author: HANSON, Justice. ANDERSON, G. BARRY, J. ANDERSON, RUSSELL A., Chief Justice GILDEA, Justice

text:
    STATE of Minnesota, Respondent, v. Scott CAULFIELD, Appellant.
    No. A04-1484.
    Supreme Court of Minnesota.
    Oct. 5, 2006.

      Mike Hatch, Attorney General, State of Minnesota, Saint Paul, MN, Raymond F. Schmitz, Olmsted County Attorney, Daniel Paul Haugrud Reiff, Olmsted County Attorney, David F. McLeod, Assistant Olmsted County Attorney, Rochester, MN, for Respondent.
    Roy G. Spurbeck, Assistant State Public Defender, Office of the Minnesota State Public Defender, Minneapolis, MN, for Appellant.
   OPINION

HANSON, Justice.

Appellant Scott Caulfield challenges his conviction of possession of a controlled substance with intent to sell. Caulfield argues that a Bureau of Criminal Apprehension (BCA) laboratory report identifying a substance seized from him as cocaine was testimonial evidence under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). He contends that his confrontation rights were violated because the report was admitted into evidence even though the BCA analyst who prepared the report did not testify at trial. He also argues that Minn.Stat. § 634.15 (2004) violated his confrontation rights under the United States Constitution because it required him to request the testimony of the analyst 10 days before trial. We hold that the report is testimonial and that its admission, under the statute permitting its introduction without the testimony of the analyst, violated Caulfield’s rights under the Confrontation Clause. We also determine that the error in admitting the report was not harmless beyond a reasonable doubt and therefore reverse and remand for a new trial.

During the fall of 2001, employees at Kathy’s Pub in Rochester, Minnesota noticed the unusual behavior of Scott Caul-field, a frequent customer. Caulfield would repeatedly go into a back hallway or alley with people who had approached him in the bar, then return after 10 to 15 minutes.

On October 24, 2001, Rochester Police Officer James Novak and another Rochester policeman responded to a call from the bar prompted by Caulfield’s behavior and the suspicion that Caulfield was dealing drugs out of the bar. The officers approached Caulfield and asked him to step outside, where Novak asked Caulfield whether he was selling drugs. Caulfield said he did not have drugs in his possession and consented to a search, which produced a small bottle with six plastic bags containing a fine white powder substance. Novak testified that Caulfield identified the substance as “drugs,” then specified “cocaine.”

Novak arrested Caulfield and seized the substance. Novak conducted a field test of the substance in one of the six plastic baggies and the substance tested positive for cocaine or cocaine solvents. The next day, Rochester Police Officer Tom Pingel also field tested the substance and obtained a positive result for cocaine. Pin-gel then sent the substance to the BCA lab in St. Paul to confirm the preliminary indication that the substance was cocaine. The BCA analyst produced a report stating that the substance contained cocaine.

Caulfield was initially charged with fifth-degree possession of a controlled substance, in violation of Minn.Stat. § 152.025, subd. '2(1) (2004). Later, the charge was upgraded to third-degree sale of a controlled substance in violation of Minn.Stat. § 152.023, subd. 1(1) (2004). Subsequently, the BCA report was issued, and the BCA analyst was added to the state’s witness list for Caulfield’s trial.

Caulfield waived his right to a jury trial. The state presented the testimony of Officer Pingel, who explained the results of his field test and opined that the drugs were packaged for sale; Officer Novak, who explained the results of his field test; and two bartenders from Kathy’s Pub, who described their observations of Caulfield over a period of months. The state also offered the BCA report. Caulfield objected to the admission of the report based on the United States Supreme Court’s ruling in Crawford. After a discussion of the applicability of Crawford, the district court admitted the report without explaining its reasoning. Caulfield did not testify.

The district court found Caulfield guilty of third-degree sale and the lesser-included offense of fifth-degree possession. The court convicted Caulfield of third-degree sale and sentenced him to an executed 27-month term.

The court of appeals recognized that the BCA report could be testimonial, but did not decide the issue. State v. Caulfield, No. A04-1484, 2005 WL 1804353, at *4 (Minn.App. Aug.2, 2005). Instead, the court found that even if the district court abused its discretion in admitting the report, its admission was harmless beyond a reasonable doubt. Id. at *6.

I.

Generally, evidentiary rulings— including the admission of chemical or scientific test reports — are within the discretion of the district court and will not be reversed absent a clear abuse of discretion. State v. Fields, 679 N.W.2d 341, 345 (Minn.2004); Lindberg v. Comm’r of Pub. Safety, 498 N.W.2d 301, 303 (Minn.App.1993) (citing State v. Sneva, 353 N.W.2d 134, 134 (Minn.1984)). But whether the admission of evidence violates a criminal defendant’s rights under the Confrontation Clause is a question of law this court reviews de novo. State v. King, 622 N.W.2d 800, 806 (Minn.2001).

Because the state does not counter Caul-field’s assertion that the BCA lab report is a hearsay statement, the first' point of dispute is whether the BCA report is testimonial. In Crawford, the Supreme Court revised the test for admission of testimonial out-of-court statements from a witness who is not present at trial. 541 U.S. at 59-62, 124 S.Ct. 1354. The Court rejected the test it had prescribed in Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which allowed the admission of out-of-court statements that were either within a firmly rooted hearsay exception or bore particularized guarantees of trustworthiness. 541 U.S. at 59-62, 124 S.Ct. 1354. Crawford mandated that all testimonial statements be excluded unless the declarant is unavailable to testify at trial and the defendant has had a prior opportunity to cross-examine the declar-ant. 541 U.S. at 68, 124 S.Ct. 1354. The state does not contend that the BCA analyst was not available or that Caulfield had a prior opportunity for cross-examination.

The state argues that the BCA report is not testimonial, suggesting that it is not analogous to the specific examples of testimonial statements provided by the Supreme Court in Crawford (prior testimony and police interrogation) and noting the difference between a fact witness and a BCA analyst who can only provide foundational testimony. Further, the state argues that the preparation of such reports is nonadversarial, and that the analysts who prepare them are not directly involved in police investigations.

The state has the burden to prove that the BCA report is not testimonial. State v. Burrell, 697 N.W.2d 579, 600 (Minn.2005) (citing State v. King, 622 N.W.2d 800, 807 (Minn.2001)). The Supreme Court in Crawford declined to offer a comprehensive definition of “testimonial,” but it did outline three general categories of testimonial statements:

ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used proseeu-torially.
• extrajudicial statements * * * contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.
• statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

541 U.S. at 51-52, 124 S.Ct. 1354 (internal citations and quotation marks omitted; bullet points added).

The BCA lab report bears characteristics of each of the three generic descriptions offered by the Supreme Court in Crawford. The lab analyst submitting the report attested to her findings. The report functioned as the equivalent of testimony on the identification of the substance seized from Caulfield. The report was prepared at the request of the Rochester police for the prosecution of Caulfield, and was offered at trial specifically to prove an element of the crimes with which he was charged. The report conforms to the types of statements about which the Court in Crawford expressed concern — affidavits and similar documents admitted in lieu of present testimony at trial. See 541 U.S. at 43, 51, 124 S.Ct. 1354.

We have said the critical determinative factor in assessing whether a statement is testimonial is whether it was prepared for litigation. See State v. Bobadilla, 709 N.W.2d 243, 250-51 (Minn.2006) (noting that this court and numerous others have “determined that the testimonial question turns on whether government questioners or declarants take or give a statement ‘with an eye toward trial’ ”); State v. Scacchetti, 711 N.W.2d 508, 513 (Minn.2006) (recognizing that the central consideration in assessing potentially testimonial evidence was “whether either a declarant or government questioner is acting, to a substantial degree, in order to produce a statement for trial”).

The BCA report was clearly prepared for litigation. The substance to be tested was seized from Caulfield by Rochester police as part of .an investigation into his suspected drug dealing. It was sent to the BCA lab after the police had preliminarily determined that it was cocaine and Caul-field had been arrested. The BCA report was introduced by the state at trial for the purpose of proving beyond a reasonable doubt that the substance was cocaine.

As to the state’s argument that state crime lab analysts play a nonadversarial role and are removed from the prosecuto-rial process, we have already rejected an approach that focuses on the intent of the declarant. Bobadilla, 709 N.W.2d at 251-52 n. 3 (“We do not think that an approach that makes the declarant’s perspective dis-positive gives adequate consideration to Crawford’s fear of government abuses.”). Further, the majority in Craivford stated, “The Framers would be astounded to learn that ex parte testimony could be admitted against a criminal defendant because it was elicited by ‘neutral’ government officers.” 541 U.S. at 66, 124 S.Ct. 1354.

The state refers us to cases from other states that, after Crawford, hold that lab reports are not testimonial. But these cases seem to wrongly focus on the reliability of such reports. See Commonwealth v. Verde, 444 Mass. 279, 827 N.E.2d 701, 705 (2005) (holding that drug certificates “merely state the results of a well-recognized scientific test determining the composition and quantity of the substance” and are within the state public records hearsay exception); State v. Dedman, 136 N.M. 561, 102 P.3d 628, 634-36 (2004) (holding a report not testimonial and within public records exception because it was prepared by agency that is not law enforcement); State v. Cao, 626 S.E.2d 301, 305 (N.C.Ct.App.2006) (holding that lab reports are nontestimonial business records only when the testing on which they are based is mechanical), rev. denied (N.C. Jan. 17, 2006); Oregon v. Thackaberry, 194 Or.App. 511, 95 P.3d 1142, 1145 (2004) (finding that lab report may be similar to a business record), rev. denied (Or. Aug. 11, 2004). In Crawford, the Court observed, “Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of ‘reliability.’ ” 541 U.S. at 61, 124 S.Ct. 1354.

We are persuaded that the better line of cases are those that have held that lab reports are testimonial under Crawford. See Shiver v. State, 900 So.2d 615, 618 (Fla.Dist.Ct.App.2005) (finding that parts of affidavit related to maintenance of breathalyzer were testimonial because they were statements one would reasonably expect to be used prosecutorially and were made in circumstances that would lead an objective witness to reasonably believe the statements would be available for trial); People v. Lonsby, 268 Mich.App. 375, 707 N.W.2d 610, 618 (2005) (holding that lab report on identification of evidence was testimonial and inadmissible), rev. denied (Mich. Mar. 27, 2006); People v. Rogers, 8 A.D.3d 888, 780 N.Y.S.2d 393, 397 (N.Y.App.Div.2004) (holding that report of test of victim’s blood alcohol, admitted to prove inability to consent, was testimonial); State v. Crager, 164 Ohio App.3d 816, 844 N.E.2d 390, 397, 399 (2005) (holding that DNA report was testimonial and admission without testimony of analyst who prepared it violated defendant’s Confrontation Clause rights), appeal accepted (Ohio Apr. 26, 2006).

We conclude that the BCA lab report admitted at trial against Caulfield was testimonial evidence under Crawford.

II.

The BCA report was admitted in evidence pursuant to the notiee-and-de-mand provisions of section 634.15, which permits the admission of “a report of the facts and results of any laboratory analysis or examination if it is prepared and attested by the person performing the analysis or examination in any laboratory operated by the Bureau of Criminal Apprehension.” Minn.Stat. § 634.15, subd. 1(a) (2004). The statute allows a defendant who wants to cross-examine the analyst to “request, by notifying the prosecuting attorney at least ten days before the trial, that the [analyst] testify in person at the trial on behalf of the state.” Minn.Stat. § 634.15, subd. 2(a) (2004). The statute does not explicitly state what the consequences will be if a defendant does not request that the analyst testify. The state argues that a defendant’s failure to make the request results in a forfeiture of his confrontation rights. According to the state, the statute permits introduction without cross-examination unless the accused demands the person be present for trial. Caulfield objected at trial to the admission of the report. He conceded that he had not requested that the analyst testify at trial, but argued that section 634.15, “which purports to permit this evidence to be introduced without any further ado,” violated Caulfield’s constitutional rights under Crawford.

The construction and constitutionality of a statute are questions of law this court reviews de novo. State v. Tennin, 674 N.W.2d 403, 406 (Minn.2004). Our standard presumption is that the statute is constitutional and the party challenging the constitutionality of a statute bears the burden of proving that it is unconstitutional beyond a reasonable doubt. State v. Frazier, 649 N.W.2d 828, 882 (Minn.2002).

The state argues that Caulfield “forfeited” his opportunity to contest the admission of the report by failing to comply with section 684.15. But the state fails to recognize that if Caulfield were deemed to have forfeited his objection under the Confrontation Clause, by not requesting the analyst’s testimony at least 10 days before trial, we could still review his argument under the plain error standard. See State v. Osborne, 715 N.W.2d 436, 441 (Minn.2006) (citing State v. Vick, 632 N.W.2d 676, 684 (Minn.2001), for the proposition that review of evidentiary errors implicating constitutional rights can be forfeited); Minn. R.Crim. P. 31.02 (allowing for plain error review when an error affects substantial rights). Instead, the state argues that any error in admitting the report was harmless beyond a reasonable doubt — our standard for constitutional errors. See State v. Juarez, 572 N.W.2d 286, 291 (Minn.1997). As such, we read the state’s argument to be one of waiver, rather than forfeiture, and analyze it accordingly.

The confrontation right is not absolute. See Maryland v. Craig, 497 U.S. 836, 844, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990); see also Cooper v. California, 386 U.S. 58, 62 n. 2, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967) (noting that the Confrontation Clause does not require the prosecution to call all possible witnesses). Further, Crawford did not eliminate hearsay exceptions that were accepted at the time of the drafting of the Constitution. 541 U.S. at 56 n. 6, 124 S.Ct. 1354; see State v. Martin, 695 N.W.2d 578, 585-86 (Minn.2005) (finding a continuing exception for dying declarations). And confrontation rights can be waived at trial by certain wrongful actions. See Illinois v. Allen, 397 U.S. 337, 345-46, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (holding that defendant who engaged in disruptive conduct during trial and was expelled from courtroom “lost his right” to confront witnesses against him); State v. Gillam, 629 N.W.2d 440, 450-52 (Minn.2001) (same). Thus, we have held that confrontation rights are not among those (right to a jury trial and right to counsel) that require an affirmative waiver in writing or on the record. Osborne, 715 N.W.2d at 442. We have found that a defendant who absents himself from the courtroom waives his Sixth Amendment right to be present (and confront witnesses). State v. Worthy, 583 N.W.2d 270, 277-78 (Minn.1998). We have also found that the waiver by wrongdoing doctrine survives Crawford. See Davis v. Washington, 547 U.S.-, 126 S.Ct. 2266, 2280, 165 L.Ed.2d 224 (2006); Crawford, 541 U.S. at 62, 124 S.Ct. 1354; State v. Wright, 701 N.W.2d 802, 814-15 (Minn. 2005) (discussing forfeiture of the right of confrontation by procuring the unavailability of a witness); judgment vacated and remanded, — U.S.-, 126 S.Ct. 2979, — L.Ed.2d-(2006).

The state points to the waiver by wrongdoing doctrine in support of its argument that Confrontation Clause rights are subject to reasonable restrictions. The state contends that the requirement in section 634.15 for a defendant to request an analyst’s testimony 10 days before trial is reasonable in light of the law’s purpose “to allow the report into evidence routinely, thereby preventing unnecessary and costly court appearances or document production.” Glick v. Comm’r of Pub. Safety, 362 N.W.2d 15, 16 (Minn.App.1985). The state argues that the statute fairly balances an accused person’s confrontation right against the obvious realities that the contents of laboratory reports are rarely contested, the samples are typically subject to independent testing per Minn. R. Crim P. 9.01, subd. 1(4), and requiring BCA analysts to authenticate every lab report admitted is an unnecessary burden on the state’s resources.

But, by our reading, Crawford removed the flexibility courts had to balance the state’s interests, however legitimate, against the need for prior cross-examination and unavailability of the witness before testimonial evidence can be admitted. Compare Craig, 497 U.S. at 849, 110 S.Ct. 3157 (quoting Mattox v. United States, 156 U.S. 237, 243, 15 S.Ct. 337, 39 L.Ed. 409 (1895), for the proposition that confrontation rights “must occasionally give way to considerations of public policy and the necessities of the case”), with Crawford, 541 U.S. at 61, 124 S.Ct. 1354 (noting that confrontation is a procedural, not a substantive, requirement, because the Confrontation Clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination”).

Even before Crawford, the Illinois Supreme Court concluded that the state’s notice-and-demand statute

impermissibly require[d] the defendant to take affirmative action to secure a right that he has already been constitutionally guaranteed or be deemed to have waived that right. We are unaware of any authority that permits the legislature to make a defendant’s confrontation rights contingent upon action by the defendant * * *.

People v. McClanahan, 191 Ill.2d 127, 246 Ill.Dec. 97, 729 N.E.2d 470, 475-76 (2000). The court in McClanahan noted that if the right of the defendant to demand the appearance of the report preparer were enough,

there would be no constitutional problem with allowing the State to introduce all of its evidence by affidavit as long as a defendant is allowed to bring the prosecution’s witnesses into court himself. Trial by affidavit is the primary evil that the confrontation clause was designed to prevent.

246 Ill.Dec. 97, 729 N.E.2d at 477 (citation omitted).

We are attracted by the rationale discussed by the Ohio Court of Appeals in an unpublished opinion, State v. Smith, 2006 WL 846342 (Ohio Ct.App.2006). There, the statute authorized the state to submit a lab report as evidence in a drug case if it served a copy on the defendant and the defendant failed to demand the testimony of the preparer within seven days of receiving the report. Smith did not demand the testimony, but at trial he objected to the admission of the report on confrontation grounds. The Ohio court noted that a defendant can waive his confrontation rights by fading to demand the testimony of the preparer. Id. at *5. Reasoning from the premise that a defendant may waive his confrontation rights by failing to object at trial, the court observed that the statute can require a defendant to assert his right at an earlier time. Id. The court also suggested that the action required of the defendant, to merely demand the testimony of the preparer, is not burdensome. Id. at *6. But the court ultimately concluded that “waiver of a confrontation right before trial must be made knowingly, intelligently, and voluntarily,” id. at *6 (emphasis added), and that the state’s notice to the defendant, under the statute, was inadequate to fully inform the defendant as to the consequences of waiver under the statute, id. at *7. The court said:

Where the prosecutor fails to notify the defendant of the purpose for serving a copy of the report on the defendant, fails to indicate that it is being served pursuant to R.C. 2925.51, and fails to indicate that it is evidentiary material that will be entered into evidence without the defendant having the right to confront the technician unless he demands to do so, the defendant has not been properly put on notice that he is waiving his confrontation right as provided in the statute. Therefore, we cannot say that Smith knowingly, intelligently, and voluntarily waived his right to confrontation.

Id. at *7.

Similarly, we conclude that although there may be legitimate public policy reasons to advance the time to assert confrontation rights to a reasonable time before trial, such a shift cannot be constitutionally accomplished without adequate notice to the defendant that his failure to request the testimony of the analyst will result in the waiver of his confrontation rights, especially when the report is offered to prove an element of the offense with which the defendant is charged. Although we realize that this conclusion may give the defendant a'strategic advantage that could potentially be abused — to reserve his objection for trial — the constitutional concerns presented by Caulfield’s appeal warrant such a construction. Cf. Davis v. Washington, 547 U.S. -, 126 S.Ct. at 2280, 165 L.Ed.2d 224 (“We may not * * * vitiate constitutional guarantees when they have the effect of allowing the guilty to go free.”).

At a minimum,'any statute purporting to admit testimonial reports without the testimony of the preparer must provide adequate notice to the defendant of the contents of the report and the likely consequences of his failure to request the testimony of the preparer. Otherwise, there is no reasonable basis to conclude that the defendant’s failure to request the testimony constituted a knowing, intelligent, and voluntary waiver of his confrontation rights.

Because section 634.15 does not require adequate notice to the defendant, we conclude that it violates the Confrontation Clause. And because the record does not show that the state did otherwise provide adequate notice to Caulfield, we conclude that the admission of the BCA lab report against him was error.

III.

In his concurrence in Crawford, the late Chief Justice William Rehnquist said that “the mistaken application of [the majority’s] new rule by courts which guess wrong as to the scope of the rule is subject to harmless-error analysis.” 541 U.S. at 76, 124 S.Ct. 1354 (Rehnquist, C.J., concurring). This court also recently subjected a Confrontation Clause violation under Crawford to the constitutional harmless error analysis. State v. Courtney, 696 N.W.2d 73, 79 (Minn.2005) (noting that “it is well settled that violations of the Confrontation Clause are subject to such analysis”). A constitutional error does not mandate reversal and a new trial if we determine that the error was harmless beyond a reasonable doubt. State v. Juarez, 572 N.W.2d 286, 291 (Minn.1997).

The court of appeals found that any error in admitting the BCA report was harmless beyond a reasonable doubt, noting that

[t]he evidence established that the substance in Caulfield’s possession tested positive for cocaine on two field tests, that it was packaged in small bags consistent with the sale of drugs, that Caul-field had been observed in short-term encounters consistent with drug transactions, and that Caulfield made an unre-butted statement to police that the substance was cocaine.

Caulfield, 2005 WL 1804353, at *6. In other words, the court found that the circumstantial evidence of guilt was “very strong.” Id. Caulfield argues that the court of appeals erred by essentially using a sufficiency of the evidence analysis instead of determining that the verdict was surely unattributable to the error.

We have acknowledged that the constitutional harmless error analysis is not a matter of “analyzing] whether a jury would have convicted the defendant without the error, [but] rather * * * whether the error reasonably could have impacted upon the jury’s decision.” Juarez, 572 N.W.2d at 292. We have said:

When determining whether a jury verdict was surely unattributable to an erroneous admission of evidence, the reviewing court considers the manner in which the evidence was presented, whether it was highly persuasive, whether it was used in closing argument, and whether it was effectively countered by the defendant. “[Overwhelming evidence of guilt is a factor, often a very important one, in determining whether, beyond a reasonable doubt, the error has no impact on the verdict.” But the court cannot focus on the evidence of guilt alone.

State v. Al-Naseer, 690 N.W.2d 744, 748 (Minn.2005) (quoting Townsend v. State, 646 N.W.2d 218, 224) (citations omitted).

With regard to the first Alr-Naseer factor, the manner in which the evidence was presented, we note that Caulfield’s bench trial was a very short affair. There is no chance that the report was lost among a plethora of other evidence. The BCA report was presented in the logical flow of Officer Pingel’s testimony, to confirm that the substance seized from Caulfield was cocaine. We have said, “Where the evidence was aimed at having an impact on the verdict, we cannot say that the verdict was surely unattributable to the error.” State v. Litzau, 650 N.W.2d 177, 184 (Minn.2002). All indications here are that the BCA report was presented in a way that was designed to secure the state’s verdict.

As to the second Al-Naseer factor, lab testing identifying a substance as cocaine generally would have to be characterized as highly persuasive evidence. But the question of whether it was required or was merely cumulative of other evidence is somewhat debatable. The court of appeals rested its harmless error determination, in part, on State v. Olhausen, 681 N.W.2d 21, 28 (Minn.2004), stating that the identity of a substance may be proven by circumstantial evidence and officer testimony without scientific testing. Caulfield, 2005 WL 1804353, at *5. Arguably the BCA report could be seen as cumulative, given the police officers’ testimony as to the results of their field tests and Caulfield’s admission. But the lab report has the appearance of being conclusive proof, whereas the other evidence could be subject to challenge. Caulfield’s counsel argued, in opposing admission of the report, that the report “basically provides, in my view, the conclusive proof that this product that Mr. Caulfield was possessing was, in fact, a controlled substance.”

As to the third Alr-Naseer factor, the state did reference the report in closing argument, stating that the report was “clear on what the contents of the packages [seized from Caulfield] were” and showed that there was “no reasonable doubt about what was in the defendant’s pocket.” The state had also mentioned the report in its opening statement. Measured by the first three of the Alr-Naseer factors, it cannot be said that the verdict was surely unattributable to the erroneous admission of the BCA report.

We are left with the fourth Alr-Naseer factor, whether the evidence was effectively countered by the defendant, and the fifth factor, whether the other evidence of guilt was overwhelming. These factors are difficult to apply under the present facts.

Ordinarily, the ability of the defendant to effectively counter the questioned evidence would favor the state because if the evidence has been effectively countered, the verdict is unlikely to be attributed to it. But cases where the defendant does not attempt to counter the evidence on the merits, and only objects to its admissibility, are less clear. Should this weigh in favor of the defendant because the impact of the unrebutted evidence is greater? Or should this weigh in favor of the state because the defendant should not be allowed to complain about the evidence (i.e., the conclusions in the report) if he neither criticizes the methodology used nor offers any alternative conclusions? Because our inquiry is to, estimate the impact that the report may have had on the decision of guilt, it would seem that the better answer is that unrebutted evidence has greater impact. This answer is also more consistent with the general proposition that the state has the burden of proof and the defendant need not offer any proof. Thus, this factor weighs in favor of finding the error to be prejudicial.

This brings us to the “overwhelming evidence” factor. We must acknowledge that our decisions have not been completely clear or consistent on the question of whether overwhelming evidence of guilt can be used to trump the other factors in determining whether an error reasonably could have impacted the decision. As noted by one commentator:

The nature of the issue lends itself to an ad hoc determination in each case based on the particular facts involved. Even the legal standard appears to vary depending on the nature of the case and the nature of the error.

11 Peter N. Thompson, Minnesota Practice: Evidence § 103.02 (3d ed.2001).

Prior to Alr-Naseer, our case law took a few turns. In State v. Townsend, we said that harmless beyond a reasonable doubt means “that the weight of all the other evidence is such that it ‘justifies the verdict regardless of the erroneous admission * * *.’ ” 546 N.W.2d 292, 297 (Minn.1996) (quoting State v. Ford, 539 N.W.2d 214, 227 (Minn.1995)). But in Juarez, we criticized Townsend as an example of a case where we “inadvertently misstated the significance of the strength of the evidence of guilt in harmless error analysis.” 572 N.W.2d 286, 291 n. 6 (Minn.1997). We went on in Juarez to say:

[T]hat the evidence was sufficient, or even overwhelming, does not mean that the error was necessarily harmless. Harmless error analysis is better la-belled as ‘harmless error impact analysis’ because it is the impact of that error that the appellate court must consider. The overwhelming evidence of guilt is a factor, often a very important one, in determining whether, beyond a reasonable doubt, the error has no impact on the verdict.

Id. at 291. In Juarez, the error was the admission of a defendant’s statement to police requesting counsel, which could be interpreted by the jury as a badge of guilt. Id. at 290-91. We held that the erroneously admitted evidence reasonably could not have impacted the verdict, but we did not discuss the factors of how the evidence was presented or whether it was used in the state’s closing argument. Id. at 292-93. Without saying so, we apparently concluded that the erroneously admitted evidence was not highly persuasive because it was, at best, indirect and circumstantial.

We articulated the factors that govern a harmless-beyond-a-reasonable-doubt analysis in State v. Ferguson, 581 N.W.2d 824, 833 (Minn.1998) (citing Maurer v. Department of Corrections, 32 F.3d 1286, 1289 (8th Cir.1994)). The challenged evidence was the victim’s dying declaration: “It was the Bloods.” Id. at 832. We observed that (1) this evidence was minimized when it was presented-the state did not argue that the victim actually saw the shooter and the officer who heard the statement admitted that the victim may have been guessing; (2) during its closing argument, the state agreed that no one saw the shooter; and (3) the court gave a cautionary instruction on the use of witness identification evidence. Based on these factors, but not the strength of the evidence of guilt, we concluded that the verdict was surely unattributable to the dying declaration. Id. at 833.

Next, we reconsidered Townsend in response to his postconviction petition. Townsend v. State, 646 N.W.2d 218 (Minn. 2002). We agreed to apply the proper standard for harmless error beyond a reasonable doubt, in light of the misstatement of the significance of the strength of the evidence of guilt in our harmless error analysis on direct review. Id. at 222. The challenged evidence was the excessive detailing of an attempted murder committed by the defendant as part of the same episode as the charged murder (we held that some of the evidence was admissible, but that the evidence allowed at trial was too extensive, being more prejudicial than probative). Id. at 223. We did determine that the other evidence of guilt was strong and that this could be considered as one factor. Id. at 224. But we also concluded that (1) the evidence was presented in a manner whereby the jury would not have focused unduly on it; (2) the evidence was not the focus of any single witness’s testimony; (3) the evidence was not disputed; and (4) the prosecutor did not dwell on it in either the opening statement or closing argument. Id. at 223-24.

This brings us to Alr-Naseer, where we detailed the factors for a constitutional harmless error analysis and emphasized that the strength of the evidence of guilt is one factor but should not be the focus of the analysis. 690 N.W.2d at 748. The challenged evidence was the videotaped interview of defendant by police, held to be inadmissible because of the failure to obtain the defendant’s waiver of his right to remain silent. Id. at 750. The videotape did not contain any admissions of guilt and the state only used it to challenge the defendant’s credibility. Id. at 748. We held that the error was not harmless, observing that (1) the state used it in the opening statement; (2) several witnesses commented on it during their examination; (3) the defendant was cross-examined about it; and (4) the state referred to it in closing argument. Id. at 749-50. We did not weigh the strength of the evidence against these factors.

To recap, in applying the harmless-error-beyond-a-reasonable-doubt standard, we have found the error to be harmless only where several factors weigh in that direction: the evidence was presented in a manner that did not give it significant focus; the state did not dwell on it in opening and closing statements or in examining witnesses; the evidence was not highly persuasive but was circumstantial. In those cases, the harmless error conclusion has been reinforced by the strength of the evidence of guilt. But we do not have a single case applying the constitutional harmless error analysis where we have held that the strength of the evidence of guilt controls even though the other factors weigh in favor of prejudicial error. Stated another way, wé do not have a single case where we have held that the admission of direct and persuasive evidence on an element of the crime is harmless because other less direct and less persuasive or largely circumstantial evidence is strong.

Here, the other evidence relied on by the state is the admission of Caulfield to police and the two field tests of the substance. Although these are clearly sufficient to support the finding of guilt, they each are of lesser persuasive quality than the lab report, which was relied on by the state to be the definitive evidence of the identification of the substance as cocaine. We conclude that the erroneous admission of the report was not harmless beyond a reasonable doubt.

Reversed and remanded for new trial.

Dissenting, ANDERSON, G. BARRY, J. ANDERSON, RUSSELL A., C. J., and GILDEA, J.

ANDERSON, G. BARRY, J.

(dissenting).

I respectfully dissent. While I agree with the majority that the Bureau of Criminal Apprehension (BCA) lab report is testimonial, I believe that Caulfield’s failure to request the BCA analyst’s testimony constitutes a valid waiver of his . Sixth Amendment right to confront that analyst in court. Minnesota Statutes § 634.15 (2004) adequately guards a defendant’s constitutional right to confrontation. The majority argues that a defendant must receive notice of the likely consequences of failing to request the preparer’s testimony before confrontation rights may be waived. This additional safeguard, however desirable, is not required by either the statute or the United States Constitution.

I begin with the observation that this question has had relatively little attention, and there are few decisions on point, with none from our court. Nonetheless, the United States Supreme Court has provided some guidance with respect to this issue.

“[T]he most basic rights of criminal defendants are ... subject to waiver.” New York v. Hill, 528 U.S. 110, 114, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000) (quoting Peretz v. United States, 501 U.S. 923, 936, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991)). “What suffices for waiver depends on the nature of the right at issue.” Id. In order for a defendant to waive his right to confront witnesses against him, there must be “an intentional relinquishment or abandonment of a known right or privilege.” Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968).

The issue, then, is whether Caulfield’s failure to request the BCA analyst’s testimony under section 634.15 can be characterized as an “intentional relinquishment” of a “known right.” Under Supreme Court precedent, I would answer that question in the affirmative.

Caulfield’s failure to request the BCA analyst’s testimony can be construed as an “intentional relinquishment” of his right to confrontation. The Supreme Court has held that a waiver of a constitutional right need not be explicit. See Illinois v. Allen, 397 U.S. 337, 345-46, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). There is no constitutional requirement, then, that every waiver of a constitutional right must be affirmatively conceded by the defendant on the record. Since we presume that members of society are acquainted with the law, State v. Jacobson, 697 N.W.2d 610, 615 (2005), when defendants choose not to exercise their right to confront the BCA analyst under section 634.15, I believe that right is relinquished.

The Supreme Court has also held that a constitutional right may not be waived unless it is a “known right or privilege.” Barber, 390 U.S. at 725, 88 S.Ct. 1318. But the Court has not required defendants to have complete knowledge of their rights in order to effectuate a valid waiver. For example, in Taylor v. United States, the defendant failed to return to his trial after a lunch recess. 414 U.S. at 17, 94 S.Ct. 194. The district court continued with the defendant’s trial, despite his inability to testify and confront witnesses against him. The Supreme Court held that the defendant voluntarily waived his rights, noting that, “[i]t is wholly incredible to suggest that petitioner * * * entertained any doubts about his right to be present at every stage of his trial.” Id. at 20, 94 S.Ct. 194. The Court did not require that the defendant demonstrate knowledge of, let alone affirmatively state, the precise constitutional right he was waiving.

Similar reasoning can be applied to MinmStat. § 634.15. The statute clearly states that the results of a laboratory analysis authorized by the BCA are admissible into evidence. Minn.Stat. § 634.15, subd. 1(a) (2004). The statute provides that the defendant may cross-examine the analyst at trial “by notifying the prosecuting attorney at least ten days before the trial” of the defendant’s intention. Id. subd. 2(a). The clear and necessary consequence of failing to give the statutory notice to the prosecution is that the analyst will not be available for cross-examination. It is “wholly incredible” that Caulfield “entertained any doubts” that the analyst would not be a prosecution witness at trial, after Caulfield failed to give notice under the statute. Minnesota Statutes § 634.15, as written, provides a defendant with adequate notice under the Constitution, to voluntarily relinquish his right to confront the analyst.

As a matter of policy and court rule, I would not disagree that a more detailed waiver of the confrontation right is desirable, and there are procedures available that may lead to the adoption of just such a rule. But I conclude that by failing to request the analyst’s testimony as provided by Minn.Stat. § 634.15, Caulfield waived his constitutional right to confront the analyst, and, therefore his conviction should be upheld.

ANDERSON, RUSSELL A., Chief Justice

(dissenting).

I join in the dissent of Justice G. Barry Anderson.

GILDEA, Justice

(dissenting).

I join in the dissent of Justice G. Barry Anderson.

      . The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him.” U.S. Const, amend. VI. The Minnesota Constitution contains virtually identical language: “The accused shall enjoy the right * * * to be confronted with the witnesses against him.” Minn. Const, art. 1, § 6.

      . Both Novak and Pingel testified that they used a "NIK kit” to test the substance seized from Caulfield. Pingel indicated that a NIK kit is a standard method of making a preliminary identification of a controlled substance.

      . See also Paul C. Giannelli, Admissibility of Lab Reports: The Right of Confrontation Post-Crawford, 19 Crim. Just., Fall 2004, at 26, 30-31 (discussing scandals at labs to underscore the need for cross-examination of lab report declarants).

      . In 2003 the legislature substituted "results of any laboratory analysis” for "results of a laboratory analysis” in the language cited, and substituted the word "documents” for "reports” in the introductory clause of subdivision 1. See Act of May 12, 2003, ch. 29, § 1, 2003 Minn. Laws 298. The 2003 amendment also added authorization of the admission into evidence of chain-of-custody documentation. See id.

      . Although we have not addressed the validity of section 634.15, the court of appeals has done so in two pre-Crawford cases. In State v. Pearson, the court of appeals approved section 634.15, characterizing the act as a permissible shift of the burden of proof by the legislature of a kind that this court had approved. 633 N.W.2d 81, 84-85 (Minn.App. 2001) (citing Lott v. Davidson, 261 Minn. 130, 141-42, 109 N.W.2d 336, 344 (1961)). The court of appeals did not address the Confrontation Clause in Pearson and has not done so in any other case. Prior to Pearson, in Glick v. Commissioner of Public Safety, the court of appeals stated that section 634.15 “provides for prima facie authenticity of the report by requiring it to be issued by an authorized laboratory.” 362 N.W.2d 15, 16 (Minn.App. 1985).

      . Nonetheless, at least two other state supreme courts have approved, since Crawford, their notice-and-demand statutes on reliability grounds. State v. Cunningham, 903 So.2d 1110 (La.2005); City of Las Vegas v. Walsh, 124 P.3d 203 (Nev.2005), cert. denied, - U.S. • — -, 126 S.Ct. 1786, 164 L.Ed.2d 519 (2006). But both decisions rest in part on state case law. See Cunningham, 903 So.2d at 1117, 1119 (relying on State v. Powdrill, 684 So.2d 350 (La. 1996), and State v. Hancock, 317 Or. 5, 854 P.2d 926 (1993)); Walsh, 124 P.3d at 207-08, (relying on DeRosa v. District Court, 115 Nev. 225, 985 P.2d 157 (1999)). Because waiver of confrontation rights is a federal question, it is controlled by federal law. Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966).

      . But the defendant in Olhausen had destroyed the evidence, while the substance seized from Caulfield was available for testing. 681 N.W.2d at 28.

      . We acknowledge that evidentiary errors may be less prejudicial in a bench trial than in a jury trial. See Sandberg v. Comm’r of Revenue, 383 N.W.2d 277, 282 (Minn.1986) (admission of improper evidence less likely to require new trial where case was tried to court); Irwin v. State, 400 N.W.2d 783, 786 (Minn.App.1987) (affirming postconviction court’s analysis that effect of Spreigl evidence was less prejudicial because it was admitted at bench trial), rev. denied (Minn. Mar. 25, 1987). But the trial judge here, while finding Caulfield’s Crawford argument "interesting,” overruled his objection and admitted the evidence. The obvious implication is that the judge found the evidence relevant and probative.

      . In retrospect, it is curious that we used the harmless-error-beyond-a-reasonable-doubt standard in Townsend because no constitutional error was claimed. In any event, Townsend does stand as authority for the proper application of the constitutional harmless error standard.

      . The majority also states that defendants must be advised of the actual contents of a BCA report in order for waiver to be valid. Because the appellant has not argued that he did not receive a copy of the report, this requirement is not before us and I therefore address only the notice issue in this dissent.

      . The Supreme Court has found nonexplicit waivers of confrontation rights in several contexts. See, e.g., Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973) (finding waiver where defendant voluntarily absented himself from courtroom); Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (finding waiver where defendant's conduct caused his expulsion from courtroom); Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1878) (finding waiver where defendant procured witness’s unavailability). While these examples involve defendant misconduct and are not directly comparable with the facts before us, section 634.15 provides a mechanism through which the defendant may choose or not choose to confront the witness; this is greater protection than that granted to defendants in misconduct circumstances, where the defendants were almost certainly not considering their trial rights.

      . While the defendant’s misconduct in Taylor makes the case distinguishable, the broader proposition is that waivers may be effectuated in many different ways, depending on the right and the context in which that right arises. I do not suggest, for example, that in the guilty plea context, a silent record might be sufficient to waive all trial rights. See Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). A BCA analyst's testimony, while important, arises in an evidentiary context, which lacks the same finality as a guilty plea. Section 634.15 adequately safeguards defendants’ rights in those circumstances.


source: Caselaw Access Project

author: RANDALL, Judge.

license: Public Domain

text:
    METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, Respondent, v. Gregory A. JABLONSKE, et al., Appellants.
    No. A05-2541.
    Court of Appeals of Minnesota.
    Oct. 3, 2006.

      Timothy J. O’Connor, Kimberly Fleming, Lind Jensen, Sullivan & Peterson, P.A., Minneapolis, MN, for respondent.
    James C. Vander Linden, Levander & Vander Linden, P.A., Minneapolis, MN, for appellants.
    Considered and decided by RANDALL, Presiding Judge, TOUSSAINT, Chief Judge, and PETERSON, Judge.
   OPINION

RANDALL, Judge.

This is an appeal from summary judgment determining that the homeowner’s insurance policy issued by respondent Metropolitan Property and Casualty Insurance Company to appellant-Jablonske did not provide coverage for a lawsuit against Jablonske for injuries suffered when appellant-Senko struck a recently constructed unmarked snow-covered ditch with his snowmobile while on a trail on land owned by Jablonske. Senko, who stands in Jablonske’s shoes pursuant to a Miller Shugart agreement, argues that the district court erred in determining that (a) the business and business premises exclusions exclude insurance coverage for the claims when there was no connection between the claims and Jablonske’s business; and (b) the farming and rental exclusions excluded coverage when Jablonske’s land was not farmed or rented for profit at the time of the accident. Because the district court properly determined that there was no coverage under the insurance policy issued by Metropolitan Property and Casualty Insurance Company, we affirm.

FACTS

This appeal involves a declaratory judgment action brought by respondent Metropolitan Property and Casualty Insurance Company (“MPCIC”) to determine its obligations for coverage under a policy issued to Gregory and Susan Jablonske (collectively the “Jablonskes”). Gregory Jab-lonske (“Jablonske”) is a well-known land developer who owns Greg J. Homes, Inc. (“Greg J. Homes”). In the early 1990’s, the Jablonskes purchased a plot of land in Dakota County that eventually became known as “South Oaks.” From the time of their purchase of South Oaks until the fall of 2001, the Jablonskes rented the land to the Bauer family, who farmed the land. South Oaks was rented for $2,000 per year, and the Jablonskes claimed this payment as income on their personal income tax returns.

In early 2001, MPCIC issued a PAK II homeowner’s policy to the Jablonskes. The PAK II policy was effective March 2001 through March 2002, and provided coverage for the Jablonskes’ vehicles, boat, and home, and also provided personal liability coverage. The policy specifically provided coverage for claims resulting from an occurrence in which there was actual accidental property damage, personal injury or death, anywhere in the world, subject to the limitations of the policy. The policy also provided coverage for incidents in connection with vacant land, as long as the land was not used for farming or ranching. The policy excluded coverage for accidents occurring in connection with any business, profession, or occupation. It was the Jablonskes’ understanding that the PAEL II policy provided coverage for South Oaks.

Directly south of South Oaks was a parcel of land known as Century South. In October 2000, during the development of Century South into a residential housing development, the City of Hastings became aware that it would need an easement from the Jablonskes for a planned sanitary sewer and water main being built to serve the Century South development. The City of Hastings obtained a temporary construction easement and permanent easement from the Jablonskes in September 2001. Shortly thereafter, construction began on the project to provide a sanitary sewer and water connection to Century South. As part of this construction, sewer connections or “curb boxes” were also constructed for future development of South Oaks. The Jablonskes were compensated by the City of Hastings in the amount of $18,800 for their grant of the easement.

In furtherance of the Century South development, the City of Hastings also required Lyman Construction (Lyman), the developer of Century South, to address the storm water that drained into and out of the development. Because the natural flow of water on Century South was to the north, onto South Oaks, an accommodation needed to be made for this water. In September 2001, Lyman contacted Jab-lonske about a proposed license agreement and right of entry permit for the purpose of installing a storm sewer outlet on South Oaks. Jablonske subsequently entered into a license agreement and right of entry permit, which granted Lyman and its contractors the right to enter South Oaks to construct the storm sewer outlet. The agreement provided in part that:

Jablonske acknowledges that Jab-lonske’s real property will develop in the foreseeable future and, in connection therewith, it is anticipated that dedicated right-of-way contained on Lyman’s plat of Century South ... will, in the future, be extended north over and upon the Jablonske real property, and that the Jablonske property will be improved with storm sewer facilities.

According to James Johnston, Lyman’s Vice President, the installation of the storm sewer outlet on South Oaks in the fall and winter of 2001 saved Jablonske the expense of having to construct that portion of the storm sewer outlet on his own as part of his development of South Oaks.

In January 2001, Jablonske began taking steps to develop South Oaks by procuring the services of Probe Engineering Company, Inc. (Probe) to prepare a development plan and plat maps for South Oaks. Several communications between Probe and Jablonske regarding South Oaks consistently referred to Greg J. Homes as the organization on whose behalf Jablonske acted. In October 2001, Jablonske requested that the City of Hastings rezone South Oaks from agricultural use to multi-dwelling use. The Hastings Planning Commission publicly considered and approved Jablonske’s South Oaks development plan on November 26, 2001. Shortly thereafter, the local Hastings newspaper reported that the South Oaks development would consist of town homes and single family homes totaling about 197 units on 48 acres of land.

On January 14, 2002, Joseph Senko was injured while riding a snowmobile on South Oaks. Senko was snowmobiling along the southern boundary of South Oaks when he struck a ditch constructed as part of the storm sewer outlet. Appellants Joseph and Jean Senko (collectively “the Senkos”) subsequently commenced a lawsuit against the entities involved with the design and construction of the storm sewer, and Jablonske as the owner of the land. The complaint alleged that the underlying defendants were negligent in the design and construction of the storm sewer outlet, and that Jablonske was a negligent landowner for allowing a dangerous and hidden condition to exist on his property.

Jablonske tendered the matter first to Greg J. Homes’ insurance carrier, State Farm Insurance Company, which accepted tender of defense under a reservation of rights. Jablonske then tendered the matter to MPCIC, the provider of his PAK II homeowner’s policy. MPCIC also accepted defense of the claim under a reservation of rights. Shortly thereafter, State Farm denied coverage under its policy and withdrew its defense. MPCIC continued its defense of Jablonske, but commenced this declaratory judgment action to determine its coverage obligations.

MPCIC moved for summary judgment arguing that it had no obligation to defend or indemnify Jablonske for any of the underlying claims because the accident arose out of the business activities of Jablonskes’ land development of South Oaks. MPCIC further argued that there was also no coverage for the Senkos’ claims because the accident did not occur on vacant land, given the long-term farming of South Oaks for which Jablonske received rental monies.

Before the summary judgment motion hearing, all the defendants in the underlying action settled with the Senkos. Jablonske entered into a Miller Shugart agreement with the Senkos, who then argued against MPCIC’s motion for summary judgment. The district court granted MPCIC’s motion for summary judgment, concluding that there was no coverage because the business activities exclusion applied and because the accident did not occur on vacant land (farming exclusion). The Senkos, who stand in Jablonske’s shoes pursuant to the Miller Shugart agreement, appealed.

ISSUES

I. Did the district court err in concluding that the business and business premises exclusions barred coverage under the PAK II policy issued by MPCIC?
II. Did the district court err in concluding that there was no coverage under the PAK II policy because South Oaks was farmed through the fall of 2001 and, therefore, South Oakes was not “vacant land” as defined by the policy?

ANALYSIS

Summary-judgment motions are granted when the pleadings, depositions, answers to interrogatories, and admissions, together with any affidavits, show that there is no genuine issue of material fact and a party is entitled to judgment as a matter of law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). On a motion for summary judgment, “a court may not weigh the evidence or make factual determinations.” State ex rel. Hatch v. Allina Health Sys., 679 N.W.2d 400, 406 (Minn. App.2004) (quoting Fairview Hosp. Health Care Servs. v. St. Paul Fire Marine Ins. Co., 535 N.W.2d 337, 341 (Minn.1995)). “The reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.” Fabio, 504 N.W.2d at 761. A reviewing court need not defer to a district court’s decision on a pure question of law. Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984). Interpretation of an insurance policy and application of the policy to the facts in a case are questions of law that this court reviews de novo. Am. Family Ins. Co. v. Walser, 628 N.W.2d 605, 609 (Minn.2001).

I.

Under Minnesota law, insurance policies are contracts, and, unless there are statutory laws to the contrary, general principles of contract law apply. Epland v. Meade Ins. Agency Assocs., Inc., 564 N.W.2d 203, 207 (Minn.1997). When the language of a contract is unambiguous, courts should interpret that language in accordance with its plain and ordinary meaning. Illinois Farmers Ins. Co. v. Glass Serv. Co., 683 N.W.2d 792, 799 (Minn.2004). Courts should “guard against” invitations to find ambiguity where none exists. Columbia Heights Motors, Inc. v. Allstate Ins. Co., 275 N.W.2d 32, 36 (Minn.1979).

Here, the PAK II policy issued to the Jablonskes contains the following language relevant to this coverage dispute:

Legal Liability Protection. Under the liability section of this policy you’re covered when somebody makes a claim against you. We’ll cover your legal liability resulting from an occurrence in which there is actual accidental property damage, personal injury or death, anywhere in the world, subject to the limitations and exclusions in PAK II. By occurrence, we mean an event, including continuous or repeated exposure to the same conditions, resulting in personal injury or property damage neither expected nor intended by anyone insured by PAK II.

The policy further provides that:

“Personal injury” is physical injury such as broken bones. It also includes nonphysical injuries to a person’s feelings or reputation, including mental injury, mental anguish, wrongful eviction, libel, slander, defamation of character, invasion of privacy and false arrest. Remember: you are not covered for liability for physical bodily injury if it results from an intentional act. Other nonphysical personal injury is not covered if you could’ve expected the injury that resulted.

The implicated portion of the homeowners liability protection provides in relevant part that:

We cover your liability for an accident or incident that happens in your home that is listed on the Coverage Summary. You and your family are protected against claims up to the limit of liability per occurrence shown on the Coverage Summary.

The PAK II policy excludes coverage for “accidents happening on your business premises.” The relevant portion excludes coverage for “liability or claims connected with any business, profession or occupation.”

The Senkos argue that the district court erred in concluding that there was no coverage under the PAK II policy because (1) the “business exclusion” contained in the policy does not exclude coverage for the Senkos’ claims since their claims are not connected to Jablonske’s business, profession, or occupation; and (2) the “business premises exclusion” does not exclude coverage under the policy since South Oaks was not used in a business or rented for profit.

A. Business exclusion

The Minnesota Supreme Court has defined business purposes in an insurance policy as “a type of activity in which persons regularly engage for the purpose of earning a livelihood or for gain.” Allied Mut. Cas. Co. v. Askerud, 254 Minn. 156, 163, 94 N.W.2d 534, 539-40 (1959). A business-purposes exclusion is intended “to confine the homeowner’s policy coverage to nonbusiness risks and to relegate business coverage to a commercial policy.” Erickson v. Christie, 622 N.W.2d 138, 140 (Minn.App.2001). Such an exclusion further serves to “delete coverage which is not essential to the purchasers of the policy and which would normally require specialized underwriting and rating, and thus keeps premium rates at a reasonable level.” Grossman v. Am. Family Mut. Ins. Co., 461 N.W.2d 489, 495 (Minn.App.1990) (quotations omitted), review denied (Minn.Dec. 20, 1990).

The district court here concluded that Jablonske’s planning and preparation for the development of South Oaks constituted a “business pursuit.” Thus, the district court concluded that there was no coverage under the policy issued by MPCIC.

The Senkos argue that there is a distinction between a “business” exclusion and a “business pursuits” exclusion, and that a “business” exclusion is to be construed more narrowly than a “business pursuits” exclusion. The Senkos contend that the district court erred by ignoring the difference and, in concluding that there was no coverage under the PAK II policy, improperly construed the language of the “business” exclusion as if construing a “business pursuits” exclusion. The Senkos claim that because the PAK II policy contained a “business” exclusion rather than a “business pursuits” exclusion, the more narrow construction of the “business” exclusion applies. Consequently, the Senkos claim that under the narrow construction of the “business” exclusion, there is coverage under the policy because the Senkos’ claims are not connected with Jablonske’s “business, profession, or occupation.”

In support of their claim, the Senkos cite Van Hollenbeck v. Ins. Co. of N. Am., a Michigan case in which an insured sought coverage under his homeowners’ policy after a former business associate sued him individually for conspiracy to commit malicious prosecution and abuse of process. 157 Mich.App. 470, 403 N.W.2d 166, 168 (1987). The policy contained an exclusion under which the company refused to cover injuries caused in relation to “business or business property.” Id. at 169. The policy defined business as “trade, profession, or occupation.” Id. The trial court found that the insured’s activities fell within the “business” exclusion. Id. at 168. In doing so, the trial court treated the exclusion as a “business pursuits” exclusion, which under Michigan law, excludes injuries resulting from activity “that is profit motivated and that contains some degree of continuity.” Id. at 169.

On appeal, the insured asserted that the exclusion was ambiguous. Relying on the fact that he was sued in his individual capacity, the insured argued that the exclusion did not apply because the underlying suit related only to him as an individual. Examining both the trial court and the insured’s constructions of the statute, the Michigan Court of Appeals determined that either construction was reasonable. Id. Implicitly recognizing that no coverage would exist under a “business pursuits” exclusion, the court refused to construe the policy’s “business” exclusion as such. Id. at 169-70. In doing so, the court stated:

Given the common usage of [the business pursuits] exclusion, as well as this jurisdiction’s policy to strictly construe ambiguous exclusions against the insurer which drafted the policy, we believe it would be inappropriate to read the word “pursuits” into the instant “business” exclusion. Although we acknowledge the reasonableness of the trial court’s interpretation of the [instant] exclusion as encompassing any activity engaged in for profit, trade, or occupation, we likewise observe that the interpretation offered by plaintiffs is just as reasonable. The ambiguity in the clause should not inure to the benefit of the insurer who drafted the policy. If [the insurer] wanted to specifically exclude the “business pursuits” of its insured, it was perfectly capable of doing so. Consequently, construing the “business” exclusion narrowly, we are unpersuaded that it applied to negate coverage in the underlying suit.

Id,

The distinction between a “business” exclusion and a “business pursuits” exclusion was also recognized in Dome Corp. v. Kennard, 172 F.3d 1278 (10th Cir.1999). In Kennard, the former operators of certain oil and gas wells sued the owner and the investigator hired by the owner, alleging that a report issued by the investigator constituted libel and slander. Id. at 1279. The owner sought insurance coverage under his homeowner’s policy, and insurer sought a determination of coverage. Id. at 1279-80. Applying Michigan law, the district court concluded that under the policy, insurers had no duty to defend or indemnify the owner. Id.

On appeal, the Tenth Circuit Court of Appeals recognized that “Michigan law clearly distinguished between ‘business’ and ‘business pursuits’ exclusions at the time [insurer] issued the disputed policy.” Id. at 1282 (citing Van Hollenbeck, 403 N.W.2d at 169-70). In referring to the policy issued by the insurer, the court stated that:

Instead of using a “business pursuits” exclusion, which has been broadly construed under Michigan law to exclude a wide array of profit motivated activities, [the insurer] chose to use narrower language excluding injuries in connection with any “business, occupation, trade, or profession.” The [insurer] further defined business as a “full or part time trade, profession or occupation.”

Id. at 1281-82 (citation omitted). The court held that in choosing to narrowly define “business,” the insurer created an ambiguity, which, under Michigan law, must be construed in favor of the insured. Id. at 1282.

Michigan law distinguishes between a “business” exclusion and a “business pursuits” exclusion. Minnesota law does not recognize such a distinction. Minnesota merely defines business purposes in an insurance policy as “a type of activity in which persons regularly engage for the purpose of earning a livelihood or for gain.” Askerud, 254 Minn, at 163, 94 N.W.2d at 539-40. There appears to be limited support, outside of Michigan, that recognizes a distinction between the two types of exclusions. In light of Minnesota’s present interpretation of “business purposes” in an insurance policy, we decline to recognize a relevant distinction between an exclusion labeled “business” and an exclusion labeled “business pursuits.”

The Senkos argue that even interpreting the PAK II policy broadly under a “business pursuits” analysis, the exclusion does not apply because the Senkos’ claims are not “connected with” Jablonske’s “business, profession, or occupation.” We disagree. In Minnesota, “[t]he focus of a business pursuits exclusion is on the liability-causing conduct.” Erickson, 622 N.W.2d at 140. If the conduct, by whomever performed, is within a business activity of anyone insured under the policy, coverage is excluded. See Zimmerman v. Safeco Ins. Co. of Am., 605 N.W.2d 727, 731 (Minn.2000) (stating that “the appropriate focus must be on the liability-creating conduct” in interpreting a business pursuits insurance exclusion).

Here, the liability causing conduct is the existence of the ditch that was dangerous and unmarked. Therefore, the question, for purposes of determining whether the business exclusion applies, is whether the liability causing conduct, i.e., the existence of a dangerous and unmarked ditch, is “connected with [Jab-lonske’s] business, profession, or occupation.”

“Connected” is defined as “related; affiliated; associated; having something do to {with).” Webster’s New Universal Unabridged Dictionary 386 (Deluxe 2nd ed.1983). Here, the undisputed facts demonstrate that the existence of the drainage ditch was “connected” with Jablonske’s business. The record reflects that the City of Hastings constructed sewer and water lines through South Oaks and provided hook-ups for future connections in the development of South Oaks. Also, the construction of the storm sewer outlet on South Oaks not only provided an outlet for the adjacent Century South development, but also was meant to benefit Jablonske’s development of South Oaks. In fact, the agreement that provided Lyman and its contractors the right to enter South Oaks to construct the storm sewer outlet actually stated that the construction of the storm sewer outlet would benefit the South Oaks’ development.

The Senkos argue that the existence of the ditch is not connected to Jablonske’s business because, at the time of the accident, Jablonske had not actually begun developing South Oaks. But although the “ground-breaking” of the South Oaks development had not actually occurred at the time of the accident, the record demonstrates that Jablonske was already in the process of developing the land before the accident. As early as January 2001, Jab-lonske retained the services of Probe to prepare a development plan and plat maps for South Oaks. In October 2001, Jab-lonske requested that the City of Hastings rezone South Oaks from agricultural use to multi-dwelling use. A month later, the Hastings Planning Commission publicly considered and approved Jablonske’s South Oaks development plan. In late 2001, the local Hastings newspaper published an article containing the specifics of the South Oaks development. In fact, Jablonske admitted in an article published in 2003 that the South Oaks development had been in the works for a number of years. The record is clear that the development of South Oaks began long before the accident occurred in January 2002.

The Senkos then argue that there is no connection between the liability causing conduct and Jablonske’s business because Jablonske, rather than Greg J. Homes, was the owner of the land, and because Jablonske’s “business” was that of a home-builder rather than a land developer. But the record reflects that Jablonske’s pattern and practice was to acquire land and eventually develop and build housing developments on that land. That pattern is reflected by Jablonske’s conduct here. The record demonstrates that Jablonske, the individual, was closely intertwined with his business, Greg J. Homes. Jablonske admitted that it was difficult to say where Jablonske stopped and Greg J. Homes began. This intimate connection between Jablonske and his business is reflected in that South Oaks was actually purchased by Jablonske and his wife, but when Jab-lonske began his pursuit of the development of the land, much of the planning and preparation towards the development consisted of the use of Greg J. Homes’ letterhead and finances. We agree with the district court that the liability causing conduct is “connected with [Jablonske’s] business, profession, or occupation,” and the district court did not err in concluding that there was no coverage under the business exclusion.

B.Business premises exclusion

The Senkos argue that the “business premises” exclusion does not exclude coverage under the policy because, at the time of the accident, South Oaks was not used in a business or rented for profit. The PAK II policy states that “[y]ou’re not covered for claims that arise from accidents or incidents on your business premises.” “Business premises” is defined by the policy as “any property used in a business or rented for a profit.”

At the time of the accident, South Oaks constituted a business premises. Prior to the accident, the City of Hastings constructed sewer and water lines through South Oaks and provided hook-ups for future connections in the development of South Oaks. Also prior to the accident, a storm sewer was constructed on the property that would ultimately benefit the development of South Oaks. The record reflects that Jablonske was paid $18,800 by the City of Hastings for his grant of the easement, and that M.W. Johnson Construction eventually entered into an agreement with Greg J. Homes to develop the lots in South Oaks for $1,750,000. Although the agreement with M.W. Johnson Construction was not finalized until February 2002, a month after the accident, the process to develop South Oaks, such as the installation of the storm sewers, sewer, and water lines, had begun long before the accident. The construction of the storm sewers, sewers, and water lines, along with the City of Hastings’ approval to develop South Oaks, were essential aspects of the development of South Oaks, and Jablonske and Greg J. Homes were rewarded for the development of the property. The district court properly concluded that appellants were not entitled to coverage under the business premises exclusion.

II.

The Senkos argue that the district court erred in denying coverage under the farming exclusion of the PAK II policy because South Oaks was “vacant land” at the time of the accident. Although the Senkos concede that South Oaks was farmed in 2001, the Senkos contend that because Jab-lonske told Bauer that he would not rent the land for farming in 2002, the land was not used for farming at the time of the accident, and, therefore, the farming exclusion does not apply.

The PAK II policy provides: “We also cover the liability of you and your family (but not others) in connection with ... [v]acant land owned by you or rented to you as long as it is not used for farming or ranching.” The term “vacant land” is not defined in the PAK II policy. If the terms of an insurance policy are not specifically defined, they must be given their plain, ordinary and popular meaning. Smith v. St. Paul Fire Marine Ins. Co., 353 N.W.2d 130, 132 (Minn.1984).

The term “vacant” is defined as “[e]mpty, unoccupied ... [absolutely free, unclaimed, and unoccupied.” Black’s Law Dictionary 1546 (7th ed.1999). Couch on Insurance went a step further and defined “vacant land” as meaning: “lands which were unoccupied and unused; the use of land implies its employment in a manner that will materially benefit the owner.” 6A Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 94:132 (3d ed.2006). Couch on Insurance also states that land cannot be transformed into vacant land simply by the “cessation of [its] customary use.” Id. at § 94.133.

Here, it is undisputed that South Oaks was farmed through the fall of 2001. The evidence shows that, at the time of the accident in January 2002, there were the remnants of harvested corn protruding through the snow. The “customary use” of the land was for farming. Although the record reflects that Jablonske had stated an intention not to rent the land to Bauer for farming in the spring of 2002, this decision would not “overnight” transform the customary use of the land from farming to vacant. Jablonske’s assertion that he was not going to rent the land for farming in the spring of 2002 was a prediction of what he might do in the future, not a fact. Jablonske could have changed his mind at any time and continued to rent the land for farming to Bauer or to anyone else. If Jablonske had followed through with his stated intention not to rent the land for farming throughout 2002 and then the accident occurred in the following year, it is possible our legal analysis might change. But if it did change, it would be because the facts had changed. The facts here are that the land was farming land in January of 2002, and its owner’s intention not to rent later in the year did not make it vacant land overnight.

The district court properly found that the farm exclusion excluded coverage.

DECISION

The record reflects that Jablonske was in the process of developing South Oaks at the time of the accident. Therefore, the business premises exclusion of the PAK II policy bars coverage under the policy.

The farming exclusion of the PAK II policy effectively bars coverage under the policy because South Oaks was farmed through the fall of 2001. The possibility that Jablonske might not rent South Oaks for farming later on in the year 2002 did not suddenly transform the land into vacant land.

The district court properly determined that there was no liability coverage for Jablonske under the PAK II owner’s policy issued by MPCIC.

Affirmed.

      . The court noted that the district court found that Michigan law governed the interpretation of the homeowners' policy and that neither party disputed the finding on appeal. Id. at 1280 n. 2.