer/squad identity information in the raw data was not disclosed based on the City’s conclusion that personal identity information was “personnel data” designated as private under Minn.Stat. § 13.43 (2002). Respondent initiated this declaratory judgment action, arguing the officer’s individual names were public data. The district court concluded that the identities were public data and granted respondent summary judgment. The City appeals this determination. In addition, respondent seeks review of the district court’s denial of its motion for attorney fees. Because we conclude that the officers are the subjects of the data, we reverse in part. We agree with the district court that attorney fees were not warranted and, therefore, we affirm that determination.

FACTS

The City of Saint Paul (the City) conducted a study of traffic stops (the Study) by the Police Department (the Department) between April 15, 2000, and December 15, 2000. The resulting data set contained information from 41,249 traffic stops. The City already records a wide variety of data concerning each traffic stop that is public data. The Study added four additional pieces of data for each stop, which were the officer’s responses to the following questions (with the possible answers listed in parentheses):

1. Perceived race of individual stopped?: (W)hite, (B)lack, (Hispanic, (A)sian, or (N)ative American.
2. Sex?: (F)emale or (M)ale
3. Was the driver frisked?: (Y)es or (N)o
4. Was the car searched?: (Y)es or (N)o

The answers to these four questions were then combined with the general traffic stop source data that the Department already collected. The Study data was used to generate a report titled Summary Report for Traffic Stop Data (the Summary Report). The City made the Summary report available to the media in early January 2001. The Summary Report did not contain the Study data itself, but, instead, various summary statistics drawn from the Study data.

The Department hired the Institute on Race and Poverty to conduct an analysis of the raw Study data to

attempt to determine whether the Department engages in racial profiling and, if so, what the dimensions of the problem are; and to formulate suggestions for improvement to the Department’s data collection program that will allow for more comprehensive analysis of future data.

On January 10, 2001, respondent Star Tribune requested that the Department provide all the fields in the Study data, including the officer employee/squad data (collectively, the Complete data). What the respondent wanted was the individual names of the officers making the stops. In response, on January 23, the Department sent respondent a document titled, St. Paul Police Incident Data Available on Computer, which listed data fields, but did not contain individual names and identities.

Respondent sent a letter dated February 16, 2001, requesting the Complete data: In a letter dated March 26, 2001, Chief of Police Finney responded that access to the officer employee/squad data (identities by name) was denied. Finney contended that without the officer employee/squad data, the Study data was legitimate “summary data” under Minn.Stat. § 13.02, subd. 19 (2002), and that the officer employee/squad data entries are classified as private “personnel data” under Minn.Stat. § 13.43, subd. 4 (2002). Chief Finney also stated the City would seek an advisory opinion, which it attempted to do.

On May 4, 2001, respondent brought this declaratory action. Due to respondent’s pending litigation, the Commissioner of Administration declined to proceed with an advisory opinion.

The district court concluded that the Complete data, including names of individual officers, was not private personnel data and should be released.

ISSUES

I. Is the Complete data, including the officer employee/squad data field, private personnel data or public data?

II. Did the district court abuse its discretion by failing to award respondent attorney fees?

ANALYSIS

I. Public or private data

The district court concluded that the Complete data was “public data” pursuant to Minn.Stat. § 13.82 (2001) and not “personnel data” pursuant to Minn.Stat. § 13.43, subd. 1 (2002). Minn.Stat. § 13.82, subds. 2 and 6, classify a wide variety of “Arrest data” and “Response or incident data” as public.

Appellant argues that Minn.Stat. § 13.43 is controlling. That statute defines “personnel data” as:

[D]ata on individuals collected because the individual is or was an employee of or an applicant for employment by, performs services on a voluntary basis for, or acts as an independent contractor with a state agency, statewide system or political subdivision or is a member of or an applicant for an advisory board or commission.

Minn.Stat. § 13.43, subd. 1 (2002). Subdivision 2 then lists a variety of data on individuals that is public data. Minn.Stat. § 13.43, subd. 2 (2002). Subdivision 4, entitled “Other data” states:

All other personnel data is private data on individuals but may be released pursuant to a court order. Data pertaining to an employee’s dependents are private data on individuals.

Minn.Stat. § 13.43, subd. 4 (2002). The district court determined that the Complete data was “public data,” concluding that the data was not collected because an individual is or was an employee of the Department. Thus, the district court ordered the City to make the data available to respondent.

Summary judgment is appropriate where there is no genuine issue of material fact and the party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. On appeal, we review to determine whether any material issues of fact exist and whether the trial court erred in applying the relevant law. Offerdahl v. University of Minn. Hosp. & Clinics, 426 N.W.2d 425, 427 (Minn.1988). In this case, the parties have agreed that the material facts are not in dispute. When the district court grants summary judgment based on the application of a statute to undisputed facts, the result is a legal conclusion, reviewed de novo by the appellate court. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998) (citing Wallin v. Letourneau, 534 N.W.2d 712, 715 (Minn.1995)).

The construction of a statute is a question of law and courts must adhere to the statute’s clear language, unless doing so would be inconsistent with the legislature’s manifest intent.

Pathmanathan v. St. Cloud State Univ., 461 N.W.2d 726, 728 (Minn.App.1990) (citing Kugling v. Williamson, 231 Minn. 135, 42 N.W.2d 534 (1950)).

Appellant argues that the Complete data is “private personnel data” because the officers are the subjects of the data. Appellant argues that the real purpose of the data collection supports this classification and that the data need not be “evaluative” on its face to gain the qualifying shield of personnel data. Appellant contends vigorously that the district court failed to consider crucial evidence, namely St. Paul Police Chief Finney’s lengthy and exhaustive 106-page affidavit (including exhibits), which sets out the purpose for conducting the Study.

We begin our analysis noting that both parties agree the data sought is “government data.” The Minnesota Government Data Practices Act, Minnesota Statutes chapter 13 states:

This chapter * * * establishes a presumption that government data are public and are accessible * * * unless there is federal law, a state statute, or a temporary classification of data that provides that certain data are not public.

Minn.Stat. § 13.01, subd. 3 (2002). The Minnesota Supreme Court stated that the purpose of the act is “to balance the rights of individuals (data subjects) to protect personal information from indiscriminate disclosure with the right of the public to know what the government is doing.” Demers v. City of Minneapolis, 468 N.W.2d 71, 72 (Minn.1991).

Appellant argues that the Complete data should be classified as private personnel data. The act defines personnel data as:

Data on individuals collected because the individual is or was an employee or an applicant for employment by, performs services on a voluntary basis for, or acts as an independent contractor with a state agency, statewide system or political subdivision or is a member of or an applicant for an advisory board or commission.

Minn.Stat. § 13.43, subd. 1 (2002) (emphasis added). Subdivision two lists numerous types of personnel data that is public data. Minn.Stat. § 13.43, subd. 2 (2002). Subdivision four states “[a]ll other personnel data is private data on individuals, but may be released pursuant to a court order.” Minn.Stat. § 13.43, subd. 4 (2002). Data on individuals is defined as:

[A]ll government data in which any individual is or can be identified as the subject of that data, unless the appearance of the name or other identifying data can be clearly demonstrated to be only incidental to the data and the data are not accessed by the name or other identifying data of any individual.

Minn.Stat. § 13.02, subd. 5 (2002) (emphasis added). If the officer is the “subject of the data,” and the data was “collected because the individual is or was an employee,” the data is private personnel data under Minn.Stat. § 13.43, subd. 4 (2002). The seminal issue in this case is whether the individual officer is the subject of the data or, as respondent argues, was the subject of the data vehicle driver by color, race, sex, and law enforcement action taken.

Appellant argues logically that the driver’s race, color, sex, etc., although recorded and computed, are incidental and the intended thrust of the study is the officer’s perception of the race and color of the driver he was stopping, and what investigative tactics he employed based on that perception. Thus, appellant argues that the officer is the clear subject of the data.

Appellant points out that the individual driver’s names were not even collected, absent a formal arrest, and that the study data can be searched by the officer’s name, but not the driver’s name. The Minnesota Police and Peace Officers Association (MPPOA), acting as amicus curiae, argues that the officer is clearly the subject of the data. MPPOA points out that the purpose of the Study was not to assess anything about the drivers, but rather “to discover the tendencies of the Department of Police in regard to racial profiling.” We agree.

Respondent’s argument that the driver is the subject of the data (meaning the identity of the individual officer stopping the vehicle is public data) is not convincing. An analogy could be drawn with the Rorschach ink-blot test. The “design,” if any, in the ink stain is not important. Yes, you need the blotter with the ink stain for the test, but the test is not about the blotter or about the images the test-taker thought one might see. Rather, the reason for the test is to assess and interpret the test-taker’s perception as to what he sees in the ink blot. If the test-maker looks at the ink blot and says “Octopus,” it does not matter whether you can find an art critic to agree that somehow the ink blot has the vague shape of an octopus or does not have the vague shape of an octopus. It is the person’s answer that is important. The same is true in the police department’s study test. The actual race, color, or gender of the driver is not as important as what race, color, or gender the officer perceived when he made the decision to stop and (at times) take further investigative action.

The data recorded about race, color, gender, etc. is not unimportant, and the statistics are part of the study, but the essential part of the study, the sine qua non, is what race, color, or gender the officer thought he was stopping and what he did once he made the stop. Thus, we determine that the individual officers are the subjects of the data. The next issue is to decide whether the data was collected because the officers were employees.

The district court stated “one must inquire into the purpose for collecting the data” when determining whether the data meets the definition of personnel data. The court then noted that, though the Department’s claimed purpose was to assess individual officers as well as the Department as a whole, merely claiming a purpose was not sufficient. Quoting from the Summary Report and a letter from St. Paul City Attorney Reyne Rofuth, the district court concluded:

Neither of these statements indicated a purpose of collecting the data was to evaluate the conduct of particular individuals. Rather the information was collected to determine if a department wide problem exists, the dimensions of such a problem and the effect of the problem on the community. The fact that further analysis of the data may or may not have implications involving particular individuals does not change the essential nature of the data or turn it into data “collected because the individual is or was an employee.” Accordingly, it is this Court’s opinion that the information is not, by definition, “personnel data.”

Appellant contends that there were three purposes for the Study: (1) to look at individual officers who made up the Department and their performance; (2) to use the data as a management tool to determine if the department and its officers were engaging in racial profiling; and (3) to possibly counsel, retrain, or reassign officers as a result of the Study. Appellant notes Finney’s lengthy affidavit, the report itself, and a letter written by a Saint Paul City Attorney on behalf of the Department to the Director of Information Policy Analysis Division of the Minnesota Department of Administration support these purposes. Appellant argues that the district court erred by failing to consider crucial evidence, namely Finney’s undisputed affidavit. We agree. Finney’s affidavit states in pertinent part

[T]he purpose of collecting the Study data and combining it with routine general traffic stop data, was to obtain a management tool by gaining a snap shot view of the Department’s operation and of individual officer employees with the results used to attempt to determine if the Department could be seen as having a practice of engaging in racial profiling in traffic stops or if individual officer employees were engaging in racial profiling in traffic stops.
[P]rior to the commencement of the Study I promised the Saint Paul Police Federation that I would not disclose the name of any officer employee in the Study unless directed to do so by a court order.
I considered and treated the personnel data the Study, with its combined Study data and routing general traffic stop source data, as it related to individual officer employees. * * * [A]s a result of the Study data, I personally spoke to individual officer employees about the Study data as it related to them and since my discussions with the officer employees, I have seen a change in their behavior.

Additionally, the Rofuth letter, states:

The study data are also being used by the Department administration as a management tool which could result in counseling, training or reassignment of officers. In fact, the Department has made some reassignments of patrol officers due in part to the study data.

The documents show the purpose of the study was to manage personnel and take personnel actions in certain circumstances.

We conclude: (1) the data was collected because the officers were employees; (2) the officers were the subjects of the data; and (3) the data is personnel data and is not public information.

II. Attorney fees

Respondent argues that it is entitled to attorney fees because appellant refused access to the data without having a “clear and sound legal basis” and “sought to make the applicable law far more complex and nuanced than it really is.”

“On review, this court will not reverse a trial court’s award or denial of attorney fees absent an abuse of discretion.” Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn.1987) (citation omitted). The district court did not elaborate on its denial of attorney fees. Respondent asks this court to establish a new rule of law that in cases where a citizen or a news organization is pursuing its right of access under the Data Practice Act, and does prevail in district court, it is entitled to an award of attorney fees, unless applicable law is clearly unsettled. Respondent agrees there is no such blanket rule for attorney fees for the media when successful at the trial court level, but argues such a rule would be good policy.

We can only note that the statute does not contain such a rule, and we are not disposed to create one by judicial fíat in this case. The district court denied respondent attorney fees when respondent was successful. It is difficult for us to find that the district court abused its discretion in denying attorney fees when respondent won, when we reverse on the merits.

DECISION

We conclude the police officers are the subjects of the data in question and that the data was collected because the police officers were employees of a government entity. As such, the data is classified as personnel data and is not publicly accessible under the Minnesota Government Data Practices Act.

Affirmed in part and reversed in part.


author: ROBERT H. SCHUMACHER, Judge.

text:
    Thor YANG, Relator, v. COUNTY OF CARVER, et al., Respondents.
    No. C3-02-1460.
    Court of Appeals of Minnesota.
    May 20, 2003.

      Richard G. Wilson, Virginia A. Bell, Laura J. Lindstrom, Maslon, Edelman, Borman Brand, L.L.P., Minneapolis, MN, for relator.
    Paul D. Reuvers, Jason J. Kuboushek, Iverson Reuvers, L.L.C., Bloomington, MN, for respondents.

      Considered and decided by WILLIS, Presiding Judge, SCHUMACHER, Judge, and ANDERSON, Judge.
   OPINION

ROBERT H. SCHUMACHER, Judge.

By writ of certiorari, relator Thor Yang appeals the decision of respondent County of Carver to deny his application for a conditional use permit, asserting that the denial is arbitrary and capricious because the county had no legally sufficient reason to deny and that the denial was motivated by discriminatory intent. Because the county had no legally sufficient reason to deny the permit, we reverse and remand.

FACTS

In March 2002, Yang applied to the county for a conditional use permit to operate a custom slaughterhouse as a farm-related business on his 40-acre property in Hollywood Township. In a custom slaughterhouse, animals are purchased and slaughtered on-site; all meat derived from the slaughter is returned to the purchaser. See Minn. R. 1540.0010, subp. 7 (2000). The local zoning ordinance required Yang to obtain a conditional use permit because a farm-related business is a permitted conditional use within the zoning district. See Carver County, Minn. Zoning Ordinance No. 32S (2000).

The Carver County Board of Commissioners must find a proposed use meets the following criteria before the board may issue a conditional use permit:

1. The conditional use is permitted as a permitted conditional use within the zoning district, and meets all requirements of this ordinance and any other County, Regional, State, or Federal laws, ordinances, rules, or regulations.
2. The conditional use will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted.
3. The establishment of a conditional use will not impede the normal and orderly development and improvement of surrounding vacant property for uses predominant in the area.
4. The effects of the proposed use will not be detrimental to the health, safety and welfare of Carver County or to the occupants of the immediate neighborhood.
5. That adequate utilities, access roads, drainage and other facilities have been or are being provided.
6. That adequate measures have been or will be taken to provide sufficient off-street parking and loading space to serve the proposed use if these measures are applicable.
7. That adequate measures have been or will be taken to prevent or control offensive odor, fumes, dust, noise and vibration, so that none of these will constitute a nuisance if these measures are applicable.
8. The use or development conforms with the County and Township Comprehensive plan.
9. The use or development is compatible with the land uses in the neighborhood.
10. A public hearing was held ⅜ * *.

Ordinance § 12.05013C. Ordinance section 12.05011, subp. 2, required Yang to submit an operational plan describing the number of employees and hours of operation, use of new and existing structures, water service, sewage disposal, area and capacity of parking areas, and access, storage, and operational areas.

The Carver County Planning and Zoning Commission held three public hearings on Yang’s application. At the first, the commission staff presented a report that included analyses of the proposed use by the Minnesota Department of Health, the Minnesota Board of Animal Health, and the Minnesota Department of Agriculture. The report expressed concerns with the adequacy of the slaughterhouse’s water supply, composting plan, rendering provisions, and compliance with state bio-seeurity measures. The commission also heard public comment from Hollywood Township residents who opposed the application on the grounds that the slaughterhouse would diminish local property values, cause pollution and noise, and create excessive traffic on the' gravel township road serving Yang’s property.

After the first commission meeting, the Hollywood Township board met and voted to recommend denial of the application to the Carver County Board of Commissioners. The recommendation was based solely on concerns expressed by Hollywood Township residents at the meeting that the slaughterhouse would create excess traffic and disturb its neighbors.

At the second commission meeting, the staff used Yang’s estimate of ten daily customers to predict 50 daily road uses associated with the slaughterhouse, or ,25% of the gravel road’s capacity of 200 daily uses established by the comprehensive plan. See Carver County Comprehensive Plan, General Development Policy 18 (1991) (providing capacity of township gravel road is typically 200 average daily trips). The report concluded that traffic generated by the slaughterhouse appeared to prevent it from meeting the ordinance’s definition of a farm-related business and from complying with the Carver County comprehensive plan. See Ordinance § 8.0305(C) (providing proposed activity is not a farm-related, permitted conditional use if its demand for road services cannot be accommodated “within the context of the service levels available in the commercial agricultural area”); Carver County Comprehensive Plan, Policy 16C, § 2 (providing proposed use may not comply with comprehensive plan if “substantial percentage of the road capacity will be used by the proposed activity”).

The report also stated that because the application did not limit the number of customers, animal units to be processed weekly, or hours of operation, the operation could be injurious to the use of nearby property, be detrimental to the health, safety, and welfare of county residents, and create a nuisance, thereby violating Ordinance conditional use permit criteria 2, 4, and 7. Several Hollywood Township residents spoke to reiterate concerns raised in public comments at the first commission hearing.

Following the second planning commission meeting, Yang submitted an amended operational plan stating the slaughterhouse would process no more than 20 animal units in any five-day workweek, during which time he expected to attract a maximum of 50 customers. Based on his prior experience operating a slaughterhouse, Yang estimated that even with 50 weekly customers, the slaughterhouse would generate approximately 112 weekly trips, less than 10% of the road’s 1400 trip weekly capacity. The amended plan included a map showing the Yang property is located approximately ⅛ mile south of a highway and that highway traffic accessing the slaughterhouse via the gravel road would pass one other residence and a steel scrapyard, whose gravel-road ingress is regularly used by 18-wheel trucks. The amended plan further stated Yang would contract with rendering services for hide disposal, would work with Hollywood Township to provide dust control, and would purchase liability insurance.

After the third hearing, the planning commission voted to recommend denial of the application to the board of commissioners after finding that the slaughterhouse’s traffic and weekend operating intensity were excessive and that Yang’s operational plan was inadequate.

The board of commissioners voted to deny the application after a public hearing. In its order, which adopted all of the planning commission’s findings, the board found that the slaughterhouse would generate excessive traffic, that the intensity of the operation on weekends would interfere with neighbors’ use and enjoyment of their property, and that Yang’s operational plan inadequately described provisions taken for the slaughterhouse’s water service, sewage and wastewater disposal, parking, sanitary facilities, rendering services, and livestock delivery. Yang challenges the denial.

ISSUES

1. Was the county’s denial of the conditional use permit application unreasonable, arbitrary, or capricious?

2. Was the county’s denial of the conditional use permit application motivated by discriminatory intent?

ANALYSIS

This court will uphold a county’s decision to approve or deny a conditional use permit unless our independent review of the record determines the decision was arbitrary, capricious, or unreasonable. Schwardt v. County of Watonwan, 656 N.W.2d 383, 386 (Minn.2003); see also SuperAmerica Group, Inc. v. City of Little Canada, 539 N.W.2d 264, 266 (Minn.App.1995) (stating conditional use permit denial will be disturbed only where it has “no rational basis”) (citation omitted), review denied (Minn. Jan. 5, 1996).

A county’s denial of a conditional use permit is arbitrary where the applicant establishes that all of the standards specified by the zoning ordinance as conditions of granting the permit have been met. Zylka v. City of Crystal, 283 Minn. 192, 196, 167 N.W.2d 45, 49 (Minn.1969). A zoning ordinance should be construed according to its plain and ordinary meaning and in favor of the property owner. Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608-09 (Minn.1980). If the ordinance expressly authorizes the proposed use, the county may only deny the conditional use permit “for reasons relating to public health, safety, and general welfare.” C.R. Investments, Inc. v. Village of Shoreview, 304 N.W.2d 320, 324 (Minn.1981).

The permit applicant has the burden of persuading this court that the reasons for the denial either are legally insufficient or had no factual basis in the record. Hubbard Broadcasting, Inc. v. City of Afton, 323 N.W.2d 757, 763 (Minn.1982). Yang faces a fighter burden than if he were challenging a conditional use permit approval. See Schwardt, 656 N.W.2d at 389 n. 4 (stating conditional use permit denials are held to less deferential standard of review than conditional use permit approvals).

1. Yang argues the county’s denial of his application was arbitrary because he met all the standards specified by the ordinance for conditional use permit approval and because the reasons given by the board of commissioners for the denial had no factual basis in the record. We agree.

The board of commissioners based its denial largely upon findings that the slaughterhouse would generate excessive traffic on the gravel township road accessing Yang’s property. The county argues these findings are substantiated by (1) “prior traffic statistics maintained by the planning and zoning office”; (2) the Hollywood Township board’s “evaluation” of traffic on the gravel road serving Yang’s property; and (3) public comment that the slaughterhouse would generate excessive amounts of traffic.

The record indicates the planning and zoning commission’s traffic estimates were derived solely from daily road-use estimates provided by Yang himself in his operational plan and augmented by the commission staff on the grounds that Yang repeatedly “appealed] to” understate or underestimate the operation’s intensity, hours of operation, and delivery and service visits. The planning commission’s traffic estimates, as adopted by the board of commissioners, are not substantiated by independent analysis or rehable facts in the record. Rather, the estimates represent speculative predictions on how traffic will impact future residents of currently unplanned homes on undeveloped neighborhood property, the possible frequency of service and delivery visits, the possible maximum number of customers the operation will attract, and the potential intensity of the operation. The board’s order provides no explanation for rejecting Yang’s figures or crediting its own figures other than to repeatedly state Yang’s estimates appear unreasonable, unrealistic, and inaccurate.

In his amended application, Yang presented evidence, including detañed analy-ses of customer purchasing patterns based upon his experience operating a custom slaughterhouse, that (1) the slaughterhouse, when processing its maximum 20 animal units weekly for 50 customers, would account for 112 one-way trips on the gravel road each week, or less than 10% of the road’s 1400-trip weekly capacity; (2) traffic accessing the slaughterhouse would use only the one-quarter müe section of the road between the highway and the Yang driveway and would consist of passenger cars and delivery trucks; and (3) the sole residence between his property and the highway was located adjacent to a conditional use permit-authorized steel processing center regularly accessed by 18 wheel trucks that use the gravel road. The board has not substantiated its rejection of this evidence. We further note that even the board’s own traffic figures predict the slaughterhouse would generate a maximum of 140 trips a week, which is 10% of the gravel road’s capacity.

The board of commissioners also based its traffic findings on the Hollywood Township board’s recommendation that the application be denied because of traffic concerns. The record is clear the Hollywood Township board’s recommendation was based wholly on public comment opposing the application. The recommendation cannot therefore substantiate the board of commissioners’ findings relative to traffic.

The county next argues the board’s traffic findings were legitimately based upon public comment. A city may consider neighborhood opposition only if based on concrete information. Scott County Lumber Co. v. City of Shakopee, 417 N.W.2d 721, 728 (Minn.App.1988), review denied (Minn. Mar. 23.1988); see also Swanson v. City of Bloomington, 421 N.W.2d 307, 313 (Minn.1988) (acknowledging city may consider neighborhood opposition). In representative statements before the commission and the board, town residents stated the Yang farm appeared to be holding “a great big party [with] many, many cars” every weekend and that Yang appeared to be having “big parties [with] ten to 14 cars going in;” one neighbor reported his mother saw “ten cars coming down the road at 10:00 at night.”

As area residents, the neighbors have sufficient “competency and personal knowledge” to discuss traffic congestion. See Corwine v. Crow Wing County, 309 Minn. 345, 361, 244 N.W.2d 482, 491 (1976). But the neighbors’ anecdotal comments contain no detail as to how the cars they witnessed might affect circulation or the general welfare, and are insufficiently concrete to substantiate a finding that the proposed use would create excess traffic. Cf. SuperAmerica, 539 N.W.2d at 268 (upholding denial of a conditional use permit based on traffic concerns where “witnesses spoke of existing, daily traffic problems” and gave specific examples of “current congestion”). The neighbors’ comments here are insufficient to substantiate a finding that Yang’s slaughterhouse will cause excessive traffic.

We can find no basis in the record for the board’s conclusions that traffic generated by the slaughterhouse will create an excessive demand on the gravel road or use a disproportionate share of the road’s capacity. We therefore hold the board acted arbitrarily in concluding that excessive traffic generated by the proposed use was a valid reason to deny Yang’s application. See C.R. Investments, Inc., 304 N.W.2d at 325-28 (overturning conditional use permit denial where no concrete evidence warranted an inference that the proposed use would substantially aggravate traffic); Minnetonka Congregation of Jehovah’s Witnesses, Inc. v. Svee, 303 Minn. 79, 85, 226 N.W.2d 306, 309 (1975) (holding that unsubstantiated speculation about increased traffic does not support denial of a conditional use permit application).

The board also found that Yang’s application understated or underestimated the overall intensity of the slaughterhouse and that the actual intensity of the operation, particularly on weekends, will interfere with the neighbors’ recreational enjoyment of their property. Although the board does not define “intensity,” the term is used in reference to the number of trips made to the slaughterhouse by service and customer vehicles, the number of employee hours worked on a given day, and the number of animal units slaughtered on a given day.

We conclude the findings related to intensity are not substantiated by evidence in the record. First, the board provides no independent analysis or statistics in support of its decision to reject Yang’s intensity estimates as unrealistic underestimates of actual operating levels or its decision to replace Yang’s figures with its own augmented figures. Second, the board provides no explanation for its decision to characterize both Friday and Saturday as weekend days in its finding that intense weekend slaughter will interfere with neighbors’ enjoyment of their properties. We further note that although Yang’s initial operating plan included Sunday operation, he agreed to remain closed on Sundays at the request of neighbors. Third, the findings do not establish a causal link between the intensity of the operation and the degree of disturbance the operation will cause, or explain why a slaughterhouse is disruptive in an agricultural district containing feedlots and an adjacent steel scrapyard.

In addition to the board’s own estimates, the record evidence supporting the intensity findings consists of public comment stating that the operation will generate noise and traffic or that it might have a detrimental effect on the environment and local property values. This speculative comment does not provide a factual basis for the findings. See id. at 85, 226 N.W.2d at 309 (holding that where the controlling ordinance specifically provides for proposed use, general objections to granting conditional use permit are not competent evidence to support denial); see also C.R. Investments., Inc., 304 N.W.2d at 325 (stating that neighbors’ objections to conditional use permit application must be based on more than conjecture or speculation). We conclude the board’s findings concerning the slaughterhouse’s expected intensity lack a reliable basis in the record and cannot justify denying Yang’s application.

The board of commissioners also found Yang’s operational plan failed to adequately describe provisions taken to comply with state regulations concerning water service, sewage and wastewater disposal, parking, sanitation facilities, rendering, and livestock delivery at the slaughterhouse. The record shows that Yang’s initial and amended operational plans described the proposed use’s on-site sewer services and water well, plans to build two new bathrooms, waste management provisions, rendering contracts, wastewater disposal, water quality testing, and parking.

In his operational plans and at the public hearings, Yang recognized that he cannot operate his slaughterhouse until he complies with all applicable state regulations and obtains the relevant licenses, and suggested that the board condition issuance of the conditional use permit on his obtaining the licenses. The board of commissioners’ findings contain the Minnesota Board of Animal Health’s recommendation that approval of the application be conditioned on Yang’s compliance with state rendering, composting, and biosecurity measures. The findings also contain the Minnesota Department of Agriculture’s statement that it will not license the slaughterhouse until Yang obtains the conditional use permit.

The county requires that a proposed use comply with all applicable regulatory requirements before a conditional use permit will issue, and may condition issuance on compliance as verified by the relevant agency. See Ordinance conditional use permit requirement 1. But specific state licensing standards concerning water service, sewage and wastewater disposal, sanitary facilities, livestock delivery, and rendering services are not established by the board of commissioners or the ordinance, and it is not the board’s responsibility, under the ordinance, to enforce compliance with these standards.

Where state standards are set and enforced by state agencies and where a conditional use permit applicant informs the board of commissioners of his intention to comply with all applicable standards, the board need not resolve specific compliance issues prior to granting a conditional use permit. See Schwardt, 656 N.W.2d at 388-89 (holding that county board of commissioners may not deny conditional use permit application on grounds proposed use does not comply with county setback requirement where it was zoning administrator’s duty to enforce the setback requirement and where applicant promises that he will comply with requirement). The board of commissioners had no duty to ensure state regulations were met, and should have reserved the question of regulatory compliance for the relevant state agencies by conditioning issuance of the conditional use permit on Yang’s confirmed compliance with state standards. See id. We therefore hold that the county acted arbitrarily in denying Yang’s application on the grounds that his operational plan inadequately described his compliance with state standards.

In its final finding, the board of commissioners states that the proposed “operation [does] not look farm related and [looks] more like a commercial-industrial business” because Yang intends to raise 30% of his animals on-site “and [have] the rest imported.” This finding is not supported by the record or by the plain meaning of the ordinance, which provides that a farm-related business must involve “sales and/or purchasing of products of the local agricultural economy or of goods unique and necessary to agricultural operations.” Ordinance § 3.0305A 3. In the record, Yang repeatedly states that any animals he purchases will come from local producers and local auction houses. We do not agree with the board’s finding that these animals are not “products of the local economy” or that locally purchased animals are “imported” and preclude defining the slaughterhouse as a farm-related business. The county cites to no support in the ordinance for its conclusion that Yang’s operation is commercial-industrial for the fact that it does not raise all of its own animals for slaughter.

Construing the ordinance according to its plain and ordinary meaning and in favor of the property owner, we hold that Yang’s application met all the conditions specified by the ordinance for conditional use permit approval. Yang’s request is for a farm-related business, which is a permitted conditional use consistent with the comprehensive plan. There is inadequate evidence in the record in support of the county’s position that such use would diminish the use or enjoyment of the surrounding property, impair the health, safety, or welfare of local residents, impede the use or development of the surrounding vacant property, or excessively burden available services, including roads.

We conclude that the county did not have a legally sufficient reason to deny the permit. “[W]hen a governmental body denies a permit with such insufficient evidence that the decision is arbitrary and capricious,” the general principle is that the appellate court should order issuance of the permit. Interstate Power Co., Inc. v. Nobles County Bd. of Comm’rs, 617 N.W.2d 566, 577 (Minn.2000) (quotation omitted). We therefore reverse the decision of the county board and remand with directions that the county issue the permit, subject to reasonable conditions.

2. Because we hold that the county acted arbitrarily in denying Yang’s application, we do not address Yang’s assertion that the denial was motivated by purposeful discrimination based on his race or ethnicity. We note, however, that our careful review of the record reveals no evidence of such discrimination by the county.

DECISION

Because the record does not support the county’s denial of the conditional use permit, we reverse the county’s decision and remand with directions that the county issue the permit, subject to reasonable conditions.

Reversed and remanded.