author: WRIGHT, Judge.

text:
    In the Matter of the WELFARE OF the CHILDREN OF D.F. and D.F., Parents.
    No. A07-2239.
    Court of Appeals of Minnesota.
    July 8, 2008.

      Michael 0. Freeman, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, Minneapolis, MN, for respondent Hennepin County Human Services and Public Health Department.

      Leonardo Castro, Hennepin County Public Defender, Peter W. Gorman, Assistant Public Defender, Minneapolis, MN, for appellants D.F., D.F.
    Jody M. Alholinna, El-Ghazzawy Law Offices, Minneapolis, MN, for respondent guardian ad litem.
    Angela F. Bailey, Assistant Public Defender, Minneapolis, MN, for respondent Z.C.
    Considered and decided by MINGE, Presiding Judge; KLAPHAKE, Judge; and WRIGHT, Judge.
   OPINION

WRIGHT, Judge.

Appellants challenge the district court’s decision revoking the stay of their voluntary termination of parental rights and terminating their parental rights. Appellants argue that (1) the district court erred by revoking the stay and terminating their parental rights for good cause and (2) they were deprived of procedural due process. We affirm.

FACTS

In July 1995, Z.C. was born to mother, who was unmarried at the time. Mother subsequently married father. Mother and father have two children together, S.F. and M.F., who were born in September 1998 and December 2004, respectively.

Father was arrested on July 22, 2005, for allegedly sexually abusing mother’s two minor sisters. Although father was never criminally charged, the arresting officers observed illegal drugs and drug paraphernalia in the home that mother and father shared with the children. The officers also observed that the interior of the home was filthy and uninhabitable.

On July 27, 2005, Hennepin County Human Services and Public Health Department (the county) filed a petition alleging that Z.C., S.F., and M.F. were children in need of protection or services (CHIPS). Following an emergency protective-care hearing, the district court ordered protective care, including case plans for mother and father and out-of-home placement of the children.

On April 14, 2006, the county filed a termination-of-parental-rights (TPR) petition pertaining to the three children. The county alleged that the parental rights of mother and father should be terminated because (1) the parents had substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed on them by the parent-child relationship; (2) following the children’s placement out of the home, reasonable efforts under the direction of the district court had failed to correct the conditions leading to the children’s placement out of the home; and (3) the children were neglected and in foster care.

On September 25, 2006, mother and father voluntarily waived their right to a CHIPS trial and admitted the allegations in the CHIPS petition. At the same hearing, they waived their rights to a TPR trial and agreed to a voluntary termination of their parental rights under Minn.Stat. § 260C.301, subd. 1(a) (2006). The TPR petition was amended “to include Minn. Stat. § 260C.301, subd. 1(a), as a statutory ground for a voluntary termination of parental rights,” and mother and father each filed an affidavit with the district court consenting to the voluntary termination of parental rights.

To demonstrate good cause for the voluntary termination of their parental rights, as required under section 260C.301, subdivision 1(a), mother and father admitted that (1) their chemical dependency makes them unable to care for the children appropriately; (2) they were provided services to assist them but did not take advantage of the services “until recently”; (3) they did not complete their case plans; (4) they did not correct the conditions that led to the children’s out-of-home placement; (5) the children have been in foster care for 14 months; and (6) it is in each of the three children’s best interests to terminate the parental rights of mother and father. Based on these admissions, the district court found clear and convincing evidence that there was good cause to terminate the parental rights of mother and father and that termination is in the children’s best interests. The district court ordered the voluntary termination of the parental rights of mother and father.

But because mother and father were “making a last minute attempt to engage in services,” the parties agreed to stay the voluntary termination of parental rights to give mother and father a chance to engage in their case plans. In an order dated October 9, 2006, the district court stayed the voluntary termination of parental rights for 90 days and directed that a TPR order be entered automatically at the end of the 90-day period, unless the district court extended the timeline for an additional 90-day period, dismissed the proceedings, or entered the TPR order before the expiration of the 90-day period. The district court also ordered mother and father to comply with their case plans.

As part of their court-ordered case plans, mother and father were both required to (1) participate in couples counseling and family therapy; (2) demonstrate sobriety by submitting to drug testing three times per week; (3) participate in one Alcoholics Anonymous (AA) or Narcotics Anonymous (NA) group per week, provide evidence of participation by submitting signed attendance forms, and obtain a sponsor; (4) demonstrate both active participation in all therapies and evidence of positive changes in behavior as a result of participation; (5) obtain safe and suitable housing; and (6) participate in the children’s individual therapy as recommended by their therapists and follow their therapists’ recommendations. Father’s case plan also required him to complete a psyehosexual evaluation, follow all resulting recommendations, and complete aftercare and halfway-house treatment through the chemical-dependency treatment program in which he was enrolled. Mother’s case plan also required her to participate in individual psychotherapy, complete a chemical-dependency assessment, and follow the resulting recommendations. Consistent with the parties’ agreement regarding the stay, the district court’s order delineated specific actions that would constitute violations of the stay and advised that “[fjailure to comply with the case plan may result in the immediate termination of parental rights of the violating parent.”

On October 2, 2006, seven days after the parties agreed to the conditions of the stay, mother tested positive for methamphetamine. On December 6, 2006, respondent guardian ad litem moved the district court to revoke the stay with respect to mother based on her positive drug-test results. The county took no position regarding the guardian ad litem’s motion. The district court stayed the TPR order for an additional 90-day period and scheduled a hearing on the guardian ad litem’s motion for January 2007. Because of scheduling conflicts, the parties were unable to appear until March 23, 2007.

In light of the expiration of the second 90-day period on March 12, 2007, the guardian ad litem withdrew her motion to lift the stay based on mother’s drug use, concluding that it was moot. The guardian ad litem and the county then moved the district court to enter the TPR order with respect to both mother and father based on the expiration of the 90-day period during which mother and father were ordered to comply with the conditions of the stay. The county alternatively sought an evidentiary hearing addressing the best interests of the children. Mother and father sought an evidentiary hearing to address “on the merits” whether the stay should be revoked. The district court declined to enter the voluntary TPR order based on the expiration of the 90-day period and extended the stay to permit an evidentiary hearing on the merits.

The parties disputed the appropriate scope of the hearing. Although the parties agreed that the best interests of the children were within the scope of the hearing, they disagreed as to whether the existence of statutory grounds for termination of parental rights should be addressed. Over the objections of mother and father, the district court permitted the parties to address the grounds for involuntary termination of parental rights alleged in the original TPR petition. A comprehensive eight-day evidentiary hearing was held in March, June, and July 2007.

Following the hearing, the district court revoked the stay of the voluntary termination of parental rights and ordered the parental rights of mother and father terminated. In support of its decision, the district court made extensive findings of fact addressing father’s sexual abuse of mother’s sisters; each parent’s drug abuse; the children’s environment and welfare; the best interests of the children; each parent’s compliance with the applicable case plan; and each parent’s compliance with the conditions of the stay. The district court concluded that “overwhelming” evidence demonstrates that it is in the best interests of the children to terminate the parental rights of mother and father. The district court found clear and convincing evidence that good cause exists to enter a voluntary termination of the parental rights of mother and father “at the present time.” Finding that mother and father had violated the conditions of the stay, the district court “lift[ed] the stay and enter[ed] a voluntary termination order.”

The district court also made findings regarding grounds for an involuntary termination of parental rights. Reasoning that In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn.2001), “seem[s] to indicate that the court can revoke the stay if it finds that any statutory ground alleged in the petition, not just the statutory ground relied upon for the stayed order, exists at the time,” the district court addressed the three statutory grounds for involuntary termination alleged in the original TPR petition. Finding clear and convincing evidence to support each of those grounds, the district court concluded that, based on one voluntary ground and three involuntary grounds, terminating the parental rights of mother and father was justified.

Mother and father moved for a new trial, which the district court denied. This appeal followed.

ISSUES

I. Did the district court err by revoking the stay and terminating the parental rights of appellants for good cause?

II. Were appellants deprived of procedural due process?

ANALYSIS

I.

Generally, our review of an order terminating parental rights is limited to determining whether the district court’s findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether they are clearly erroneous. In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn.2001) (involuntary termination); In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn.1997) (voluntary termination). Because the district court is in a superior position to observe the witnesses during trial, its assessment of witness credibility is accorded deference on appeal. In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn.1996). But we will “closely inquire into the sufficiency of the evidence to determine whether it was clear and convincing.” In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn.1998). And we will affirm the district court’s termination of parental rights if “at least one statutory ground for termination is supported by clear and convincing evidence and termination is in the child’s best interests.” In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn.2004).

Mother and father do not challenge the district court’s finding that termination is in the children’s best interests. Rather, they argue that “they complied with the conditions of the stayed voluntary termination of parental rights ... and therefore, there is no good cause to enter the termination.” But their argument conflates two distinct issues: (1) whether there was a sufficient evidentiary basis to establish the existence of a statutory ground to terminate their parental rights and (2) whether there was a sufficient evidentiary basis to establish a violation of the conditions of the stay.

A stay of a TPR order is without “specific authority in statute or rule.” P.R.L., 622 N.W.2d at 543; accord In re Welfare of Children of B.J.B., 747 N.W.2d 605, 609 (Minn.App.2008) (discussing P.R.L. in context of due-process challenge to stay of involuntary termination of parental rights). Similarly, no statute or rule authorizes the revocation of such a stay or provides guidance as to when revocation is permissible. We recently held that revocation of a stay requires a sufficient evidentiary basis to establish the existence of conditions that satisfy a statutory ground for termination of parental rights when the revocation occurs. B.J.B., 747 N.W.2d at 610 (citing P.R.L., 622 N.W.2d at 544-45). Although a statutory ground is necessary for the district court to revoke the stay, the stay would be meaningless if its revocation were not premised on the parent’s failure to comply with the conditions of the stay. Cf. P.R.L., 622 N.W.2d at 544 (expressing concern that a stay “engenders in child and parent the hope of reunification based upon anticipated compliance with the conditions of the stay by a parent who has so steadfastly failed to comply with case plans that it has been found to be in the best interests of the child to have the parent’s rights terminated”). Therefore, when considering a motion to revoke a stay, a district court not only must determine whether a statutory ground for terminating parental rights exists, it also must address the parent’s compliance with the conditions of the stay to determine whether revocation of the stay is warranted. We address each issue in turn.

A.

The statutory bases for terminating parental rights are divided into two types, voluntary and involuntary. Minn.Stat. § 260C.301, subd. 1(a), (b) (2006) (addressing voluntary and involuntary terminations, respectively). A voluntary termination requires a parent to consent to the termination for good cause. Id., subd. 1(a). Thus, the statutory ground for terminating the parental rights of mother and father was established in September 2006 when each parent admitted to a factual basis to establish good cause for a voluntary termination under section 260C.301, subdivision 1(a), and consented to the voluntary termination of their parental rights. Although a voluntary termination of parental rights may be rescinded if it is the result of fraud, duress, or undue influence, cf. D.D.G., 558 N.W.2d at 484 (discussing final voluntary termination of parental rights), neither mother nor father has sought to rescind the voluntary termination of parental rights. Rather, they argue that they substantially complied with the conditions of the stay, thereby eliminating the good-cause basis that they previously admitted. But even if substantial compliance with the conditions of a stayed voluntary termination of parental rights has the effect that mother and father purport, the record reflects that they did not substantially comply. Each parent’s violations of the conditions of the stay amply demonstrate the continuing existence of the good-cause basis for terminating their parental rights that they admitted in September 2006. Thus, the district court’s finding that good cause exists to terminate the parental rights of mother and father is not clearly erroneous.

B.

When deciding whether revoking a conditional stay of a voluntary termination of parental rights is warranted, a district court must first determine whether the parent has complied with the conditions of the stay. If the conditions of the stay were violated, the district court must then assess whether the violation warrants revocation. Because revoking the stay results in terminating parental rights, this action may be ordered only when it is in the best interests of the child. See D.D.G., 558 N.W.2d at 484 (stating in context of voluntary termination of parental rights that paramount concern in all TPR proceedings is child’s best interests); cf. In re Tanghe, 672 N.W.2d 623, 625-26 (Minn.App.2003) (observing in context of involuntary termination of parental rights that if contrary to child’s best interests, termination is inappropriate even when statutory ground for termination exists). Whether termination of parental rights is in a child’s best interests is a decision that rests within the district court’s discretion. Tanghe, 672 N.W.2d at 625-26. Therefore, when the district court finds that a parent has violated the conditions of a stay, the decision whether to revoke the stay based on that violation is a matter committed to the district court’s discretion. And we will not reverse the district court’s decision to revoke a conditional stay of a voluntary termination of parental rights absent an abuse of that discretion.

Here, the district court found multiple violations of the conditions of the stay that are supported by the record. The record demonstrates that mother violated the terms of the stay by (1) testing positive for drug use and submitting a diluted drug-test sample; (2) failing to demonstrate participation in NA; (3) failing to demonstrate that she had obtained a sponsor; (4) precluding the verification of her purported sponsor by revoking her permission to release the information; and (5) failing to demonstrate a positive change, as made evident by her failure to acknowledge the effects of her drug use on her children.

The record similarly demonstrates that father violated the conditions of the stay by (1) failing to demonstrate participation in NA; (2) failing to demonstrate that he had obtained a sponsor; (3) precluding verification of his purported sponsor by revoking his permission to release the information; (4) preventing therapists from accurately assessing his need for treatment by providing false information on the psychosexual evaluation and manipulating the evaluation process; and (5) failing to demonstrate a positive change, as made evident by his manipulation of the psychosexual evaluation, ongoing anger-management problems, and denial of his chemical dependency. Moreover, the record amply demonstrates that both parents violated a district court order issued while the stay was in effect that prohibited them from having visitation with the children without prior written approval from the district court.

Mother and father contend that the district court’s findings regarding violations of the conditions of the stay are clearly erroneous because some witnesses testified that mother and father had complied with the court-ordered case plan. But “[t]he weight to be given any testimony, including expert testimony, is ultimately the province of the fact-finder.” In re Welfare of Children of J.B., 698 N.W.2d 160, 167 (Minn.App.2005). And there is ample evidence in the record to support the district court’s finding that mother and father violated the conditions of the stay.

Finally, mother and father argue that, even if they did not comply with all of the conditions of the stay, the district court’s decision to revoke the stay and terminate their parental rights was improper because they complied with “the bulk of the [case] plan.” This argument also is premised on a challenge to the district court’s credibility determinations, which are the province of the district court. See In re Welfare of M.D.O., 462 N.W.2d 370, 374-75 (Minn.1990) (stating that fact-finding is domain of district court, which is in a “superior position” to assess witness credibility). After assessing the weight and credibility of the evidence, the district court found that mother and father violated the conditions of the stay. This finding is well supported by the record. Thus, based on the record before us, which establishes each parent’s multiple violations of the terms and conditions of the stay, the district court’s decision to revoke the stay and enter the voluntary termination of parental rights was not an abuse of discretion. ■

II.

We next address two due-process challenges to the district court’s decision raised by mother and father. Whether a parent’s due-process rights have been violated in a TPR proceeding is a question of law, which we review de novo. In re Child of P.T., 657 N.W.2d 577, 583 (Minn.App.2003), review denied (Minn. Apr. 15, 2003).

The parent-child relationship is among the fundamental rights protected by the constitutional guarantees of due process. B.J.B., 747 N.W.2d at 608. Due process requires reasonable notice, a timely opportunity for a hearing, the right to counsel, the opportunity to present evidence, the right to an impartial decision-maker, and the right to a reasonable decision based solely on the record. Humenansky v. Minn. Bd. of Med. Exam’rs, 525 N.W.2d 559, 565 (Minn.App.1994), review denied (Minn. Feb. 14, 1995). The applicable due-process standard in a TPR proceeding resides in the guarantee of fundamental fairness. Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599 (1982); B.J.B., 747 N.W.2d at 608. “Although the amount of process due in a particular case varies with the unique circumstances of that case, prejudice as a result of the alleged violation is an essential component of the due process analysis.” In re Welfare of Child of B.J.M., 744 N.W.2d 669, 673 (Minn.2008) (citations omitted).

A.

Father argues that his due-process rights were violated because the district court found that he violated the conditions of the stay in part because he failed to admit that he sexually abused mother’s sisters. Father maintains that an admission of this nature was not required under the court-ordered case plan. But father did not present this argument to the district court during the evidentiary hearing or in his new-trial motion. And generally we will not address constitutional issues that were not .raised before the district court. In re Welfare of M.H., 595 N.W.2d 223, 229 (Minn.App.1999); cf. Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minn., 664 N.W.2d 303, 310-11 (Minn.2003) (permitting review of “substantive questions of law” not raised in posttrial motions but properly raised during trial). By failing to raise this argument before the district court, father has waived it on appeal.

Regardless of any procedural defects, however, father’s claim is without merit because he failed to demonstrate prejudice. Although the district court made several findings pertaining to father’s denial that he had sexually abused mother’s sisters, those findings were not the sole basis for the district court’s determination that father violated the conditions of the stay. As addressed above in Section I.B., mother and father were aware that revocation of the stay and termination of their parental rights could result from failing to comply with any condition of the stay. They failed to comply with several. Thus, even if the district court erred by relying on father’s refusal to admit committing the sexual abuse, the district court’s reliance on ample other grounds for revoking the stay renders any such error harmless because the essential element of prejudice has not been met.

B.

Mother and father also argue that, because the district court made findings of fact and conclusions of law pertaining to grounds for an involuntary termination of parental rights in addition to addressing the grounds for revoking the stay of their voluntary termination of parental rights, they were deprived of due process. This argument is unavailing. Due-process guarantees preclude the termination of parental rights based on a statutory ground that was not included in a petition to terminate parental rights. B.J.-M., 744 N.W.2d at 673. Here, it is undisputed that the petition, which identified section 260C.301, subdivision 1(a) (voluntary termination of parental rights for good cause), as a statutory ground for terminating parental rights, complied with this requirement. Thus, as mother and father concede, entry of a voluntary termination of parental rights would not violate their right to due process.

When determining whether a termination of parental rights was voluntary or involuntary, we look to the record as a whole, rather than relying solely on the characterization by the district court. In re Child of A.S., 698 N.W.2d 190, 195 (Minn.App.2005), review denied (Minn. Sept. 20, 2005); In re Welfare of Child of W.L.P., 678 N.W.2d 703, 712 (Minn.App.2004). Here, mother and father affirmatively represented to the district court that they agreed to voluntarily terminate their parental rights; and both signed affidavits giving their consent. See W.L.P., 678 N.W.2d at 712 (requiring parent to “take some affirmative steps to voluntarily terminate”). The petition was amended to include section 260C.301, subdivision 1(a), as a statutory ground for a voluntary termination of parental rights. And the district court concluded its findings by stating: “[T]he Court lifts the stay and enters a voluntary termination order.” The record demonstrates that it was the intent of mother, father, and the district court that the parental rights of mother and father be voluntarily terminated. And the voluntary termination of parental rights was accomplished by the district court’s order.

Although the district court’s findings and conclusions regarding involuntary TPR grounds were not pertinent to the motion to revoke the stay, any error in making these findings is harmless. See In re Welfare of D.J.N., 568 N.W.2d 170, 176 (Minn.App.1997) (refusing to reverse termination of parental rights for harmless error); cf. State v. Cannady, 727 N.W.2d 403, 405 (Minn.2007) (applying harmless-error analysis to due-process argument).

DECISION

The consent of appellants to the voluntary termination of their parental rights for good cause was an adequate statutory ground for terminating their parental rights after revoking the stay. Because the record supports the district court’s finding that appellants violated the conditions of the stay, the district court did not abuse its discretion by revoking the stay and terminating appellants’ parental rights under Minn.Stat. § 260C.301, subd. 1(a) (2006). Nor did the district court violate appellants’ due-process rights in doing so.

Affirmed.

      . Z.C.’s father, who voluntarily terminated his parental rights on June 13, 2007, is not a party to this appeal.

      . Z.C. testified briefly in chambers on March 23, 2007. The remainder of the evidentiary hearing was held in June and July.

      . In all termination proceedings, whether voluntary or involuntary, the paramount consideration is the child’s best interests. Minn. Stat. § 260C.301, subd. 7 (2006) (making child's best interests "paramount consideration” in any proceeding under Minn.Stat. § 260C.301); D.D.G., 558 N.W.2d at 484 (stating in context of voluntary termination that "in all termination cases, our paramount concern is for the child’s best interests”). Because mother and father do not challenge the district court’s finding that termination of their parental rights is in the best interests of each child, the validity of the district court’s best-interests findings is not before us.

      . We observe that the nature of the termination of parental rights, i.e., voluntary or involuntary, does not change when a stay is revoked. Thus, for example, if the district court revokes a stay of a voluntary termination of parental rights, it must enter a voluntary TPR order.

      . Although mother argues that a violation of the stay cannot be based on her positive drug test, we are not persuaded. Mother agreed on the record to the conditions of the stay, see Minn. R. Juv. Prot. P. 19.03 (permitting parties to agree on the record to terms of a TPR settlement), and later admitted that she was aware when taking the methamphetamine that led to the positive drug-test results that a single positive test result could lead to termination of her parental rights.


source: Caselaw Access Project

author: WILLIS, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Abdulkani ALI, Appellant.
    No. A07-0428.
    Court of Appeals of Minnesota.
    July 8, 2008.

      Lori Swanson, Attorney General, St. Paul, MN; and Mike Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, MN, for respondent.
    Lawrence Hammerling, Chief Appellate Public Defender, Bridget Kearns Sabo, Assistant Public Defender, St. Paul, MN, for appellant.
    Considered and decided by WILLIS, Presiding Judge; HALBROOKS, Judge; and JOHNSON, Judge.
   OPINION

WILLIS, Judge.

Appellant challenges his conviction of first-degree assault, arguing that he is entitled to a new trial because (1) the district court abused its discretion by denying his request for an instruction to the jury on a lesser-included offense, (2) the prosecutor committed prejudicial misconduct, and (3) he was prosecuted by an assistant county attorney whose license to practice law was on restricted status. We affirm.

FACTS

In the early morning of January 7, 2007, appellant Abdulkani Ali got into an argument with a clerk at a Minneapolis convenience store and began using racial epithets in addressing her. The clerk told Ali to leave the store immediately, but Ali refused and continued yelling at her. At this point the clerk pushed a “panic button” to activate an alarm system to call the police.

Another clerk, who had overheard Ali yelling and swearing, also told Ali to leave. Ali told that clerk to “shut up” and threw a cup of either water or soda at him. The first clerk pushed the panic button again and announced that the police were on their way, at which point Ali turned and began to walk toward the door. A customer who had been watching the incident grabbed Ali from behind and held him in a “bear hug” in an attempt to restrain him until the police arrived. During a struggle between the two men, Ali bit off the tip of the customer’s middle finger on his left hand. Seconds before the police arrived at the convenience store, Ali got into his car and drove away. The police pursued Ali, stopped him, and brought him back to the convenience store. The first clerk and the injured customer both identified Ali, and the police arrested him.

Ali was charged with first-degree assault, in violation of Minn.Stat. § 609.221, subd. 1 (2006). A jury found Ali guilty, and the district court sentenced him to 74 months’ imprisonment. This appeal follows.

ISSUES

I. Did the district court abuse its discretion by denying Ali’s request for a jury instruction on the lesser-included offense of fifth-degree assault?

II. Did the prosecutor commit prejudicial misconduct?

III.Is Ali entitled to a new trial on the ground that he was prosecuted by an assistant county attorney whose license to practice law was on restricted status for failing to comply with continuing-legal-education requirements?

ANALYSIS

I. The district court did not abuse its discretion by denying Ali’s request for a jury instruction on the lesser-included offense of fifth-degree assault.

At trial, the district court denied Ali’s request for a jury instruction on the lesser-included offense of fifth-degree assault. This court reviews the denial of a request for a jury instruction on a lesser-included offense for an abuse of discretion. State v. Dahlin, 695 N.W.2d 588, 597 (Minn.2005).

When a defendant requests an instruction on a lesser-included offense, a district court must give the instruction if (1) the lesser offense is included in the charged offense and (2) the evidence provides a rational basis for acquitting the defendant of the charged offense while convicting him of the lesser offense. See id. at 594; Cooper v. State, 745 N.W.2d 188, 193 (Minn.2008). In making this determination, the district court must view the evidence in the light most favorable to the party requesting the instruction and must not weigh the evidence or make credibility determinations. State v. Penkaty, 708 N.W.2d 185, 205 (Minn.2006). And this court also views the evidence in the light most favorable to the party requesting the instruction when reviewing the district court’s decision. Dahlin, 695 N.W.2d at 598. Even if a district court abused its discretion by failing to give a requested instruction, this court will reverse a verdict “only if the defendant is prejudiced” by the district court’s failure to give the instruction. Id. (quotation omitted).

Here, it is undisputed that fifth-degree assault is an included offense of first-degree assault. See State v. Griffin, 518 N.W.2d 1, 3 (Minn.1994); see also Minn.Stat. § 609.04, subd. 1 (2006) (providing that a lesser degree of the same crime is an included offense). The issue is, therefore, whether the evidence provided a rational basis for the jury to convict Ali of fifth-degree assault while acquitting him of first-degree assault. See Dahlin, 695 N.W.2d at 595.

The difference between the crimes at issue is that first-degree assault causes “great bodily harm” while fifth-degree assault involves only “bodily harm.” Compare Minn.Stat. § 609.221, subd. 1 (2006) with Minn.Stat. § 609.224, subd. 1 (2006). Great bodily harm is “bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm.” Minn.Stat. § 609.02, subd. 8 (2006). By contrast, bodily harm means “physical pain or injury, illness, or any impairment of physical condition.” Id., subd. 7 (2006).

Ali concedes that the evidence established that the victim suffered a permanent injury to his finger. But he argues that not all permanent injuries constitute great bodily harm. He concludes, therefore, that the district court was required to give an instruction on both first-degree assault and fifth-degree assault and let the jury decide whether the injury constituted great bodily harm or only bodily harm. But the evidence showed that Ali bit nearly one inch off the tip of the victim’s finger. The treating physician referred to the injury as a “partial amputation” of the victim’s finger starting just above the base of the fingernail. We conclude that the loss of the tip of a finger is a “serious permanent disfigurement” or “permanent ... loss or impairment of the function of’ a bodily member. See Minn.Stat. § 609.02, subd. 8. On this evidence, the district court properly concluded that there was no “rational basis to find [Ali] not guilty of ... first degree assault but guilty of ... fifth degree assault.” As the district court aptly noted:

Either [Ali] assaulted [the victim] and ... he has a ... successful self-defense claim ... that the state has to disprove, or he’s guilty on the evidence that’s presented. [The victim] lost part of his finger. That’s permanent.
Now, one can split hairs about whether losing somewhere between a half inch and three-quarters of an inch ... of your fingertip is a member or not, but I would rule that part of your finger is a member, just like I don’t believe you’d have to bite the whole arm off at the shoulder in order to find that he’s lost an arm.

When the district court asked Ali’s counsel to point to evidence that would provide a rational basis for convicting Ali of fifth-degree assault while acquitting him of first-degree assault, Ali’s counsel responded that under Dahlin, Ali need not identify such evidence to warrant an instruction on fifth-degree assault. Similarly, Ali claims on appeal that a defendant does not have .to identify “any evidence at all ... to meet the rational basis requirement.” But Dahlin expressly reaffirmed earlier decisions holding that a district court is not required to give an instruction on a lesser-included offense if “no evidence is adduced” to support giving such an instruction. 695 N.W.2d at 595 (citing State v. Merrill, 428 N.W.2d 361, 370 (Minn.1988); State v. Koop, 380 N.W.2d 493, 495 (Minn.1986); and State v. Murphy, 380 N.W.2d 766, 772 (Minn.1986)). The undisputed evidence established that Ali bit off the tip of the victim’s finger. There is no evidence that would provide a rational basis for convicting Ali of fifth-degree assault while acquitting him of first-degree assault. The district court, therefore, did not abuse its discretion by denying Ali’s request for an instruction on fifth-degree assault.

II. The prosecutor did not commit misconduct.

Ali argues next that he is entitled to a new trial because the prosecutor committed prejudicial misconduct during closing argument by denigrating the defense, improperly inflaming the passions of the jury, and suggesting that Ali had an opportunity to tailor his testimony.

Ali objected at trial to only some of the prosecutor’s statements that he challenges on appeal. We must, therefore, apply two standards of review. See State v. Dobbins, 725 N.W.2d 492, 506 (Minn.2006). Prosecutorial misconduct that was not objected to is analyzed under the plain-error standard. State v. Ramey, 721 N.W.2d 294, 299, 302 (Minn.2006). Under that standard, if a defendant shows that the alleged misconduct was plain error, the burden shifts to the state to establish that the misconduct did not prejudice the defendant’s substantial rights. Id. at 300. The state meets this burden if it can show that there is no reasonable likelihood that the misconduct had a significant effect on the jury’s verdict. Id. at 302. By contrast, prosecutorial misconduct that was objected to at trial is reviewed under the harmless-error standard, and this court will reverse unless the misconduct was harmless beyond a reasonable doubt, that is, unless the verdict is surely unattributable to the misconduct. State v. Mayhorn, 720 N.W.2d 776, 785 (Minn.2006) (citing State v. Swanson, 707 N.W.2d 645, 658 (Minn.2006)).

A. The prosecutor did not denigrate the defense.

Ali claims that the prosecutor improperly denigrated his self-defense claim. Specifically, he points to portions of the prosecutor’s argument in which she (1) emphasized inconsistencies between Ali’s statements to the arresting officer on the night of the incident and his trial testimony; (2) told the jury to “ask yourself if the oath means anything to this man after what you’ve heard coming out of his mouth now”; (3) characterized Ali’s testimony as “his new, better, improved memory after ten months”; and (4) labeled Ali’s version of the events as being “ludicrous” and a “yarn.” Because Ali did not object to any of these statements, we apply the plain-error standard.

A prosecutor may not denigrate or belittle a particular type of defense in the abstract. State v. Griese, 565 N.W.2d 419, 428 (Minn.1997). For example, a prosecutor may not argue that a particular defense is one that is raised when “nothing else will work.” State v. Williams, 525 N.W.2d 538, 549 (Minn.1994). Nor should a prosecutor suggest that an argument is “some sort of syndrome of standard arguments” that defendants raise in a particular type of case. State v. Salitros, 499 N.W.2d 815, 818 (Minn.1993). But a “prosecutor is free to specifically argue that there is no merit to a particular defense in view of the evidence or no merit to a particular argument.” Id.

At trial, Ali claimed that he was acting in self-defense. The prosecutor’s statements were directed specifically at Ali’s self-defense claim and Ali’s testimony. The prosecutor argued to the jury that Ali’s self-defense claim was not believable in light of the testimony of other witnesses and inconsistencies between Ali’s statements to the arresting officer on the night of the incident and his trial testimony. The prosecutor did not, however, suggest that a claim of self-defense is used when nothing else will work; that such a claim is, categorically, without merit; or that it is always raised in an assault case. The prosecutor’s statements do not constitute misconduct, and, thus, there was no error, much less plain error.

B. The prosecutor’s statements were not calculated to improperly inflame the passions of the jury.

Ali argues next that the prosecutor committed misconduct by appealing to the passions of the jury. He points specifically to the prosecutor’s statement that Ali “not only bit [ ] down on [the victim’s] finger” but that he continued to “chomp and chomp and chomp ... through all those layers of hard, hard bone.” Ali also claims that the prosecutor improperly inflamed the passions of the jury by stating that Ali is “not the quiet little man sitting here dressed up in a suit” and by calling Ali’s actions in biting the victim’s finger “barbaric.” Again, Ali did not object to these statements, and we apply the plain-error standard.

A prosecutor’s closing argument should be based on the evidence and should not be calculated to improperly inflame the passions of the jury. State v. Clark, 296 N.W.2d 359, 371 (Minn.1980). But a prosecutor is not required to make a colorless closing argument and “has the right to present to the jury all legitimate arguments on the evidence, to analyze and explain the evidence, and to present all proper inferences to be drawn therefrom.” State v. Williams, 586 N.W.2d 123, 127 (Minn.1998) (quotation omitted).

We conclude that the prosecutor’s statements here were not calculated to improperly inflame the passions of the jury. They were confined to the evidence and the inferences to be drawn from that evidence. Although the prosecutor’s statements “were at times expressed in colorful terms,” they do not amount to misconduct. See State v. Davis, 735 N.W.2d 674, 683 (Minn.2007). Again, there was no plain error.

C. The prosecutor did not improperly suggest that Ali had an opportunity to tailor his testimony.

Ali also argues that the prosecutor committed misconduct when she said that (1) Ali “had months to think about [his case] and learn ... about the law ... on self-defense” and (2) his testimony “fits very nicely” into what has to be established for a self-defense claim. Ali claims that these statements were an improper attempt to suggest that he had an opportunity to tailor his testimony. Because Ali objected at trial, we apply the harmless-error standard.

It is misconduct for a prosecutor to suggest, in the absence of evidence of actual tailoring of testimony, that a defendant, by his presence at trial and ability to review the evidence, has had an opportunity to tailor his testimony. See Mayhorn, 720 N.W.2d at 790. The rule prohibiting a prosecutor from suggesting that a defendant tailored his testimony is based on the rationale that a prosecutor should not be allowed to imply that a defendant is “less believable simply as a result of [the defendant] exercising [his] right of confrontation.” Dobbins, 725 N.W.2d at 507 (quoting Swanson, 707 N.W.2d at 657-58). In other words, it is improper for a prosecutor to argue that a defendant observed the full presentation of evidence and then “took the witness stand and concocted a story exonerating himself’ because such an argument asks the jury to draw an adverse inference from the fact that the defendant exercised his Sixth Amendment rights to be present during trial and to confront the witnesses against him. State v. Buggs, 581 N.W.2d 829, 341 (Minn.1998).

Here, the prosecutor’s statements did not suggest that Ali had tailored his testimony after hearing the testimony of witnesses and reviewing the trial evidence. Rather, the prosecutor suggested that Ali’s testimony was not believable because, in the months between his arrest and the trial, he had learned what the law requires to establish a claim of self-defense and had prepared his testimony to fit such a claim. This was an argument that Ali’s testimony was tailored from a review of the law, not from hearing trial testimony. Accordingly, we conclude that the prosecutor was not attempting to use the fact that Ali exercised his Sixth Amendment rights to impeach his credibility, and, therefore, there was no misconduct.

III. Ali is not entitled to a new trial on the ground that he was prosecuted by an assistant county attorney whose license to practice law was on restricted status for failing to comply with continuing-legal-education requirements.

The assistant county attorney who was assigned to Ali’s case was Gemma Graham. At the time of Ali’s prosecution, Graham’s license to practice law was on restricted status because she had failed to submit affidavits of her compliance with continuing-legal-education requirements, in violation of rules 5.5 and 8.4(d) of the Minnesota Rules of Professional Conduct. See In re Graham, 744 N.W.2d 19, 19 (Minn.2008). Ali argues that his conviction “must be reversed because his case was prosecuted by an attorney who was not licensed to practice [law] when she signed the complaint against him or when she tried the case.” See Rule 12(B), Rules of the Minnesota State Board of Continuing Legal Education (providing that an attorney on restricted status “may not engage in the practice of law or represent any person or entity in any legal matter or proceedings within the State of Minnesota other than himself or herself’). This precise issue is one of first impression in Minnesota.

But the Minnesota Supreme Court has addressed analogous circumstances. First, in State v. Abbott, the supreme court considered whether a defendant was denied due process entitling him to a new trial because the attorney who prosecuted him was “not properly appointed an assistant county attorney.” 356 N.W.2d 677, 679 (Minn.1984). The Abbott court held that the defendant was not entitled to have his conviction vacated and a new trial granted because “even if the prosecutor’s appointment was technically defective, the defect did not prejudice defendant or deprive him of a fair trial.” Id.

And in State v. Smith, a defendant argued that his Sixth Amendment right to counsel had been violated by the fact that he was represented by a defense attorney who, during the course of the trial, was suspended from the practice of law pending disbarment. 476 N.W.2d 511, 512-13 (Minn.1991). The supreme court noted that when a person representing a defendant is “an impostor” who had “never been a lawyer” and had “never been admitted to the bar,” “persuasive authority holds that this creates a per se Sixth Amendment violation.” Id. at 513. The supreme court explained further, however, that when a person “has been admitted to the bar but, at the time of the court proceedings, has lost licensure because of suspension or disbarment,” the “imposition of a per se rule is inappropriate” because “the reasons for loss of licensure can be so varied in kind and degree,” ranging from technical reasons to substantive ones. Id. The supreme court also concluded that a “more flexible approach than a per se rule” is warranted to balance the competing considerations of the “integrity of the criminal justice system” and the “reluctance to set aside a criminal conviction where guilt has been fairly established.” Id. at 514.

As an initial matter, we disagree with Ali’s contention that because Graham’s license to practice law was on restricted status when she signed the complaint and tried the case, the district court did not have jurisdiction. Rule 2.02 of the Minnesota Rules of Criminal Procedure provides: “A complaint shall not be filed ... without the written approval, endorsed on the complaint, of the prosecuting attorney authorized to prosecute the offense charged.... ” Ali was prosecuted by the office of the Hennepin County Attorney, which was the appropriate prosecuting authority because the alleged offense occurred in Hennepin County. Cf. State v. Persons, 528 N.W.2d 278, 279 (Minn.App.1995) (holding that a district court erred by refusing to dismiss a complaint when the prosecution was not initiated by the prosecuting authority for the jurisdiction in which the offense occurred). And Ali has not challenged the validity of Graham’s appointment as an assistant Hennepin County attorney. See Minn.Stat. § 388.10 (2006) (authorizing county attorneys to appoint assistant county attorneys). The restricted status of Graham’s license to practice law did not affect the authority of the office of the Hennepin County Attorney to prosecute Ali through a duly appointed assistant county attorney. The district court had jurisdiction over Ali’s prosecution.

In support of his claim that his conviction must be reversed and a new trial ordered, Ali relies on People v. Dunson, 316 Ill.App.3d 760, 250 Ill.Dec. 77, 737 N.E.2d 699 (2000). In Dunson, a prosecutor was duly appointed as an assistant state’s attorney, but he was not licensed to practice law in Illinois when he prosecuted the defendant. 250 Ill.Dec. 77, 737 N.E.2d at 700. The Illinois Court of Appeals concluded, as a matter of common law, that the defendant’s conviction was void and that he did not have to demonstrate any prejudice resulting from the fact that he was prosecuted by an unlicensed attorney. Id. at 700-05. The Dunson court based its decision to adopt such a per se rule on a concern for protecting the public from imposters engaged in the unauthorized practice of law and on a “well-settled rule” in Illinois that when a person who is not licensed to practice law initiates a civil action on behalf of another in court, the action should be dismissed, and, if it proceeds to judgment, the judgment is null and void and will be reversed. See id. at 702-03.

Other courts facing this issue have taken a different approach. In Munoz v. Keane, a New York federal district court denied the habeas corpus petitions of two codefen-dants who were convicted in a trial prosecuted by an assistant district attorney, Daniel Penofsky, who had graduated from law school but had not taken the New York bar examination and had not been admitted to practice law in New York. 777 F.Supp. 282, 283-87 (S.D.N.Y.1991), aff'd sub nom. Linares v. Senkowski, 964 F.2d 1295 (2d Cir.1992). The federal district court explained that no constitutional right to be prosecuted by a licensed attorney had ever been recognized and the fact that a defendant was prosecuted by an attorney who had not been admitted to practice law did not necessarily undermine the fairness of the trial process. Id. at 285-87. The Munoz court concluded that “[w]here, as here, defense counsel and an impartial trial judge are capable of monitoring the prosecutor’s conduct in order to ensure that no constitutional violations occur, it would be inappropriate to conclude that a due process violation automatically results from the prosecutor’s unlicensed status.” Id. at 286. The federal court also noted the policy ramifications of adopting a per se rule:

We also cannot ignore the practical implications of accepting petitioners’ due-process claim — every defendant convicted by Penofsky during his fourteen-year tenure as a prosecutor would be entitled to a new trial. Petitioners have not demonstrated a sufficient basis for invalidating such a large number of cases and have not suggested any way to limit the scope of their proposed constitutional rule.

Id.

Questions regarding the effect of Penof-sky’s unlicensed status gave rise to at least two decisions in the state courts of New York as well. In People v. Carter, New York’s highest court rejected the argument that Penofsky’s status rendered the joint trial of two defendants and their resulting convictions defective. 77 N.Y.2d 95, 564 N.Y.S.2d 992, 566 N.E.2d 119, 121-23 (1990). The court explained that Penof-sky’s nonlawyer status did not deprive the district court of jurisdiction and did not negate the authority conferred on him by his appointment as an assistant district attorney. Id. at 123. The Carter court further stated that although “ ‘the egregious nature of Penofsky’s conduct’ ... cannot be minimized, ... the fact that Penofsky was not a lawyer did not result in a deprivation of defendants’ constitutional due process rights.” Id. at 124 (citation omitted).

Similarly, in People v. Jackson, the Appellate Division of the New York Supreme Court held that although it was improper for Penofsky to have prosecuted a defendant, there was no reversible error without a showing that the defendant was prejudiced by the fact that Penofsky was not a licensed attorney. 163 A.D.2d 489, 558 N.Y.S.2d 590, 590 (N.Y.App.Div.1990). In reversing the trial court, the Jackson court specifically rejected the application of a per se rule that a conviction obtained by a prosecutor who was not a licensed attorney must be vacated, even if no prejudice is shown. See id., rev’g, 548 N.Y.S.2d 987, 995 (N.Y.Sup.Ct.1989).

For several reasons, we reject Ali’s request for the application of a per se rule. We find the reasoning of the New York state and federal courts to be persuasive, and we conclude that to be entitled to a new trial, Ali must show prejudice resulting from the fact that he was prosecuted by an attorney whose license to practice law was on restricted status. First, requiring a showing of prejudice is consistent with our supreme court’s decision in Abbott. Although the issue here concerns a prosecutor whose license to practice law was on restricted status, rather than a defect in a prosecutor’s appointment, as in Abbott, we conclude that there are substantial similarities between the two issues, and, therefore, requiring a showing of prejudice to warrant a reversal and a new trial is appropriate.

Second, as the supreme court did in Smith, we distinguish the circumstances here from a case involving an individual who has never been admitted to the bar, an “imposter.” See 476 N.W.2d at 513. Here, Graham was not an imposter. She had been admitted to practice law in Minnesota, although her license was on restricted status.

Third, the same competing considerations that the supreme court identified in Smith — namely, the integrity of the criminal justice system and a reluctance to set aside a criminal conviction when guilt was fairly established — also exist here. See id. at 514. And as the supreme court concluded in Smith, balancing these considerations requires flexibility that the application of a per se rule cannot afford. See id.

Finally, like the New York federal court in Munoz, we cannot ignore the practical effect of a per se rule. See 777 F.Supp. at 286. If we were to apply the standard that Ali urges, every defendant who was prosecuted by Graham during the more than 20 years that her license was on restricted status would be entitled to a reversal of his conviction, regardless of whether the integrity of any defendant’s trial was in any way impaired.

Ah argues that if this court concludes that a showing of prejudice is necessary to entitle him to a new trial, he in fact did suffer prejudice because, had Graham “fulfilled her CLE requirements, ... she would have been educated on the current state of the law on prosecutorial misconduct” and would have avoided committing the misconduct of which Ali complains. Ali’s argument is not persuasive. As we have already determined, Graham did not commit misconduct in her closing argument. We conclude that Ali has failed to show prejudice resulting from the fact that Graham’s license was on restricted status at the time of Ali’s prosecution, and, therefore, he is not for that reason entitled to a new trial.

DECISION

We conclude that (1) the district court did not abuse its discretion by refusing to instruct the jury on the lesser-included offense of fifth-degree assault, (2) the prosecutor did not commit misconduct, and (3) Ali is not entitled to a new trial because he has failed to show prejudice resulting from the fact that he was prosecuted by an attorney whose license to practice law was on restricted status. We affirm.

Affirmed.


author: MINGE, Judge.

text:
    Dean DO, Appellant, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Respondent.
    No. A07-1461.
    Court of Appeals of Minnesota.
    July 8, 2008.

      D. Scott Dunham, D. Scott Dunham, P.A., Stillwater, MN, for appellant.
    Tammy M. Reno, Brown & Carlson, P.A., Minneapolis, MN, for respondent.
    Considered and decided by ROSS, Presiding Judge; MINGE, Judge; and CONNOLLY, Judge.
   OPINION

MINGE, Judge.

This appeal arises out of a claim by appellant injured party against his automobile-insurance carrier for no-fault and underinsurance benefits. Appellant asserts that the district court erred in relying on the collateral-source rule to offset the amount recovered in his prior settlement with the tortfeasor’s liability insurer against a jury award of damages. Because the prior settlement is a collateral source under Minn.Stat. § 548.36 (2006) and was for general unspecified damages, the district court did not err in deducting it from the ultimate jury award in appellant’s action, and we affirm.

FACTS

On September 13, 2002, Julie Wagner and appellant Dean Do were involved in a car accident in which Wagner was at fault and Do was injured. Do had no-fault and underinsured motorist (UIM) coverage with respondent American Family Mutual Insurance Co. (American Family). He sought no-fault benefits from American Family, but it paid only $865.50 of his no-fault coverage. American Family claimed that the other medical expenses Do submitted to them were not a direct result of the accident and therefore did not represent reasonable and necessary compensation under his no-fault policy. Do also made claims against Wagner, the tortfea-sor, to satisfy his damages and settled with Wagner’s insurer for $28,000 of her $30,000 automobile-liability-policy coverage. There is no indication that the $28,000 was allocated to any specific items of damage. After that settlement, Do brought suit for additional compensation from his own insurer, respondent American Family, for UIM and no-fault benefits. There was no claim that American Family had acted in bad faith in failing to pay or settle its no-fault policy obligations.

At trial, American Family acknowledged coverage but challenged Do’s damages. A jury determined that Do had sustained total damages arising out of the accident in the amount of $49,416.13. The award was broken down as $3,159 for medical expenses for diagnostic testing and scans, $36,257.13 for medical expenses exclusive of testing and scans, $5,000 for past pain and disability associated with the accident, and $5,000 for future pain and disability. The verdict did not further identify or allocate the damages.

American Family moved for a collateral-source offset and a reduction of the jury award. The district court determined that the $28,000 settlement payment from Wagner’s liability insurer constituted a collateral source and ordered it offset from the jury award. Therefore, the district court subtracted the $28,000 paid by Wagner’s insurer and $865.50 in no-fault benefits already paid by American Family from the $49,416.13 jury verdict and ordered American Family to pay the remaining $20,550.63. This appeal follows.

ISSUES

Did the district court err by subtracting appellant’s settlement with the tortfeasor from an ultimate jury award as a collateral source?

ANALYSIS

The issue is whether the district court properly applied the “collateral-sources statute,” Minn.Stat. § 548.36 (2006), by subtracting Do’s prior settlement from the jury award. When there is no factual dispute, we review whether the district court has properly applied the collateral-source rule de novo. Dean v. Am. Family Mut. Ins. Co., 535 N.W.2d 342, 343 (Minn.1995).

A. The No-Fault Setting

At the outset, it is essential to clarify the unique circumstances of this case. A vehicle is underinsured for the purposes of UIM coverage if no-fault coverage and the tortfeasor’s liability-insurance coverage on the vehicle are inadequate to satisfy the injured party’s damages. Richards v. Milwaukee Ins. Co., 518 N.W.2d 26, 28 (Minn.1994) (determining that “actual damages” as used in the UIM statute refers to a tortfeasor’s liability “exclusive of those damages paid by no-fault coverage”).

The no-fault act is intended to (1) relieve uncompensated victims from the economic stress caused by automobile accidents by providing for prompt payment for economic losses to victims of automobile accidents without regard for who was at fault; (2) prevent overcompensation of automobile-accident victims; (3) ensure, by the guarantee of prompt payment, that victims seek and receive appropriate medical treatment; (4) speed the administration of justice, ease the burden of litigation on state courts, and create an efficient arbitration system; and (5) prevent automobile-accident victims from receiving duplicate recovery. Minn.Stat. § 65B.42 (2006); Scheibel v. Ill. Farmers Ins. Co., 615 N.W.2d 34, 37 (Minn.2000). Under the act, Minnesota insurance policies must, at a minimum, provide coverage of $20,000 for medical-expense loss and $20,000 for income loss and other expenses. See Minn.Stat. § 65B.44, subd. 1(a)(1), (2) (2006).

Ordinarily, an injured party is compensated through his or her no-fault benefits coverage as the expenses and losses are incurred, and unless the tortfeasor is underinsured, the tortfeasor and his or her liability insurer cover the remainder of the damages. See Richards, 518 N.W.2d at 28; cf. Balderrama v. Milbank Mut. Ins. Co., 324 N.W.2d 355, 356 (Minn.1982) (holding that a prior settlement for common-law liability claims does not abrogate the statutory rule that every person suffering loss from injury as a result of a motor-vehicle accident has a right to basic-economic-loss benefits); Minn.Stat. § 65B.46, subd. 1 (2006).

Here, Do first sought no-fault benefits from his own insurer but, except for $865.50, the no-fault benefits for his medical expenses were denied. Next, Do settled with the tortfeasor’s insurer for $28,000. Finally, Do sued his own insurer under his policy for no-fault and UIM coverage. In that suit, a jury determined that Do’s total damages were $49,416.13. This included $39,416.13 in medical-expense damages. Do’s policy with American Family allowed for $30,000 medical expenses as a part of no-fault coverage. Although the verdict allocated $10,000 for pain and disability, that $10,000 was not broken down between the two items. If Do had pursued his claims against his own insurer first, American Family would have been liable for the first $30,000 in applicable expenditures as medical no-fault payments and up to $10,000 for disability. The tortfeasor’s insurer would have been left to satisfy at most $19,416.13 (the remaining medical plus pain) and possibly as little as $9,416.13 (medical). See Richards, 518 N.W.2d at 28 (holding that the tortfea-sor’s liability is limited to damages that are not compensated for by no-fault benefits); Balderrama, 324 N.W.2d at 356 (indicating that a no-fault insurer has a statutory obligation to pay basic-economic-loss benefits).

Because Do’s settlement with the tort-feasor’s insurer came before the jury’s determination of damages and recovery of no-fault benefits, the tortfeasor’s insurer paid Do $28,000. This payment of $28,000 and the $30,000 no-fault medical coverage fully satisfy Do’s damages as determined by the jury. As a result, Wagner is not “underinsured.” Having established that we consider Do’s claims against American Family for compensation as no-fault benefits rather than UIM benefits, we proceed with the analysis of the collateral-source rule.

B. The Collateral-Source Rule

In Minnesota, there are two formulations of the collateral-source rule: common-law and statutory. The common-law collateral-source rule states that:

[I]f the plaintiffs special damages ... such as hospital or medical expenses or loss of wages, are paid for by some third person, either as a gift or on the basis of some contractual obligation, this circumstance does not bar the plaintiff from recovering this item from the defendant, even though it may in effect accord to the plaintiff a double benefit or a double recovery.

Smith v. Am. States Ins. Co., 586 N.W.2d 784, 786 (Minn.App.1998) (quotation omitted), review denied (Minn. Feb. 18, 1999). This acceptance of double recovery recognizes that the injured party, not the tort-feasor, should benefit from gifts or contractual rights. Id. This common-law rule applies in cases that are not covered by the current collateral-source statute.

The collateral-source rule set forth in the statute is as follows:

In a civil action, ... when damages include an award to compensate the plaintiff for losses available to the date of the verdict by collateral sources, a party may file a motion within ten days of the date of entry of the verdict requesting determination of collateral sources. If the motion is filed, ... the court shall determine:
(1) amounts of collateral sources that have been paid for the benefit of the plaintiff or are otherwise available to the plaintiff as a result of losses except those for which a subrogation right has been asserted.

Minn.Stat. § 548.36, subd. 2.

The statute “prevents double recovery by requiring the deduction of certain benefits received by a civil plaintiff” and thus “abrogates the common law right to be overcompensated for injuries.” Johnson v. Farmers Union Cent. Exch., Inc., 414 N.W.2d 425, 432 (Minn.App.1987), review denied (Minn. Nov. 24, 1987); see also Minn.Stat. § 548.36, subd. 3. The purpose of the collateral-source statute is to prevent “windfalls by plaintiffs at the expense of defendants.” Buck v. Schneider, 413 N.W.2d 569, 572 (Minn.App.1987). “Collateral sources” to be deducted from jury awards are payments related to the injury and paid to or on behalf of the plaintiff up to the date of the verdict, including payments made pursuant to automobile-accident insurance. Minn.Stat. § 548.36, subd. 1(2); see, e.g., Imlay v. City of Lake Crystal, 453 N.W.2d 326, 333-34 (Minn.1990) (considering UIM insurance payments to be a “collateral source” offset against a tortfeasor’s liability insurance); Lee v. Hunt, 642 N.W.2d 57, 60 (Minn.App.2002) (“No-fault benefits fall within the category of automobile accident insurance, and, therefore, by definition, the collateral source statute applies to the no-fault benefits.”).

Here, Do’s settlement with the tortfea-sor’s insurer was a payment made to him pursuant to automobile-accident insurance. Under the plain language of the statute, the prior settlement with the tortfeasor’s insurer is a collateral source. The district court simply followed the statute in deducting the amount of that settlement from the jury award.

C. The Dean Decision

Appellant relies on the Dean decision for the proposition that a payment pursuant to a tortfeasor’s liability-insurance policy can never constitute a collateral source. 535 N.W.2d at 345. Essentially, Dean considered whether to make a deduction for a claimant’s personal fault for an accident before or after an offset was made for insurance proceeds already received from a tortfeasor’s insurance company. Id. at 343. The court stated:

[U]nder the facts of this case the collateral source rule is clearly inapplicable because a tortfeasor’s liability insurance cannot, by definition, constitute a collateral source.
... [W]hile it might not be precisely clear exactly what the legislature meant to include as a collateral source, it is patently clear that a tortfeasor’s liability insurance can never be within the definition of a collateral source. The Black’s Law Dictionary definition of “collateral source rule” is helpful: [“JUnder this rule, if an .injured person receives compensation for his injuries from a source wholly independent of the tort-feasor, the payment should not be deducted from the damages which he would otherwise collect from the tortfeasor. In other words, a defendant tortfeasor may not benefit from the fact that the plaintiff has received money from other sources as a result of the defendant’s tort, e.g. sickness and health insurance!”]

Id. at 345.

Appellant urges us to adhere to the broad statement set forth above that a tortfeasor’s liability insurance can “never” be a collateral source. Were we to do so, the payment from a tortfeasor’s insurance would fall outside the scope of the collateral-source statute, the common-law rule would apply, and double recoveries would be permitted. See Smith, 586 N.W.2d at 786 (acknowledging that double recoveries are allowed under the common-law rule). Our careful review of Dean and related jurisprudence indicates that such a broad prohibition was not intended.

First, the cases are different. The Dean case concerned comparative fault and limits on recovery from the tortfeasor or the underinsured carrier. The Dean court acknowledges that it considers the limited issue of whether “an automobile accident liability insurance payment from an underinsured tortfeasor triggers the collateral source rule in a claim for [UIM] benefits when the claimant is partially at fault.” Id. at 343. The Dean court determined that a plaintiffs percentage of relative fault should be deducted before any deduction from a collateral source. Id. at 343-45, & nn. 1-2. In our case, we have determined that the tortfeasor’s (Wagner’s) vehicle was not underinsured, and we do not consider the application of un-derinsured-motorist benefits. Additionally, there are no claims that Do was partially at fault; and the issue of the sequence to be followed in making various deductions (which was the central issue in Dean) is not before us. The Dean court did not address the exact question currently before this court.

Second, the statement in Dean that a payment made pursuant to a tortfeasor’s liability insurance can never be a collateral source is dictum and may be in conflict with the actual holding in the Dean case. Despite the Dean court’s statement that the collateral-source rule did not apply to a tortfeasor’s liability payment, it proceeded to deduct the amount of a prior settlement from the tortfeasor’s liability insurance ($100,000) from the judgment for UIM benefits, without providing an alternate explanation for doing so. Id. at 345. Whatever the rationale, the calculations employed in the Dean opinion rejected double recovery and demand that a prior liability settlement with a tortfeasor’s insurance offset an ultimate jury award.

Third, the Dean court emphasized the importance of preventing double recoveries. Dean, 535 N.W.2d at 344 (“[B]oth the collateral source rule and the UIM provisions were meant to avoid double recovery.”). This is at variance with the above-quoted Dean observations that would, if applied here, result in a double recovery. In our case, a formalistic application of the Dean dictum would allow Do to receive $30,000 in no-fault benefits from his insurer and $28,000 from his prior settlement, a total of $58,000, for damages the jury determined to be $49,416.13.

Moreover, on facts more closely aligned to those before us, the Minnesota Supreme Court has determined that a prior settlement with a tortfeasor’s liability carrier offsets an arbitration award for UIM benefits. Casper, 549 N.W.2d at 916 (“We hold ... that [the UIM insurer] is entitled to reduce the arbitration award by offset of the $50,000 [plaintiff] received pursuant to his settlement agreement with [defendant tortfeasor] and [his] automobile insurer.”). Casper was decided after Dean and makes no reference to Dean as precluding the application of the collateral-source statute to a prior insurance settlement.

Do points out that his insurer would have been liable for at least no-fault benefits in the amount of $30,000 of his 39,-416.13 in medical expenses, rather than the $20,550.63 for which it was ultimately liable, if he had not first settled his claims with the tortfeasor’s liability carrier. He did not seek recovery in that sequence and that result is not determinative. We recognize that in this case the order and manner in which appellant’s damages were paid and the lack of any specific allocation for the settlement with the tortfeasor benefited his own carrier by reducing its ultimate no-fault liability. However, the prospect of such reduced liability for the insurer does not entitle appellant to double compensation. Because the statutory collateral-source rule is intended to limit a plaintiffs access to double compensation (see Johnson, 414 N.W.2d at 432), we affirm the district court.

Ultimately, our situation is relatively simple. A jury determined that as a result of Do’s injuries, he sustained damages in the amount of $49,416.13. He has previously been paid $865.50 by American Family and $28,000 pursuant to a settlement with the tortfeasor’s automobile-insurance carrier. The $28,000 settlement is a collateral source as defined in MinmStat. § 548.36, subd. 1(2). Do has remaining damages of $20,550.63, which American Family, as his no-fault insurer, is obliged to pay in order to satisfy the judgment. Do is owed no more.

DECISION

Because appellant’s prior settlement with the tortfeasor’s liability insurance is a collateral source under Minn.Stat. § 548.36 (2006), the district court did not err in deducting it from the ultimate jury award, and we affirm.

Affirmed.

      . Purely factual issues involving claims for no-fault benefits may also be submitted to arbitration. Weaver v. State Farm Ins. Cos.,
        609 N.W.2d 878, 882 (Minn.2000). The parties did not engage in this option.

      . Do’s policy with American Family provided for $30,000 in no-fault medical coverage and $20,000 for disability/income-loss coverage.

      . Typically, the statute is applied in actions against a tortfeasor, but nothing in its language limits its application in this manner. It has been applied in actions against insurers in the past. E.g., W. Nat'l Mut. Ins. Co. v. Casper, 549 N.W.2d 914, 916-17 (Minn.1996).

      . We note there has been judicial criticism of the statute. “Minn.Stat. § 548.36, subd. 1(2), is poorly written, ambiguous, and could conceivably be read as providing for one, two, three or four different types of collateral source benefits.” Imlay, 453 N.W.2d at 334.

      . The determination is mathematically important in some cases. For example, if a plaintiff had $100,000 in damages, was 10% at fault, and had been paid $50,000 by a tortfeasor’s liability insurance, the amount of his ultimate recovery varies based on how it is calculated. If his 10% deduction for partial fault was offset against his damages before the offset for the prior payment for the liability insurance, it would lead to a $10,000 deduction ($100,-000 damages x 10% portion at fault). If the partial offset was made afterwards, it would result in a $5,000 deduction ($50,000 damages remaining after deduction of tortfeasor's liability payment x 10% portion at fault). There is no claim that Do was partially at fault.

      . The Dean court specifies:
      Aggregate Damages: $353,646.00
      Less Dean’s Fault (10%): - $ 35,364.60
      Net Damages: $318,281.40
      Less Liability Insurance
      Payment: - $ 100,000
      Uncompensated Damages: $218,281.40

        Dean, 535 N.W.2d at 343. The supreme court ordered the award of $218,281.40 in uncompensated damages in accordance with the calculation above. Id. at 345. The $218,281.40 represents the judgment minus damages that have already been recovered through the tort-feasor’s liability insurance.


text:
    STATE of Minnesota, Respondent, v. Kevin D. EHMKE, Appellant.
    No. A07-0824.
    Court of Appeals of Minnesota.
    July 15, 2008.

      Lori Swanson, Attorney General, Tibor M. Gallo, Assistant Attorney General, St. Paul, MN, David J. Hauser, Otter Tail County Attorney, Fergus Falls, MN, for respondent.
    Melissa Sheridan, Assistant Public Defender, Eagan, MN, for appellant.
    Considered and decided by KLAPHAKE, Presiding Judge; MINGE, Judge; and WRIGHT, Judge.
   OPINION

MINGE, Judge.

Appellant Kevin Dwaine Ehmke, formerly known as Kevin Dwaine Sandahl, challenges his conviction of failure to register as a predatory offender on the grounds that (1) the matter was improperly venued in Otter Tail County; (2) his conviction violated the constitutional protection against double jeopardy; and (3) he was tried on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn.1980) without a valid waiver. Because the district court did not err in determining that the prohibition against double jeopardy was not violated and that the matter was properly venued, we affirm on those issues. But because appellant did not personally waive the right to testify, we reverse his conviction and remand.

FACTS

In 1991, appellant Ehmke was convicted of a sex offense in North Dakota and required to register as a predatory offender. On September 21, 1998, appellant moved to Minnesota and registered as a sex offender by completing the sex offender notification and registration form. He gave his name as “Kevin Dwaine Sandahl” and listed his address as “102 Central Avenue East, Clitherall, Minnesota,” which is located in Otter Tail County. The form included the following language, which is in accord with Minn.Stat. § 243.166 (Supp.2005):

I have been notified of my duty to register as a sex offender in accordance with Minn.Stat. 243.166. I understand that I must register for a period of ten years from the date that I was initially registered, or until my probation, supervised release, or conditional release period expires, whichever occurs first.... I understand that I must register all changes of address at least 5 days prior to changing residence, including moving to another state. I will make this notification in writing to my current Minnesota or Federal corrections agent or, if I do not have a corrections agent, I must notify the law enforcement agency in the community in which I reside.
I understand that I am legally required to supply the requested data under Minn.Stat. 243.166. I also understand that failure to comply or to provide false information is a gross misdemeanor and any subsequent violation is a felony.

Appellant signed the form acknowledging these statements.

At some point, appellant moved back to North Dakota but did not register in the state. He lived at several other locations in North Dakota until he moved to Minneapolis in 2000. In November 2000, he was arrested on charges of failure to register as a sex offender and issuance of worthless checks and gave a Minneapolis address. In May 2001, he appeared in district court in Otter Tail County and gave a different Minneapolis address. He was convicted of failure to register as a sex offender and spent approximately 20 days in jail.

In May 2006, Otter Tail County Deputy Sheriff A1 Frank was assigned to locate sexual predators who were not properly registered. Deputy Frank tracked appellant to cities in Minnesota, North Dakota, and Wisconsin. He eventually obtained an address for appellant in Eau Claire, Wisconsin. With the assistance of the local police department, appellant was arrested. Appellant was charged in Otter Tail County with failure as a predatory offender to register at a new residence.

Appellant requested an omnibus hearing and moved to dismiss the complaint, arguing that it was improperly venued and violated the double jeopardy clause. At the omnibus hearing, evidence was presented to show that appellant’s most recent registration as a predatory offender was in 1998 for his Clitherall address in Otter Tail County. In 2000, the Minnesota Bureau of Criminal Apprehension (BCA) sent a verification letter to the Minneapolis address that appellant had given to the Otter Tail County sheriffs department at the time of the prior prosecution. That letter was returned as undeliverable. BCA address-verification letters sent to appellant at the Clitherall address in 2001, 2002, 2003, 2004, and 2005 were also returned as undeliverable.

During his testimony at the omnibus hearing, appellant claimed that he thought he had met the registration requirements when he informed Otter Tail County authorities of his Minneapolis address upon his release from jail in 2001. But on cross-examination, appellant generally agreed that although he had recently taken up residence in Wisconsin, he did not provide any Wisconsin address to authorities. After the omnibus hearing, the district court denied appellant’s motion to dismiss.

Appellant waived his right to a jury trial and agreed to submit the matter to the district court as a Lothenbach stipulated-facts trial. After finding appellant guilty, the district court granted his motion for a dispositional departure, stayed imposition of the presumptive 24-month sentence, and placed him on probation for five years. This appeal follows.

ISSUES

I. Did the district court err in denying appellant’s motion to dismiss the complaint for lack of venue?

II. Did the district court err in denying appellant’s motion to dismiss the complaint on double jeopardy grounds?

III. Did appellant validly waive his right to testify and agree to proceed under Lothenbach?

IV. Does appellant’s successful challenge to the Lothenbach proceeding preclude the considerations of venue and double jeopardy issues?

ANALYSIS

I.

The first issue is whether the venue of this proceeding in Otter Tail County violates appellant’s constitutional right to be tried where the offense occurred. Appellant argues that the district court erred in denying his motion to dismiss for lack of proper venue. He asserts that Otter Tail County was not the proper venue to prosecute this offense because he has not resided there since he was released from jail after serving his sentence for his 2001 conviction. .

A defendant is guaranteed the right to be tried in the county or district court where the crime allegedly occurred. U.S. Const, amend. VI; Minn. Const, art. 1, § 6; see also Minn.Stat. § 627.01, subd. 1 (2004). This guarantee acts as a safeguard against unfairness and hardship that may occur when an accused is prosecuted in a remote place. State v. Eibensteiner, 690 N.W.2d 140, 149 (Minn.App.2004), review denied (Minn. Mar. 15, 2005); State v. Blooflat, 524 N.W.2d 482, 484 (Minn.App.1994). Venue is an element of an offense that must be proved beyond, a reasonable doubt. State v. Larsen, 442 N.W.2d 840, 842 (Minn.App.1989).

Appellant asserts that after the earlier failure-to-register offense for which he was prosecuted, he did not commit any crime in Otter Tail County. He notes that when he was released from jail in 2001, he informed the Otter Tail County sheriffs department that he would be living at an address in Minneapolis and that the record showed that he then lived at that address. Appellant contends that the statute merely required him to register with a “law enforcement agency” in the location he was leaving, and he suggests that he complied with that requirement. He also suggests that his obligation was to notify Hennepin County authorities, not Otter Tail County authorities, when he moved to Wisconsin.

The registration statute includes specific requirements regarding the contents of registration and the information to be pro-vidéd; these requirements include registering all changes of address at least five days prior to changing residence and making the notification in writing to an assigned correctional agent or if no agent has been assigned, then to the law enforcement agency in the community in which the person resides. See Minn.Stat. § 243.166, subds. 4, 4a (Supp.2005). Here, the state presented uncontroverted evidence that appellant completed the registration form only once in 1998 to Otter Tail County authorities for the Clitherall address. The record thus fails to support appellant’s current claim that because he provided information regarding his Minneapolis address to the Otter Tail County sheriffs department, he satisfied the requirements of the registration statute and that Otter Tail County no longer had a nexus to his case.

Minn.Stat. § 243.166, subd. 10 (Supp.2005) provides that a violation of the failure to register may be prosecuted “in any jurisdiction where an offense takes place.” The statute also provides that if there are two or more offenses in different counties, a person may be prosecuted for all the offenses in any county in which one of the offenses was committed; the statute further requires the prosecutor in the county where the person last registered to be responsible initially to review the case for prosecution. Id. Because appellant was last registered in Otter Tail County and because each move related back to that as the only residence of record, the district court did not err in determining that the matter was properly venued in Otter Tail County and in denying appellant’s motion to dismiss.

II.

The second issue is whether the conviction violates the constitutional protection against double jeopardy. Appellant argues that his current conviction for failing to register is based on the same act of failing to register for which he was convicted in 2001 and that it therefore violates the prohibition against double jeopardy. The district court rejected appellant’s argument, concluding that the present offense is based upon appellant’s noncompliance with the registration requirements as of June 22, 2006, while the prior prosecution was based upon his noncompliance as of April 5, 2000.

This court reviews constitutional double jeopardy claims de novo. State v. Leroy, 604 N.W.2d 75, 77 (Minn.1999). Both the United States and Minnesota constitutions prohibit a person from being put in jeopardy twice for the same offense. U.S. Const, amend. V; Minn. Const, art. I, § 7; see also Minn.Stat. § 609.035, subd. 1 (2004). This prohibition protects a criminal defendant from “three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense.” State v. Humes, 581 N.W.2d 317, 320 (Minn.1998).

The registration statute provides that “at least five days before the person starts living at a new primary address, including living in another state, the person shall give written notice of the new primary address to the assigned corrections agent or to the law enforcement authority with which the person is currently registered.” Minn.Stat. § 243.166, subd. 3(b) (Supp. 2005). In this case, the only time appellant registered or provided “written notice” was in 1998, when he completed the registration form listing his Clitherall address in Otter Tail County.

Appellant nevertheless asserts that the 2001 conviction and the current offense both involve the same alleged violation of failing to notify Otter Tail County authorities when he moved in late 1998. He argues that he can be convicted only once for failing to register his move from Otter Tail County; he further argues that the statute is violated if a person fails to register five days before he moves from that address, which is a single act that occurs at a finite moment in time. He insists that because he was already convicted for committing that single act, he cannot be convicted of it again.

The state counters that appellant incorrectly relies on the test articulated in Blockburger v. United States, which pertains to one unlawful act violating two distinct statutory provisions. 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) (“Here there was but one sale, and the question is whether, both sections being violated by the same act, the accused committed two offenses or only one.”). But the issue presented here involves whether appellant’s repeated violations of the registration statute can be prosecuted separately. See Lupino v. State, 285 Minn. 507, 508, 171 N.W.2d 710, 712 (1969) (stating “there can be no double jeopardy where the accused has committed two separate and distinct acts, each of which is a separate and distinct crime”). Separate prosecutions are not barred when the offense is continuous and the defendant commits the same violation multiple times. See, e.g., State v. Sweet, 179 Minn. 32, 33-34, 228 N.W. 337, 337 (1929) (upholding multiple prosecutions for abandoning child); State v. Wood, 168 Minn. 34, 37-38, 209 N.W. 529, 530 (1926) (holding that failure to provide child support is continuous offense); State v. Erickson, 367 N.W.2d 539, 540 (Minn.App.1985) (“repeated prosecutions [for nuisance] may proceed over claims of double jeopardy until the nuisance is abated.”) (quotation omitted).

The predatory-offender-registration requirement is a continuing obligation. See Longoria v. State, 749 N.W.2d 104, 106-07 (Minn.App.2008), pet. for rev. filed (Minn. June 12, 2008). In particular, the statute plainly requires a person to provide written notice and register each time' he changes his primary address. Minn. Stat. § 243.166, subd. 3(b). Thus, a person has a continuing duty to register and comply with the terms of the statute each time he moves. Because appellant’s duty was ongoing, his repeated failures to register constitute separate and distinct offenses.

While appellant claims that he moved from the Otter Tail County address once and that he never moved back to Otter Tail County, his duty to register arose every time he changed his primary address. Acceptance of appellant’s position would lead to an absurd result because it would mean that the conviction for failure to register in 2001 would insulate him from prosecution for failing to register on each subsequent change of residence. As the state notes, such a result is contrary to the registration statute and the statutory goal of creating “an offender registry to assist law enforcement with investigations.” Boutin v. LaFleur, 591 N.W.2d 711, 717 (Minn.1999). We conclude that the district court did not err in denying appellant’s motion to dismiss the complaint on double jeopardy grounds.

III.

The third issue is whether appellant’s consent to trial on the basis of stipulated facts violated his constitutional right to testify. Appellant argues that his waiver of his right to a jury trial was not knowing or intelligent because he was not informed of and did not specifically waive his right to testify in his own defense. Appellant acknowledges that his waiver of his right to a jury trial was made “personally” and “orally” upon the record in open court after being advised by the district court of the right to a jury trial and after having consulted with counsel, as required by Minn. R.Crim. P. 26.01, subd. l(2)(a). But he claims that because his fundamental right to testify at trial was never discussed or mentioned on the record, his waiver is invalid under Minn. R.Crim. P. 26.01, subd. 3.

The state asserts that because this was a Lothenbach proceeding and not a stipulated-facts trial, his waiver of a jury trial did not need to conform to the procedures for a trial on stipulated facts, as set out in Minn. R.Crim. P. 26.01, subd. 3 (requiring personal waiver of specific rights, one of which includes the right to testify). Recently this court held that a defendant must expressly waive the fundamental rights set out in Minn. R.Crim. P. 26.01, subd. 3, even in a Lothenbach proceeding. See State v. Knoll, 739 N.W.2d 919, 921-22 (Minn.App.2007) (determining that reversal is required when record of Lothenbach procedure fails to include specific waiver by defendant of rights to testify at trial, to confront witnesses against him, and to subpoena favorable witnesses). Thus, when the record fails to establish a valid waiver of the rights specified in rule 26.01, subd. 3, which includes the right to testify, a new trial is necessary. Id.; see also State v. Halseth, 653 N.W.2d 782, 786 (Minn.App.2002) (granting new trial when record lacked waiver of defendant’s right to testify).

The state asserts that appellant’s waiver of his right to testify can be presumed because appellant was extensively questioned on the record by both counsel and by the district court. But Knoll, which was decided after briefing was completed in this appeal, specifically rejected such an argument and determined that an explicit waiver must occur. In addition, we note that the presumption of such an implied waiver does not apply to a “trial [under rule 26.01] in which the waiver to testify must be in writing or on the record.” In re Welfare of 674 N.W.2d 208, 214 (Minn.App.2004). Moreover, this court has repeatedly stated that the waiver requirements of rule 26.01 are strictly construed. See, e.g., Halseth, 653 N.W.2d at 784; State v. Sandmoen, 390 N.W.2d 419, 423-24 (Minn.App.1986). Based on Knoll and this other caselaw, we reverse and remand.

IV.

Finally, we address the issue of whether appellant’s successful challenge to this Lothenbach proceeding precludes him from raising the venue and double .jeopardy issues. Recently, this court concluded that if a criminal defendant challenges the adequacy of waivers incident to use of the Lothenbach procedure, this court on appeal will not resort to considerations of judicial economy to consider pretrial rulings on motions to suppress evidence. State v. Rasmussen, 749 N.W.2d 423, 427-28 (Minn.App.2008). The Rasmussen decision was limited to pretrial evidentiary rulings. Id. at 427. Here, appellant has raised venue and double jeopardy questions. We decline to extend Rasmussen beyond its facts. We also note that Rasmussen did not address this court’s discretion to consider issues in the interests of justice. Our rules expressly recognize our discretion to consider such matters. Minn. R.App. P. 103.04. In this appeal, we conclude that appellant’s success on the Loth-enbach issue does not preclude us from addressing the venue and double jeopardy issues.

DECISION

In this appeal, we reach the issues of venue and double jeopardy. We conclude the district court did not err in denying appellant’s motion to dismiss for lack of proper venue or on double jeopardy grounds. But because appellant’s waiver of his right to a jury trial did not include a specific waiver of his right to testify, we reverse and remand for further proceedings consistent with this decision.

Affirmed in part, reversed in part, and remanded.

      . Appellant legally changed his name in 2000 or 2001, when he was married in North Dakota.

      . Indeed, effective April 1, 2007, the rules of criminal procedure now require Lothenbach proceedings to include waivers equivalent to those specified in subdivision 3. See Minn.' R.Crim. P. 26.01, subd. 4. This subdivision codifies the Lothenbach procedure. Appellant’s trial was held prior to the effective date of the rule.