author: PAUL H. ANDERSON, Justice.

text:
    Milton K. SANDERS, Appellant, v. STATE of Minnesota, Respondent.
    No. C4-00-1642.
    Supreme Court of Minnesota.
    June 28, 2001.

      Milton K. Sanders, Stillwater, Appellant pro se.
    Michael A. Hatch, MN Atty. Gen., St. Paul, Amy Klobuehar, Hennepin County Atty., Paul R. Scoggin, Asst. County Atty., Minneapolis, for Respondent.
   OPINION

PAUL H. ANDERSON, Justice.

On May 6, 1998, a Hennepin County jury found appellant Milton K. Sanders guilty of one count of first-degree murder and two counts of attempted first-degree murder. Sanders was sentenced to life imprisonment for the first-degree murder conviction and consecutive 180 month sentences for the two attempted first-degree murder convictions. Sanders appealed, and we affirmed his conviction. State v. Sanders, 598 N.W.2d 650 (Minn.1999). Sanders then filed a pro se petition for postconviction relief arguing denial of his Sixth Amendment Confrontation Clause rights, ineffective assistance of trial and appellate counsel, prosecutorial misconduct, and abuse of the district court’s discretion. The postconviction court considered the arguments Sanders raised in his briefs but denied relief without holding an evidentiary hearing, finding that some of the claims were procedurally barred because they should have been raised on direct appeal and that the other claims lacked merit. We affirm the postconviction court.

A detailed statement of the facts can be found in Sanders, 598 N.W.2d at 652-54; therefore, we will set out only the facts relevant to this appeal. On October 5, 1997, Sanders shot and killed 16-year-old Maurice Wilson, and shot and wounded Laverne Roberts and Cordell Watts. The shootings occurred outside an apartment building in Minneapolis. Upon their arrival at the scene, the police found a 12-gauge shotgun wrapped in a black plastic garbage bag, a nine-millimeter semiautomatic handgun, and two hooded sweatshirts. All of these items were found in some bushes near the shooting scene. The police were able to identify Sanders’ fingerprints on the garbage bag.

Sanders was arrested later that evening, and he was subsequently indicted for one count of first-degree murder and two counts of attempted first-degree murder. The state asserted that Sanders did the shooting because he was angry with Roberts and Watts for failing to protect Sanders’ girlfriend during a fight and that Wilson, the homicide victim, was an innocent bystander. At a pretrial hearing, the district court determined that the testimony of defense witness Emily Mathis would not be allowed at trial because Mathis’ testimony was inadmissible hearsay. At trial, Surella Jenkins testified that just before the shootings she saw Sanders leave his aunt’s apartment carrying a shotgun that was covered by a black plastic garbage bag. Latresa Mitchell, who was also at Sanders’ aunt’s apartment, testified that when she asked Sanders where he was going, he replied, “we’re going to go handle our business.”

The jury found Sanders guilty as charged, and the district court sentenced him to life imprisonment for the first-degree murder conviction and consecutive 180 month sentences for the two attempted first-degree murder convictions. On direct appeal, Sanders argued that the court abused its discretion in denying his request for a continuance, the jury had insufficient evidence to support the convictions, the state committed misconduct during closing arguments, and the court abused its discretion by imposing consecutive sentences for each of the three convictions. We affirmed the convictions and sentences.

Sanders petitioned for posteonviction relief under Minn.Stat. § 590.01 (2000) arguing ineffective assistance of trial and appellate counsel, denial of the constitutional right to be present at pretrial hearings, prosecutorial misconduct, and abuse of the district court’s discretion. Sanders requested an evidentiary hearing, but the posteonviction court denied relief without a hearing. Sanders appealed the posteonviction court’s decision. He argues that he was entitled to an evidentiary hearing to determine whether (1) his absence from two pretrial hearings violated his constitutional rights, (2) his trial counsel’s failure to present the testimony of two witnesses constituted ineffective assistance of trial counsel, (3) the state committed prosecuto-rial misconduct, and (4) his appellate counsel’s failure to raise certain issues constituted ineffective assistance of appellate counsel.

I.

A petitioner seeking posteonviction relief has the burden of establishing by “a fair preponderance of the evidence” the facts alleged in the particular petition. Minn.Stat. § 590.04, subd. 3 (2000). We review “a posteonviction proceeding only to determine whether there is sufficient evidence to sustain the posteonviction court’s findings, and a posteonviction court’s decision will not be disturbed absent an abuse of discretion.” Hodgson v. State, 540 N.W.2d 515, 517 (Minn.1995). When there is no basis on which a posteon-viction court could grant relief, the court is not required to conduct an evidentiary hearing before denying relief. Roby v. State, 531 N.W.2d 482, 483 (Minn.1995). We examine each of Sanders’ claims in light of this standard.

Sanders first argues that he was entitled to an evidentiary hearing to determine whether his “constitutional” right to be present at two pretrial hearings was abrogated. Sanders does not explain why an evidentiary hearing was warranted; he only argues that his absence from two pretrial hearings was “a substantial constitutional error.” Sanders also argues that his right to be present under the “Sixth, Fifth, and Fourteenth Amendments” to the U.S. Constitution was violated because he did not — by his conduct — waive his right to be present under Minn. R.Crim. P. 26.03, subd. 1(2), and Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). When the posteonviction court considered this claim, it determined that Sanders was not entitled to relief because his claim was procedurally barred as it was known but not raised in his direct appeal.

Once a direct appeal has been taken, we will not consider matters that were raised on direct appeal or claims known at that time but not raised. Miller v. State, 531 N.W.2d 491, 493 (Minn.1995); State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). The exceptions to this rule are (1) a claim that is so novel that the legal basis was not available on direct appeal, or (2) a claim that petitioner did not “deliberately and inexcusably” fail to raise on direct appeal. Roby, 531 N.W.2d at 484. The exceptions are limited to the extent that fairness requires consideration of such a claim. Fox v. State, 474 N.W.2d 821, 825 (Minn.1991).

Sanders failed to argue in his direct appeal that his constitutional right to be present at the pretrial hearing at issue was abrogated; thus, the posteonviction court was not required to consider whether Sanders’ absence violated his constitutional rights. Knaffla, 309 Minn. at 252, 243 N.W.2d at 741. The postconviction court nonetheless considered the claim on its merits and determined that Sanders waived his presence at one of the hearings he refers to in his argument. The record supports the court’s determination. At the beginning of one of the pretrial hearings at issue, the district court noted that Sanders was not present at the hearing, and Sanders’ trial counsel did not object. At the beginning of the other hearing at issue, the court noted that Sanders had waived his presence and his attorney did not object. We conclude that the legal basis of Sanders’ right-to-be-present claim was known at the time he took his direct appeal, but he did not raise the claim at that time. Therefore, the claim is procedurally barred unless Sanders can show why fairness requires its consideration. He has made no such showing. We hold that the postcon-viction court did not abuse its discretion when it denied relief on this claim without holding an evidentiary hearing.

II.

Sanders also argues that he was entitled to an evidentiary hearing on his ineffective assistance of trial counsel claim. He argues that his trial counsel was ineffective in failing to present the proposed testimony of Emily Mathis and Gwendlyn Cook. He asserts that Mathis would have testified that she saw four men returning from the shooting and that Sanders was "not with them and that she overheard another man say that he — not Sanders— was involved in the shooting. He asserts that Cook would have testified that Sanders “was not at the crime scene, and trial counsel failed to properly investigate the case, lacked proper preparation [sic].” The postconviction court determined that the issue of the admissibility of Mathis’ proposed testimony was known but not raised in Sanders’ direct appeal and denied relief without holding an evidentiary hearing.

Mathis’ proposed testimony was known before trial. Mathis intended to testify that she saw the men returning from the shooting and that Sanders was not with them, and that she overheard another man say that he — not Sanders — was involved in the shooting. The district court determined that Mathis’ proposed testimony was inadmissible hearsay because it was uncorroborated. The court indicated that if the proposed testimony were corroborated, the court would reconsider its ruling. Sanders knew of the excluded testimony and this ineffective assistance of trial counsel claim at the time of his direct appeal and could have raised it at that time, but he did not. Sanders’ claim is therefore procedurally barred unless he can show why fairness requires us to consider the claim. Fox, 474 N.W.2d at 825. However, Sanders has provided no reason why fairness requires us to take exception to our general rule barring postconviction review of claims known but not raised on direct appeal.

Similarly, Sanders did not raise in his direct appeal the issue of trial counsel’s handling of Cook’s proposed testimony. The postconviction court’s order suggests that Sanders was aware of his counsel’s handling of Cook’s proposed testimony at the time of Sanders’ direct appeal. However, just as Sanders fails to indicate why the fairness exception would apply to Mathis’ proposed testimony, he fails to show why fairness requires us to consider Cook’s proposed testimony, which argument was also known but not raised at the time of Sanders’ direct appeal. Moreover, even if we were to consider the merits of Sanders’ claims regarding Mathis’ and Cook’s proposed testimony, Sanders has failed to provide the type of evidence that would establish the merits of the claim or provide a basis from which the postconviction court could have granted relief. Therefore, we hold that the postconviction court did not abuse its discretion when it denied relief on this claim without holding an evidentiary hearing.

III.

Sanders next asserts that the state coerced Surella Jenkins and Latresa Mitchell into testifying falsely by threatening to take Jenkins’ children away and because Mitchell had “illegal warrants * * * pending.” Sanders argues that this alleged threat constituted prosecutorial misconduct, and he claims that if he were given an evidentiary hearing, new evidence would be presented to bolster his claims. The postconviction court held that Sanders’ claim of prosecutorial misconduct related to Jenkins’ and Mitchell’s testimony had no factual support, and “bald assertions without factual support” did not justify an evidentiary hearing.

Sanders did not raise this claim in his direct appeal. Nonetheless, the legal basis for this claim was known at the time of Sanders’ direct appeal, and Sanders has not shown why fairness requires us to consider the claim now. Fox, 474 N.W.2d at 825. We conclude that Sanders’ prose-cutorial misconduct claim based on his assertion that the state coerced Jenkins and Mitchell to testify is procedurally barred because he failed to raise the claim on his direct appeal and has not shown why fairness requires its consideration. Accordingly, we hold that the postconviction court did not abuse its discretion in denying relief on this claim without holding an evidentiary hearing.

IV.

Sanders next argues that he was entitled to an evidentiary hearing on his claim that appellate counsel was ineffective in failing to argue ineffective assistance of trial counsel with respect to the admissibility of Mathis’ and Cook’s proposed testimony. The postconviction court determined that appellate counsel’s decision not to raise this argument on direct appeal was a reasonable strategic decision and the court denied relief without holding an evi-dentiary hearing. This ineffective assistance of appellate counsel claim is predicated on Sanders’ underlying claim against his trial counsel. Therefore, to succeed on this claim, Sanders must prove that trial counsel’s representation “fell below an objective standard of reasonableness” and “trial counsel’s errors actually had an adverse effect in that, but for the errors, the result of the proceeding would have been different.” Sullivan v. State, 585 N.W.2d 782, 784 (Minn.1998) (internal citations removed).

If Sanders cannot establish an ineffective assistance of trial counsel claim, he cannot show that the outcome of his direct appeal would have been different and his ineffective assistance of appellate counsel claim based on Mathis’ and Cook’s proposed testimony automatically fails. We have already determined that Sanders cannot establish an ineffective assistance of trial counsel claim based on Mathis’ and Cook’s proposed testimony. Accordingly, we conclude that Sanders’ ineffective assistance of appellate counsel claim based on the proposed testimony fails, and the post-conviction court did not abuse its discretion in denying relief without holding an evidentiary hearing.

V.

Sanders raises two additional ineffective assistance of appellate counsel claims that are not predicated on a claim against his trial counsel. To succeed on these ineffective assistance of appellate counsel claims, Sanders must show that his appellate counsel’s performance fell below an objective standard of reasonableness and that he was prejudiced as a result. Dukes v. State, 621 N.W.2d 246, 252 (Minn.2001) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To show prejudice, Sanders must demonstrate that there is a reasonable probability that absent his appellate counsel’s error, the outcome of his direct appeal would have been different. Id.

Sanders first argues that his appellate counsel was ineffective in failing to raise Sanders’ right-to-be-present at pretrial hearings. We conclude that this claim lacks merit. The trial transcript indicates that Sanders, through his counsel, waived his right to be present at the two pretrial hearings at issue. Further, even if we were to determine that Sanders was inappropriately absent from a pretrial hearing concerning the admissibility of evidence, Sanders has not shown prejudice because he has failed to demonstrate a reasonable probability that the outcome of his direct appeal would have been different if his appellate counsel had raised that issue. Id. Therefore, we conclude Sanders has not established an ineffective assistance of appellate counsel claim based on his counsel’s failure to raise this issue.

Sanders next argues in his response brief that his appellate counsel failed to raise a prosecutorial misconduct claim on Sanders’ direct appeal. He asserts that his counsel’s failure to argue on appeal that the prosecutor’s handling of the Jenkins and Mitchell testimony was misconduct constituted ineffective assistance of counsel. Again, we disagree. No evidence was submitted to support his assertions of prosecutorial misconduct, and without factual support for the prosecuto-rial misconduct claims, Sanders did not show prejudice. As a result, we conclude Sanders has not established an ineffective assistance of appellate counsel claim based on his appellate counsel’s failure to raise this issue. Accordingly, we hold that the postconviction court did not abuse its discretion in denying relief on these two ineffective assistance of appellate counsel claims without holding an evidentiary hearing.

VI.

Sanders argues indirectly that he is entitled to an evidentiary hearing on additional claims he raised in his petition for postconviction relief, although he did not specifically refer to these claims in his postconviction appellate briefs. In his petition, Sanders argued that he received ineffective assistance of trial counsel because his counsel had only 19 days to prepare for trial, counsel had an ear infection, and counsel was not prepared to test the prosecution’s case. Sanders raised the same set of facts in support of a denial of a fair trial claim in his direct appeal, but he did not raise this specific claim in the context of these facts. Sanders, 598 N.W.2d at 654-55. Because this claim was known but not raised on direct appeal, it is procedurally barred, and Sanders has not shown why fairness now requires its consideration. Roby, 531 N.W.2d at 484.

Sanders next argues that the district court abused its discretion in hearing testimony in the absence of the jury. Specifically, he objects to the fact that the court dismissed the jury for part of a witness’ testimony in order to determine the scope of the witness’ admissible testimony. Again, the legal basis for this claim was known at the time Sanders took his direct appeal, but he failed to raise the claim at that time, and he has provided no reason why fairness now requires its consideration. Id. Therefore, this claim is also procedurally barred.

Finally, Sanders asserts in his petition for postconviction relief that he received ineffective assistance of appellate counsel because his counsel failed to argue on direct appeal that the district court abused its discretion in refusing to grant a continuance. Sanders’ counsel raised this underlying abuse-of-discretion argument in Sanders’ direct appeal, and we determined that the district court did not abuse its discretion when it refused to grant a continuance. Sanders, 598 N.W.2d at 654-55. Therefore, this claim fails because Sanders cannot show prejudice. Strickland, 466 U.S. at 697, 104 S.Ct. 2052. Accordingly, we hold that the postconviction court did not abuse its discretion in denying post-conviction relief on these claims without holding an evidentiary hearing.

Affirmed.

      . In his direct appeal, Sanders argued that the prosecutor’s statements during closing arguments constituted prosecutorial misconduct, and this court declined to consider the argument because Sanders did not object at trial and because of the “substantial evidence against” Sanders. Sanders, 598 N.W.2d at 656.


source: Caselaw Access Project

license: Public Domain

text:
    Anthony LASKA, Respondent, v. METROPOLITAN COUNCIL, Self-Insured, Respondent, and Special Compensation Fund, Relator. Donald Flower, Respondent, v. Metropolitan Council, Self-Insured, Respondent, and Special Compensation Fund, Relator.
    No. C1-01-572.
    Supreme Court of Minnesota.
    June 28, 2001.
    Thomas A. Klint, Babcock, Neilson, Mannella, LaFluer & Klint, Anoka, for Anthony Laska.
    Jeffrey J. Lindquist, Pustorino, Tilton, Parrington & Lindquist, PLLC, Minneapolis, for Metropolitan Council.
    William H. Getts, William H. Getts, P.A., Minneapolis, for Donald Flower.
    Rory H. Foley, Assistant Attorney General, Mike Hatch, Attorney General, St. Paul, for Special Compensation Fund.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed February 28, 2001, be, and the same is, affirmed without opinion. See Minn.R.Civ.App.P. 136.01, subd. 1(b).

Each employee is awarded $600 in attorney fees.

BY THE COURT:

/s/ Russell A. Anderson Associate Justice

PAGE, J., took no part in the consideration or decision of this case.


author: PAUL H. ANDERSON, Justice. STRINGER, Justice

text:
    AMERICAN FAMILY INSURANCE COMPANY, Respondent, v. Andy WALSER, Respondent, Matthew Jewison, a minor by and through Gary Jewison, his parent and natural guardian, et al., Petitioners, Appellants, Jason Shoemaker, Blue Cross and Blue Shield of Minnesota, Respondents.
    No. C1-00-349.
    Supreme Court of Minnesota.
    July 5, 2001.

      Philip R. Reitan, Mankato, for appellant.
    Steven J. Hovey, Hoversten, Johnson, Beckmann, Wellman & Hovey, LLP, Austin, for respondent American Family Ins. Co.
    Jane McMahon, St. Paul, for respondent Blue Cross Blue Shield.
    Andy Walser, Mapleton, pro se.
    Jason Shoemaker, Fort Sill, OK, pro se.
   OPINION

PAUL H. ANDERSON, Justice.

Appellant Matthew Jewison was injured after falling from the rim of a basketball hoop from which he had been hanging by his hands. Jewison fell because two of his acquaintances pulled on his ankles, causing him to lose his grip on the rim. After receiving medical treatment and therapy for the injury, Jewison sued the two acquaintances, one of whom was covered by a homeowner’s policy issued by American Family Insurance. American Family then initiated a declaratory judgment action, alleging that it had no duty to defend or indemnify. American Family argued that no coverage existed under the policy for the insured’s actions because the insured acted intentionally, even if he did not intend to harm Jewison. The district court concluded as a matter of law that the insured’s actions were intentional, but that the resulting injury was not intentional, and therefore, American Family had a duty to defend and indemnify the insured. The Minnesota Court of Appeals reversed, concluding that there was no coverage because the insured committed a tortious act, the act was intentional, and therefore the act could not be considered an accident. We reverse.

On May 6,1996, Matthew Jewison, Andy Walser, Jason Shoemaker, and other students were in a gym at the Mapleton High School. At the time, Jewison was in the ninth grade, Walser was in the tenth grade, and Shoemaker was in the twelfth grade. The three were in the gym because their choir teacher had asked them to move some chairs.

Jewison gave the following version of what happened in the gym. Jewison, who was about 6 feet 4 inches tall, jumped up and began hanging by his hands from the rim of a basketball hoop. After hanging from the rim for about 5 to 10 seconds, Walser and Shoemaker grabbed Jewison’s ankles and began tugging on them. Jewi-son characterized their actions as “just goofing around” and “playing around and stuff.” Walser and Shoemaker were standing under the basketball hoop facing Jewison as they held his ankles. Walser and Shoemaker backed up a bit while holding Jewison’s ankles, but then let go. Jewison held onto the rim for another 10 to 20 seconds and then Walser and Shoemaker grabbed Jewison’s ankles another time. Walser and Shoemaker again backed up while holding Jewison’s anHes, “pulled harder,” and this time Jewison lost his grip on the rim and fell to the floor. .After Jewison lost his grip but before he hit the floor, Walser and Shoemaker let go of his ankles. Jewison, “by instinct,” used his left hand to break his fall, injuring the middle finger in his left hand. Walser and Shoemaker both apologized to Jewison and when asked if he thought Walser and Shoemaker intended to injure him, Jewi-son responded, “No, not at all.”

Walser’s version of what happened differed only slightly from Jewison’s. Walser stated that Jewison jumped up and grabbed the rim a couple of times before the incident happened. On the last time Jewison jumped up, he hung on the rim. Walser told him to get down because he was not supposed to be hanging from the rim. Walser stated that he and Shoemaker each grabbed one of Jewison’s ankles, but he could not recall if they pulled Jewi-son in any specific direction. Walser thought that he and Shoemaker pulled Jewison “close to straight down.” Walser gave the following description of how Jewi-son fell. “I think he landed a little bit on his feet first and then kind of pushed himself backwards. And that was when he put his arms back.”

Walser stated that he and Shoemaker were just “goofing around” and did not have any hostile feelings toward Jewison; instead, everything was done in a friendly manner. Walser stated that although he and Shoemaker intended to pull Jewison down from the rim, they did not intend to injure him. Walser agreed with the statement that his pulling on Jewison’s ankles was “tjjust one of the things that high schoolers may do.”

Jewison testified that he had jumped up and hung on basketball rims “hundreds” of times before the May 1996 incident. In all of those times, he never injured himself doing so. Nor had he ever witnessed anyone else get injured from holding onto the rim and then falling down. Walser testified that before the May 1996 incident, he jumped up and hung from basketball rims a “couple dozen” times. He also witnessed others doing the same thing. Although the Mapleton basketball coaches had told the students not to hang from the rims, Walser had never seen anyone injured from doing so before Jewison was injured.

In his fall from the basketball rim, Jewi-son injured his third metacarpal knuckle. For 6 months after the fall, Jewison received therapy for this injury. Jewison’s medical insurer, Blue Cross Blue Shield, paid $8,399.40 in medical bills as a result of his injury. Jewison and his father commenced an action against Walser and Shoemaker to recover these losses. Wal-ser, who was insured through his parents’ policy with American Family, tendered his defense to the insurance company.

American Family initiated a declaratory judgment action, asking the district court to conclude that American Family had no duty to defend or indemnify Walser. American Family asserted two reasons why it should not have such a duty. First, American Family argued that its policy does not cover the May 1996 incident because it was not an “occurrence” as defined in the coverage provision of the policy. Second, American Family asserted that the incident was the result of an intentional act by Walser and therefore coverage was excluded by the intentional act exclusion.

The parties agreed to submit the matter to the district court based on Jewison’s and Walser’s depositions. Relying on Hauenstein v. St. Paul-Mercury Indem. Co., the court found that Jewison’s injury was caused by an accident because it was “an unexpected, unforeseen, or undesigned happening or consequence * * *.” 242 Minn. 354, 358, 65 N.W.2d 122, 126 (1954). The court also found that while Walser intended to pull Jewison down from the rim, he did not intend to injure Jewison. The court stated that as a matter of law Walser’s actions “were intentional but the resulting injury was both unexpected and unintended and was therefore an accident.” Further, the court found that the facts in this case did not warrant inferring intent to injure as a matter of law. The court then went on to conclude that as a matter of law the incident was an occurrence for purposes of the American Family policy, so coverage did exist and American Family had a duty to defend and indemnify Walser.

American Family appealed to the court of appeals. The court of appeals reversed in an unpublished opinion, concluding that Walser and Shoemaker committed an intentional tort when they grabbed Jewison’s ankles. Am. Family Ins. Co. v. Walser, No. C1-00-349, 2000 WL 1182799, at *2 (Minn.App. Aug. 22, 2000). The court reasoned that because the injury resulted from an act that was both intentional and wrongful, it could not be considered an accident. See id. Therefore, the incident was not an occurrence as required for coverage under American Family’s policy. Id. In reaching this conclusion, the court focused on whether Walser intended to act and in doing so acted wrongfully, not on whether Walser intended the harm. Id. The court then stated that it was unnecessary to decide whether the incident would also be excluded from coverage through the intentional act exclusion provision because of the court’s conclusion that coverage did not exist in the first place. Id. at *2, n. 2. However, the court did note in a footnote that intent to injure could be inferred as a matter of law under the circumstances in this case. Id. at *2, n. 1.

Jewison appealed and argues that because Walser had no intent to injure him, the incident in which he was injured was an accident under the American Family policy. He also asserts that this is not an incident in which intent to injure should be inferred as a matter of law.

I.

Interpretation of an insurance policy and application of the policy to the facts in a case are questions of law that we review de novo. Franklin v. Western Nat’l Mut. Ins. Co., 574 N.W.2d 405, 406 (Minn.1998). When interpreting an insurance contract, words are to be given their natural and ordinary meaning and any ambiguity regarding coverage is construed in favor of the insured. Hauenstein, 242 Minn. at 357, 65 N.W.2d at 125.

There are two provisions of the American Family policy relevant to this appeal. The first is the coverage provision, which requires that Jewison must have been injured in an occurrence. The policy contains the following coverage terms under “Description of Liability and Medical Expense Coverages”:

1. Insuring Agreement. We will pay, up to our applicable limit, compensatory damages which any insured becomes legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies. The bodily injury or property damage must be caused by an occurrence during the policy period. The occurrence must take place in the coverage territory.

(Emphasis omitted.) The coverage provision of the policy also provides the following definition of occurrence:

Occurrence means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.

(Emphasis added.)

The second provision of the policy relevant to this appeal is the exclusionary provision, which is included under the “Exclusions” section of the policy. This provision contains the following language:

11. Intentional Injury. We will not pay for damages due to bodily injury or property damage expected or intended from the standpoint of the insured.

(Emphasis omitted.)

The coverage provision of American Family’s policy provides coverage for damages resulting from an occurrence, which the policy defines as an accident. However, the policy does not define accident. In interpreting the word accident, we are guided by the maxim that in insurance contracts, coverage provisions are construed according to the expectations of the insured and exclusions are construed narrowly. Atwater Creamery Co. v. Western Nat’l Mut. Ins. Co., 366 N.W.2d 271, 276 (Minn.1985). When applying this maxim to coverage provisions of an accident policy, we established that the word accident encompasses both the acts of the insured and the consequences of the insured’s acts. Hauenstein, 242 Minn. at 358-59, 65 N.W.2d at 126. In Hauenstein, we concluded that an insurance policy did provide coverage for damage caused to the walls of a building by the application of defective plaster. 242 Minn. at 358, 65 N.W.2d at 126. We reasoned that the damage was accidental because it was a “completely unexpected and unintended result.” Id. We concluded that “[a]ccident, * * * within the terms of an accident policy, is an unexpected, unforeseen, or unde-signed happening or consequence * * 242 Minn, at 358-59, 65 N.W.2d at 126.

In 1976, when considering the Hauen-stein definition of accident, we noted that “this definition or a similar one is universally accepted by the courts * * Bituminous Cos. Corp. v. Bartlett, 307 Minn. 72, 80 n. 5, 240 N.W.2d 310, 313, n. 5. We also noted the difficulties that the Hauen- stein definition has caused courts in interpreting insurance provisions. Bartlett, 307 Minn, at 80, 240 N.W.2d at 813. We mentioned accident definitions from other jurisdictions, including one which defined accident as “all negligently caused injury, provided such injury was not intentional,” but we did not endorse any of these other definitions. Id. Because the policy at issue in Bartlett provided its own definition of accident, we did not need to resolve any problems with the Hauenstein definition. Bartlett, 307 Minn. at 80, 240 N.W.2d at 313. But, while we did not rely on the Hauenstein definition of accident to reach our decision in Bartlett, our analysis indicated that the Hauenstein language was not applicable because there was specific contract language defining accident. Bartlett, 307 Minn. at 80, 240 N.W.2d at 313. The Hauenstein definition of accident includes circumstances where the injury was unintended or unexpected. Hauenstein, 242 Minn. at 358-59, 65 N.W.2d at 126. But we note that the Hauenstein definition did not focus on whether the conduct that caused the injury was intentional. Hauenstein, 242 Minn. at 358-59, 65 N.W.2d at 126.

Following Hauenstein and Bartlett, the court of appeals strayed from the Hauen-stein definition in a series of cases interpreting coverage provisions. The first case, Sage Co. v. INA, involved an insurance claim by a partnership in an employment discrimination suit resulting from firing an employee. 480 N.W.2d 695, 697 (Minn.App.1992). In deciding whether the intentional firing of an employee was an accident under the policy, the court of appeals used only part of the Hauenstein definition, stating that an accident is “an unexpected, unforeseen, or undesigned happening * * Sage, 480 N.W.2d at 698. The court in Sage did not explain why it dropped the words “or consequence” from the Hauenstein definition. Id. Two months later, the court of appeals relied on the shortened definition of accident from Sage when it decided a case involving the transmission of herpes. Milbank Ins. Co. v. B.L.G., 484 N.W.2d 52, 58 (Minn.App.), rev. denied (Minn. July 16, 1992). In Milbank, the court of appeals also took from Bartlett a definition of accident that we referenced but did not adopt in Bartlett. Milbank, 484 N.W.2d at 58. This definition stated that an accident “includes all negligently caused injury, provided such injury was not intentional.” Id.

Relying on Sage and Milbank, the court of appeals developed a new test for determining whether an incident was an accident. This test involves ascertaining whether the insured’s conduct was wrongful. Gilman v. State Farm Fire & Cos. Co., 526 N.W.2d 378, 383 (Minn.App.1995). In Gilman, the jury found that the insured intentionally tackled Gilman, but that the resulting injury was not intentional. Id. at 381. In considering the impact of the jury verdicts on coverage, the court of appeals discussed for the first time the fact that it had dropped the words “or consequence” from the Hauenstein definition of accident, but distinguished Hauenstein as a property damage case that did not involve “wrongful conduct.” Gilman, 526 N.W.2d at 382. The court concluded that because the act of tackling was a tortious and nonconsensual act, it would not be considered an accident, even if the insured did not intend to injure. Id. at 383. When the court of appeals decided the present case, it followed the Gilman test and concluded that because Walser’s conduct was tortious, lack of intent to injure was irrelevant when determining whether the incident at issue was an accident. Walser, 2000 WL 1182799, at *2.

During this same time period, we developed a related analysis that we have used in determining whether an insured acted intentionally for purposes of an intentional act exclusion in an insurance policy. In order for coverage to be excluded as intentional, a court must find that the insured acted with “specific intent to cause” harm and that the insured “intended the harm itself, not merely that the insured generally intended to act.” R.W. v. T.F., 528 N.W.2d 869, 873 (Minn.1995). When applying this principle, we inquire into the intentions of the insured, but we do not inquire whether the insured’s conduct was wrongful. E.g., see id. Thus, there is coverage for an incident “when the act inflicting the assault and battery is intended, but the resulting injury is not intended.” Woida v. N. Star Mut. Ins. Co., 306 N.W.2d 570, 573 (Minn.1981). We note, though, that to find that an insured acted intentionally, a court need only find that the insured intended some harm, not that the insured intended the specific harm that resulted. Iowa Kemper Ins. Co. v. Stone, 269 N.W.2d 885, 887 (Minn.1978).

After considering our jurisprudence and the court of appeals’ analysis leading to the definition of the word accident, we reject the court of appeals’ analysis because it excludes the inquiry into whether there was intent to injure. The result of the application of the court of appeals’ test from Gilman is that the coverage analysis is more restrictive — results in narrower coverage — than our intentional act exclusion analysis. This result is problematic, and the court of appeals recognized the need to avoid this illogical result in Milbank when it stated, “[i]t makes little sense to give a narrower reading to ‘occurrence’ than we do to an exclusion from coverage for the ‘occurrence.’ ” 484 N.W.2d at 58. In addition, the test used in Gilman departs from our precedent in Hauenstein and Bartlett. The court of appeals’ rationale that Hauenstein involved property damage rather than personal injury is not sufficient justification for a more stringent test for coverage. Nor does the characterization of conduct as tortious or wrongful support the imposition of a narrower definition of accident when evaluating coverage. All conduct that leads to liability for personal injury or property damage is in some sense tortious or the defendant would not be hable. To the extent that wrongful conduct may warrant different treatment, it makes more sense to address it in the context of an intentional act exclusion.

We conclude that the Hauen-stein definition of accident as an unexpected, unforeseen, or undesigned happening or consequence remains applicable and should have been used in the present case. While we reject the court of appeals’ narrower definition of accident, we are mindful of our acknowledgment in Bartlett that the Hauenstein definition has proved troublesome in application. We believe that the appropriate solution is to recognize the relationship between the definition of accident in the analysis of coverage provisions and the definition of intentional conduct in the analysis of intentional act exclusions. It would be preferable-at least in terms of common sense expectations of the meaning of contractual provisions-that a general coverage provision provide a broad scope of coverage that is then limited by a specific exclusion. However, in the absence of a workable definition of accident that yields such a result, it is better here to acknowledge that accidental conduct and intentional conduct are opposite sides of the same coin. The scope of one in many respects defines the scope of the other. Therefore, in applying the Hauenstein definition of accident to a coverage provision, particularly the unexpected, unforeseen or undesigned consequence aspect, our cases interpreting intentional act exclusions are instructive; that is, where there is specific intent to cause injury, conduct is intentional for purposes of an intentional act exclusion, and not accidental for purposes of a coverage provision. As was the case under the Hauenstein definition, where there is no intent to injure, the incident is an accident, even if the conduct itself was intentional.

Reconciling the scope of the coverage concept of accident and the exclusion concept of intentional act exclusions is not a new idea. In Tower Ins. Co. v. Judge, the U.S. District Court, reviewing Minnesota law, stated that “the question whether [the victim’s] death was an ‘accident’ and the question whether the intentional act exclusions apply are, for all practical purposes, identical issues.” 840 F.Supp. 679, 690 (D.Minn.1993). Other state courts have also adopted like inquiries for the determination of whether an event is an accident and whether an insured acted intentionally. E.g., Physicians Ins. Co. of Ohio v. Swanson, 68 Ohio St.3d 189, 569 N.E.2d 906, 908 (1991); see Lititz Mut. Ins. Co. v. Bell, 352 Md. 782, 724 A.2d 102, 110 (1999); Fire Ins. Exch. v. Diehl, 450 Mich. 678, 545 N.W.2d 602, 605-06 (1996). Additionally, some insurance policies combine the coverage and intentional act exclusion issues into one provision. E.g., Woida, 306 N.W.2d at 572-73 (where the policy defined an occurrence as “an accident * * * neither expected nor intended from the standpoint of the insured”). Finally, we have used the word accident in automobile policies to mean an “unexpected happening without intention or design” and suggested that the use of the term accident in the no-fault act may have been intended to incorporate an intentional act exclusion. Weis v. State Farm Mut. Auto. Ins. Co., 242 Minn. 141, 145, 64 N.W.2d 366, 368 (1954); McIntosh v. State Farm Mut. Auto. Ins. Co., 488 N.W.2d 476, 477-79 (Minn.1992).

We do not conclude or suggest that the scope of coverage for accidents will always coincide with the scope of an exclusion for intentional acts. Rather, we conclude that in analyzing whether there was an accident for purposes of coverage, lack of specific intent to injure will be determinative, just as it is in an intentional act exclusion analysis.

Here, the American Family policy provides coverage for bodily injury caused by an occurrence, which in turn is defined as an accident. When the policy is construed with our definition of accident, the policy provides coverage for bodily injury caused by an incident in which the resulting harm was unintended or unexpected by the insured. To determine whether Jewi-son’s injury was unintended by Walser, we must determine whether Walser acted with specific intent to cause Jewison’s injury. R.W., 528 N.W.2d at 872. The district court found that although Walser acted intentionally, he did not intend to injure Jewison. There is nothing in the record to suggest that this finding was in error, nor has American Family argued that it was. Therefore, we conclude, that Jewison was injured in an accident. Based on the language of the policy, our definition of accident, and the finding of the district court, we hold that Jewison was injured in an occurrence as defined by the coverage provision of American Family’s policy.

II.

Our conclusion that Jewison has shown that the May 1996 incident falls within the coverage provision of American Family’s policy does not end our inquiry. We next must consider whether the exclusionary provision of American Family’s policy should operate to deny coverage. When interpreting insurance policies, we construe language in an exclusionary provision in accordance with the expectations of the insured party. American Family Mut. Ins. Co. v. Peterson, 405 N.W.2d 418, 422 (Minn.1987). We also construe exclusions strictly against the insurer. Bob Useldinger & Sons, Inc. v. Hangsleben, 505 N.W.2d 323, 327 (Minn.1993).

The district court found that Walser acted intentionally, but that he did not have specific intent to injure Jewison. We already have concluded that this finding was not erroneous. We have stated that the purpose of intentional act exclusions is to exclude insurance coverage for wanton and malicious acts by an insured, and therefore we may, absent a finding of specific intent to injure, infer intent to injure as a matter of law. Farmers Ins. Exch. v. Sipple, 255 N.W.2d 373, 375-76 (Minn.1977). We do so based on the circumstances and nature of the insured’s actions. R.W., 528 N.W.2d at 873. Therefore, in this case, because there is no actual intent to injure, the intentional act exclusion will only defeat coverage if there is a basis to infer intent to injure as a matter of law.

We have previously stated that the inference of intent to injure as a matter of law arises when the insured acted in a calculated and remorseless manner or when the insured’s actions were such that the insured knew or should have known that a harm was substantially certain to result from the insured’s conduct. Cont’l Western Ins. Co. v. Tool, 309 Minn. 169, 177-78, 244 N.W.2d 121, 126 (1976); R.W., 528 N.W.2d at 873. The mere fact that the harm was a “natural and probable consequence” of the insured’s actions is not enough to infer intent to injure. Tool, 309 Minn. at 174, 244 N.W.2d at 124.

There is no bright line rule as to when a court should infer intent to injure as a matter of law; rather, the determination is made through a “case by case factual inquiry.” R.W., 528 N.W.2d at 873. In Brown v. State Auto. & Cas. Underwriters, we were asked to infer intent to injure when the insured struck a baggage clerk after an argument and tug-of-war over a piece of luggage. 293 N.W.2d 822, 823-25 (Minn.1980). In concluding it was not appropriate to infer intent to injure under those circumstances, we noted that the cases in which we inferred intent to injure were “factually more extreme.” Id. at 824. In Caspersen v. Webber, we declined to infer intent to injure because even though the insured intentionally pushed a hatcheck girl, causing her to be injured, the character of the insured’s act was not such that an intent to injure could be inferred as a matter of law. 298 Minn. 93, 98-99, 213 N.W.2d 327, 330 (1973). The court of appeals has also recognized that inferring intent to injure is not appropriate in all circumstances. German Mut. Ins. Co. v. Yeager, 554 N.W.2d 116, 118 (Minn.App.), rev. denied (Minn. Dec. 23, 1996). In Yeager, the court of appeals declined to infer intent when the insured was a teenager who injured a friend while exploding an explosive device when the insured had exploded such a device in the past without injuries and the insured threw the device away from bystanders. Id.

This case by case factual inquiry has led us to infer intent to injure as a matter of law in certain circumstances. In Woida, we inferred intent to injure when the insured drove to a construction site armed with a high-powered rifle loaded with armor-piercing bullets and fired at a guard’s truck, which he knew was occupied. 306 N.W.2d at 573-74. In Toal, we inferred intent to injure when the insured armed himself with loaded weapons to facilitate a robbery. 309 Minn. at 177, 244 N.W.2d at 126. We concluded that the robbery was a “well planned operation” in which the insured knew that “someone might well be injured or killed” and thus the insured’s actions were “of such a calculated and remorseless character” that it was appropriate to infer intent to injure as a matter of law. Id.

We also have inferred intent to injure in a number of cases involving some type of sexual contact. In R.W., we inferred intent to injure when the insured had unprotected sexual intercourse even though he knew or should have known that he had herpes. 528 N.W.2d at 873. We reasoned that T.F.’s decision to engage in unprotected sexual intercourse knowing of the high probability that he could infect R.W. with herpes made the transmission of herpes an intentional act as a matter of law. Id. In Fireman’s Fund Ins. Co. v. Hill, we inferred intent to injure when the insured had sexual contact with a minor foster child placed in his home. 314 N.W.2d 834, 835 (Minn.1982). We based this conclusion on the fact that “Hill intended to engage in sexual play” knowing that the welfare department viewed sexual contact as detrimental to the child and that Hill had been confronted with accusations that he had assaulted children in the past. Id.

These cases provide examples of situations where there was a basis to infer intent to injure. In each case, the insureds acted in a manner in which they knew or should have known that some harm was substantially certain to result; that is, they acted with deliberate and calculated indifference to the risk of injury. R.W., 528 N.W.2d at 873; Hill, 314 N.W.2d at 835; Woida, 306 N.W.2d at 573-74; Tool, 309 Minn. at 177, 244 N.W.2d at 126. Therefore, we conclude that in order to infer as a matter of law that Walser intended to injure Jewison, we must conclude that Walser acted with deliberate and calculated indifference to the risk of injury to Jewison.

The district court concluded as a matter of law that it could not infer that Walser intended to injure Jewison. We. agree with this conclusion. After comparing the facts in this case to those in which we have inferred intent to injure in the past, we conclude, as we did in Brown, that the cases in which we infer intent to injure are factually more extreme than those presented here. Jewison, Walser, and Shoemaker were teenage boys “goofing around” in a high school gym. The record shows that both Jewison and Wal-ser had hung by their hands from a rim of a basketball hoop on numerous occasions and had witnessed others doing so, but neither of them had ever seen anyone injured from a fall from a rim. Jewison testified that he had fallen while attempting to hang from the rim in the past, and even though he had occasionally not landed on his feet, he was never injured from such falls. There is nothing in the record to suggest that Walser acted with deliberate and calculated indifference to the risk of injury to Jewison. Following the reasoning we used in Toal, Walser’s actions were more like those of the insured in Caspersen—impulsive actions which resulted in an unintentional injury. 244 N.W.2d at 126 (referring to Caspersen, 298 Minn. at 98-99, 213 N.W.2d at 330). Therefore, we conclude that intent to injure should not be inferred as a matter of law. Because we have concluded that there was no actual intent or expectation to injure and that intent to injure should not be inferred in this case, the intentional act exclusion in the American Family policy does not exclude coverage. We hold that the district court was correct when it found that American Family has a duty to defend Walser and to indemnify him for any judgment rendered against him.

Reversed and remanded.

STRINGER, Justice

(dissenting).

I respectfully dissent. The insurance policy at issue here provides coverage if the insured becomes legally obligated to pay damages for “bodily injury or property damage * * * caused by an occurrence during the policy period.” The term “occurrence” is defined in the policy as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” The policy also states that it “will not pay for damages due to bodily injury or property damage expected or intended from the standpoint of the insured.” Under the language of the insurance policy, it makes no difference whether the insured intended injury or not — the only concern is whether the act causing the injury was accidental or intentional.

It is undisputed that Jewison, a ninth grade student, was injured when he fell from where he was hanging from the rim of a basketball hoop to a gymnasium floor. It is also undisputed that Walser, a sophomore, and Shoemaker, a senior, deliberately and repeatedly tugged at Jewison’s ankles in an attempt to get him down from the basketball rim. Jewison testified that the boys backed up while pulling on his ankles so that he hung from the rim at an angle. Walser acknowledged they might have been pulling Jewison’s legs at an angle. Jewison fell when, after repeated attempts to dislodge Jewison from the basketball rim, Walser and Shoemaker both took hold of his ankles and pulled harder and at an angle from a direct line to the floor, causing him to lose his grip.

Beginning, as we must, with the language of the policy, Franklin v. Western Nat’l Mut. Ins. Co., 574 N.W.2d 405, 407 (Minn.1998), the American Family insurance agreement provides:

We will pay, up to our applicable limit, compensatory damages which any insured becomes legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies. The bodily injury or property damage must be caused by an occurrence during the policy period. The occurrence must take place in the coverage territory.

(emphasis removed). An occurrence, under the policy definition, is “an accident * * *.» ⅛6 p0iiCy provides coverage for bodily injury “caused by an accident.” “Accident,” as we defined it in Hauenstein, “is an unexpected, unforeseen, or unde-signed happening or consequence * * *.” 242 Minn. at 358-59, 65 N.W.2d at 126. Where the majority errs is in concluding that “an accident” is a “consequence” it is not, and that analysis ignores the plain policy language stating that “an accident” must be the cause of the bodily injury. Clearly, Jewison’s injury here was not caused by an accident for the simple reason that Walser and Shoemaker acknowledged that they intended to pull Jewison from the rim of the basketball hoop. His fall was not “an unexpected, unforeseen, or undesigned happening or consequence” it was fully intended. Thus, under the plain language of the insurance policy here, I would conclude there is no coverage.

Coverage is also barred by the intentional acts exclusion. Paragraph 11 of the American Family policy provides an exclusion for intentional injury: “We will not pay for damages due to bodily injury or property damage expected or intended from the standpoint of the insured.” (emphasis in original). Jewison characterized the incident as “just goofing around.” An inference of intent to cause bodily injury arises and the insured’s conduct falls within the intentional injury exception of an accident policy however where the insured’s actions are such that the insured knew or should have known “that harm was substantially certain to result” from that conduct. See, e.g., R.W. v. T. F., 528 N.W.2d 869, 872 (Minn.1995); State Farm Fire & Gas. Co. v. Wicka, 474 N.W.2d 324, 329 (Minn.1991).

The majority strains to redefine the common sense notion of accident to reach the conclusion that because the injury was not specifically intended, the event must have been an accident. But when Walser and Shoemaker repeatedly pulled on Jewi-son’s ankles, they accomplished precisely what they intended to cause him to lose his grip on the hoop and to fall. Where does their intentional conduct end just before Jewison crashed to the floor injuring himself? How does what Walser and Shoemaker did here differ from pushing Jewi-son to get him off a ledge injury is likely if not certain to occur. Jewison’s fall from the basketball rim was not an accident. It was the foreseeable and expected result of repeated tugs on his anides by his two older classmates pulling at an angle below him on the floor. Indeed, it is difficult to imagine a scenario in which injury is more likely to occur than where a young boy is hanging by his hands from a narrow metal rim several feet above a hard floor and his feet are pulled at an angle from under him by the two older boys, causing his fall. Only a suspension of the law of gravity could have interceded to prevent the ensuing injury.

The majority states that an insured’s conduct does not fall within the intentional injury exception unless the insured “acted with deliberate and calculated indifference to the risk of injury.” Evidence of deliberate and calculated indifference to the inherent risks of an action taken against another may be helpful in determining that an act was not accidental, but such a standard is an unnecessary departure from our previous holdings regarding intentional injury. See R.W. v. T.F., 528 N.W.2d at 873 (holding that “while not necessarily malicious,” insured’s decision to engage in unprotected sexual intercourse with claimant where the insured knew or should have known that he had herpes and that he could transmit the disease through such activity was intentional injury); Continental Western Ins. Co. v. Toal, 309 Minn. 169, 177-78, 244 N.W.2d 121, 126 (1976) (holding that although insureds did not specifically intend to injure anyone, they knew accomplices brought loaded guns and they followed through with the robbery with the knowledge that someone might well be injured or killed).

The policy at issue does not provide coverage for liability resulting from the conduct presented here. I would affirm the court of appeals.

      . The intentional act exclusion at issue in R.W. is similar to the one in the American Family policy at issue here in that it excludes coverage for injury “caused intentionally’' by the insured. R.W., 528 N.W.2d at 872.

      . The dissent and American Family assert that the Hauenstein definition of accident that includes both unforeseen happening and unforeseen consequences cannot be used here because of the specific language in the American Family policy that speaks in terms of coverage for “injury caused by an occurrence.” American Family asserts that defining accident (and therefore occurrence) as an unforeseen consequence — injury—yields a grammatically unsound result in that the policy would provide coverage where “injury is caused by an unforeseen injury.” American Family argues that injury can only be caused by an event, so the focus must be only on whether the event was intended. This argument fails because the proper analysis cannot be driven merely by the syntax chosen for defining an accident. Although expressed as an unforeseen happening or consequence in Hauenstein, without changing the meaning, tire definition of accident could just as easily have been stated as "an unforeseen happening or a happening that results in unforeseen consequences.” Such wording would avoid the inconsistency relied on by American Family and the dissent.

      . The majority argues this dissent hinges on the grammatical structure of the policy language and rejection of our definition of accident in Hauenstein. This is plainly incorrect, as no amount of grammatical maneuvering will alter the intentional and injurious character of the actions taken by Walser and Shoemaker.


author: WILLIS, Judge

text:
    STATE of Minnesota, Respondent, v. Brian Henry RHODE, Appellant.
    No. C7-00-1232.
    Court of Appeals of Minnesota.
    May 1, 2001.
    Mike Hatch, Attorney General, St. Paul; and Gaylord A. Saetre, Todd County Attorney, Joe E. Judd, Assistant County Attorney, Long Prairie, for respondent.
    G.Marlene Clark and Kirk R. Olson, Long Prairie, for appellant.
    Considered and decided by AMUNDSON, P.J., KLAPHAKE and WILLIS, JJ.
   OPINION

WILLIS, Judge

Appellant Brian H. Rhode challenges his conviction of violating a driver’s-lieense restriction, arguing that (1) the state did not prove that it had notified appellant of the no-alcohol restriction and (2) because there was no proof that he was given notice of the restriction, the state could not prove a willful violation. Because there was insufficient evidence to show that appellant willfully violated the no-alcohol restriction, we reverse.

FACTS

On February 2, 2000, a Todd County sheriff’s deputy stopped appellant Brian H.Rhode at 3:00 a.m. for driving without a taillight. The deputy testified that Rhode stepped out of his vehicle wearing no shoes. After placing Rhode in the front seat of the squad car to get him out of the cold weather, the deputy asked him for his driver’s license, which Rhode did not have with him. While they were in the squad car, the deputy smelled alcohol on Rhode’s breath and asked him to sufynfit to a portable breath test, which showed that he had an alcohol concentration of .12. The deputy informed Rhode that he would have to accompany him to the police station to take another test. The second test showed that his alcohol concentration was .09.

A jury found Rhode guilty of operating a motor vehicle in violation of a “no use of alcohol” restriction on his driver’s license. Rhode then moved for entry of a judgment of acquittal, and each party was given the opportunity to file legal memoranda. The court denied Rhode’s motion, and this appeal followed.

ISSUES

I. Whether a violation of Minn.Stat. § 171.09 (2000) requires proof of willfulness?

II. Whether there was sufficient evidence to convict Rhode of willfully violating a “no use of alcohol” restriction on his driver’s license?

ANALYSIS

I.

Rhode argues that (1) willfulness is an essential element of the offense of violating a driver’s-lieense restriction and (2) the state did not prove that he willfully drove in violation of the statute. He asserts that this case is governed by State v. Green, 351 N.W.2d 42 (Minn.App.1984), where this court concluded that there was insufficient evidence to show that the defendant had willfully driven after his license was suspended because there was no evidence that he received notice of the suspension. Id. at 44. Rhode argues that Green stands for the proposition that Minn.Stat. § 171.09 (2000), which makes it “unlawful for any person to operate a motor vehicle in any manner in violation of the restrictions imposed” on his or her license, contains a willfulness element. But the defendant in Green was not charged under Minn.Stat. § 171.09; rather, he was charged under Minn.Stat. § 171.20, which governs revocations, suspensions, and cancellations of driver’s licenses. Therefore, Green is inapposite.

The district court here did not instruct the jury that the state had to show ■willfulness to prove a violation of Minn. Stat. § 171.09; rather, the court instructed the jury that the state had to prove that Rhode “knew or should have known” that the restriction had been placed on his driver’s license. Whether Minn.Stat. § 171.09 contains a willfulness element is a question of statutory construction, which is a legal determination subject to de novo review. State v. Patch, 594 N.W.2d 537, 538 (Minn.App.1999). Section 171.09 makes it unlawful to drive in violation of any restrictions imposed on a driver’s license by the Commissioner of Public Safety. Section 171.241 provides that it

is a misdemeanor for any person to willfully violate any of the provisions of this chapter unless the violation is declared by any law to be a felony or gross misdemeanor, or the violation is declared by a section of this chapter to be a misdemeanor.

Minn.Stat. § 171.241 (2000) (emphasis added). This court has held that, “[r]ead together, sections 171.09 and 171.241 make it a misdemeanor for any person to operate a vehicle in any manner in violation of a restricted license.” State v. Tofte, 563 N.W.2d 322, 324 (Minn.App.1997). Additionally, the supreme court has explained that

it is clear that it was the legislative intent to make it a misdemeanor for any person to operate a vehicle in any manner in violation of the restrictions imposed in a restricted license.

State v. Moseng, 254 Minn. 263, 266, 95 N.W.2d 6, 10 (1959). Because violation of section 171.09 is not “declared by any law to be a felony or a gross misdemeanor” and is not declared to be a misdemeanor by another section of chapter 171 and because it is to be read in conjunction with Minn.Stat. § 171.241, which provides that a misdemeanor violation must be willful, we conclude that proof of willfulness is required to find a defendant to have violated a driver’s-license restriction.

II.

Rhode argues that, because there was no proof that he was aware that his license was restricted, the state did not prove a willful violation. In considering a claim of insufficient evidence, a reviewing court’s only inquiry is whether, on facts in the record and legitimate inferences that can be drawn from those facts, a jury could reasonably conclude that the defendant was guilty. State v. Bias, 419 N.W.2d 480, 484 (Minn.1988). The court must view the evidence in the light most favorable to the verdict and assume the jury believed the state’s witnesses and disbelieved any contrary evidence. State v. Miles, 585 N.W.2d 368, 372 (Minn.1998).

The state argues that Rhode was aware of the no-alcohol restriction because it appears on his driving record on file with the Commissioner of Public Safety. The state introduced into evidence Rhode’s driving record, but it produced no evidence that Rhode ever saw his record. The state fails to cite any authority, nor do we find any, for the proposition that the mere fact that a driver’s record reflects such a restriction provides adequate notice of the restriction to the driver.

This court has found that a “B card” restriction, which invalidates a driver’s license if the holder of the license uses alcohol or drugs, provides sufficient notice “as to what is prohibited and the consequences of violating the restrictions * * Tofte, 563 N.W.2d at 325. Here, the state presented no evidence that Rhode was issued a B card or a driver’s license showing a total-abstinence restriction.

The state argues that Rhode was aware of the no-aleohol restriction because (1) he had three prior DWIs and (2) he previously had his driving privileges revoked and did not have them restored until he completed rehabilitation and passed a driving test. But this is not proof that Rhode willfully violated a restriction on his driver’s license. We conclude that, even viewing the evidence in the light most favorable to the verdict, the jury could not reasonably conclude that Rhode was guilty.

DECISION

Because the state did not prove that Rhode had notice of the driver’s-license restriction, the evidence is insufficient to prove that he willfully violated Minn.Stat. § 171.09. We therefore reverse his conviction.

Reversed.