author: KONENKAMP, Justice.

text:
    2003 SD 108
    Thomas J. YARCHESKI, Plaintiff and Appellant, v. Kevin REINER, Celia Miner, and Johnson, Heidepreim, Miner, Marlow & Janklow, LLP, Defendants and Appellees.
    No. 22617.
    Supreme Court of South Dakota.
    Considered on Briefs April 24, 2003.
    Decided Sept. 3, 2003.
    Rehearing Denied Oct. 21, 2003.

      Thomas J. Yareheski, pro se, Naples, Maine, for plaintiff and appellant.
    Thomas J. Welk of Boyce, Greenfield, Pashby & Welk, Sioux Falls, South Dakota, Attorneys for defendants and appellees.
   KONENKAMP, Justice.

[¶ 1.] Following his unsuccessful challenge to the procedure by which his university tenure-track contract was not renewed, plaintiff appealed in circuit court. His appeal was dismissed, however, when his attorneys submitted an untimely brief. He then brought a legal malpractice suit against his attorneys. In granting summary judgment for the attorneys, the circuit court ruled that plaintiff would not have prevailed in his administrative appeal even if his brief had been timely filed. An essential element in appellate legal malpractice is proof that the client would have prevailed but for the error of counsel. Because we agree with the circuit court that the appeal would not have been successful had it been properly pursued, we affirm.

I.

[¶ 2.] Plaintiff, Thomas J. Yareheski, Ph.D., was a first-year tenure track faculty member employed at the University of South Dakota during the 1991-92 school year. He served as an Associate Professor, teaching Health Services Administration at the School of Business. Early in his first semester, several students came to Associate Dean Robert W. Reinke with complaints about YarchesM’s teaching. These ranged from criticism of his arrogance in the classroom to dissatisfaction with his disorganized teaching style. Yareheski later acknowledged that his teaching style differed from what many students expected. It was his object to pursue greater academic standards than those sought by his colleagues on the faculty. To this end, he required more student interaction, avoided lecturing directly from the text, and chose not to design his lectures simply to provide an outline of material.

[¶ 3.] As a result of the complaints, Reinke and the Director of the Department of Health Services Administration, Professor Michael J. Myers, met with Yarcheski informally several times to make suggestions on how he might improve the organization and presentation of his course material. Yarcheski was not altogether responsive to these suggestions. For instance, he reacted inappropriately to the suggestion that he refer to the textbook during his lectures. He returned to his class and read the text to the students — “If you want to be involved with the text, I’ll get you involved in the text.”

[¶ 4.] Reinke and Myers also suggested to Yarcheski that they attend his classes and that a student committee be created to expedite student feedback. Yarcheski declined both suggestions. He said that their attending his classes would undermine his credibility. He told them, “I [want to] solve the problem myself.” As to the student committee idea, Yarcheski thought that it would violate his academic freedom. Although they had the authority to override his requests, Myers and Reinke acquiesced. “Hang in there,” Yarcheski told them, “I’ll turn this around; I’ve been down this road before.”

[¶ 5.] As an alternative, Yarcheski suggested that in addition to the student evaluation forms used by the university that “Harvard” evaluation forms be distributed. Harvard evaluations are open-ended invitations to students to evaluate their learning experience. After reviewing the Harvard evaluations completed at the end of the fall semester, Myers sent Yarcheski a memorandum dated January 20, 1992, outlining steps to be taken in the next nine days. The steps included attendance by Myers and Reinke in Yarcheski’s classes, their review of student research papers and examinations, a self-assessment and corrective action plan to be prepared by Yarcheski, and a redistribution of the Harvard evaluation forms. Myers explained the reason for these measures:

The issue of contract renewal, as you can appreciate, has arisen in the wake of the widespread student criticism of your teaching technique and presentation. That criticism was generally affirmed in the “Harvard” evaluations submitted by the students in your Long-Term Care and Systems courses, offset [by] a minority view that was favorable.

The memorandum explained that the university’s internal deadline for recommending contract renewal was January 31. These steps, Myers wrote, “will allow us to substantiate a rationale for contract renewal, or if we are unable to obtain a more favorable assessment, provide a fair and objective basis for nonrenewal.”

[¶ 6.] Parts of this plan were never completed. Yareheski gave Myers two grocery bags containing student work product, but Myers deemed this material irrelevant because it “would not permit a basis for meaningful comparative assessment of teaching performance.” Myers had previously seen copies of student papers with Yarcheski’s commentary and “markup,” and on at least one prior occasion, he reviewed a draft copy of one of Yarcheski’s exams. Both Reinke and Myers attended one of Yarcheski’s classes. Although neither reduced their findings to writing, they informed Yareheski directly of their observations. Myers told him on January 24 that his class presentation was “fairly rambling” and that it was not “a particularly well-taught class.” Reinke told him that the class he observed was “in general, poorly conducted.” Reinke also told Myers that he “was not satisfied with the style and the content of the class.” Myers passed this on to Yareheski. In response, Yareheski sent Reinke a memorandum documenting their communication on these observations.

[¶ 7.] In a letter dated January 31, 1992, Myers recommended to the Dean and Associate Dean that Yarcheski’s contract not be renewed. In turn, the Dean sent a memorandum to the Vice President of Academic Affairs:

Consistent with the guidelines set forth in the BOR/COHE Agreement Division II, Section 1.7, I am recommending that [Dr.] Thomas Yareheski, Health Services Administration, ... be notified that [he] will not be offered a faculty contract FY 93.
Dr. Yareheski began his work with us FY 92 on a tenure track contract and has been unable to provide the Health Services program with the level of teaching performance necessary to maintain HSAD’s quality reputation. After numerous meetings with related supervisors/administrators, classroom observations, and substantial student input, I am not convinced that Dr. Yarehe-ski is willing or perhaps able to change his teaching behavior enough to meet the standards of our program.

[¶ 8.] On February 20, 1992, Myers gave Yareheski his Professional Staff Evaluation, as required by the Agreement between the South Dakota Board of Regents and the Council of Higher Education (BOR/COHE). In this evaluation instrument, Myers rated Yareheski unsatisfactory in teaching. The accompanying comment stated, “[s]tudent evaluations indicated students did not learn relevant material. Indicated assignments were not helpful, and there was a lack of systematic presentations.” Yareheski was also rated unsatisfactory in research but excellent in service.

[¶ 9.] In a letter dated February 19, 1992, Yareheski was given written notice of his opportunity to meet with Myers on February 27,1992, before the issuance of a notice of nonrenewal. This meeting was held as scheduled. Finally, on February 29, 1992, University President Betty Turner Asher informed Yareheski by letter that his contract would not be renewed for the 1992-93 academic year. The letter explained, “[t]he reason for this action is inadequate teaching.”

[¶ 10.] Yarcheski filed three grievances. The first was before the notice of nonrenewal, requesting abrogation of the recommendations of nonrenewal and formal participation in the process of professional evaluation. The second was on the performance evaluation. The third was in response to his notice of nonrenewal. The grist of his complaints was that his nonre-newal resulted solely from student evaluations. As he would later explain, “the evaluation of teaching performance belongs to the professoriat; we have a duty to evaluate each other; I don’t believe it’s the duty of students to evaluate the profes-soriat.” The grievances were denied.

[¶ 11.] Yarcheski hired attorney Celia Miner of the Johnson, Heidepreim, Miner, Marlow & Janklow law firm. Kevin Rein-er, an associate in the firm, assisted her. They pursued an appeal to the South Dakota Board of Regents and the Department of Labor. Both ruled against Yarcheski, concluding that the proper non-renewal procedures were followed.

[¶ 12.] Yarcheski then directed his attorneys to appeal the Department of Labor’s decision to the circuit court. A Notice of Appeal was filed on March 10, 1994. Although Reiner left the law firm in 1994, he assisted in preparing an opening brief, which was submitted on April 13, 1995. On the motion of the South Dakota Board of Regents, the circuit court dismissed the appeal because the brief had not been timely filed. Yarcheski appealed to this Court, and we summarily affirmed.

[¶ 13.] Yarcheski then brought this legal malpractice action against Reiner, Miner, and their law firm. Following the withdrawal of his new attorney, Yarcheski decided to represent himself. Both sides moved for summary judgment. The circuit court ruled that Yarcheski would not have prevailed on his administrative appeal, and thus his legal malpractice claim was deficient as a matter of law. The court granted summary judgment to the defendant attorneys. On appeal to this Court, Yarcheski presents the following issues: (1) “Did [the defendant attorneys] commit legal malpractice when they missed a filing deadline in the Sixth Judicial Court in 1995 resulting in the [plaintiffs] case being dismissed.” (2) <cWould the plaintiff have prevailed, upon appeal, in his original grievance against the University of South Dakota?”

II.

[¶ 14.] Evaluating academic performance is a venture beyond our expertise and our jurisdiction. In reviewing decisions concerning academic performance, our role is limited to inspecting the contract and examining the administrative proceedings to learn whether the evidence supported the determination. SDCL 1-26-37. We examine a contract as a whole, giving meaning, if possible, to all its provisions. Enchanted World Doll Museum v. Buskohl, 398 N.W.2d 149, 151-52 (S.D.1986). Fundamental to maintaining academic excellence, faculty evaluations retain a singular importance in educational institutions. Universities have a vital interest in retaining and promoting only the best faculty members. Conversely, faculty members have an equally vital interest in receiving fair evaluations. See generally Ford v. Nicks, 741 F.2d 858, 864 (6thCir.1984); Lieberman v. Gant, 630 F.2d 60, 67 (2nd Cir.1980) (courts should not sit as “Super-Tenure Review Committees”).

[¶ 15.] In this case, the circuit court granted a summary judgment. Our standard for reviewing summary judgments has been recited in numerous cases and need not be repeated in detail here. See Kobbeman v. Oleson, 1998 SD 20, ¶ 4, 574 N.W.2d 633, 635. In accord with this standard, we view the facts in a light most favorable to Yarcheski as the opposing party. The burden remains on the defendant attorneys to prove the absence of any genuine issue of material fact and entitlement to judgment as a matter of law. State Dep’t of Revenue v. Thiewes, 448 N.W.2d 1, 2 (S.D.1989).

III.

[¶ 16.] This legal malpractice action originates from the failure to timely file a brief in Yarcheski’s appeal. Because the brief was filed late, the appeal was lost. However, that result, by itself, does not mean that Yarcheski wins his suit. To prevail in his legal malpractice action, Yarcheski must first prove the four basic elements of negligence: (1) an attorney-client relationship giving rise to a duty; (2) the attorneys, either by an act or a failure to act, violated or breached that duty; (3) the attorneys’ breach of duty proximately caused injury to the client; and (4) actual injury, loss, or damage. Keegan v. First Bank of Sioux Falls, 519 N.W.2d 607, 611 (S.D.1994) (citation omitted). On the element of proximate cause, Yarcheski must prove that the underlying claim was valid and would have resulted in a favorable and collectible judgment had it not been for the attorneys’ error. Haberer v. Rice, 511 N.W.2d 279, 284-85 (S.D.1994). Thus, Yarcheski must prove two distinct cases in a single proceeding.

[¶ 17.] As did the trial court, we probe one element necessary in an appellate legal malpractice claim, i.e., proof that the client would have prevailed in the appeal. That element behooves us to touch on an issue of first impression in South Dakota: is the question whether the appeal would have been successful a question for the court or the jury? Haberer addressed methods by which a legal malpractice claim can be submitted to a jury. Id. at 285. This ease is different, however, because the action giving rise to the malpractice claim was an administrative appeal. See SDCL Ch 1-26. Administrative appeals, like all appeals, are not decided by juries. SDCL 1-26-30.2 provides that “[a]n appeal shall be allowed in the circuit court to any party in a contested case from a final decision, ruling or action of an agency.” And “[t]he review shall be conducted by the court without a jury and shall be confined to the record.” SDCL 1-26-35.

[¶ 18.] In examining this question, the Supreme Court of Michigan ruled that whether an appeal would have succeeded if it had been properly pursued is an “issue for the court because the resolution of the underlying appeal originally would have rested on a decision of law.” Charles Reinhart Co. v. Winiemko, 444 Mich. 579, 513 N.W.2d 773, 777 (1994). The Reinhart court adopted the reasoning of the Texas Supreme Court in Millhouse v. Wiesenthal, 775 S.W.2d 626, 628 (Tex.1989):

The question of whether an appeal would have been successful depends on an analysis of the law and the procedural rules. [The plaintiffs] petition that the jury should make this determination as a question of fact would require the jury to sit as appellate judges, review the trial record and briefs, and decide whether the trial court committed reversible error. A judge is clearly in a better position to make this determination. Resolving legal issues on appeal is an area exclusively within the province of judges....

We find this rationale persuasive and conclude that in an appellate malpractice action the question whether the appeal would have been successful if it had been properly pursued is a legal matter to be resolved by the court.

IY.

[¶ 19.] Although his attorneys filed an untimely brief, Yarcheski does not contend that its content was deficient. Indeed, he makes essentially the same arguments in this appeal that his attorneys made for him in the aborted circuit court appeal. The essence of his claim is that the evaluation and nonrenewal processes are contractually sequenced so that the decision not to renew must follow only from an adequate written evaluation in compliance with the BOR/COHE agreement.

[¶20.] Division II, 2.1 of the BOR/ COHE contract, entitled “Performance Evaluation Guidelines,” provides that “all faculty unit members will be evaluated annually.” Yarcheski was a “faculty unit member” under Division I, 1.7. The performance evaluation must be in “written form,” as required by Division II, 2.1(2). Division II, 2.2(3) states: “Included in the evaluation must be comments about the faculty unit member’s performance in each of the areas of teaching, research and scholarship, and service.” Under Division II, 2.2(5), one of the purposes of the written evaluation is to allow the vice president or dean to review it and “make appropriate comments to the president about contract renewal....” In Division II, 2.3, the contract states that “Student opinion surveys will be used as part of the evaluation of faculty unit members, along with other procedures set forth in this article.” However, per Division II, 2.3(3), “Student opinion surveys will not be used as the controlling criterion for personnel actions.”

[¶ 21.] A written evaluation was given to Yarcheski by his immediate administrative supervisor on February 20, 1992. By the terms of Division II, 2.2, evaluations must be completed “[p]rior to the last day of February,” and under Division II, 1.7, notices of nonrenewal must be given before March 1. Obviously, February 19 is “prior to the last day of February,” thus it appears that the evaluation was completed in a timely manner. Although the evaluation was timely, Division II, 2.2(3) further states that “[observations may include, but do not require, classroom observations, unless there is good cause to suspect serious deficiencies in performance.” Yarcheski’s evaluation required classroom observation because the administration had suspected “serious deficiencies in performance.”

[¶ 22.] Yarcheski argues that his written evaluation was deficient in failing to state any criteria other than student evaluations. It simply states: “Teaching — Student evaluations indicated students did not learn relevant material, indicated assignments were not helpful, and there was a lack of systematic presentations. Rating — Unsatisfactory.” While student opinion surveys may not be the determinative factor in “personnel actions,” an evaluation itself is not a personnel action. According to Division I, VII, 7.1(4), a personnel action includes “discipline, contract renewal, salary and pay matters, tenure, and promotion.”

[¶ 23.] Despite Yarcheski’s objections to the form of his written evaluation, the record contains ample evidence that he was fully evaluated in his job performance through his many meetings with Myers and Reinke. Although the evaluation has no notations documenting classroom observation, both Myers and Reinke did in fact observe Yarcheski in class. Because the academic evaluation process is partly subjective and thus less susceptible to precise judicial review, courts have held that the nonrenewal process need not be perfect: substantial compliance is all that is required. As the North Dakota Supreme Court observed in Stensrud v. Mayville State College, 368 N.W.2d 519, 522 (N.D.1985), “Generally, substantial compliance with the procedural requirements for termination is sufficient if their purpose is fulfilled.” Likewise, in Piacitelli v. Southern Utah State College, 636 P.2d 1063, 1067 (Utah 1981), the Utah Supreme Court concluded:

While exact conformance with the precise terms of the termination procedures is doubtless the least controversial course, so long as the substantial interests those procedures are designed to safeguard are in fact satisfied and protected, failure to conform to every technical detail of the termination procedure is not actionable.

We apply the same standard in South Dakota. We will not override the university’s judgment when contract procedures were substantially complied with and the interests of the parties were satisfied. Beville v. University of South Dakota, 420 N.W.2d 9, 14 (S.D.1988). Consequently, assuming for the sake of argument that the form of the evaluation was a violation of the BOR/ COHE agreement, the evaluation procedures were nonetheless substantially fulfilled.

V.

[¶24.] We come now to the heart of this case. The controlling question here is not whether the annual performance evaluation was fully completed in accord with the BOR/COHE contract, but whether such written evaluation was a condition precedent to nonrenewal. Our answer must come from the contract. The rights and obligations of parties to a contract are determined solely by the contract language, which must be construed according to the plain meaning of its terms. Biegler v. American Family Mut. Ins. Co., 2001 SD 13, ¶ 20, 621 N.W.2d 592, 598-99. Contract interpretation is a question of law. State Farm Mut. Auto. Ins. Co. v. Vostad, 520 N.W.2d 273, 275 (S.D.1994).

[¶ 25.] In Division II, 1.7, entitled “Nonrenewal of Tenure Track Contracts,” the pertinent language states:

Prior to the issuance of a written notice of nonrenewal, the faculty unit member’s immediate supervisor will provide the opportunity for a meeting with the faculty unit member to apprise the faculty unit member of the proposed action. The faculty unit member will be given at least five (5) working days written notice of such meeting so that both the faculty unit member and the immediate supervisor may arrange to have present a witness or a representative.
In order to facilitate the relocation of faculty unit members who are not to be rehired, the administration agrees to provide notice of its intent not to rehire any faculty unit members serving under a tenure track contract. The notice will state the reasons for the decision and will be given in accordance with the following schedule:
1. A faculty unit member who has completed less than one (1) academic year of service under a tenure track contract shall receive written notice of nonrenewal from the institution before March 1 of the current year of appointment.

(Emphasis added.) The remaining, unquoted portions of this section provide for graduated protections to tenure track faculty members as their terms of service increase beyond one year. Yarcheski was a faculty unit member who had completed less than one academic year of service. No part of Division II, 1.7 mandates an evaluation before a nonrenewal decision. Nontenured faculty members are essentially year-to-year employees. The process for nonrenewal of such employees only requires (1) an opportunity to meet, on five day’s notice, with the tenure track faculty member’s immediate supervisor to be apprised of the proposed action, and (2) written notice stating the reasons for non-renewal.

[¶ 26.] On February 19, 1992, before the issuance of a notice of nonrenewal, Yarcheski’s supervisor, Myers, advised him of the proposed action and provided a meeting date of February 27, 1992. In accord with the requirement in Division II, 1.7(1) that notice be given before March 1 of the current year of appointment, Yarcheski had written notice of nonrenewal from the university on February 29, 1992. As required by the contract, the written notice further declared the reason for nonrenewal as “inadequate teaching.” Thus, the university complied with Division II, 1.7.

[¶ 27.] Division I, 7.1(4), entitled “Evaluation — General Provisions,” states that “[t]he purpose of the evaluation will be to: ... [p]rovide basic information for personnel decisions such as discipline, contract renewal, salary and pay matters, tenure, and promotion.” (Emphasis added.) Further, Division II, 2.2(5) states: “The vice president/dean will review the completed evaluation and make appropriate comments to the president about contract renewal, ...” Yarcheski contends that because one purpose of the evaluation is to provide information on contract renewal decisions, a properly completed faculty evaluation is a condition precedent to a valid nonrenewal decision.

[¶ 28.] Certainly, these provisions contemplate that the information in the evaluation will be used to make contract renewal decisions. But nothing in the evaluation and nonrenewal provisions indicates that the evaluation is the exclusive source of information for personnel decisions. Nor does any provision suggest that a written evaluation form in full compliance with the BOR/COHE contract is a prerequisite to a decision to nonrenew. In fact, the caption for Division I, 7.1 cross-references Division II, Article II and Division III, Article II, but does not cross-reference Division II, Article I containing the nonrenewal sections. We find no provision of the BOR/COHE contract that supports Yarcheski’s premise that the criteria used in the decision not to renew must be set out in the performance evaluation as a prerequisite to a valid nonrenewal decision. Courts will not impose requirements in a contract that the parties themselves failed to include. Raben v. Schlottman, 77 S.D. 184, 190, 88 N.W.2d 205, 208 (1958). The ALJ and the circuit court were correct in finding that compliance with Division II, 2.1 through 2.3 is not a prerequisite to the nonrenewal procedure set forth in Division II, 1.7 of the BOR/ COHE contract.

VI.

[¶ 29.] YarchesM’s final assertion is that the university violated his academic freedom. As stated in Division I, 10.1 of the BOR/COHE contract, “subject to accepted standards of professional responsibility,” academic freedom “is intended to guarantee those rights which are recognized as flowing from the First Amendment to the United States Constitution.” The contract defines academic freedom to include “the right to study, discuss, investigate, teach and publish.” More particularly, this section explains: “Faculty unit members are entitled to freedom in the discussion and presentation of their subject and are privileged to introduce various scholarly views.”

[¶ 30.] Yareheski believes that overreliance on student surveys infringed on his academic freedom. In his words,

The issue of academic freedom in this case involves students judging members of the academy. It involves students controlling the. destiny of faculty through their opinions and opinion surveys .... The administrators at the University of South Dakota, particularly at the School of Business, exercised no significant judgment with respect to the opinions of students concerning the teaching of faculty.

It is true that his written evaluation mentioned only student surveys. Nonetheless, after their personal observations of his classes, both Reinke and Myers concluded that his performance was unsatisfactory. Moreover, the action plan and the many conferences that they had with Yareheski to improve his teaching cannot be understood as anything less than an expression by his superiors of serious concern with his teaching abilities.

[¶ 31.] In concluding that Yarcheski’s “academic freedom was not infringed,” the ALJ found that Myers and Reinke made no attempt to “foist upon Yareheski certain methods of teaching or course content.” Aside from whether this finding correctly frames the scope and measure of academic freedom as between professors and administrators, we can only note that Yareheski cites no case authority to support his argument. We readily acknowledge, nonetheless, that academic freedom generally assures to educators freedom in their First Amendment pursuits from interference not only by administrators and other faculty, but by students as well. In any event, the circuit court ruled that “[a]fter a full review of the facts in this case, this court cannot find any evidence that either Yarcheski’s supervisor or the associate dean infringed on his academic freedom in any manner.”

[¶ 32.] University faculty members may establish an infringement of academic freedom if the decision not to rehire them was made because of their exercise of constitutionally protected First Amendment freedoms. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-84, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Pickering v. Bd. of Educ., 391 U.S. 563, 574, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Untenured employees enjoy the same freedoms. See Perry v. Sindermann, 408 U.S. 593, 597-98, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). On the other hand, universities have an interest as employers “in promoting the efficiency of the public services” they perform through their faculty members. Pickering, 391 U.S. at 568, 88 S.Ct. at 1734-35, 20 L.Ed.2d at 817. Under the aegis of academic freedom, a university may “determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” Sweezy v. New Hampshire, 354 U.S. 234, 263, 77 S.Ct. 1203, 1218, 1 L.Ed.2d 1311 (1957) (Frankfurter, J., concurring in result).

[¶ 33.] Education officials may decline to renew a contract for academic reasons unrelated to academic freedom, such as inadequacy in teaching or failure to obey legitimate administrative directives. See Adams v. Campbell County School Dist., 511 F.2d 1242 (10th Cir. 1975); Ahern v. Bd. of Educ. of School Dist. of Grand Island, 456 F.2d 399 (8th Cir.1972); Chung v. Park, 514 F.2d 382 (3d Cir.), cert. denied, 423 U.S. 948, 96 S.Ct. 364, 46 L.Ed.2d 282 (1975). In fact, a university may lawfully choose not to renew the contract of a nontenured professor whose pedagogical attitude and teaching methods fail to conform to institutional standards. Hetrick v. Martin, 480 F.2d 705, 708 (6th Cir.), cert. denied, 414 U.S. 1075, 94 S.Ct. 592, 38 L.Ed.2d 482 (1973). Hetrick dealt with the administration’s dissatisfaction over a nontenured professor’s teaching methods and ability. There, the Sixth Circuit Court of Appeals found that no First Amendment interests were implicated when a university decided not to renew the contract of a nontenured professor because of her teaching style and methods. Id. Numerous students had complained about “their inability to comprehend what she was attempting to teach them or what was expected of them.” Id. at 706. The First Amendment guarantee of academic freedom does not require a university to tolerate any manner of teaching method a professor may choose to employ. Id. at 707.

[¶ 34.] Yarcheski never explains how his inadequate teaching style, as evaluated by the university as well as many of his students, fits under the protection of academic freedom. Nor does he submit any legal justification to prohibit student input on faculty performance. To maintain academic excellence, institutions of higher learning must ensure that their students have the benefit of the best education. The university’s choice in using student surveys as part of its effort to fulfill that goal is not an infringement of academic freedom. Surely, educational institutions have the right to expect that their teachers will be able to teach.

[¶ 35.] For the foregoing reasons, we conclude that Yarcheski would not have prevailed in the appeal from his grievance against the University of South Dakota; therefore, his claim for legal malpractice fails for lack of proof of an essential element.

[¶ 36.] Affirmed.

[¶ 37.] GILBERTSON, Chief Justice, and SAJBERS and MEIERHENRY, Justices, and MILLER, Retired Justice, sitting by Order of the Court, concur.

[¶ 38.] MILLER, Retired Justice, sitting for ZINTER, Justice, disqualified.

      . His previous position was Associate Professor and Program Director at St. Joseph’s College in Maine. Although Yarcheski quotes the President of St. Joseph’s in rating his teaching performance as "masterful,” his contract there was also not renewed because of his teaching performance. He filed a grievance claiming that the college did not follow proper procedures for nonrenewal. His grievance was unsuccessful, as was his subsequent lawsuit.

      . In the fall semester, Reinke explained to Yarcheski that the assessment "criteria we use is thoroughly described in the faculty handbook under teaching, research, and service.” The handbook categorizes performance as excellent, satisfactory, or unsatisfactory, and provides descriptions. Reinke and Myers told Yarcheski that their assessment of his performance was directly related to "the competencies described in the faculty handbook in regards to teaching.”

      . When later questioned in the grievance hearing, Reinke said that he thought Yarche-ski was warm and caring with the students as individuals, but his deficiencies were in the classroom. According to Reinke, Yareheski "would be an excellent graduate-level instructor,” having a "great mind,” but he was not "communicating well,” was not "instructing his undergraduate students well.”

      . Although Yarcheski wanted to proceed with this appeal, he had not been paying the law firm’s bills. Instead, he declared bankruptcy. Nonetheless, his attorneys continued to represent him in the circuit court appeal.

      . In an action for appellate legal malpractice the plaintiff must prove two aspects of causation: whether the attorney’s negligence caused the loss or unfavorable result of the appeal, and whether the loss or unfavorable result of the appeal in turn caused a loss or unfavorable result in the underlying litigation. 2 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 24.39, (3dEd 1989).

      . Myers later testified that on hindsight he "would have made it clear [in the written evaluation] that the conclusion with regard to his teaching performance was strongly influenced by, but not controlled by, student evaluation.”


source: Caselaw Access Project

author: STREIT, Justice.

license: Public Domain

text:
    NASH FINCH COMPANY, Plaintiff, v. COREY DEVELOPMENT, LTD. and Crystal/Taft L.L.C., Defendants.
    No. 02-1387.
    Supreme Court of Iowa.
    Sept. 4, 2003.
    Mark A. Roberts and Lynn Wickham Hartman of Simmons, Perrine, Albright & Ellwood, P.L.C., Cedar Rapids, for plaintiff.
    M. Wayne Oltrogge of Oltrogge Law Office, P.C., Clear Lake, for defendants.
   STREIT, Justice.

The United States District Court for the Southern District of Iowa has certified one question of law to be answered by this court as provided in Iowa Code sections 684A.1 and 684A.3 (2001) and Iowa Rule of Appellate Procedure 6.451. The federal court stated this question involves the application of Iowa law in a pending federal action in which the claimant asserts a right to seek a deficiency judgment after filing a deed in lieu of foreclosure pursuant to a forbearance agreement. The certified question is as follows:

Under the specific facts of this case, should a creditor be permitted to take a deed in lieu of foreclosure pursuant to a forbearance agreement, file the deed upon a breach of the agreement, and then pursue a deficiency judgment between the total debt and the value of the foreclosed property?

In answering the question submitted, we conclude as a matter of law a mortgagee/creditor may seek further remedy against the defaulting debtor after filing a deed in lieu of foreclosure in partial satisfaction of a debt. However, under the limited facts and circumstances of this case on partial summary judgment, we are unable to determine the extent of the satisfaction to be derived from the filing of the deed. This issue will have to be determined by a trial court.

I. Background and Facts

Corey Development, Ltd. executed an $875,000 promissory note payment to Nash Finch in 1997. The note was secured by a mortgage. Under the terms of the note, Corey agreed not to convey the mortgaged property without the prior written consent of Nash Finch. Corey later transferred the mortgaged property to Crystal/Taft L.L.C. without Nash Finch’s prior consent. Corey defaulted on its payments under the note. Corey, Crystal/Taft, and Nash Finch entered into a “forbearance agreement.” Nash Finch agreed to refrain from exercising its rights under the note until September 30, 2000, in exchange for a deed in lieu of foreclosure “in partial satisfaction of the note.” The parties agreed if Corey did not pay the note in full by September 30, Nash Finch could file the deed in lieu of foreclosure and take other action as set forth in the parties’ agreement. If Corey paid the note in full prior to the end of the forbearance period, Nash Finch would return the deed in lieu of foreclosure to Corey.

September 30 passed and Corey did not make payment in full. Nash Finch immediately filed the warranty deed. At the time, Nash Finch obtained an appraisal of the property of $529,000. The amount due on the note was over $800,000. Nash Finch filed suit in federal court against Corey and Crystal/Taft for nonpayment under the forbearance agreement and for Corey’s actions that resulted in the diminished value of the property. Nash Finch sought partial summary judgment on its claim for nonpayment under the forbearance agreement. The defendants resisted, arguing when Nash Finch filed the warranty deed it elected to proceed with alternative nonjudicial voluntary foreclosure under Iowa Code section 654.18 (1999) and, under the terms of the statute, Nash Finch waived any right to a deficiency.

The judge rejected the defendants’ argument and concluded this was not a nonjudicial voluntary foreclosure subject to section 654.18. The judge then examined Iowa law to determine when a conveyance of a deed is an actual conveyance of title and when it is only additional security for payment of a debt. The judge concluded the deed in lieu of foreclosure in this case was intended as further security for the payment of Corey’s note and should be treated as an equitable mortgage.

The federal judge next addressed whether, under the circumstances of this case, the parties should be allowed “to contract around existing Iowa case law and the statutory framework for real estate foreclosures,” such that Nash Finch could file the deed in lieu of foreclosure, obtain clear title to the property, and pursue a deficiency judgment against Corey. The judge observed that, “[a]s a matter of equity, it would appear that a creditor should not, under the framework of Iowa law, be able to take a deed in lieu of foreclosure and proceed to enforce a deficiency judgment.” However, the judge also noted the creditor in this case, Nash Finch, had done “more than simply take a deed in lieu from the debtor, file it, and sue for a deficiency.” Nash Finch agreed to refrain from exercising its rights under the note for at least six months in exchange for the right to file the deed in lieu and specifically retained its other rights under the note. The judge suggested that by giving Corey a “redemption period” in advance of filing the deed in lieu, Nash Finch had satisfied the concerns of equity, particularly because Corey had no equity in the property.

The judge ultimately concluded it was appropriate to certify the following question to this court:

Under the specific facts of this case, should a creditor be permitted to take a deed in lieu of foreclosure pursuant to a forbearance agreement, file the deed upon a breach of the agreement, and then pursue a deficiency judgment between the total debt and the value of the foreclosed property?

Nash Finch argues it is legally entitled to pursue a deficiency judgment under the terms of the parties’ forbearance agreement. Corey argues we should hold those portions of the forbearance agreement that purport to allow Nash Finch to recover a deficiency judgment after accepting the deed in lieu of foreclosure as unenforceable under Iowa law.

II. Terms of the Note and Forbearance Agreement

The note provided “the entire remaining principal balance plus accrued interest shall become due and payable in full upon the occurrence” of a default. Corey defaulted on its payment obligations under the note. Rather than enforce its rights under the note, Nash Finch entered into a forbearance agreement with Corey. Nash Finch agreed to forbear from exercising its rights under the note until September 30, 2000, in exchange for a deed in lieu of foreclosure “in ’partial satisfaction of the Note.” (Emphasis added.) The forbearance agreement provided:

[Corey] has requested that Nash Finch forbear for a period of time from the exercise of rights under the note and mortgage. Nash Finch, acting in good faith, has agreed to forbear in exchange for the issuance of a deed in lieu of foreclosure in partial satisfaction of the note.... Nash Finch reserves its rights under the note and/or mortgage in the event any of the terms and conditions of this agreement are not fully satisfied.

(Emphasis added.) Pursuant to the terms of the forbearance agreement, Corey and Crystal/Taft gave Nash Finch a warranty deed to the property which Nash Finch agreed to hold and refrain from filing until the end of the forbearance period. When Corey had not paid its debt on the note by September 30, Nash Finch filed the deed in lieu of foreclosure as provided by the forbearance agreement. The real issue before us is whether Corey’s debt on the underlying note was completely extinguished or rather only partially satisfied when Nash Finch filed the deed in lieu of foreclosure.

III. Analysis

Corey does not dispute the conclusion it defaulted under the note. At the time of Corey’s later default on the forbearance agreement, Corey argued Nash Finch had only two options for remedy: (1) foreclose under chapter 654 or (2) file the deed in lieu of foreclosure under section 654.18. Corey argued Nash Finch, by filing the deed in lieu, elected to proceed under section 654.18 and thereby waived its right to a deficiency. See Iowa Code § 654.18(1)(6). The judge disagreed with Corey and concluded in filing the deed in lieu, Nash Finch had not effectively pursued alternative nonjudicial voluntary foreclosure under section 654.18. Consistent with the judge’s conclusion, we will not analyze this certified question under the procedures outlined in section 654.18. Similarly, because Nash Finch has not proceeded with a judicial foreclosure, chapter 654 generally does not apply to this case. The parties’ agreement alone controls the outcome.

Parties may agree, either explicitly or implicitly, to substitute a new agreement discharging original obligations. See generally James L. Buchwalter, Annotation, Conveyance or Surrender of Property as an Accord and Satisfaction of Contract Obligation, 59 A.L.R.5th 665 (1998). The intention of the parties controls whether the underlying obligation is forgiven upon the execution of the parties’ new agreement. Id. at 675. Words in the new agreement may indicate the parties’ intention that the obligation existing under the original contract is forgiven. The “intent of the parties is ordinarily a question of fact, but may be decided as a question of law if the evidence on intent is not in conflict.” Id. at 680 (citing Rosenberg v. Lincoln Fed. Sav. & Loan Ass’n, 219 Neb. 689, 365 N.W.2d 809, 811 (1985)). We now turn to the language of the forbearance agreement to determine whether Corey’s debt under the note was extinguished upon Nash Finch’s filing of the deed in lieu of foreclosure.

The clear and unambiguous language of the forbearance agreement indicates Nash Finch did not exhaust its remedies for default in filing the deed in lieu of foreclosure. The agreement was clear it was intended only as “partial satisfaction of the note.” (Emphasis added.) The parties’ intent is made more clear as the agreement said “Nash Finch reserves its right to exercise its rights under the note and/or mortgage in the event any of the terms and conditions of [the forbearance agreement] are not fully satisfied.” (Emphasis added.) When Corey defaulted on the note, Nash Finch was contractually entitled to the remedies provided for in the note. The forbearance agreement stated,

Remedies. At maturity, whether at the stated time or prior thereto by the acceleration of maturity granted herein, [Nash Finch] in addition to any other remedies provided for herein or at law or in equity, including proceeding with non-judicial voluntary foreclosure in accordance with Iowa law section 654.18, shall have the right to foreclose this mortgage by judicial proceeding....

That is, the parties did not agree that by filing the deed in lieu of foreclosure, Corey’s original debt on the note was extinguished. In fact, Nash Finch’s right to pursue further remedies was protected by the words of the forbearance agreement. This language is not subject to interpretation because it is clear on its face. Corey explicitly agreed to allow Nash Finch to pursue other remedies in the event of a default.

Nash Finch seeks to pursue a deficiency judgment. Nothing in chapter 654 prevents parties from contracting for remedies other than foreclosure as provided in chapter 654. No statute prevents a party from securing a contractual right to file a deed in lieu of foreclosure in partial satisfaction of a debt. Corey relies upon Iowa Code section 654.1 for the assertion that the parties may not avoid the provisions of chapter 654. However, the section provides, “Except as provided in section 654.18, a deed of trust or mortgage of real estate shall not be foreclosed in any other manner than by action in court by equitable proceedings.” Iowa Code § 654.1. That is, this statute merely restricts foreclosure remedies to those within the court’s equity. The statute does not apply to the case before us because Nash Finch is not seeking foreclosure. Further, section 654.1 does not prohibit other remedies for dealing with a breach of contract. Corey has cited no statute preventing a party from pursuing a further remedy when the agreement made clear the action taken was only in partial satisfaction of the underlying debt. We conclude as a matter of law, a party may pursue further remedies after filing a deed in lieu of foreclosure in partial satisfaction of a debt. The extent of satisfaction to be derived from the filing of the deed remains for determination.

In sum, the parties entered into the forbearance agreement that provided if Corey defaulted on its note payments, Nash Finch could file the deed in lieu of foreclosure. The new agreement also provided the deed in lieu of foreclosure was intended only as a “partial satisfaction” of the debt. Further, Nash Finch reserved its rights under the original note. After Corey defaulted and Nash Finch filed the deed in lieu, Corey’s debt on the underlying note was only partially extinguished. No law in Iowa precludes a creditor from contracting for a deed in lieu of foreclosure in partial satisfaction of a debt, filing the deed upon default, and then seeking further recovery. We cannot conclude as a matter of law the extent of satisfaction to be derived from the filing of the deed in this case. This issue will have to be determined by a trial court.

A copy of this opinion under seal of the court shall be transmitted to the certifying federal court. See id. § 684A.7.

CERTIFIED QUESTION ANSWERED.

      . Nash Finch's appraiser assigned a value to the mortgaged property. There is no evidence showing Corey conducted a separate appraisal.

      . We are uncertain of the ramifications or correctness of the court's determination of this issue. The parties’ forbearance agreement explicitly states the "deed in lieu of foreclosure is an absolute conveyance of [Corey’s] rights, title and interest in and to the mortgaged property.” (Emphasis added.)

      . Chapter 654 applies strictly to foreclosure of real estate mortgages. Section 654.1 provides: “Except as provided in section 654.18, a deed of trust or mortgage of real estate shall not be foreclosed in any other manner than by action in court by equitable proceedings.” Iowa Code § 654.1. Section 654.18 outlines the procedure for “alternative nonjudicial voluntary foreclosure.” Id. § 654.18. Under this statute, the mortgagor conveys to the mortgagee all interest in the mortgaged property and the mortgagee accepts the conveyance and waives any right to a deficiency. See id. In the case before us, Nash Finch has not elected to pursue foreclosure but rather is proceeding with an action for nonpayment under the forbearance agreement.

      . Iowa Code chapter 654 does not address deeds in lieu of foreclosure in the context of non-agricultural land. However, section 654.19 provides, as to agricultural land:
      In lieu of a foreclosure action in court due to default on a recorded mortgage or deed of trust of real property, if the subject property is agricultural land used for farming ... the mortgagee and mortgagor may enter into an agreement in which the mortgagor agrees to transfer the agricultural land to the mortgagee in satisfaction of all or part of the mortgage obligation as agreed upon by the parties. The agreement may grant the mortgagor a right to purchase the agricultural land for a period not to exceed five years, and may entitle the mortgagor to lease the agricultural land. The agreement shall be recorded with the deed transferring to the mortgagee. A transfer of title and agreement pursuant to this section does not constitute an equitable mortgage.
      Iowa Code § 654.19 (1999) (emphasis added).

      . When addressing similar issues, several jurisdictions, including Iowa, have found the creditor is entitled to other remedies for default despite its execution of a deed in lieu of foreclosure in partial satisfaction of a debt. See, e.g., In re Wilkinson, 175 B.R. 627 (Bkrtcy.E.D.Va.1994) (court allowed creditor to seek deficiency judgment); Conrad Bros. v. John Deere Ins. Co., 640 N.W.2d 231 (Iowa 2001) (court ruled creditor is entitled to insurance proceeds despite deed in lieu of foreclosure).


author: /s/Paul H. Anderson Associate Justice

text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST Richard S. ESKOLA, a Minnesota Attorney, License No. 123699.
    No. A03-404.
    Supreme Court of Minnesota.
    Oct. 1, 2003.
   ORDER

On August 21, 2003, this court suspended respondent Richard S. Eskola from the practice of law for a period of 30 days, commencing September 1, 2003.

The Director of the Office of Lawyers Professional Responsibility has filed an affidavit certifying that, to the best of the Director’s knowledge, respondent has complied with the terms of the suspension order, and stating that the Director does not oppose reinstatement.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Richard S. Eskola is reinstated to the practice of law in the State of Minnesota effective October 1, 2003. Respondent shall successfully complete the professional responsibility portion of the bar examination within one year of the date of the court’s August 21, 2003, suspension order as provided in that order.

BY THE COURT:

/s/Paul H. Anderson Associate Justice


text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST Edith Marcos SEE, a Minnesota Attorney, Registration No. 188372.
    No. A03-1209.
    Supreme Court of Minnesota.
    Oct. 1, 2003.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Edith Marcos See has committed professional misconduct warranting public discipline, namely, failure to timely file state and federal individual income tax returns and pay the taxes due thereon in violation of Minn. R. Prof. Conduct 8.4(b) and (d).

Respondent admits her conduct violated the Rules of Professional Conduct, waives her rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which the parties jointly recommend that the appropriate discipline is a public reprimand, payment of $900 in costs and disbursements under Rule 24, RLPR, and probation for a period of 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 timely file all required state and federal tax returns, including individual and 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, her 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.
d. Within 60 days from the execution of this stipulation, respondent shall enter into agreements satisfactory to the Internal Revenue Service (IRS) and the Minnesota Department of Revenue (DOR) for the payment of all unpaid taxes. Respondent shall provide the Director with copies of the agreements and proof of currency on payments required by the agreements. If after 60 days, agreement with the IRS and/or DOR has not been reached despite diligent effort by respondent, respondent shall report monthly to the Director concerning her progress in reaching agreement. Such reports shall continue until written agreements have been signed by both the IRS and DOR.
e. If any time during the period of probation, after giving respondent an opportunity to be heard by the Director, the Director concludes that respondent has violated the conditions of the probation or engaged in further misconduct, the Director may file a petition for disciplinary action against respondent in the Minnesota Supreme Court without the necessity of submitting the matter to the Panel or Panel Chair. Respondent waives the right to such consideration by the Panel or Panel Chair,
f.If respondent complies with all the conditions of the probation as set forth above, the probation will be terminated. Pursuant to rule 8(d)(3), RLPR, the Director will maintain a permanent disciplinary record of this stipulation and probation file.

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 Edith Marcos See is publicly reprimanded and placed on probation for a period of two years, subject to the agreed-upon conditions set forth above. Respondent shall pay $900 in costs under Rule 24, RLPR.

BY THE COURT:

/s/Paul H. Anderson Associate Justice


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

text:
    STATE of Minnesota, Respondent, v. Roberto LOPEZ-RIOS, Appellant.
    No. C9-01-1372.
    Supreme Court of Minnesota.
    Oct. 9, 2003.

      Office of the Minnesota State Public Defender, Sharon E. Jacks, Assistant State Public Defender, Minneapolis, MN, Pro Se, Roberto Lopez-Rios, St. Cloud, MN, for Appellant.
    Michael A. Hatch, Minnesota Attorney General, St. Paul, MN, Amy Klobuchar,-Hennepin County Attorney, Jean E. Bur-dorf, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

ANDERSON, PAUL H., Justice.

Roberto Lopez-Rios was convicted and sentenced in Hennepin County District Court for the crimes of first-degree murder committed for the benefit of a gang and drive-by shooting committed for the benefit of a gang. On appeal, Lopez-Rios alleges, among other things, error in the admission of expert testimony relating to criminal street gangs, error in the failure to provide a limiting jury instruction, and prosecutorial misconduct. We affirm as modified.

This case arises out of allegations that appellant Roberto Lopez-Rios was involved in a criminal street gang-related drive-by shooting in retaliation for an earner shooting incident purportedly committed by a rival gang. Lopez-Rios did not testify at his trial nor did he call any witnesses. Francisco Vargas, a Latin Kings gang member, was present during the shootings and the events leading up to the shootings. Vargas pleaded guilty to second-degree murder for the benefit of a gang and second-degree assault for his role in the crimes for which Lopez-Rios was charged. As part of his plea agreement, Vargas testified at Lopez-Rios’s trial. Vargas’s testimony provided information on the events that led up to the shootings and about the shootings.

On the evening of December 2, 2000, Vargas, who was then 18 years old, left a dance near Lake Street and Portland Avenue in Minneapolis to go to a party on Bloomington Avenue and Twenty-fourth Street. As Vargas and some other Latin Kings gang members were waiting for a bus, someone from a passing car shot at them, wounding two Latin Kings members — a man named Ganbino, who is Lopez-Rios’s cousin, and another man called Gallo. An unidentified person told Vargas that the shooters were members of the 18th Street gang.

Two vehicles, a truck and a red four-door Lincoln Continental occupied by two Sureño gang members, Hymie Hernandez and Issodoro Nava, stopped at the shooting scene and were used to transport the victims to the Hennepin County Medical Center (HCMC). Ganbino rode with Vargas in the truck and Gallo rode in the Continental. At HCMC, Vargas and Hernandez brought the victims inside the hospital and left. Vargas and Hernandez then walked to a payphone near the Met-rodome where Hernandez called Nava, the Continental’s driver, to ask that he pick them up. Nava picked up the two men and they proceeded to the home of then 16-year-old Lopez-Rios to tell him and his family that Ganbino was in the hospital. After relaying what had happened, Vargas asked if Lopez-Rios wanted to go with them to see their other friends at the “blue house” on Bloomington and Twenty-fourth. Lopez-Rios said he was not ready to leave his home at that point, so Vargas and the Sureños went to the blue house without him.

On the way to the blue house, Hernandez asked Vargas if he or the other Latin Kings wanted to “do something.” Hernandez said he knew where the 18th Streeters lived; and if the Latin Kings wanted to “do something,” he could find a gun. Vargas responded that he needed to see his Mends first. Upon arriving at the blue house, Vargas was told that his Mends had left for Lopez-Rios’s home, so Vargas, Hernandez, and Nava returned to Lopez-Rios’s home. As Vargas approached the home, Lopez-Rios and Latin Kings member Arturo Montano came out. Vargas told Lopez-Rios that Hernandez and Nava would help find the 18th Streeters to pay them back for shooting Lopez-Rios’s cousin and the other Latin Kings gang member. Lopez-Rios said he was ready to “get out.”

Lopez-Rios and Montano got into the Continental with Vargas, Hernandez, and Nava. Nava was the driver, Hernandez sat in the front passenger seat, Vargas was seated behind Hernandez, Lopez Rios was seated behind Nava, and Montano was seated between Lopez-Rios and Vargas. Hernandez asked Lopez-Rios, Montano, and Vargas if they wanted to “do something”; they responded that they did, and the group proceeded to look for “some 18ths.” As the group neared the area where the 18th Streeters lived, Lopez-Rios produced a .380 semiautomatic handgun. He said that if the 18th Streeters were found on his side of the car, he wanted “to use the gun.” If the 18ths were on the other side, then Vargas would “do it.”

Shortly after midnight on December 3, the group spotted 17-year-old Ernesto Ayala and then 19-year-old Jose Artega walking on the sidewalk toward a fourplex apartment building near 57th Street and 33rd Avenue. Artega lived in a nearby apartment and the two of them were walking from Artega’s place to Ayala’s apartment. Both Ayala and Artega were identified as members of the 18th Street gang and, as the Continental approached Ayala and Artega, the two men were on the right side of the car — Vargas’s side. Lopez-Rios started to hand the gun to Vargas, but dropped it on the floor between Mon-tano’s legs. Montano picked up the gun as Vargas rolled down the rear window so that the gun could be used to shoot out the window. Hernandez then said it would be better to open the door. Vargas opened the door, and Montano crossed over Vargas and got out of the car. Montano started shooting, wounding Ayala. Ayala then fired two shots from a revolver, one of which struck the rear passenger panel of the car.

As the exchange of gunfire ensued, Vargas moved to the middle of the back seat to make room for Montano. Montano then returned to the car. Ayala, who was shot twice, managed to get over a fence and into the backyard of his apartment building where he collapsed and died. An autopsy revealed that Ayola died as the result of two bullet wounds, one of which hit his aorta. The occupants of the Continental then drove away from the scene, unaware of Ayala’s death. Vargas said that once they got on the freeway, everyone in the car, including Lopez-Rios, celebrated by clasping hands in a gesture similar to a high five.

Artega survived the shooting and testified at Lopez-Rios’s trial. Artega stated that he noticed the Continental as it came up the street and saw it stop. The car’s occupants were staring at him and were making “movements,” like opening the doors. Becoming concerned, Artega told Ayala to run, to follow him, and then heard gunshots coming from two guns as he ran. Artega ran for several blocks, sat in a park for a while, and eventually returned to the area where the shooting occurred. When he got back to the shooting scene, he talked with one of the investigators who had responded to a homicide call.

Later that morning, Vargas went to the hospital to visit the Latin Kings who were the victims of the first shooting. Lopez Rios also was at the hospital. By this time, investigators looking into the shootings had already interviewed the Latin Kings victims. The Latin Kings told Vargas that Ayala had died. Alfonso Martinez, a Latin Kings member not involved in the shooting, testified that while he was at the hospital, he heard Lopez-Rios tell his cousin that he had used his own bullets and “got [the 18th Street] back.” Sometime later that day, Lopez-Rios and some other Latin Kings gang members were driving around, “cruising” to find more 18th Streeters.

During their investigation, the police recovered from the crime scene six spent cartridge casings and a bullet fragment, all consistent with having been fired from a .380 semiautomatic. They also found a .22 Smith and Wesson six-shot revolver with two empty casings and four live rounds in the cylinder. This gun was found hanging out of Ayala’s right pocket. The police located the red Continental. However, Nava, the vehicle’s driver, was in Mexico and the police interviewed him there. The police eventually located and interviewed Vargas, who confessed that he was in the car that was involved in the shooting.

Lopez-Rios was arrested and charged with the murder. He was subsequently indicted by a grand jury for first-degree premeditated murder, Minn.Stat. § 609.185(a)(1) (2002); first-degree premeditated murder committed for the benefit of a gang, Minn.Stat. §§ 609.229, subd. 2 (2002), and 609.185(a)(1) (2002); first-degree murder while committing a drive-by shooting, Minn.Stat. § 609.185(a)(3) (2002); first-degree murder while committing a drive-by shooting for the benefit of a gang, Minn.Stat. §§ 609.229, subd. 2 (2002), and 609.185(a)(1) (2002); second-degree assault, Minn.Stat. § 609.222, subd. 1 (2002); second-degree assault committed for the benefit of a gang, Minn.Stat. §§ 609.229, subd. 2 (2002), and 609.222, subd. 1 (2002); drive-by shooting, Minn. Stat. § 609.66, subd. le(b) (2002); and drive-by shooting committed for the benefit of a gang, Minn.Stat. §§ 609.229, subd. 2 (2002), and 609.66, subd. le(b) (2002).

At Lopez-Rios’s trial, Ayala’s girlfriend testified that Ayala grew up in California, was a member of the 18th Street gang, and had a tattoo on the back of his neck that said “Eighteen.” The girlfriend of Ayala’s roommate testified that Ayala’s roommate was from Mexico, was also an 18th Street gang member, and that the area around Ayala’s home was an area in which 18th Streeters would “hang out.” Artega testified that he came from Mexico, was a member of the 18th Street gang, and that the 18th Street gang name came from a gang in Los Angeles. He talked about how he noticed the Continental as it traveled toward him and Ayala; and when asked why he ran, he said that it was late, the car stopped by him, the passengers in the car were staring at him and making movements, and “I’m in a gang and I see that they are Mexican.”

Vargas testified pursuant to his plea agreement under which the state dismissed first-degree murder charges in exchange for a guilty plea to second-degree murder for the benefit of a gang and second-degree assault, a reduced sentence, placement in a safe prison, and truthful testimony at Lopez-Rios’s trial. Vargas, who went by the street name of “Spooky,” admitted that he was a member of the Latin Kings and testified that it was common for gang members to have street names. He said that Lopez-Rios’s street name was “Little Chucky.” Vargas identified Ganbino, a/k/a “Grandpa,” Gallo, and Montano, a/k/a “Sleepy,” as Latin Kings gang members and said that Latin Kings “hang out” with the Sureños gang.

Three other witnesses also admitted that they were members of the Latin Kings. One of these witnesses, known by the street name of “Baby King,” explained how he got out of the Latin Kings gang by being “jumped,” i.e., beaten up by other gang members in order to be permitted to leave. Another Latin King testified that the Latin Kings would frequently go “cruising” for enemies, like the 18th Street gang, go up to them, ask them “what’s up and what you claim,” and occasionally fight them. The witness also said that after visiting the Latin Kings victims in the hospital on December 3, 2000, more than three Latin Kings went out cruising to look for 18th Streeters.

The state called police investigator Donald Bautista to testify as an expert on criminal street gangs. Bautista had been assigned to the Minnesota Gang Strike Force (MGSF) since its inception in 1997. Before the MGSF assignment, Bautista spent 17 years as a high-risk entry officer in Minneapolis, serving numerous search warrants, most of which involved gang crimes. Once on the MGSF, Bautista received local and federal training on gang trends, specializing in the area of Hispanic gangs; and he personally investigated gang-related crimes and arrested and interviewed gang members. He testified that one of the primary responsibilities of the MGSF involved the identification of gang members, and he said that they “profile” them. To determine gang membership, MGSF used its ten-point gang identification criteria. In Minnesota, an individual who meets three of the criteria is classified as a confirmed gang member. Information gathered on each individual gang member is “put into his file, or profile” and maintained in a statewide database.

Bautista testified about how gangs had their own terminology, stating that this terminology varied from gang to gang and the ethnic background of each gang. He talked about how gangs marked their territory, or “turf,” with gang graffiti such as “B.L.” for Batos Locos, “SUR 13” for the Sureños, and “L.K.” for Latin Kings. With regard to the Minneapolis Latin Kings, Bautista testified that they were located in a pretty large area on the south side of Minneapolis. He said the Latin Kings were the most structured of the gangs, with an “Inca” or leader “all the way down to the soldier who operates off the street.” He testified about the Latin Kings’ identifying colors (primarily black and gold), signs or symbols (a crown, “L.K.” or “Latin King” spelled out), and a “certain handshake.”

Bautista explained the rituals for entering and leaving a gang. A member is “jumped in” by sustaining a beating for at least a minute and “jumped out” the same way. When asked whether the Latin Kings had any type of rules or constitution for their members, Bautista testified about their literature, or “lit,” which was written by “Pedro Mil[l]an who is currently housed in [a] Connecticut state prison.” He testified that all gang members learn and abide by this literature. He also said there was nothing in the literature that allowed for retirement from a gang for family reasons, rebutting evidence that Lopez-Rios had dropped out of the Latin Kings for such reasons.

Bautista also talked about the alliance between the Latin Kings and the Sureños, also called “Trece, which is 13” and which “stands for the Mexican mob.” He explained that Hispanic gangs in California were divided between the north and south; and he said that when gangs left California, they adopted the name Sureño (Southerner) or Norteño (Northerner), with the exception of the 18th Street gang. Bautis-ta went on to explain that the 18th Street-ers kept their own name because the gang was very large, numbering around 9,000 in Los Angeles, “making them the largest Hispanic gang in the city of Los Angeles.” Because of a “rift” with the 18th Street gang, in Minneapolis the Latin Kings and the Sureños were allies. Bautista also testified that, in gang culture, when a gang was attacked by a rival gang, retaliation was necessary to defend honor and turf.

Bautista testified that the Minneapolis Latin Kings had three or more members. He stated that one of the gang’s primary activities was the commission of crimes of violence, and gang members had engaged in a pattern of criminal activity. Over an objection by Lopezr-Rios, Bautista was permitted to state that Lopez-Rios, Martinez, and Vargas were members of the Latin Kings criminal street gang. Bautis-ta indicated that Lopez-Rios fit the MGSF gang-identification criteria.

Lopez-Rios moved for a mistrial based on several objections made to the gang-expert testimony. The district court, noting that a number of objections already had been sustained, denied the motion, concluding that the testimony elicited in front of the jury did not create a basis for mistrial. After the state rested its case, Lopez-Rios waived his right to testify, relying on his Fifth Amendment privilege against self-incrimination and requiring the state to carry the burden of proof in its case-in-chief.

The jury found Lopez-Rios guilty as charged, and he was sentenced to life in prison for first-degree murder, plus an additional 12 months because the crime was for the benefit of a gang. The district court also imposed a consecutive 48-month sentence for the drive-by shooting involving the second victim, plus an additional 12 months to this sentence because the crime was for the benefit of a gang. This appeal followed.

I.

Lopez-Rios challenges the admissibility of gang-expert testimony, asserting that it did not assist the jury in understanding the evidence and that even if helpful, its probative value was substantially outweighed by the risk of undue prejudice. Admission of expert testimony rests within the broad discretion of the district court. State v. Ritt, 599 N.W.2d 802, 810 (Minn.1999). The primary consideration for admission of evidence under Minn. R. Evid. 702 is “whether the testimony will assist the jury in resolving factual questions presented.” State v. Grecinger, 569 N.W.2d 189, 195 (Minn.1997).

With regard to proffered gang-expert testimony, district courts have the responsibility of scrutinizing such testimony, “preferably outside the presence of the jury, ‘and excluding] it where irrelevant, confusing, or otherwise unhelpful.’ ” State v. DeShay, 669 N.W.2d 878, 888 (Minn.2003) (quoting State v. Miles, 585 N.W.2d 368, 371 (Minn.1998)). Gang-expert testimony “must add precision or depth to the jury’s ability to reach conclusions about matters that are not within its experience.” Id. at 888. Such testimony “must be carefully monitored by the court so that the testimony will not unduly influence the jury or dissuade it from exercising its independent judgment. Even if acceptable under Rule 702, expert testimony should be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Minn. R. Evid. 403.” Id. at 888.

In DeShay, we concluded that expert testimony relating to gang activity in general and gang affiliation was neither necessary nor helpful to the jury in evaluating the relevant evidence. We concluded that DeShay was a routine drug conspiracy case and that in the context of that case, much of the gang expert’s testimony was duplicative and more prejudicial than probative. Id. at 888. Witnesses in DeShay with firsthand knowledge had already provided testimony relating to the elements of the offense and we concluded that the jury needed no expert assistance in evaluating the evidence or deciding a fact issue. Id. at 889. Moreover, if the admission of such testimony is not carefully monitored, a defendant can end up being tried for the criminal actions and bad acts of others. Id. at 889.

Here, as in DeShay, the gang expert’s testimony was largely duplicative of that given by witnesses with firsthand knowledge who had already testified that Lopez-Rios was associated with the Latin Kings. These witnesses identified the Latin Kings as a group that included more than three people, had committed the drive-by shooting in retaliation for a prior shooting incident involving a rival gang, and had, as a group, collectively engaged in “cruising” to shoot enemies. While a brief history of the Sureño 18th Street rivalry and an explanation of the importance of retaliation in the gang culture may have been helpful, there was no need for Bautista to mention that Southern California has “an inordinate number” of Hispanic gangs, that the Los Angeles 18th Street gang has over 9,000 members, or that the author of the Latin Kings “lit” was currently in prison in Connecticut.

Equally troublesome was the expert testimony on Lopez-Rios’s membership in a gang. Minnesota Rule of Evidence 704 permits testimony in the form of an opinion about ultimate issues. Nevertheless, “there is something rather offensive in allowing an investigating officer to testify not simply that a certain pattern of conduct is often found” in specific criminal cases, “leaving it for the jury to determine whether the defendant’s conduct fits the pattern, but also that such conduct [fit] the pattern[.]” United States v. Brown, 776 F.2d 397, 401 (2d Cir.1985). Expert testimony that a defendant is a member of a criminal gang comes close to, although not completely within, the exclusion of expert opinion as to the mental state of a defendant constituting an element of the charged crime. See State v. Chambers, 507 N.W.2d 237, 239 (Minn.1993).

While the evidentiary rules do not bar all expert testimony concerning the ultimate issue, a district court may exclude ultimate issue testimony under Rule 702 or Rule 403 when the testimony would merely tell the jury what result to reach. See Brown, 776 F.2d at 401 (citing Fed.R.Evid. 704 advisory committee’s notes). Furthermore, expert testimony on the issue of a defendant’s gang membership that rests on hearsay has Sixth Amendment Confrontation Clause implications. See generally 3 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 359(c) (2d ed.1994). While we tolerate the “battle of experts” in other areas of the law, we do not allow such battles to limit the rights of criminal defendants. See State v. Myers, 359 N.W.2d 604, 609-10 (Minn.1984) (stating that even though an expert’s testimony may arguably provide the jury with potentially useful information, “[i]n most cases * * ¾ the possibility that the jury may be unduly influenced by an expert’s opinion mitigates against admission.”).

As we previously noted, the district court enjoys broad discretion in deciding to admit expert testimony under Rules 702 and 403. But here significant parts of the expert’s testimony were beyond the margin of what we deem acceptable. We conclude that there was little, if any, real value to much of the gang expert testimony, especially when considered in light of its probative value versus potential prejudice; therefore, we hold that admis-sión of this testimony was error. Nevertheless, we hold that the admission of the testimony was not sufficiently prejudicial to justify a new trial. “ ‘Reversal is warranted only when the error substantially influences the jury’s decision.’ ” DeShay, 669 N.W.2d at 888 (quoting State v. Nunn, 561 N.W.2d 902, 907 (Minn.1997)). As in DeShay, we are satisfied that any error in the admission of the gang expert testimony was harmless where, given the testimony of the other witnesses, there was no reasonable possibility the gang expert’s testimony substantially influenced the guilty verdict. Because we are satisfied that any error was harmless, it is not necessary for us to delineate in detail those parts of Bautista’s testimony that were improper other than to generally point to that testimony which was duplica-tive, was related to general gang activity and affiliations, was extraneous to the factual issues before the jury, and was prejudicial.

II.

Lopez-Rios also asserts error in the omission of a limiting jury instruction to minimize the potential of the gang expert’s testimony for prejudice. Harmless error analysis is applicable to an erroneous omission of cautionary instructions. State v. Shoop, 441 N.W.2d 475, 481 (Minn.1989). The district court denied defense counsel’s motion for a character-evidence instruction, concluding that gang affiliation was not evidence of character or a character trait. Lopez-Rios argues that Bautis-ta’s testimony that he fit the MGSF gang-identification criteria was profile evidence, akin to character evidence. Assuming without deciding that the omission of the instruction was erroneous, our independent review of the record compels us to conclude that the omission did not have a significant impact on the verdict in this case, and therefore we hold any error would be harmless error.

III.

Lopez-Rios also argues that he was denied a fair trial because the state engaged in misconduct during closing arguments by misstating the evidence and vouching for witness credibility. At trial, during direct examination of one of the state’s witnesses, there was testimony that while en route to the 18th Street gang’s territory, Lopez-Rios said that he wanted to use the gun. On re-direct, defense counsel objected to the state’s question that Lopez-Rios “wanted to do the job” as leading and the objection was sustained. In closing, the state told the jury that Lopez-Rios “said words to the effect ‘I’m going to do the job.’ ” We conclude that the state’s remarks merely paraphrased the substance of the witness’s testimony and “at worst, [were] unartful, not misconduct.” State v. Atkins, 543 N.W.2d 642, 648 (Minn.1996). As for vouching, that occurs “ “when the government implies a guarantee of a witness’s truthfulness, refers to facts outside the record, or expresses a personal opinion as to a witness’s credibility.’ ” State v. Patterson, 577 N.W.2d 494, 497 (Minn.1998) (quoting United States v. Beasley, 102 F.3d 1440, 1449 (8th Cir.1996)). But the state may argue that particular witnesses were or were not credible. Here, we are satisfied no vouching occurred. Accordingly, we hold that the state did not engage in pros-ecutorial misconduct.

IV.

Lopez-Rios has submitted a three-page supplemental pro se brief lacking citation to any legal authority. In his brief, Lopez-Rios first argues that defense counsel in his opening statement represented Lope&-Rios as being guilty without having his permission to do so. Lopez-Rios cites to two pages of the trial transcript without indicating precisely what he believed to be an admission of guilt. The pages of the transcript cited by Lopez-Rios reflect that counsel, after telling the jury there was insufficient evidence to convict Lopez-Rios of the charges against him, stated Lopez-Rios was guilty of a lesser-included offense that the jury had not heard about, which instruction he would later ask the judge to submit to the jury. Counsel continued by stating that just because someone died does not mean that a premeditated murder occurred, arguing that it could be an accident or “[m]aybe even less than that.” At the conclusion of his opening statement, counsel stated, “In the end we believe that it’s going to be a sad ending no matter what for Mr. Lopez-Rios, but we believe that you’ll acquit him of first degree intentional murder, second degree intentional murder and all this stuff for the benefit of a gang ⅝ a

A review of the record reveals that defense counsel did not admit guilt on the charged offenses. The opening statement section cited by Lopez-Rios in his brief shows counsel arguing that, while perhaps Lopez-Rios was guilty of some lesser-uncharged offense, he was not guilty of the serious charges he faced at trial. Counsel’s admission to an undisclosed, non-charged crime is not a concession of guilt so as to entitle Lopez-Rios to a new trial. Counsel’s assertion that “it is going to be a sad ending no matter what for Mr. Lopez-Rios * * *,” although of questionable logic as a matter of trial strategy, is also clearly not an admission of guilt. Throughout the trial, counsel argued that the evidence against Lopez-Rios was weak, that there was no intent to commit murder, that Lopez-Rios was not a gang member, and that Lopez-Rios withdrew from the plan to carry out a drive-by shooting. The record simply does not support Lopez-Rios’s argument that his counsel admitted his guilt. Therefore, we conclude that Lopez-Rios’s ineffective assistance of counsel claim is meritless.

Next, Lopez-Rios argues that the district court erred by allowing Alfonso Martinez to testify without first being duly sworn. The record reflects that Martinez was called forward and testified, yet the record contains no indication that he was ever duly sworn. We have held that “failure to swear a witness in an ordinary civil trial, or even in a criminal trial, may be waived by failure to object or by express consent.” Martin v. Wolfson, 218 Minn. 557, 568, 16 N.W.2d 884, 890 (1944). Here, there was no objection at trial to the apparent failure to swear Martinez. We conclude that, by failing to object at trial, where the court has the opportunity to remedy this oversight, Lopez-Rios waived the right to raise the issue on appeal. Having found the issue waived, we do not reach the merits of the claim.

Finally, Lopez-Rios argues that there was insufficient evidence to support a conviction of first-degree premeditated murder. In particular, Lopez-Rios points to a lack of proof of intent or premeditation. Intent and premeditation are subjective states of mind proved through a defendant’s conduct in the given circumstance. See State v. Ness, 431 N.W.2d 125, 131 (Minn.1988). Both can be supported by inferences from actions before and after the crime occurred. Id. at 131. In reviewing the record, we view “the evidence in the light most favorable to the verdict and assume[] that the fact-finder disbelieved any testimony conflicting with the result reached.” State v. Thomas, 590 N.W.2d 755, 757 (Minn.1999). The verdict ■will not be overturned if, giving due regard to the presumption of innocence and to the state’s burden of proving guilt beyond a reasonable doubt, the jury could reasonably have found the defendant guilty of the charged offense. Id. at 757-58.

The evidence of premeditation presented at trial included the following testimony. Vargas testified that Hernandez asked the group, including Lopez-Rios, if they wanted to go find some members of the 18ths and Lopez-Rios agreed; Vargas saw Lopez-Rios holding a gun five or six blocks from the place of the shooting; and Lopez-Rios said he planned to use the gun if the 18ths were on his side of the car. When the 18th Street gang members were spotted on the other side of the car, Lopez-Rios attempted to hand the gun to Vargas. Immediately after the shooting, when back on the freeway, Lopez-Rios clasped hands with the others in the car in a celebratory gesture. In addition to the testimony offered by Vargas, Alfonso Martinez testified to hearing Lopez-Rios inform his cousin, Ganbino, who had been a victim in the earlier drive-by shooting, “that he [Lopez-Rios] got him back.” We hold that sufficient evidence was introduced at trial to support Lopez-Rios’s conviction for first-degree premeditated murder.

V.

Minnesota Statutes § 609.04 (2002) forbids two convictions of the same offense or one offense and a lesser-included offense on the basis of the same criminal act. In a crime committed for the benefit of a gang, the underlying crime is an included crime. State v. Matelski, 622 N.W.2d 826, 833 (Minn.App.2001). Although the state acknowledged in its sentencing memorandum that there should be adjudications of guilty of only counts two— first-degree premeditated murder committed for the benefit of a gang — and eighi>— drive-by shooting committed for the benefit of a gang — the warrant of commitment reflects adjudications on the remaining counts as well. Accordingly, we vacate any formal adjudication of guilt for counts one, three, four, five, six, and seven. See State v. LaTourelle, 343 N.W.2d 277, 284 (Minn.1984). Affirmed as modified.

Affirmed as modified.

GILBERT, Justice

(concurring specially)-

I concur with the result reached by the majority but respectfully disagree with the majority’s analysis relating to the admission of expert testimony on gangs and gang affiliation. For reasons similar to those mentioned in my special concurrence in DeShay, we should not exclude a gang’s expert testimony primarily because the testimony was “largely duplicative of that given by witnesses with firsthand knowledge who had already testified.” The majority again fails to utilize our clear abuse of discretion standard, which we have used in these circumstances in the past because the district court should be given broad discretion in deciding to admit expert testimony. State v. Koskela, 536 N.W.2d 625, 629 (Minn.1995). This decision creates a murky new standard when it announces: “here significant parts of the expert’s testimony were beyond the margin of what we deem acceptable. Therefore, we conclude that there was little, if any, real value to much of the gang expert testimony, especially when considered in light of its probative value versus potential prejudice * * The majority’s tepid decision departs from our clear abuse of discretion standard, but then nevertheless holds that “the admission of the testimony was not sufficiently prejudicial to justify a new trial.”

The question now is whether expert testimony can ever be used even when the expert uses the criteria as part of an investigation workup? The majority’s analysis would appear to exclude such testimony, even though there was no motion in limine, cross-examination or impeachment evidence offered by the defense, and gang-related activity is an element of the crime that the state has to prove beyond a reasonable doubt. It is unclear why in this case there was no “real value” to the gang-related testimony or why it was held to be “beyond the margin of what we deem acceptable.”

I agree with the majority that if the admission of such testimony is not carefully monitored, a defendant can end up being tried for the criminal actions and bad acts of the others. However, it is the primary responsibility of defense counsel to do such monitoring and if the testimony is objectionable, to make proper and timely objections. Otherwise, the trial court must sua sponte interject itself into the trial tactics of presenting a case. Here, a motion in limine and hearing as to foundation would have provided a basis for the judge to respond to objections as to qualifications and the factual basis for the objection and at the same time provide a record on appeal. Now, because of an inadequate record, the majority is hampered in providing any guidance or to delineate in detail to counsel or the trial court as to what “significant parts of the expert testimony were beyond the margin ‡ ⅜ ⅜ »

      . A criminal gang is
      [A]ny ongoing organization, association, or group of three or more persons, whether formal or informal, that:
      (1) has, as one of its primary activities, the commission of one or more of the offenses listed in section 609.11, subdivision 9;
      (2) has a common name or common identifying sign or symbol; and
      (3) includes members who individually or collectively engage in or have engaged in a pattern of criminal activity. Minn.Stat. § 609.229, subd. 1 (2002). A crime is committed for the benefit of a criminal gang when a person commits a crime “for the benefit of, at the direction of, in association with, or motivated by involvement with a criminal gang, with the intent to promote, further, or assist in criminal conduct by gang members[.]” Minn.Stat. § 609.229, subd. 2 (2002).

      . Bautista did not elaborate on the MGSF’s ten criteria. For the ten criteria, see State v. DeShay, 669 N.W.2d 878, 882 n. 3 (Minn.2003). The ten criteria as described in DeSh-ay are as follows: (1) admits gang membership or association; (2) is observed to associate on a regular basis with known gang members; (3) has tattoos indicating gang membership; (4) wears gang symbols to identify with a specific gang; (5) is in a photograph with known gang members and/or using gang-related hand signs; (6) name is on a gang document, hit list, or gang-related graffiti; (7) is identified as a gang member by a reliable source; (8) arrested in the company of identified gang members or associates; (9) corresponds with known gang members or writes and/or receives correspondence about gang activities; and (10) writes about gangs, which would be graffiti on walls, books, and/or paper. See also State v. Frazier, 649 N.W.2d 828, 834-35 (Minn.2002).

      . Lopez-Rios requested as a jury instruction CRIMJIG 3.21 which provides that character evidence may be used "with all the other evidence in the case in determining whether or not the prosecution has proven the defendant's guilt beyond a reasonable doubt.” 10 Minn. Dist. Judges Ass'n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 3.21 (4th ed.1999).