author: HUDSON, Judge.

text:
    STATE of Minnesota, Respondent, v. Jessica Marie COLLINS, Appellant.
    No. C1-02-405.
    Court of Appeals of Minnesota.
    Jan. 14, 2003.

      Mike Hatch, Attorney General, St. Paul, MN; and Marvin Ketola, Carlton County Attorney, James M. Ross, Jr., Assistant County Attorney, Carlton County Courthouse, Carlton, MN, for respondent.
    John Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, Charlann E. Winking, Assistant Public Defender, Aaron J. Marcus, Certified Student Attorney, Minneapolis, MN, for appellant.
    Considered and decided by SCHUMACHER, Presiding Judge, HALBROOKS, Judge, and HUDSON, Judge.
   OPINION

HUDSON, Judge.

Appellant challenges her convictions for refusal to submit to testing, disorderly conduct, and obstructing legal process. Appellant argues that her refusal to test should be vacated because she was denied the right to consult with counsel. Appellant next argues that the district court erred in adjudicating the non-traffic-related offenses because she was a juvenile. Lastly, appellant argues that the trial court erred when it sentenced her to jail time because she was a juvenile at the time she committed the adult court traffic offense. We affirm in part, reverse in part, and remand.

FACTS

On the night of June 29, 2000, Cloquet police received a dispatcher’s call stating that a passing motorist had seen a vehicle crashed on the side of the road. As the investigating officers looked for the crash scene, they saw a car parked on the side of the road. A female got out of the parked car and informed officers that she had just seen a juvenile female, wet and screaming, running down the road. The officers located the crashed vehicle, submerged in water, in a ditch. No one was inside the vehicle. As the officers arranged for the car to be towed, appellant, 17-year-old Jessica Marie Collins (Collins) arrived, having flagged down a motorist who brought her back to the accident scene. Collins was hysterical and informed the investigating officer that she had swerved to avoid hitting a deer and ended up in the ditch.

At that time, Officer Scott Holman (Officer Holman) detected a strong odor of alcohol coming from Collins and noticed that her eyes were extremely glossy and bloodshot. As Officer Holman started to speak, Collins became very uncooperative and stated that in the past she had been assaulted by Cloquet police officers. When questioned about the number of beers she consumed that night, Collins said that she had had two beers at 10:00 a.m. that morning. Collins insisted that she was fine and that the officers should take her to her parents. However, Collins refused to give the officers her parents’ name and insisted the officers not call them. At this point, Collins began crying and reiterated her claim that she had been assaulted by police officers in the past and that she was scared.

Officer Holman again asked Collins how much she had to drink and she replied that she had only had a couple of beers. Officer Holman then requested that Collins submit to a preliminary breath test (PBT). Collins submitted to the PBT without resistance. The PBT revealed an alcohol concentration of .165. Officer Holman informed Collins that she must have had more than two beers because her alcohol concentration was almost twice the legal limit. At that point, Collins became extremely uncooperative. She threatened to tell her parents that the officers had raped her if they did not take her home. She then stated she wanted her “attorney there.” After she threatened to run away, the officers placed her in handcuffs and put her in the police car. Again Coffins threatened to tell her parents that the officers had raped her. En route to the Carlton County jail, Coffins still refused to give the officers the names and telephone number of her parents. She informed the officers that she was not going to cooperate until her “attorney was there” and again threatened to accuse the officers of raping her.

Once they arrived at the jail, Coffins again became hysterical. On the way to the booking room, she told the jailers that the officers had raped her. Coffins refused to take a seat in the booking room, screaming and yelling that she was not going to listen to anything the officers had to say. Coffins refused Officer Holman’s request to participate in field sobriety tests, again insisting that she was not going to cooperate. At this point, Officer Holman attempted to read Coffins the Minnesota Implied Consent Advisory, telling her that it was important that she listened. Instead of listening, Coffins began screaming, swearing, and insisting that she would not listen and continued her accusations of rape. She then told Officer Holman that she was leaving and tried to leave the booking room. When told she could not leave, Coffins began screaming, kicking, yelling, and requesting her parents; she again asked to have her “attorney there.” Because of her actions, Coffins was physically restrained and placed in a holding cell. Officer Holman reported that, because he was unable to read Coffins the implied consent advisory, he recorded it as a test refusal. At no time was Collins’s request for an attorney granted. Because of her continued accusations of rape, Coffins was transported to the Cloquet Hospital emergency room, but she refused to have sexual-assault testing.

Coffins was charged with misdemeanor DWI in violation of Minn.Stat. § 169.121, subds. 1(a), 3(b) (2000); refusal to submit to testing in violation of Minn.Stat. § 169.121, subd. 1(a); disorderly conduct in violation of Minn.Stat. § 609.72, subd. 1 (2000); and obstructing legal process in violation of Minn.Stat. § 609.50 (2000). The case was submitted to the district court on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The district court found Collins guilty on all charges and sentenced her to 90 days in jail and a $700 fine. The court executed 21 days of the 90-day sentence and $350 of the concurrent fine. Coffins was 18 years old at the time of conviction and sentencing. The sentence was stayed pending this appeal.

ISSUES

I. Did Collins have a limited right to counsel and, if so, was it violated?

II. Did the district court lack jurisdiction to decide the non-traffic offenses because Collins was a juvenile at the time they were committed?

III. Did the trial court err when it sentenced Collins to jail because she was a juvenile at the time she committed the adult-traffic offenses?

ANALYSIS

Where facts are undisputed, appellate courts review de novo the issue of whether a defendant’s right to counsel was violated. State v. Christiansen, 515 N.W.2d 110, 112 (Minn.App.1994), review denied (Minn. June 15, 1994). Once the facts are established, the reviewing court makes a legal determination as to whether the defendant “was accorded a reasonable opportunity to consult with counsel based on the given facts.” Kuhn v. Comm’r of Pub. Safety, 488 N.W.2d 838, 840 (Minn. App.1992), review denied (Minn. Oct. 20, 1992); McNaughton v. Comm’r of Pub. Safety, 536 N.W.2d 912, 914 (Minn.App. 1995) (whether a driver was given a reasonable opportunity to consult with counsel is ultimately a question of law).

I

A driver stopped for DWI has a limited right to a reasonable amount of time to attempt to consult with counsel before deciding whether to comply with the statutory requirement of implied-consent testing. Minn.Stat. § 169.123, subd. 2(b)(4) (2000); Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 837 (Minn. 1991).

A limited right to counsel means “the right to consult with a lawyer of [the driver’s] own choosing.” * * * A police officer not only must inform the driver of the right to counsel but also must assist in vindicating this right. * * ⅜ A police officer may vindicate a driver’s limited right to counsel by providing a telephone and a reasonable amount of time to contact and speak with an attorney. * * *

Gergen v. Comm’r of Pub. Safety, 548 N.W.2d 307, 309 (Minn.App.1996) (quotation and citations omitted), review denied (Minn. Aug. 6,1996).

It is when the investigatory process focuses in on an individual’s potential violation that the statutory protection of the implied-consent rule attaches. At that moment, a driver has entered a critical stage and is entitled to consult with an attorney before agreeing to further chemical testing.

State v. Stoskopf, 644 N.W.2d 842, 846 (Minn.App.2002).

During the course of this DWI investigation, Collins requested three times to either have her attorney present or speak to an attorney. None of her requests were honored. Collins argues that because she was never able to consult with an attorney, her right to counsel was violated and her conviction for test refusal should be reversed.

First Request

Collins argues first that she entered a critical stage once the PBT had been administered. She contends that, from that point forward, she was the focus of the investigatory process and that, therefore, the statutory protection of the implied-consent rule attached and she was entitled to consult with counsel. We disagree.

In Friedman, the Minnesota Supreme Court established the standard for evaluating whether a procedure constitutes a critical stage in the DWI process. The court held that a critical stage “includes those pretrial procedures that would impair a defense on the merits if the accused is required to proceed without counsel.” Friedman, 473 N.W.2d at 833. Relying on Friedman, this court has concluded that the PBT is not a critical stage and therefore does not trigger the limited right to counsel. Stoskopf, 644 N.W.2d at 846. In Stoskopf, we observed that there is no criminal penalty for refusing a PBT, as there is for refusing a chemical test. Id.

Here, Collins stated that she wanted her “attorney there” just after Officer Holman informed her that the PBT indicated her alcohol concentration was almost twice the legal • limit. Collins argues that because she was undoubtedly the focus of the investigatory process at this point, she was entitled to her limited right to counsel. But the PBT is not a critical stage of the DWI process. Criminal liability for DWI is not contingent upon the results of a PBT. In fact, criminal liability does not attach even when a person refuses to submit to a PBT. Therefore, Collins’s defense on the merits of a DWI charge would not have been impaired because of the results of the PBT. Because Collins was not in a critical stage of the DWI process when she requested an attorney after failing the PBT, no right to counsel attached. Consequently, there was no violation when Collins’s request for an attorney was not vindicated.

Second Request

Collins next requested an attorney while in the police car en route to the Carlton County jail. Collins indicated that she was not going to cooperate with the officers until her “attorney was there.” A request for counsel must be complied with “as soon as practicable.” Minn.Stat. § 481.10 (2000). However, while Collins was in the police car, she had no absolute right to immediate access to an attorney. See Busch v. Comm’r of Pub. Safety, 614 N.W.2d 256, 259 (Minn.App.2000) (concluding that right to counsel not violated where request was made at the scene of the arrest in the back seat of a patrol car where no telephone was readily available); McCann v. Comm’r of Pub. Safety, 361 N.W.2d 169, 170 (Minn.App.1985) (concluding that a person in a holding cell awaiting chemical testing has no absolute right to immediate access to an attorney).

Here, the facts closely resemble those in Busch, where we held that no violation of the right to counsel had occurred. In that case, Busch told the arresting officer that he wanted “to talk to [his] attorney” immediately upon his arrest for DWI, while in the back seat of the police car. Busch, 614 N.W.2d at 257. Finding the police car analogous to the holding cell in McCann, we concluded that Busch had no absolute right to immediate access to an attorney. Id. at 259. As in Busch and McCann, we conclude in this case that Collins’s right to counsel was not violated when her request for an attorney was not vindicated while she was in the back seat of the police car.

Third Request

Collins’s last request for an attorney came as Officer Holman prepared to read the implied-consent advisory. Collins concedes that she was belligerent and argumentative and that her behavior disrupted Officer Holman’s attempt to read the advisory. However, Collins argues that at the- same time, she made a pre-advisory request to talk to an attorney, which could and should have been vindicated by simply giving her a telephone and an opportunity to call a lawyer. She contends that because her request was ignored, her right to counsel was violated. We disagree.

This court has previously considered the implications of disruptive behavior during the implied consent procedure. In Busch, the defendant requested to talk to a lawyer just prior to being read the implied-consent advisory, but his request was ignored. Id. at 257. The police then read the advisory three times and after each reading asked the defendant if he understood the advisory. Id. Each time the defendant refused to respond. Id. The defendant also refused to respond when the police asked him three times if he wished to consult with an attorney. Id. We held that a defendant who requests to contact an attorney prior to the reading of the implied-consent advisory, but whose behavior thereafter frustrates the implied-consent procedure, is deemed by his behavior to have retracted his request for an attorney and to have refused to submit to a test. Id. at 260.

Here, Officer Holman attempted to read Collins the implied-consent advisory but was unable to do so because Collins began screaming, swearing, making accusations of rape, and insisting that she would not listen. Collins then attempted to leave the jail and was physically restrained. Collins argues that in the midst of this commotion she invoked her limited right to speak to an attorney. But from the beginning of the process to the end, Collins was extremely uncooperative, and her actions completely frustrated the implied consent procedure. If we found the defendant’s silence in Busch frustrated the testing process, then certainly the belligerent shouts and threats of Collins also frustrated the testing process. We have recognized that the implied-consent law imposes on a driver a requirement to act in a manner so as not to frustrate the testing process. Id. at 259. If the conduct of any driver does frustrate the process, it will amount to refusal to test. Id.

We conclude that Collins’s conduct frustrated the implied-consent procedure and amounted to a retraction of her request to contact an attorney. Therefore, Collins’s limited right to counsel was not violated and her conviction for test refusal was proper.

II

In addition to her convictions for DWI and test refusal, Collins was also convicted of disorderly conduct and obstructing legal process. See Minn.Stat. § 609.72, subd. 1 (2002); Minn.Stat. § 609.50 (2000). Collins argues that because disorderly conduct and obstructing legal process are not traffic offenses and she was a juvenile at the time the offenses were committed, the district court lacked jurisdiction and her convictions for these offenses must be vacated.

When statutorily based, the existence of jurisdiction is a question of law subject to de novo review. State v. Behl, 564 N.W.2d 560, 563 (Minn.1997). The district court has original jurisdiction over criminal proceedings concerning a child who has committed an adult court traffic offense. Minn.Stat. § 260B.225, subd. 4 (2000). A child who commits an adult court traffic offense and who was, at the time of the offense, at least 16 years old, is subject to the laws and court procedures controlling adult traffic violators and shall not be under the jurisdiction of the juvenile court. Minn.Stat. § 260B.225, subd. 3 (2000). Pursuant to statute, an “adult eourt traffic offense” means a violation of Minn.Stat. § 169A.20 (2000) or any other misdemeanor or gross-misdemeanor-level traffic violation committed as part of the same behavioral incident as a violation of section 169A.20. Minn.Stat. § 260B.225, subd. 1(c)(2) (2000).

[T]he juvenile court, on the other hand, has original and exclusive jurisdiction in proceedings concerning any child who is alleged delinquent, a juvenile traffic offender, a juvenile petty offender, and in proceedings concerning any minor alleged to have been a delinquent, a juvenile petty offender, or a juvenile traffic offender prior to having become 18 years of age.

Minn.Stat. § 260B.101, subd. 1 (2000). Except where a juvenile court has certified a minor for adult prosecution, when a child is alleged to have committed murder in the first degree after becoming 16 years of age, or when

a court has original jurisdiction of a child who has committed an adult court traffic offense, as defined in section 260B.225, subdivision 1, clause (c), a court other than a juvenile court shall immediately transfer to the juvenile court of the county the case of a minor who appears before the court on a charge of violating any state or local law or ordinance and who is under 18 years of age or who was under 18 years of age at the time of the commission of the alleged offense.

Minn.Stat. § 260B.103, subd. 1 (2000).

The statute requires that a juvenile court consider the case of a minor who has been charged with violating a state law when the violation has not been certified to adult court, is not first-degree murder committed after age 16, and is not an adult court traffic offense. Here, Collins was 17 years old at the time she committed the offenses, although she had turned 18 by the time she was convicted. Because Collins was under the age of 18 at the time the non-traffic offenses were committed, pursuant to Minn.Stat. § 260B.103 (2000), the district court should have transferred the charges of disorderly conduct and obstructing legal process to the juvenile court for adjudication.

The state argues that MinmStat. § 260B.103 does not apply because Collins was not a juvenile at the time of her conviction. The state appears to be referring to Minn.Stat. § 260B.225, subd. 8(b) (2000), which provides that a juvenile who is convicted of an adult court traffic offense in district court shall be treated as an adult for sentencing purposes. But the state’s reliance on this section of the statute is misplaced. This section addresses the district court’s authority to sentence juveniles who have been convicted of adult court traffic offenses as adults, not whether the district court has jurisdiction to adjudicate non-traffic offenses committed by juveniles.

We therefore conclude that because Collins was under 18 years of age at the time she committed the non-traffic offenses, the district court lacked jurisdiction to consider these charges. Accordingly, Collins’s convictions for disorderly conduct and obstruction legal process are reversed and we remand to the district court to transfer these charges immediately to the juvenile court.

Ill

Lastly, we consider whether the ■ district court erred by sentencing Collins to jail time for the adult court traffic offenses. We are confronted with the issue of whether Collins, who was a juvenile at the time she committed the adult traffic offenses but had turned'18 by the time of conviction and sentencing, is nonetheless considered a juvenile for the purpose of sentencing.

Minn.Stat. § 260B.225, subd. 8(b) (2000), addresses sentencing of a juvenile who has been convicted of an adult court traffic offense in district court:

A juvenile who is convicted of an adult court traffic offense in district court shall be treated as an adult for sentencing purposes, except that the court may order the juvenile to be placed out of the home only in a residential treatment facility or in a juvenile correctional facility.

(Emphasis added.)

Collins argues that a jail sentence is impermissible under § 260B.225, subd. 8(b) because she was a juvenile (age 17) when she committed the adult court traffic offense. Collins contends that she can only be placed in a residential treatment facility or a juvenile correctional facility. The state counters that Collins was not a juvenile but an adult (age 18) when she was convicted. Therefore, the prohibition against jail time in section 260B.225, subdivision 8(b) is inapplicable. We find the state’s position more persuasive.

Both parties cite cases concerning juvenile delinquency proceedings to support their positions. See In re Welfare of 636 N.W.2d 155 (Minn.App.2001); In re D.S.N., 611 N.W.2d 811 (Minn.App. 2000). But Collins has never been adjudicated delinquent. Nor does her violation of Minn.Stat. § 169A.20 designate her a delinquent child. See Minn.Stat. §§ 260B.007, subd. 6(1) (“ ‘delinquent child’ means a child who has violated any state or local law, except as provided in section 260B.225, subdivision 1” (emphasis added)), .225, subd. 1(c) (2000) (defining “[a]dult court traffic offense”). Furthermore, because this case involves an adult court traffic offense, the district court has jurisdiction for disposition. See Minn.Stat. § 260B.101, subd. 2 (2000) (the district court maintains original and exclusive jurisdiction in criminal proceedings concerning a child excluded from the definition of delinquent child under section 260B.007, subdivision 6, paragraph (b)).

Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). When statutory language is plain and unambiguous, the court must give effect to its plain meaning. Wynkoop v. Carpenter, 574 N.W.2d 422, 425 (Minn. 1998). A statute is ambiguous if it is reasonably susceptible to more than one interpretation. Tuma v. Comm’r of Econ. Sec., 386 N.W.2d 702, 706 (Minn.1986).

Minn.Stat. § 260B.225, subd. 8(b), expressly provides for adult sentencing of a juvenile who is convicted of an adult court traffic offense in district court. We find no statutory support for Collins’s contention that an adult convicted of an adult court traffic offense committed while a juvenile is considered a juvenile for the purpose of sentencing. On the other hand, the plain language of section 260B.225, subdivision 8(b), provides for a “juvenile” convicted of an adult court traffic offense to be treated as an “adult” for the purpose of sentencing, except that the juvenile cannot be sentenced to jail time. The plain meaning of section 260B.225, subdivision 8(b), is that at the time of conviction for an adult court traffic offense, the person must be a juvenile in order for the court to be prohibited from sentencing the person to jail.

Collins argues that it is the person’s age at the time the offense is committed that is determinative. We note, however, that section 260B.103, subdivision 1 (2000), which transfers jurisdiction from the district court to the juvenile court for non-adult court traffic offenses, expressly provides that age at the time of the commission of the crime is a deciding factor in determining jurisdiction. Id. (stating that juvenile court jurisdiction applies to a person who is under 18 years of age or “who was under 18 years of age at the time of the commission of the alleged offense”). Significantly, this language is absent from the statute governing sentencing of juveniles for adult traffic offenses. Courts cannot add to a statute “what the legislature ‘purposely omits or inadvertently overlooks.’ ” Ullom v. Indep. Sch. Dist. No. 112, 515 N.W.2d 615, 617 (Minn.App. 1994) (citation and quotation omitted). “When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” MinmStat. § 645.16 (2000).

If we were to embrace Collins’s interpretation, we envision a situation where a juvenile who commits an adult traffic offense, but who absconds or by unlawful means avoids being convicted until the age of 25, could only be sentenced to a juvenile facility. Collins has failed to established that the legislature intended to exempt adults convicted of juvenile offenses from jail time. Therefore, we hold that the prohibition against jail time provided in Minn.Stat. § 260B.225, subd. 8(b), applies only to a person who is a juvenile at the time of conviction. Because Collins was 18 years old at the time of her conviction, she was then an adult, and she was properly sentenced to jail under MinmStat. § 260B.225, subd. 8(b).

DECISION

Because Collins did not have a right to counsel at the PBT stage and while in the back seat of the police car en route to jail, her limited right to counsel under the implied consent statute was not violated. Because Collins’s belligerent conduct functioned as a retraction of her request for counsel, her limited right to counsel was not violated and her conviction for test refusal under MinmStat. § 169A.20 was proper. Further, the prohibition against jail time for juveniles convicted of adult traffic offenses under MinmStat. § 260B.225, subd. 8(b), applies only to a person who was a juvenile at the time of conviction. Therefore, Collins was properly sentenced to jail for the adult traffic offense. But because the district court lacked jurisdiction to adjudicate the non-traffic offenses, we reverse Collins’s convictions for disorderly conduct and obstruction of legal process and remand to the district court to transfer these charges to the juvenile court.

Affirmed in part, reversed in part, and remanded.

      . 2000 Minn. Laws ch. 478, art. 1 repealed, among other sections, Minn.Stat. §§ 169.121-.123 and also enacted chapter 169A, relating to the same subject matter. Chapter 169A became effective January 1, 2001, for crimes committed and conduct occurring on or after that date. Collins’s offenses were committed June 29, 2000, before the effective date of chapter 169A. We therefore cite to the 2000 Minnesota Statutes in this opinion.

      . Although Collins does not directly argue that her right to counsel was violated at this point, we address the facts surrounding her second request in order to clearly delineate each of Collins's requests for counsel, and because of Collins’s general claim that her conviction for refusal to submit to testing should be vacated because "all of her requests concerning counsel were ignored.”

      . Collins acknowledges the distinction between requesting the presence of an attorney and requesting to speak to an attorney. This court recognized in Barton v. Comm’r of Pub. Safety, No. C2-95-2594, 1996 WL 291374 (Minn.App. June 4, 1996), that the right to the presence of an attorney during the reading of the implied-consent advisory does not exist. Collins concedes that she had no right to have an attorney present during the reading of the advisory. However, Collins contends that she requested to speak to an attorney prior to the reading of the advisory, and this request is within the scope of the limited right to counsel provided in the implied-consent advisory. The record indicates only that Collins requested that her attorney be present. Because the distinction between the presence of an attorney and speaking to an attorney is irrelevant to the resolution of whether Collins’s belligerent behavior frustrated the implied-consent procedure, we will assume for purposes of this appeal that Collins also requested to speak to an attorney.

      . The case relied on by the state is not on point. In re Welfare of R.J.R., 622 N.W.2d 160 (Minn.App.2001), holds that Minn.Stat. § 260B.193, subd. 5(d) (Supp.1999), grants original and exclusive jurisdiction to the district court in cases involving adults who allegedly committed, offenses before the age of 18, but who were not charged until after age 21. R.J.R., 622 N.W.2d at 162. Collins was charged prior to attaining age 21.


source: Caselaw Access Project

author: G. BARRY ANDERSON, Judge;

license: Public Domain

text:
    Daniel LaFEE, Appellant, v. WINONA COUNTY, et al., Respondents.
    No. C1-02-971.
    Court of Appeals of Minnesota.
    Jan. 14, 2003.

      Brian E. Cote, Cote Law Firm, Ltd., Minneapolis, MN, for appellant.
    Michael J. Ford, Quinlivan & Hughes, P.A., St. Cloud, MN, for respondents.
    Considered and decided by SHUMAKER, Presiding Judge, G. BARRY ANDERSON, Judge, and WRIGHT, Judge.
   OPINION

G. BARRY ANDERSON, Judge;

Appellant challenges the district court’s order dismissing his complaint and asserts that his prior unsuccessful arbitration grievance does not preclude the present suit under 42 U.S.C. § 1983 and the Minnesota Human Rights Act. Appellant also challenges the district court’s refusal to allow appellant to amend the original complaint to name respondent, Sheriff David Brand, as a defendant in his personal capacity. Because the district court erred by concluding that the grievance arbitration under the collective bargaining agreement bars appellant’s section 1983 cause of action, we reverse and remand for trial. Further, because we conclude that the parties did not actually litigate and determine the issues related to appellant’s MHRA claim, collateral estoppel does not preclude litigation of this issue upon remand. Finally, we conclude that the district court did not abuse its discretion by denying appellant’s motion to amend the complaint to state a cause of action against respondent Brand personally.

FACTS

Respondent Winona County employed appellant Daniel LaFee .as a jailer and chief jailer, a title later changed to jail administrator, from March 1974 until the county eliminated his position for budgetary reasons on March 13, 2000. Respondent David Brand was the Sheriff of Wino-na County when the county discontinued appellant’s position.

Independent of the elimination of appellant’s position, the county posted a detention-deputy job opening. Appellant applied for the job and was one of three finalists for the position. The county, however, selected Dean Singer, a 29-year-old part-time detention deputy whom appellant, as jail administrator, had hired, trained, and supervised.

Pursuant to an agreement collectively bargained for by appellant’s union, Winona County Supervisors Association, appellant pursued an arbitration grievance concerning the elimination of his position. In that proceeding, the arbitrator found that cost constraints, not discrimination, were the reason for the elimination of appellant’s position with the county. The arbitrator also found, regardless of whether the parties submitted the issue, that no evidence indicated that public officials were improperly motivated or influenced in hiring Singer instead of appellant for the detention-deputy position.

Appellant filed an action in district court, alleging respondents violated his civil rights under 42 U.S.C. § 1983 by retaliating against his exercise of his free speech rights enumerated by the First Amendment of the United States Constitution. Appellant also alleged that Winona County violated the Minnesota Human Rights Act (MHRA) by failing to hire him for the detention-deputy position.

Respondents moved for summary judgment and, during oral argument, appellant’s counsel attempted to amend the complaint to include an allegation against Brand “in his individual capacity.” Respondents objected to the oral motion, and the district court directed appellant to bring a formal motion. On March 28, 2002, appellant served his notice of motion to amend the scheduling order and the complaint but did so without submitting supporting memoranda or affidavits. On April 10, 2002, the district court granted respondents’ summary-judgment motion and dismissed the original complaint. Also on April 10, 2002, appellant served an amended motion to amend the complaint, this time supported by a memorandum of law and affidavit. The district court conducted a hearing on the motion to amend the original complaint, which had already been dismissed, and denied the motion without explanation. This appeal followed.

ISSUES

I. Did the district court err by affording the arbitration proceeding collateral-estoppel effect in a subsequent civil claim under 42 U.S.C. § 1983 for violation of First Amendment rights?

II. Did the district court err by affording the arbitration proceeding collateral-estoppel effect in a subsequent civil claim based on the county’s failure to rehire appellant under the Minnesota Human Rights Act?

III. Did the district court abuse its discretion by denying appellant’s motion to amend his complaint to add a cause of action against respondent Brand in his individual capacity?

ANALYSIS

On an appeal from summary judgment, we ask “whether there are any genuine issues of material fact” and “whether the lower courts erred in their application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990) (citation omitted). No genuine issue of material fact exists “[wjhere the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (alteration in original). On appeal, “the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (citation omitted). In reviewing a pure question of law, this court need not defer to a trial court’s decision. Frost-Benco Elec. Ass’n v. State, Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984).

I.

Appellant argues that the prior arbitration decision does not preclude his current claim under 42 U.S.C. § 1983 for violations of First Amendment free-speech rights. Appellant does not seek to overturn or obtain further review of the arbitrator’s decision, but rather, asserts violations of independent statutory rights.

McDonald v. City of West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984), is applicable here. In McDonald, the city discharged an employee who then filed a grievance pursuant to the collective-bargaining agreement (CBA) then in effect between the city and the employee’s labor union. Id. at 286, 104 S.Ct. at 1800-01. The grievance was arbitrated and the arbitrator concluded that there was just cause for the plaintiffs dismissal. Id. at 286, 104 S.Ct. at 1801. Without appealing the arbitration decision, the plaintiff filed a section 1983 action in federal court, alleging that his employer had discharged him for exercising his “First Amendment right of freedom of speech, freedom of association and freedom to petition the government for redress of grievances.” Id. The Supreme Court held, in part, that the arbitration decision did not bar the plaintiffs claim because the complaint alleged that his employer’s actions, independent of the terms of the collective-bargaining agreement, violated the United States Constitution. Id. at 290, 104 S.Ct. at 1803. The theory of McDonald is that in instituting an action under section 1983, “the employee is not seeking review of the arbitrator’s decision. Rather, he is asserting a statutory right independent of the arbitration process.” Papapetropoulous v. Milwaukee Transp. Servs., Inc., 795 F.2d 591, 597 (7th Cir. 1986) (quotation omitted).

Likewise, appellant here did not appeal the adverse arbitration ruling. Appellant filed suit to assert violations of his rights under section 1983. In addition, the rationale behind the McDonald court’s refusal to give an arbitration decision preclusive effect in a later section 1983 cause of action also applies here. First, the arbitrator may not have the expertise to resolve complex section 1983 issues. McDonald, 466 U.S. at 290, 104 S.Ct. at 1803. Second, because the arbitrator’s power is dependent on the CBA, the arbitrator may not be able to enforce section 1983 rights. Id. For example, if federal law and the CBA conflict, the arbitrator is bound to enforce the agreement. Id. at 290-91, 104 S.Ct. at 1803. Third, because appellant’s interests may not directly coincide with the interests of the union, the union may have presented appellant’s grievance differently or less vigorously than appellant would have in civil litigation. Id. at 291, 104 S.Ct. at 1803. Finally, the fact-finding in an arbitration is not the equivalent to judicial fact-finding. Id. Because federal statutory rights under section 1983 exist independent from the CBA, we hold the union grievance does not preclude appellant’s section 1983 claim.

Respondents argue that language in the CBA precludes appellant’s suit because appellant originally chose to pursue an arbitration grievance rather than file suit under section 1983. The Labor Agreement reads:

Choice of Remedy: Employees shall have the right to process a “grievance” through the provisions of this article or through a procedure established by law which is available to them, provided that no [“Igrievance” shall be processed by an employee or the Association through both the provisions of the article and another available procedure. The employee must elect at the outset which procedure he or she will use.

Arbitration, however, cannot preclude a judicial proceeding to protect federal statutory rights. “[According preclu-sive effect to an arbitration award in a subsequent § 1983 action would undermine that statute’s efficacy in protecting federal rights.” Id. at 290, 104 S.Ct. at 1803. Accordingly, the choice-of-remedy clause in the labor agreement will not deprive appellant of a judicial proceeding for his section 1983 claim.

The district court did not discuss McDonald, instead discussing the finality of arbitration and the method for vacating an arbitration award. See Minn.Stat. § 572.19, subd. 1 (2002) (upon application of a party, the district court shall vacate an arbitration award if one of five factors is established). The district court also intimated that summary judgment was appropriate because appellant failed to satisfy the public-policy exception for vacating an arbitration award. These arguments are irrelevant. First, appellant is not attempting to overturn an arbitration decision. Appellant instead asserts new claims against the county by relying on independent statutory rights. Second, the arbitrator did not purport to decide whether respondents violated appellant’s statutory rights under section 1983. Rather, the issue decided was whether

the elimination of the grievant’s position of Jail Administrator [was] in fact a termination of his employment without cause in violation of the Collective Bargaining Agreement?

(emphasis added). The arbitrator determined whether the county violated the CBA; here appellant seeks vindication of his federal statutory rights. Under McDonald, a plaintiff may subsequently assert only violations of rights independent of the collective bargaining agreement. Id. at 290,104 S.Ct. at 1803.

Although not cited by respondents, federal cases have distinguished the McDonald holding. For instance, in Papape-tropoulous, the court held that the plaintiff failed to assert any statutory right independent of the arbitration. 795 F.2d 591, 597 (7th Cir.1986). The plaintiff filed a section 1983 action after an unsuccessful arbitration, and the court held that the plaintiff could not seek review of the arbitrator’s decision on the same issues. Id. In contrast to McDonald, the seventh circuit held that because the plaintiff did not assert a constitutional or statutory right, but rather alleged “infirmities in the arbitration proceeding itself,” it was appropriate for the court to dismiss the suit. Id.

In contrast, appellant here is not alleging any infirmity in the arbitration process. As in McDonald, appellant is elaim-ing that separate statutory rights afford him relief independent of the collectively bargained agreement.

II.

Appellant bases his age-discrimination claim under the MHRA on the county’s failure to hire him for the entry-level position of detention deputy. Respondents argue that appellant intentionally injected the issue of discrimination into the arbitration and thus collateral estoppel precludes relitigation of this issue.

Collateral estoppel applies when

(1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the es-topped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.

Willems v. Comm’r of Pub. Safety, 333 N.W.2d 619, 621 (Minn.1983) (citation omitted).

Respondents offer as evidence the parties actually submitted the age-discrimination claim a short series of questions asked by respondents’ counsel:

Q: I take it then that the fact that you weren’t hired for the Dean Singer position was something that the arbitrator was being asked to decide, is that your understanding?
A: I believe that’s part of it, yes — well, I’m not really sure if that part of it — I’m not sure if that part of it came up at that time or not, I can’t recall.
Q: And at the time you submitted your claim to arbitration what was that claim?
A: A claim that I was unjustly selected out by Sheriff Brand because of animosity towards me by him for elimination of my position.

This excerpt indicates that, as appellant understood, the “elimination of my position” was the claim submitted for arbitration and that he was unsure of whether the age-discrimination claim was also involved.

Respondents also assert that whether or not the parties submitted the discrimination claim for arbitration, the arbitrator addressed it. In finding of fact number twenty-six, after summarizing the circumstances of appellant’s interviews for the detention-deputy position, the arbitrator concludes: “[tjhere is no evidence that Mr. Graff was improperly influenced or motivated” by choosing Singer for the detention-deputy position.

But the rehiring of appellant was not an issue submitted for arbitration by the parties. The only issue before the arbitrator was whether

the elimination of the grievant’s position of Jail Administrator [was] in fact a termination of his employment without cause in violation of the Collective Bargaining Agreement?

The question for the arbitrator, therefore, was not, as respondents argue, whether the failure to rehire appellant was proper. Because the arbitration was limited to only issues involved in the CBA, it is apparent that the failure to rehire appellant was outside of the protections of the agreement and irrelevant to the union grievance. Indeed, appellant’s union, the Winona County Supervisors Association, would have no incentive, to arbitrate a claim related to a subsequent refusal to hire appellant for an entry-level position (i.e., not a “supervisor” position). Because we conclude the parties to the arbitration did not actually litigate the age discrimination issue, we reverse the district court and hold that collateral estoppel does not preclude appellant’s discrimination claim.

III.

Finally, we address whether the district court abused its discretion by denying appellant’s motion to amend the complaint to add a cause of action against Brand in his individual capacity. After responsive pleadings have been served, a party may amend its own pleading only by leave of the court or by the adverse party’s written consent. Minn. R. Civ. P. 15.01. A district court should freely grant motions to amend when justice requires. Id. Nonetheless, a district court may properly deny an amendment to a complaint when the additional alleged claim cannot be maintained. Hunt v. Univ. of Minn., 465 N.W.2d 88, 95 (Minn.App.1991). We will not reverse a district court’s denial of a motion to amend a complaint on appeal absent a clear abuse of discretion. Id. at 95.

The district court denied appellant’s motion to amend the complaint to include an allegation against Brand “in his individual capacity.” Respondents argue that the court properly denied appellant’s motion on the grounds of lack of timeliness, prejudice and waste of judicial resources.

Appellant admits that Brand was not sued in his individual capacity originally but contends that the language of the complaint should have put Brand on notice that appellant was seeking individual liability against him. Specifically, appellant points to the heading, “Count II — Winona County, David Brand and Robert Reinert,” and his prayer for relief asserted against “each Defendant” as sufficient to notify Brand that appellant was suing him in a personal capacity.

Appellant’s arguments are unpersuasive. Although not binding on this court, the Eighth Circuit requires a clear statement of the plaintiffs claim to sue an official in his or her personal capacity.

A suit against a public official in his individual capacity requires that the public official be named in his personal capacity as an individual. If the complaint does not specifically name the defendant in his individual capacity, it is presumed he is sued only in his official capacity.

Artis v. Francis Howell N. Band Booster Ass’n Inc., 161 F.3d 1178, 1182 (8th Cir. 1998). “Neither a cryptic hint in a plaintiffs complaint nor a statement made in response to a motion to dismiss is sufficient.” Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 620 (8th Cir.1995).

In this particular and specific case, appellant has not cited any Minnesota law that would directly address the amendment of the complaint permitting assertion of a claim against Brand in his personal capacity. Because we find the analysis in Artis persuasive and because it is doubtful the complaint clearly notified Brand that appellant was bringing an action against him personally, we conclude that the district court did not abuse its discretion by refusing to grant appellant’s motion to amend the complaint.

DECISION

Because appellant’s action under 42 U.S.C. § 1983 permissibly seeks to vindicate statutory rights existing independent of the arbitration process, the district court erred by affording collateral-estoppel effect to the arbitration award. Further, because the parties did not actually arbitrate appellant’s MHRA age-discrimination claim, collateral estoppel does not preclude appellant from commencing an action to enforce his rights under the MHRA. Finally, the district court did not abuse its discretion by refusing to allow appellant to amend the complaint to assert a personal cause of action against Brand.

Affirmed in part, reversed in part, and remanded.

      . For instance, ”[t]he record of the arbitration proceedings is not as complete; the usual rules of evidence do not apply; and rights and procedures common to civil trials, such as discovery, compulsory process, cross-examination, and testimony under oath, are often severely limited or unavailable.” McDonald v. City of West Branch, 466 U.S. 284, 291, 104 S.Ct. 1799, 1803-04, 80 L.Ed.2d 302 (1984) (quotation omitted).

      . Plaintiff claimed that the arbitrator’s decision to discontinue plaintiff's cross-examination of the alleged victim of his sexual abuse violated his due-process rights.

      . Wabasha County Chief Deputy Graff interviewed the three finalists with Chief Deputy Ganrude.


author: ROBERT H. SCHUMACHER, Judge.

text:
    STATE of Minnesota, Respondent, v. Paulla Ann McLELLAN, Appellant.
    No. C4-02-723.
    Court of Appeals of Minnesota.
    Jan. 17, 2003.

      Mike Hatch, Attorney General, St. Paul, MN; and Thomas N. Kelly, Wright County Attorney, Brian A. Lutes, Assistant Wright County Attorney, Buffalo, MN, for respondent.
    Jerry Strauss, Benjamin J. Colburn, Strauss Associates, Minneapolis, MN, for appellant.
    Considered and decided by SCHUMACHER, Presiding Judge, HALBROOKS, Judge, and HUDSON, Judge.
   OPINION

ROBERT H. SCHUMACHER, Judge.

Appellant Paulla Ann McLellan’s was convicted of four gross misdemeanor counts of driving while under the influence. The misdemeanor offenses were enhanced to gross misdemeanors pursuant to Minn. Stat. § 169A.03 (2000) because of the revocation of McLellan’s Minnesota driver’s license following her 1995 Wisconsin DWI conviction. McLellan appeals.

FACTS

McLellan was convicted of DWI in Wisconsin in 1995. McLellan pleaded guilty without appearance and without advice of counsel, as is allowed in Wisconsin. McLellan’s affidavit states that she was informed the offense “would be considered a civil fine and [the court] applied my bail money to the fine.” On January 4, 2002, McLellan was arrested in Wright County, Minnesota for DWI. McLellan was charged with two counts of second-degree DWI and two counts of third-degree DWI, all gross misdemeanors. The parties agreed to submit the matter to the district court on stipulated facts, pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The court found McLellan guilty on all counts and sentenced McLellan on one of the second-degree counts. The remaining counts were dismissed.

The state argued that the charges against McLellan could be enhanced to gross misdemeanors under Minn.Stat. § 169A.03, subd. 3(1) (2000), which provides that an “aggravating factor” includes “a qualified prior impaired driving incident within the ten years immediately preceding the current offense.” A “qualified pri- or impaired driving incident” includes a “prior impaired driving-related loss of license,” which is defined to include a driver’s license revocation. Minn.Stat. § 169A.03, subds. 21, 22. McLellan argued that the enhancement was, in effect, using the Wisconsin conviction to enhance the offense in violation of Minnesota case law prohibiting such action as a violation of due process. The district court concluded that the charges against McLellan could be enhanced to gross misdemeanors because her Minnesota driver’s license- had been revoked based on the Wisconsin conviction.

ISSUE

Does the enhancement of McLellan’s DWI offense based on the prior revocation of her Minnesota driver’s license following añ uncounseled Wisconsin guilty plea to DWI violate McLellan’s constitutional right to due process?

ANALYSIS

“Evaluating a statute’s constitutionality is a question of law.” Hamilton v. Commissioner of Pub. Safety, 600 N.W.2d 720, 722 (Minn.1999). Statutes are presumed constitutional, and the appellate courts’ power to declare a statute unconstitutional is to be utilized with extreme caution and only when necessary. In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989). The party claiming a statute to be unconstitutional has the burden of proving beyond a reasonable doubt that the statute at issue violates the constitution. Id. McLellan does not assert that Minn.Stat. § 169A.03 is unconstitutional on its face, but that the application of the statute to her case creates an unconstitutional result.

Minnesota case law holds that an uncounseled guilty plea for DWI cannot be used to enhance a subsequent DWI offense from a misdemeanor to a gross misdemeanor. State v. Nordstrom, 331 N.W.2d 901, 905 (Minn.1983); see State v. Friedrich, 436 N.W.2d 475, 478 (Minn.App.1989) (applying Nordstrom to uncounseled Wisconsin guilty plea). The state agrees but argues that this is not what occurred in McLellan’s case.

McLellan argues the district court has effectively violated' the Nordstrom/Fried-rich prohibition because the driver’s license revocation was due to the Wisconsin conviction, and McLellan’s Wisconsin conviction would not pass constitutional muster under Minnesota law. We disagree. Minn.Stat. § 169A.03, subd. 21(1) (2000), designates the revocation of a Minnesota driver’s license as a “prior impaired driving-related loss of license.” Standing unchallenged, this is a valid ground for enhancement.

The Commissioner of Public Safety is directed by statute to revoke a person’s Minnesota driver’s license following conviction for DWI in another state. See Minn.Stat. § 171.17 subd. 1(9) (2002). McLellan’s Minnesota driver’s license was revoked in 1995 following the Wisconsin conviction. McLellan did not petition for judicial review under the statute, and the revocation of her driver’s license therefore went unchallenged. See Minn.Stat. § 169A.53 (providing for judicial review of driver’s license revocation upon petition). The district court found that the charges against McLellan were enhanced because of the prior license revocation, not the Wisconsin conviction, and therefore the Nordstrom/Friedrich prohibition was not violated. We agree.

Accordingly, we conclude the revocation was valid, and the enhancement of the offense under the statute based on the revocation was proper. See State v. Dumas, 587 N.W.2d 299, 302 (Minn.App.1998) (holding that enhancement on basis of revocation because of uncounseled finding of violation of implied consent law does not violate due process), revieiu denied (Minn. Feb. 24, 1999).

DECISION

McLellan has not demonstrated, beyond a reasonable doubt, that Minn.Stat. § 169A.03 subd. 3(1) is unconstitutional as applied to her.

Affirmed.


author: KAPSNER, Justice. VANDE WALLE, Chief Justice,

text:
    2003 ND 6
    STATE of North Dakota, Plaintiff and Appellee, v. Justin T. HAMMEREN, Defendant and Appellant.
    No. 20020187.
    Supreme Court of North Dakota.
    Jan. 17, 2003.

      Brandi Sasse Russell, Assistant State’s Attorney, Bismarck, ND, for plaintiff and appellee.
    Michael R. Hoffman, Bismarck, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Justin T. Hammeren appealed from a criminal judgment entered following a jury verdict finding him guilty of delivery of a controlled substance. We conclude the trial court did not err in denying Hammeren’s motion for judgment of acquittal based on entrapment as a matter of law or in denying Hammeren’s requested jury instructions regarding contributing to the delinquency of a minor. We affirm.

I.

[¶ 2] On November 30, 2000, law enforcement officers received information from an adult confidential informant that Hammeren, age 16 at the time, was involved in drug-related activity. The confidential informant stated to law enforcement officers that he had purchased drugs from Hammeren in the past. Officers met with the confidential informant at his house where the confidential informant made two tape-recorded telephone calls to Hammeren to set up a meeting. Hammer-en agreed to let the confidential informant come over to Hammeren’s house to purchase drugs. A radio transmitter was placed on the confidential informant and he was given $300 to buy three grams of cocaine and an undetermined amount of lysergic acid diethylamide (LSD). The confidential informant rode with a deputy to Hammeren’s house. Once inside the house, Hammeren told the confidential informant he did not have any cocaine left but sold him fifteen “hits” of LSD for $150. A petition dated July 20, 2001, an amended petition dated September 5, 2001, and an amendment to petition dated September 17, 2001, were filed with the juvenile court alleging Hammeren was a delinquent child, who willfully committed the delinquent act of delivery of a controlled substance.

[¶ 3] Jurisdiction was transferred from juvenile court to the district court under N.D.C.C. § 27-20-34 and on September 28, 2001, Hammeren was charged by information with delivery of a controlled substance (LSD), in violation of N.D.C.C. §§ 19-03.1-23 and 19-03.1-05(5)(s).

. [¶ 4] Prior to trial, Hammeren requested jury instructions on entrapment and contributing to the delinquency of a minor. The trial court instructed the jury on the affirmative defense of entrapment, but denied Hammeren’s request to give the jury instructions regarding contributing to the delinquency of a minor. The State objected to the instruction on entrapment but has not cross-appealed the trial court’s decision to instruct the jury on that issue. A trial was held on May 2, 2002. After the State rested, Hammeren made a motion for judgment of acquittal under Rule 29, N.D.R.Crim.P. Hammeren requested the court to find entrapment as a matter of law due to the State’s violation of N.D.C.C. § 14-10-06, contributing to the delinquency of a minor. The court denied Hammer-en’s motion, and the jury found him guilty of delivery of a controlled substance.

II.

[¶ 5] Hammeren argues the trial court erred in denying his motion for judgment of acquittal because he was entrapped as a matter of law. Hammeren contends law enforcement officers violated the law by contributing to the delinquency of a minor since he was 16 years old at the time of the sale, and the officers’ actions constitute entrapment as a matter of law. Hammeren’s argument is confusing because it blends the issues of contributing to the delinquency of a minor and entrapment as a matter of law.

[¶ 6] Under Rule 29, N.D.R.Crim.P., a court can order the entry of judgment of acquittal of one or more offenses charged “if the evidence is insufficient to sustain a conviction of such offense or offenses.” Thus, “a motion for a judgment of acquittal is properly granted only if the evidence is insufficient to sustain a conviction of the offenses charged.” State v. Ohnstad, 359 N.W.2d 827, 834 (N.D. 1984). In deciding a motion for judgment of acquittal, “the trial court, upon reviewing the evidence most favorable to the prosecution, must deny the motion if there is substantial evidence upon which a reasonable mind could find guilt beyond a reasonable doubt.” State v. Steinbach, 1998 ND 18, ¶ 16, 575 N.W.2d 193. We will sustain a guilty verdict under our standard of review “if ‘upon reviewing the evidence in a light most favorable to the verdict, we determine that there is substantial evidence to support it.’ ” State v. Jones, 557 N.W.2d 375, 377 (N.D.1996) (quoting Ohnstad, 359 N.W.2d at 834).

[¶ 7] Hammeren argues he was entrapped as a matter of law; therefore the trial court erred in denying his motion for judgment of acquittal. The entrapment defense is set out in N.D.C.C. § 12.1-05-11(2):

A law enforcement agent perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, the law enforcement agent induces or encourages and, as a direct result, causes another person to engage in conduct constituting such a crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.

Entrapment is an affirmative defense. N.D.C.C. § 12.1-05-11(1). The defendant has the burden of proving, by a preponderance of evidence, an affirmative defense. N.D.C.C. § 12.1-01-03(3); City of Bismarck v. Nassif, 449 N.W.2d 789, 796 (N.D.1989). Whether a person has been entrapped “ ‘is almost invariably a question of fact, and a court can only find entrapment as a matter of law where the facts and their inferences supporting a finding of entrapment are undisputed.’ ” State v. Baumgartner, 2001 ND 202, ¶ 16, 637 N.W.2d 14 (quoting State v. Murchison, 541 N.W.2d 435, 441 (N.D.1995)).

[¶ 8] Hammeren argues he was entrapped as a matter of law under State v. Kummer, 481 N.W.2d 437 (N.D.1992). In Rummer, we concluded that entrapment as a matter of law was established when the undisputed facts of the case demonstrated the police used unlawful means to induce the crime. Id. at 438. The unlawful means used by law enforcement officers, in Rummer, consisted of furnishing cocaine obtained from the evidence room at the police department, without authorization, to an informant to sell to Kummer. Id. at 443. The focus in Rummer was on the outrageous police conduct used to induce the accused to commit a crime.

[¶ 9] The facts in this case are distinguishable from the facts in Rummer. The alleged entrapment in this case consisted of a confidential informant calling Ham-meren at his house, inviting the sale, and completing the purchase with funds supplied by the police. The confidential informant had purchased drugs from Hammer-en prior to this sale. Hammeren invited the confidential informant over to his house to complete the sale. Law enforcement officers did not provide the LSD to the confidential informant to complete the sale; Hammeren possessed the LSD that was sold to the confidential informant. There is nothing in the facts of this case to indicate law enforcement officers engaged in outrageous conduct.

[¶ 10] “Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.” N.D.C.C. § 12.1-05-11. Neither does “[t]he mere fact that an acquaintance persuaded [the defendant] to make the sale[,]” State v. Overby, 497 N.W.2d 408, 414 (N.D. 1993), nor does the hiring of an informant by law enforcement officers establish entrapment as a matter of law. See Murchison, at 441; State v. Nehring, 509 N.W.2d 42, 45 (N.D.1993).

[¶ 11] We conclude the facts of this case do not establish entrapment as a matter of law. There is substantial evidence in the record to support the guilty verdict; thus the trial court did not err in denying Hammeren’s motion for judgment of acquittal.

III.

[¶ 12] Hammeren also argues the trial court should have instructed the jury on the offense of contributing to the delinquency of a minor. The jury instructions requested by Hammeren included: (1) an instruction on the defense of police misconduct and contributing to the delinquency of a minor; (2) the burden of proof for contributing to the delinquency of a minor; and (3) an instruction adding an element to the offense charged which would require the State to disprove that law enforcement officers contributed to the delinquency of a minor.

[¶ 13] “This Court reviews jury instructions as a whole, and determines ‘whether they correctly and adequately inform the jury of the applicable law, even though part of the instructions when standing alone may be insufficient or erroneous.’ ” State v. Schumaier, 1999 ND 239, ¶ 9, 603 N.W.2d 882 (quoting State v. Wilson, 1999 ND 34, ¶ 11, 590 N.W.2d 202). “It is well settled that if the instructions to the jury, when considered in their entirety, correctly advise the jury as to the applicable law, there is no error even though the trial court refused to submit a requested instruction which itself was a correct statement of the law.” State v. Ferguson, 391 N.W.2d 172, 176 (N.D. 1986).

[¶ 14] Hammeren contends that because he was 16 years old at the time of the sale, law enforcement officers violated the law when they “acted to willfully encourage, cause, or contribute to the delivery of controlled substances by a minor.” Section 14-10-06(1), N.D.C.C., provides: “[a]ny person who by any act willfully encourages, causes, or contributes to the delinquency or deprivation of any minor is guilty of a class A misdemeanor.”

[¶ 15] Hammeren’s argument asserts that § 14-10-06, N.D.C.C., establishes a policy which would prohibit police from using law enforcement tactics commonly used against adult offenders, such as having a confidential informant make a controlled purchase, when the target of the investigation is a minor. This argument is countermanded by the legislature’s enactment of N.D.C.C. § 27-20-34. Section 27-20-34, N.D.C.C., acknowledges that minors will be engaged in drug-related activity and declares those minors should be prosecuted as adults if certain circumstances exist. Section 27-20-34(l)(b), N.D.C.C., in part, provides:

After a petition has been filed alleging delinquency based on conduct which is designated a crime or public offense under the laws, including local ordinances or resolutions of this state, the court before hearing the petition on its merits shall transfer the offense for prosecution to the appropriate court having jurisdiction of the offense if:
b. The child was fourteen years of age or more at the time of the alleged conduct and the court determines that there is probable cause to believe the child committed the alleged delinquent act and the delinquent act involves the offense of ... the manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance in violation of subdivision a or b of subsection 1 of section 19-03.1-23, except for the manufacture, delivery, or possession with intent to manufacture or deliver marijuana in an amount less than one pound [.45 kilograms][.]

A juvenile judge’s authority to transfer a minor from juvenile court to the district court implies that “society has acknowledged that certain actions taken by juveniles may signal an end to childhood.” In Interest of M.D.N, 493 N.W.2d 680, 683 (N.D.1992). “As a result, the allowances made for the juvenile’s lesser moral and social development will no longer be tolerated or accepted.” Id. Because § 27-20-34, N.D.C.C., was enacted to treat minors as adults for purposes of prosecution when they engage in certain types of criminal activity, it is logical to conclude law enforcement officers are entitled to investigate and prosecute minors engaged specifically in drug-related activity the same way they would an adult. We note in this case the police had information that Hammeren had sold to this confidential informant pri- or to the sale in this case. Thus, there is no indication law enforcement officers encouraged Hammeren to do something he had never done before. We conclude, under the facts of this case, the trial court did not err in refusing to give the jury the requested instructions concerning contributing to the delinquency of a minor.

VI.

[¶ 16] The trial court did not err in denying Hammeren’s motion for judgment of acquittal based on entrapment as a matter of law or in denying Hammeren’s requested jury instructions regarding contributing to the delinquency of a minor. We affirm the judgment of the trial court.

. [¶ 17]MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.

VANDE WALLE, Chief Justice,

concurring in the result.

[¶ 18] I believe Hammeren’s argument blending the issues of contributing to the delinquency of a minor and entrapment as a matter of law is the result of the majority opinion in State v. Kummer, 481 N.W.2d 487 (N.D.1992). I concurred specially in Kummer stating:

But rather than confuse what heretofore has been a clear judicial exposition of a clear legislative statute on the law of entrapment by attempting to tug and stretch the concept of entrapment so that it fits our view of the case, I believe we should confront the issue directly and declare that as a matter of public policy we will not sustain a conviction obtained by intolerable conduct on the part of law enforcement agents, notwithstanding the entrapment statute. That is a neater and more candid position for this court.

Kummer, at 445 (VandeWalle, J., concurring speciallyXfootnote omitted).

[¶ 19] I adhere to that rationale in this case. However, for the reasons stated by Justice Kapsner at ¶ 15 of the majority opinion, I agree the action on the part of law enforcement was not intolerable conduct in this instance.

[¶ 20] GERALD W. VANDE WALLE, C.J.

      . Because the State has not raised the issue, we have not examined whether on the facts of this case, Hammeren was entitled to an instruction on entrapment.

      . Other jurisdictions have approached a similar issue by concluding it is the role of the district attorney, not the trial court, to decide whether to charge the deputy with violating a criminal statute, such as contributing to the delinquency of a minor. See State v. Bonilla, 127 N.M. 566, 985 P.2d 168, 171 (1999); In People in Interest of M.N., 761 P.2d 1124, 1131 (Colo.1988).


author: MARING, Justice.

text:
    2003 ND 5
    Clara Ann M. ENGH, Plaintiff and Appellee, v. Timothy D. ENGH, Defendant and Appellant.
    No. 20020044.
    Supreme Court of North Dakota.
    Jan. 17, 2003.
    Rehearing Denied Feb. 19, 2003.

      Faron E. Terry, Terry Law Office, Minot, ND, for plaintiff and appellee.
    Steven James Simonson, Grand Forks, ND, for defendant and appellant.
   MARING, Justice.

[¶ 1] Timothy D. Engh has appealed an amended judgment granting Clara Ann M. Engh’s motion for a change in custody of the parties’ children. We reverse.

[¶ 2] The parties divorced September 1, 1998, and Clara was awarded custody of the parties’ four children. An amended judgment entered March 1, 1999, awarded Timothy custody of the parties’ children. On June 15, 2000, Clara moved for a change in custody, alleging willful and persistent denial or interference with visitation and danger to the children’s health. By letter of June 28, 2000, the court advised the parties “there are issues raised by [Clara] that require testimony and evidence.” A hearing was held and by letter of June 25, 2001, the district court advised the parties that Clara’s “motion for change of custody is denied” and advised that Timothy’s attorney, “should prepare the appropriate documentation consistent with the dictates of this memorandum dismissing the motion for change of custody.”

[¶ 3] On August 23, 2001, Clara moved “for a 1 hour hearing for the opportunity to present new evidence,” which was accompanied by her affidavit averring, among other things, that the man with whom she had been living “is no longer living in my home” and his “being in my home was the main reason that custody was left with Tim Engh.” By letter of August 29, 2001, the court advised the parties it ordinarily would deny Clara’s request, “but the case is still open and the final order denying her previous motion has not been entered,” and a hearing would be held on October 17, 2001. After the hearing, the court concluded “it is in the best interest of the children that they be returned to the Plaintiff, their mother.” On December 24, 2001, the judgment was amended to grant Clara’s motion for a change of custody, with the condition that Clara’s “former gentleman friend may at no time again reside with her and if he does, the Court will immediately remove the children.”

[¶ 4] Timothy appealed, contending the court improperly conducted an evidentiary hearing in October 2001 and erred in changing custody of the parties’ children.

[¶ 5] Under N.D.C.C. § 14-09-06.6(1), without a written agreement, a party generally may not move to modify a custody order within two years of an order establishing custody. This two-year limitation does not apply if the court finds:

a. The persistent and willful denial or interference with visitation;
b. The child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development; or
c. The primary physical care of the child has changed to the other parent for longer than six months.

N.D.C.C. § 14-09-06.6(3). The court shall “consider the motion on briefs and without oral argument or evidentiary hearing” and deny a motion to change custody within the two-year period “unless the court finds the moving party has established a prima facie case justifying a modification.” N.D.C.C. § 14-09-06.6(4). Section 14-09-06.6, N.D.C.C., further provides in part:

5. The court may not modify a prior custody order within the two-year period following the date of entry of an order establishing custody unless the court finds the modification is necessary to serve the best interest of the child and:
a.The persistent and willful denial or interference with visitation;
b. The child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development; or
c. The primary physical care of the child has changed to the other parent for longer than six months.
8. Upon a motion to modify custody under this section, the burden of proof is on the moving party.

[¶ 6] Timothy first argues the court improperly conducted an evidentiary hearing on October 17, 2001.

[¶ 7] Section 14-09-06.6, N.D.C.C., was enacted to provide something of a moratorium during the two-year period following a custody determination, to spare children the painful, disruptive, and destabilizing effects of repeated custody litigation. Wagaman v. Burke, 2002 ND 51, ¶ 5, 642 N.W.2d 178. Under N.D.C.C. § 14-09-06.6(4), a party moving for a change in custody within two years after entry of an order establishing custody may get an evidentiary hearing only if the trial court first determines the moving party has established a prima facie case justifying a modification by showing willful interference with visitation, danger to the child’s health, or a change in primary physical care of the child to the other parent for longer than six months. Clara’s original affidavit specifically alleged willful denial and interference with visitation, domestic violence and endangerment to the emotional and physical health of the children. We hold the trial court did not err in concluding a prima facie case had been established warranting an evidentiary hearing. When Clara requested an additional evidentiary hearing, the trial court’s decision on the motion was not yet final. We hold the trial court did not err in holding an additional hearing under these circumstances.

[¶ 8] The trial court, however, in its decision to grant Clara’s motion to change custody made no findings that Timothy had willfully and persistently denied Clara visitation or that Timothy had endangered the children’s physical or emotional health or impaired their emotional development. Under N.D.C.C. § 14-09-06.6(5) a court may not modify a prior custody order within two years of the date of such order unless the court makes a finding of either persistent and willful denial or interference with visitation or that the child’s environment may endanger the health of the child or impair the child’s emotional development.

[¶ 9] The amended judgment granting Clara’s motion for. change in custody is reversed.

[¶ 10] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE Y. SANDSTROM, and CAROL RON-NING KAPSNER, JJ„ concur.'

      . Timothy is represented on appeal by another attorney.

      . The trial court's use of letter memoranda to decide motions and to grant and notice hearings is not preferable to drafting a properly captioned document and should be avoided.

      .In its letter of June 25, 2001, the district court said: "The gentleman that Ms. Engh ■ lives with ... is the father of her youngest child.”


author: /s/ Paul H. Anderson Associáte Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Michael Lee MARTINEZ, an Attorney at Law of the State of Minnesota.
    No. C3-00-451.
    Supreme Court of Minnesota.
    Jan. 21, 2003.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action and a supplementary petition for disciplinary action alleging that respondent Michael Lee Martinez has committed professional misconduct warranting public discipline, namely, respondent failed to adequately communicate with clients, failed to diligently pursue several client matters, faded to return client files, failed to cooperate with the Director’s Office in its investigation of client complaints, and failed to provide evidence of compliance with this court’s prior disciplinary order suspending respondent. See In re Martinez, 615 N.W.2d 272 (Minn.2000). The Director alleged in the petitions that respondent’s misconduct violated Minn. R. Prof. Conduct 1.3, 1.4, 1.16(d), 3.2, 4.1, 8.1(a)(3) and 8.4(c), and Rule 25, Rules on Lawyers Professional Responsibility (RLPR).

The parties have entered into a stipulation in which respondent waives his rights under Rule 14, RLPR, and admits the misconduct. The parties jointly recommend that the appropriate discipline is indefinite suspension with no right to apply for reinstatement for four months. The parties further recommend that: (1) respondent be required to petition for reinstatement under Rule 18(a)-(d), RLPR; (2) respondent be required to demonstrate that he is psychologically fit to practice law in any reinstatement proceeding; (3) respondent successfully complete the professional responsibility bar examination within one year of this court’s order, (4) respondent comply with Rule 26, RLPR, and (5) respondent pay $900 in costs and $135 in disbursements under Rule 24, RLPR.

The parties also recommend that upon reinstatement respondent be placed on supervised probation for two years subject to the following conditions:

a. Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
b. Respondent shall abide by the Minnesota Rules of Professional Conduct.
c. Respondent shall be supervised by a licensed Minnesota attorney, appointed by the Director to monitor compliance with the terms of this probation. At the time he is reinstated, respondent shall provide to the Director the names of four attorneys who have agreed to be nominated as respondent’s supervisor. If, after diligent search, respondent is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Until a supervisor has signed a consent to supervise, the respondent shall on the first day of each month provide the Director with an inventory of active client files described in paragraph d. below. Respondent shall make active client files available to the Director upon request.
d. Respondent shall cooperate fully with the supervisor in his/her efforts to monitor compliance with this probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall submit to the supervisor an inventory of all active client files by
the first day of each month during the probation. With respect to each active file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
e. At the time of his being reinstated to the practice of law, respondent shall provide to the Director and to the probation supervisor, if any, a written plan outlining office procedures designed to ensure that respondent is in compliance with probation requirements. Respondent shall provide progress reports as requested.
f. Respondent shall initiate or continue current treatment by a licensed consulting psychologist or other mental health professional acceptable to the Director, and shall complete all therapy programs recommended by the therapist.
g. Respondent shall timely file all required employer withholding returns and timely pay the taxes due thereon. Respondent shall affirmatively report to the Director, on or before the due date of the required returns, his compliance with filing and payment requirements. Such reports shall include copies of the required returns. On or before the filing deadline, respondent shall provide the Director with copies of all applications for filing extension and proof of approval of such applications. Respondent shall provide all of the documents and information required herein without specific reminder or request.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Michael Lee Martinez is indefinitely suspended from the practice of law with no right to apply for reinstatement for four months and subject to the agreed-upon conditions set forth above. Upon reinstatement, respondent shall be placed on supervised probation subject to the agreed-upon conditions of probation set forth above. Respondent shall pay $900 in costs and $135 in disbursements under Rule 24, RLPR.

BY THE COURT:

/s/ Paul H. Anderson Associáte Justice


author: Sam Hanson Associate Justice

text:
    Jayne TOURVILLE, Respondent, v. HEALTHEAST CORPORATE SERVICES, Self-Insured, and BRAC, f/k/a Berkley Risk Administrators Company, Relators, and St. Paul Radiology/Minnesota Open MRI, Intervenor.
    No. C1-02-1800.
    Supreme Court of Minnesota.
    Jan. 23, 2003.
    Edward Q. Cassidy, Timothy J. Pramas, Felhaber, Larson, Fenlon & Vogt, P.A., St. Paul, for HealthEast Corporate Services, Appellant.
    Katherine A. Brown Holmen, Dudley & Smith, P.A., St. Paul, for Jayne Tourville, Respondent.
   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 September 30, 2002, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01.

Employee is awarded $600 in attorney fees.

BY THE COURT:

Sam Hanson Associate Justice


author: James H. Gilbert Associate Justice

text:
    Timothy L. ROBERTS, Relator, v. UNIVERSITY OF MINNESOTA HOSPITAL AND CLINIC, Self-Insured/ Crawford & Company, Respondents, and Hartford Insurance Company, Medica/Healthcare Recoveries, Inc., Intervenors.
    No. C6-02-1694.
    Supreme Court of Minnesota.
    Jan. 23, 2003.

      Dooley & Reichert, P.L.C., Theodore D. Dooley, Minneapolis, for Relator.
    Mahoney, Dougherty <& Mahoney, P.A., Patrick E. Mahoney, Minneapolis, for Respondents.
    Susanna L. Woolsey, Healthcare Recoveries, Inc., Louisville, KY, for Intervenors (Healthcare Recoveries, Inc.).
    David E-. Rollwagen, Eden Prairie, for Intervenors (Hartford Insurance Company).
   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 August 28, 2002, be, and the same is, affirmed without opinion. See Minn. R. CivApp. P. 136.01.

BY THE COURT:

James H. Gilbert Associate Justice

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


author: Helen M. Meyer Associate Justice

text:
    David T. RAUEN, Relator, v. PARK NICOLLET MEDICAL CENTER, Self-Insured, Administered by Berkley Risk Administrators, Respondent.
    No. C3-02-1779.
    Supreme Court of Minnesota.
    Jan. 24, 2003.
    Gerald Keating, Keating and Associates, Minneapolis, for relator.
    Edward Q. Cassidy, Timothy J. Pramas, Felhaber, Larson,' Felon & Vogt, P.A., St. Paul, for respondent.
   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 September 16, 2002, be, and the same is, affirmed without opinion. See Minn. R. CivApp. P. 136.01.

BY THE COURT:

Helen M. Meyer Associate Justice