author: ROBERT H. SCHUMACHER, Judge.

text:
    STATE of Minnesota, Respondent, v. Dennis Louis BABCOCK, Appellant.
    No. C9-03-131.
    Court of Appeals of Minnesota.
    Aug. 3, 2004.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, Minneapolis, MN, for respondent.
    Stephen V. Grigsby, and John M. Stuart, State Public Defender, Mark F. Anderson, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by PETERSON, Presiding Judge; SCHUMACHER, Judge; and HUDSON, Judge.
   OPINION

ROBERT H. SCHUMACHER, Judge.

On remand from the supreme court, appellant Dennis Louis Babcock challenges his convictions of first-degree assault of a police officer under Minn.Stat. § 609.221, subd. 2 (2000), two counts of fourth-degree assault of a police officer under Minn.Stat. § 609.2231, subd. 1 (2000), obstructing the legal process or arrest under Minn.Stat. § 609.50, subd. 1 (2000), and third-degree riot under Minn.Stat. § 609.71, subd. 3 (2000), arguing the district court erred in refusing his request to modify the patterned Spreigl-evidence jury instruction.

FACTS

Babcock is a 20-year-old male, who resided with his mother, stepfather, and three siblings in south Minneapolis. In the summer of 2002, two plain-clothed police officers investigating an unrelated crime saw what they believed was a teenage boy stealing frozen pizzas from a delivery truck. The officers lost track of the juvenile and decided to pursue more pressing issues. As the officers were returning to their precinct, they again spotted the juvenile, this time sitting on the porch of Babcock’s home.

One of the officers entered the porch to question the juvenile about the pizzas; the other officer was close by. The parties involved all agree the officer showed the juvenile his police identification, but there is substantial disagreement as to when, if ever, Babcock learned the two men were police officers. The juvenile responded that he did not know anything about the pizzas and entered the house. After Bab-cock’s mother came to the front door, a verbal altercation ensued between her and the officer.

Eventually, the altercation escalated and resulted in a physical confrontation involving Babcock, his stepfather, and the two officers. As a result of his participation in the altercation, Babcock was charged with attempted second-degree murder under Minn.Stat. § 609.9, subd. 1(1) (2000), two counts of fourth-degree assault of a police officer under Minn.Stat. § 609.2231, subd. 1, obstructing the legal process or arrest under Minn.Stat. § 609.50, subd. 1, and third-degree riot under Minn.Stat. § 609.71, subd. 3.

Before trial, Babcock filed notice that he intended to assert the following defenses: defense of others, mistake of fact, self-defense, and defense of property. In response, the state filed a Spreigl notice, stating that it intended to introduce evidence of Babcock’s prior conviction of obstruction of the legal process. The notice also provided that the state offered the prior conviction to show modus operandi, intent, knowledge, common plan or scheme, identity, and/or absence of mistake.

At the conclusion of the state’s case, the district court addressed the admissibility of the proffered Spreigl evidence. After analyzing the appropriate factors, the district court ruled the evidence was admissible to show modus operandi and absence of mistake. The court then stated it would give a limiting instruction both before and after the evidence was admitted.

Before trial the next morning, Babcock’s counsel stated to the district court: “We would be requesting a limiting instruction, Your Honor. However, with one caveat, and that is we’re not satisfied with the patterned instruction.” When asked if counsel had a substitute instruction in mind, counsel responded:

Well, it would basically just be deleting certain of the language and basically, I’m — I’m not certain exactly under what specific exceptions — I think — not because the Court didn’t do it, because I just don’t recall clearly from yesterday under what specific exceptions the Court is admitting the — the prior event.
But what I would ask for is, essentially, an instruction that specifies it may not under any circumstance be used to impugn the defendant’s character, meaning the jury may not infer that because somebody committed a particular type of act in the present case. Then to specify the evidence is being admitted to show only that — and then specify the exception, and — and what I don’t want, Your Honor, is—

The district court asked counsel to clarify his request, Babcock’s counsel suggested the court tell the jury

that the evidence is — is specifically limited to assisting the jury in determining whether or not he was mistaken as to the identity of the police. And — and I just can’t remember the other exception under which the Court admitted it, but it would — I would — I would propose something, you know, nearly identical to the other exception.

The district court denied Babcock’s requested modification to the CRIMJIGs and gave a case specific adaptation of CRIMJIG 2.01, instructing the jury:

This morning the State is going to produce certain evidence concerning an occurrence from January 10 of this year. This evidence is being admitted for a limited purpose and that limited purpose is to assist you in determining whether Mr. Babcock committed the acts with which he is charged in this case.... Mr. Babcock is not being tried for and may not be convicted of any offenses other than those with which he is charged in the this case. You are not to convict him on the basis of an occurrence that may have happened on January 10 of this year. To do so might result in unjust double punishment.

After a witness testified to the Spreigl evidence, the district court instructed the jury as before.

Before the district court gave the jury its final instructions, Babcock objected to the use of CRIMJIG 3.16. At that point, Babcock’s counsel stated to the court:: “My specific suggestion would be to simply say — keep the sentence the same but say, ‘It was admitted for the limited purpose of assisting you in determining,’ and then specify the exceptions, whether Mr. Bab-cock was mistaken as to the fact of the police identity or any other exception, period.” The district court denied the request to modify the final instruction and gave a case specific adaptation of CRIMJIG 3.16.

The jury found Babcock not guilty of attempted second-degree murder but guilty of first-degree assault under Minn. Stat. § 609.221, subd. 2, two counts fourth-degree assault under Minn.Stat. § 609.2231, subd. 1, obstructing legal process or arrest under MinmStat. § 609.50, subd. 1, and third-degree riot under Minn. Stat. § 609.71, subd. 3.

Following the jury verdict, Babcock appealed his convictions to this court. This court affirmed his conviction in an unpublished opinion. The supreme court granted Babcock’s petition for further review and remanded the issue of Babcock’s claim that the district court erred when it did not give a modified limiting instruction on the use of the Spreigl evidence.

ISSUE

Did the district court commit reversible error when it denied Babcock’s request to modify CRIMJIG 2.01 and 3.16 to include the limited purposes for which the Spreigl evidence was admitted?

ANALYSIS

District courts are allowed considerable discretion in the selection of language for the jury instructions and a conviction will not be reversed absent an abuse of discretion. State v. Broulik, 606 N.W.2d 64, 68 (Minn.2000). An error in the application of law, however, is an abuse of discretion. Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn.1997).

In Minnesota, other crimes evidence is often referred to as Spreigl evidence after the supreme court’s decision in State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965). Spreigl evidence is not admissible to prove the defendant’s character for the purpose of showing that he or she acted in conformity with that character, but it may be admitted for a limited purpose, or purposes, under Minn. R. Evid. 404(b), such as showing absence of mistake, intent, knowledge, common plan or scheme, and identity. State v. Kennedy, 585 N.W.2d 385, 389 (Minn.1998); see also State v. Forsman, 260 N.W.2d 160, 167 (Minn.1977) (stating common plan or scheme exception “has evolved to embrace evidence of offenses which, because of their marked similarity in modus operandi to the charged offense, tend to corroborate evidence of the latter”). If the state wishes to introduce Spreigl evidence, it must provide the notice of its intent and “specify the exception to the general exclusionary rule under which it is admissible.” State v. Billstrom, 276 Minn. 174, 178, 149 N.W.2d 281, 284 (Minn.1967).

Minn. R. Evid. 105 provides: “When evidence is admissible ... for one purpose but not admissible ... for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.” Because Spreigl evidence cannot be admitted unless it falls under a specific exception, the proper scope of that evidence is limited to the purpose, or purposes, for which it was admitted. See Kennedy, 585 N.W.2d at 389; Billstrom, 276 Minn, at 176-77, 149 N.W.2d at 283 (stating “we have exhaustively discussed the almost universal principle that evidence of other unrelated crimes may not be introduced against an accused unless it comes under one of the recognized exceptions”).

The supreme court in Broulik discussed the requirements of Minn. R. Evid. 105 in the context of Spreigl evidence. 606 N.W.2d at 69-71. The supreme court— after noting that federal cases interpreting the identically worded Fed.R.Evid. 105 require such an instruction only “upon request,” “if requested,” or “when requested” — concluded that Minn. R. Evid. 105 “contemplates a specific instruction regarding the permissible use of Rule 404(b) evidence only upon request.” Broulik, 606 N.W.2d at 69-70.

The supreme court noted that numerous federal circuits use an approach for instructing the jury on the limited nature of Spreigl or other-crimes evidence different from that provided in CRIMJIG 2.01 and 3.16. Id. at 70-71. For example, the supreme court noted that the First Circuit’s patterned other-crimes instruction provides:

You have heard [will hear] evidence that [defendant] previously committed acts similar to those charged in this case. You may not use this evidence to infer that, because of his/her character, [defendant] carried out the acts charged in this case. You may consider this evidence only for the limited purpose of deciding: [specify purpose for which evidence was admitted].

Id. at 70 (citation omitted).

The supreme court also questioned the rationale behind CRIMJIG 2.01 and 3.16, noting that the comments to the CRIM-JIGs state that “ ‘the instructions should not discuss possible inferences which may be drawn from particular evidence.... This should be left to the argument of the attorneys.... Accordingly this instruction is deliberately phrased in general language.’ ” Id. (alteration in original) (quoting 10 Minnesota Practice CRIMJIG 2.01 comment (1999)). But the supreme court “ha[d] not been made aware of an appellate decision that has echoed that concern.” Id. at 71.

Based on the supreme court’s discussion in Broulik, we have recently held that a district court errs when it denies a defendant’s request for a specific limiting instruction regarding Spreigl evidence. State v. DeYoung, 672 N.W.2d 208, 212 (Minn.App.2003). This court stated that “when requested by a defendant, CRIM-JIG 2.01 and 3.16 must be modified to explain the limited purpose for which Spreigl evidence was admitted.” Id. In reaching the conclusion in DeYoung, this court noted:

By questioning the rationale behind the CRIMJIGs and by endorsing the practice of the federal courts, which require a specific limiting instruction when requested, [the supreme court’s decision in] Broulik can be read to require that when a defendant requests a limiting instruction, the district court must give such an instruction.

Id.

Here, Babcock requested that the district court modify CRIMJIG 2.01 and 3.16 to state the specific exceptions under which the court had admitted the evidence. Although Babcock’s requests were not a model of clarity, it is clear that Babcock wanted the district court to instruct the jury that the evidence was admitted for the limited purposes of demonstrating absence of mistake and modus operandi, the specific purposes for which the district court admitted the evidence. We conclude under Minn. R. Evid. 105, it was error for the district court not to instruct the jury of the limited purposes for which the Spreigl evidence was admitted when Babcock so requested. See DeYoung, 672 N.W.2d at 212.

We note this court’s decision in DeY-oung had not been filed at the time of Babcock’s trial. We have no doubt that if the district court had the benefit of DeY-oung, the court would have properly modified CRIMJIG 2.01 and 3.16 to specify the limited purposes for which the evidence was admitted. Nevertheless, DeYoung is an application of the supreme court’s decision in Broulik and Babcock is entitled to have the DeYoung holding applied to his case.

We have not been made of aware of any requirement that Babcock’s request must have been in writing, and we have not considered this issue. See State v. Butcher, 563 N.W.2d 776, 780 (Minn.App.1997) (stating issues not briefed on appeal are waived), review denied (Minn. Aug. 5, 1997). But we take this opportunity to stress that if a defendant believes a particular CRIMJIG is inadequate, the preferred procedure is to present the district court with a written alternative instruction. See Broulik, 606 N.W.2d at 69 n. 3 (noting that to permit adequate appellate review, trial counsel should make sure any request for specific instruction language appears on record and “Minn. R.Crim. P. 26.03, subd. 18(1), permits proposed instructions to be submitted in writing”).

Since this appeal, the supreme court has issued its decision in Ture v. State, 681 N.W.2d 9 (Minn.2004). In Ture, defense counsel objected to CRIMJIG 3.16 and argued the district court should use the Eighth Circuit Model Instruction 2.09. Id. at 17. The supreme court stated that the Eighth Circuit Model Instruction 2.09 is given when other-crimes evidence has been admitted to prove identity; whereas, the Eighth Circuit Model Instruction 2.08 should be used when other-crimes evidence has been admitted for a purpose other than identity. Id. at 18 (emphasis added). The Spreigl evidence in Ture had been admitted “for several purposes other than to identify Ture ... including to illustrate Ture’s intent and modus operan-di.” Id. at 15 (emphasis added). The supreme court concluded in Ture that “under the circumstances [of that case], when the [Spreigl evidence] was not necessarily admitted solely for purposes of proving identity, Eighth Circuit Model Instruction 2.09 would not have been a better instruction than the adapted CRIMJIG 3.16 instruction.” Id. at 18-19.

We read the supreme court’s decision in Ture to hold that when a defendant requests the district court to give a jury instruction stating the Spreigl evidence had been admitted to show identity when the evidence had also been admitted for purposes other than identity, the district court need not give that instruction because the requested instruction was an incomplete statement of the limited purposes for which the evidence had been admitted. Here, Babcock requested the district court to specify each exception under which the evidence was admitted and thus this case falls outside the supreme court’s holding in Ture.

We now turn to the question of whether the district court’s denial was harmless error. See DeYoung, 672 N.W.2d at 212-13 (analyzing whether denial of request was harmless error). In addressing whether the error was harmless

a reviewing court must examine all relevant factors to determine whether, beyond a reasonable doubt, the error did not have a significant impact on the verdict.... If the error might have prompted the jury to reach a harsher verdict than it might otherwise have reached, the defendant is entitled to a new trial.

Id. at 212 (quotations omitted).

In DeYoung, this court concluded the district court’s error was harmless because the case against the appellant was strong and both the prosecutor and the defense counsel explained the limited use of the Spreigl evidence in their closing arguments. Id. at 212-13.

The facts of this case are substantially different from the facts in DeYoung. The district court concluded near the close of the state’s case, this is “a severely challenged case, the strength of which is questionable.” Furthermore, unlike in DeY-oung, the closing arguments here did not state the limited purpose for which the Spreigl evidence had been admitted. Bab-cock’s counsel did not mention the Spreigl evidence during his closing argument and did not explain the limited purpose of the Spreigl evidence.

Prosecutor: [Y]ou heard what happened in January of this year. That gives you at least a glimpse of what’s going on. That was an example of Mr. Babcock, who knew this person was a police officer. There’s no doubt about that. He was in uniform even. That didn’t stop Mr. Babcock from attacking a police officer.
Defense: Objection, 404(a).
Court: Jurors, just recall the instruction that I gave you several times about the purpose for which that evidence was admitted. Please, continue.
Prosecutor: In that case, [Babcock], knowing this was a police officer, still attacked him. He admitted it. So why would he do it here? I don’t know, but he did it then. So again—
Defense: Same objection, Your Hon- or.
Court: All right. Please continue. Let’s move on to something new, please.

The prosecutor’s argument is far too close to suggesting the jury use the evidence not for the specific purposes for which it had been admitted, but as impermissible character evidence. Compare State v. Wermerskirchen, 497 N.W.2d 235, 241 (Minn.1993) (concluding “our cases do not preclude the use of other-crime evidence to establish common scheme or plan, i.e., to establish that the act occurred”) with Minn. R. Evid. 404(b) (“Evidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith.”).

Considering all the relevant factors in this case, we cannot conclude beyond all reasonable doubt that the jury’s verdict was not significantly affected by the district court’s denial of Babcock’s request to modify CRIMJIG 2.01 and 3.16. Thus, Babcock is entitled to a new trial and his conviction is reversed.

DECISION

The district court erred when it denied Babcock’s request to modify CRIMJIG 2.01 and 3.16 so that it specified the limited purposes for which the Spreigl evidence had been admitted. Under the circumstances here, the error was not harmless.

Reversed and remanded.

      . CRIMJIG 2.01 provides:
      The State is about to introduce evidence of an occurrence on_at_This evidence is being offered for the limited purpose of assisting you in determining whether the defendant committed those acts with which the defendant is charged in the complaint.
      The defendant is not being tried for and may not be convicted of any offense other than the charged offense(s). You are not to convict the defendant on the basis of an occurrence on_at_To do so might result in unjust, double punishment.
      10 Minnesota Practice, CRIMJIG 2.01 (1999).

      . CRIMJIG 3.16 provides:
      The State has introduced evidence of an occurrence on_at_As I told you at the time this evidence was offered, it was admitted for the limited purpose of assisting you in determining whether the defendant committed those acts with which the defendant is charged in the (indictment) (complaint).
      The defendant is not being tried for and may not be convicted of any offense other than the charged offense(s). You are not to convict the defendant on the basis of any occurrence on _ at_To do so
      might result in unjust, double punishment. 10 Minnesota Practice, CRIMJIG 3.16 (1999).

      . The Eighth Circuit Model Instruction provides:
      You [are about to hear] [have heard] evidence that the defendant previously committed [an act] [acts] similar to [the one] [those] charged in this case. You may use this evidence to help you decide [the manner in which the evidence will be used to prove identity — e.g., whether the similarity between the acts previously committed and the ones charged in this case suggests that the same person committed all of them.] Remember, however, that the mere fact that the defendant may have committed [a similar act] [similar acts] in the past is not evidence that [he] [she] committed such [an act] [acts] in this case. The defendant is on trial for the crime[s] charged and for [that] [those] crime[s] alone. You may not convict a person simply because you believe [he] [she] may have committed some act[s], even bad act[s], in the past.

        Manual of Model Criminal Jury Instructions for the Distñct Courts of the Eighth Circuit Instruction 2.09 (2003).


source: Caselaw Access Project

author: HARTEN, Judge.

license: Public Domain

text:
    In the Matter of UNIVERSAL UNDERWRITERS LIFE INSURANCE COMPANY.
    No. A04-184.
    Court of Appeals of Minnesota.
    Aug. 10, 2004.
    John A. Knapp, Eric F. Swanson, Winthrop & Weinstine, P.A., Minneapolis, MN, for relator Universal Underwriters Life Insurance Company.
    Mike Hatch, Attorney General, Michael J. Tostengard, Assistant Attorney General, St. Paul, MN, for respondent Commissioner of Commerce.
    Diana Y. Morrissey, Erin M. Wessling, Faegre & Benson, LLP, Minneapolis, MN, for Consumer Credit Insurance Association amicus curiae.
    Considered and decided by MINGE, Presiding Judge, HARTEN, Judge, and HALBROOKS, Judge.
   OPINION

HARTEN, Judge.

Respondent Minnesota Commissioner of Commerce notified relator Universal Underwriters Life Insurance Company that it intended to disallow relator’s credit insurance rates. Relator moved for summary-disposition. Following a hearing, an administrative law judge (ALJ) denied relator’s motion and recommended disallowing the rates. Respondent’s designee issued an order adopting that recommendation. Relator now challenges that order.

FACTS

Credit life and disability insurance provides for payment of a debt in the event of the debtor’s death or disability. Insureds buy credit insurance policies from a vendor who is their creditor, not from insurance agents. The vendor receives a commission on the credit insurance policies sold. Credit insurers therefore compete not by providing low rates to insureds but by providing high commissions to vendors, who offer purchasers only one type of credit insurance on a take-it-or-leave-it basis.

To protect consumers, Minnesota law does two things: it establishes prima facie rates that are presumptively reasonable, and it requires the Commissioner of Commerce to disallow rates that are excessive in relation to benefits. See Minn.Stat. § 62B.07, subd. 2 (2002).

Based on information relator submitted that its loss ratios over a five-year period averaged around 20%, respondent determined that relator’s credit insurance rates were excessive in relation to benefits and, in accord with the recommendation of an ALJ, issued an order disallowing relator’s rates.

ISSUES

1. Is the presumption of reasonableness of credit insurance rates that comply with the state’s prima facie rates rebuttable by a showing that, because the insurer’s average loss ratio is significantly below 50%, the rates are excessive in relation to benefits?

2. Is the commissioner’s withdrawal of approval of credit insurance rates that are excessive in relation to benefits unpromul-gated rulemaking?

ANALYSIS

Standard of Review

An appellate court may reverse or modify an administrative decision if substantial rights of the petitioners have been prejudiced by administrative findings, inferences, conclusions or decisions that are unsupported by substantial evidence in view of the entire record, or arbitrary and capricious, see Minn.Stat. § 14.69 (2000), but the court must also recognize the need for exercising judicial restraint and for restricting judicial functions to a narrow area of responsibility lest (the court) substitute its judgment for that of the agency. It must be guided in its review by the principle that the agency’s conclusions are not arbitrary and capricious so long as a rational connection between the facts found and the choice made has been articulated.
When reviewing agency decisions we adhere to the fundamental concept that decisions of administrative agencies enjoy a presumption of correctness, and deference should be shown by courts to the agencies’ expertise and their special knowledge in the field of their technical training, education, and experience. The agency decision-maker is presumed to have the expertise necessary to decide technical matters within the scope of the agency’s authority ..., and judicial deference, rooted in the separation of powers doctrine, is extended to an agency decision-maker in the interpretation of statutes that the agency is charged with administering and enforcing. We defer to, an agency’s conclusions regarding conflicts in testimony, the weight given to expert testimony and the inferences to be drawn from testimony.

In re Excess Surplus Status of Blue Cross and Blue Shield of Minn., 624 N.W.2d 264, 277-78 (Minn.2001) (quotations, citations and footnote omitted).

1. Rebutting Presumption of Reasonableness of Prima Facie Rates

It is undisputed that the rates relator charges are within the prima facie range established by Minnesota law and are therefore presumptively reasonable. But even when rates meet this standard, “[t]he commissioner shall ... disapprove any such [insurance] form if the premium rates ... are excessive in relation to benefits. ...” Minn.Stat. 62B.07, subd. 2 (2002). To determine that rates are “excessive in relation to benefits,” the commissioner

shall give full consideration to and make reasonable allowances for underwriting expenses including, but not limited to, claim adjustment expenses, general administrative expenses including costs for handling return premiums, compensation to agents, expense allowances to creditors, if any, branch and field expenses and other acquisition costs, the types of policies actually issued ..., and any and all other factors and trends demonstrated to be relevant. An insurer may support these factors by statistical information, experience, actuarial computations, and/or estimates certified by an executive officer of the insurer, and the commissioner shall give due consideration to such supporting data.

Id. Moreover, “[T]he commissioner shall give reasonable consideration as to whether an anticipated loss ratio of ‘claims incurred’ to ‘premiums earned’ of 50 percent is developed.” Minn. R. 2760.0200 (2003).

Relator pays out in claims only 20% of the amount collected for credit life insurance and 18% of the amount collected for credit disability insurance; these figures are representative of the years 1996 through 2000. Respondent found that “[relatoras historically low loss ratios, which are substantially below the 50% loss ratio factor set out for consideration in Rule 2760.0200 and are almost half the market average, are compelling evidence that [relator’s] rates are excessive.... ” Relator argues that respondent failed to consider all the statutory factors, relying on Johnson v. Comm’r of Health, 671 N.W.2d 921, 923-24 (Minn.App.2003) (reversing agency decision because of a lack of evidence that the agency had considered information pertaining to all the relevant statutory factors). But Johnson is distinguishable. The record in that case included neither -written findings nor reasons for the decision and only “a conclusory explanation of three of the eight [statutory] factors.” Id. at 924. Relator does not specify which factor was allegedly not considered, and the record indicates that the factors set out in the statute and rule were considered.

In particular, respondent considered “compensation to agents.” A life and health actuary for the department both submitted prefiled expert testimony and testified at the hearing. She testified that calculating premiums based on “benefit payments, expenses, desired commissions, and desired profit ... does not ensure that the consumers receive a reasonable benefit in relation to the premium,” which is the mandate of Minn.Stat. § 62B.07, subd. 2. She stated that her analysis of the factors enumerated in that statute, i.e., operating expenses and compensation to agents, indicated “a primary ‘culprit’ for [relator’s] extremely low loss ratios: extremely high commission rates ... [that are] excessive in comparison to commissions that are paid in other states for similar policies....” She concluded that, “in the judgment of most well-informed consumers [the rates] would be considered excessive.”

Relator objects to the actuary’s use of a “well-informed consumer” standard to determine that rates are excessive because that language is not used in the statute. But the actuary explained that “[t]he actuarial literature does not contain any information on the meaning of ‘excessive’ rates, and there is no commonly understood actuarial interpretation of the term. Therefore by default actuaries use the understanding of a well-informed consumer.” The actuary’s testimony at the hearing confirmed her prefiled testimony.

Relator also argues that respondent exceeded its statutory authority because, while the legislature mandated a 30% cap on agents’ commissions for credit involuntary unemployment insurance, it mandated no such cap for credit life or disability insurance. Relator argues that respondent is usurping a legislative function by imposing a cap. But respondent has not imposed a cap on commissions; it has stated that the rates at issue are excessive because the loss ratio is 18% and 20%. This statement is well within its statutory authority. See Minn. R. 2760.0200 (explicitly directing respondent to consider whether a 50% loss ratio exists when determining whether rates are excessive in relation to benefits).

The record demonstrates a consideration of the statutory factors, and respondent articulated a rational connection between the facts it found and the choice it made. See In re Excess Surplus, 624 N.W.2d at 277 (agency’s conclusions not arbitrary and capricious so long as a rational connection between the facts found and the choice made has been articulated). We see no basis for reversing the order.

2. Unpromulgated Rulemaking

Finally, relator argues that, by disallowing relator’s rates, respondent is engaging in unpromulgated rulemaking in violation of the Minnesota Administrative Procedure Act (MAPA), Minn.Stat. §§ 14.01-14.69 (2002). This court has already addressed this issue m the context of disallowance of insurance rates. See Reserve Life Ins. Co. v. Comm’r of Commerce, 402 N.W.2d 631, 684 (Min.App.1987) (rejecting argument that Commissioner’s disapproval of insurance forms was violation of MAPA), review denied (Minn. 20 May 1987).

[A]n agency may formulate policy by promulgating rules or by case-by-case determinations; the agency has discretion to decide what method is appropriate in a particular situation. ... The statutes’ standards of “unfair, inequitable, misleading (and) deceptive” necessitate a certain amount of interpretation. It is reasonable for the Commissioner to make such interpretations and decisions on a case-by-case basis.

Id. (citation omitted). Minn.Stat. § 62B.07, subd 2, similarly requires respondent to disapprove forms containing rates that are “excessive in relation to benefits” or “provisions which are unjust, unfair, inequitable, misleading, [or] deceptive .... ” Respondent acts within its discretion when it determines to do so on a case-by-case basis. See L & D Trucking v. Minn. Dep’t of Transp., 600 N.W.2d 734, 737 (Minn.App.1999) (upholding enforcement of law on a case-by-case basis and holding that such enforcement was not enforcement of an unpromulgated rule), review denied (Minn. 21 Dec. 1999).

DECISION

Respondent articulated a rational connection between its finding that the presumption of reasonableness of relator’s credit insurance rates was rebutted by facts showing that relator’s rates are excessive in relation to benefits. Respondent s decision to disapprove those rates, and the resulting disapproval, were not unpromulgated rulemaking.

Affirmed.

      . The loss ratio is the percentage of the amount collected in premiums that is paid out in benefits.

      . Amicus curiae CCIA raises the issue of unconstitutional taking, but that issue was not raised by relator and is not properly before the court. "Amici curiae may not raise statutory constitutionality issues not raised by the parties.” State v. Fingal, 666 N.W.2d 420, 423 n. 3 (Minn.App.2003), review denied (Minn. 21 Oct. 2003).

      . Respondent's order adopted the issues, findings, and conclusions of the ALJ's order “without change.” Relator argues that a deferential standard of review does not apply because respondent "rubber stamped” the ALJ’s decision in violation of City of Moorhead v. Minn. Pub. Utils. Comm’n, 343 N.W.2d 843, 846 (Minn.1984) ("We have consistently stressed the importance of agencies employing their expertise to reach independent decisions and not to simply 'rubber stamp' the findings of a hearing examiner.”). But respondent's order was also "[b]ased upon all of the files, records, and proceedings herein, including the ALJ’s Order.” Relator misreads City of Moorhead: its holding that a commission’s disagreement with a hearing examiner's conclusions was proof that the commission had not merely "rubber stamped” the hearing examiner's decision, id., does not prove that, conversely, a commission's agreement with an ALJ's conclusions is "rubber stamping” them.

      . Specifically, she testified that relator pays 53% of the credit life insurance premiums and 50% of the credit disability premiums for commissions to agents.

      . In any event, by using a loss ratio far below 50% as a basis for disallowing rates, respondent is following Minn. R. 2760.0200, not making a new rule. See Cable Communications Bd. v. Nor-West Cable Communications P'ship, 356 N.W.2d 658, 667 (Minn.1984) (if an agency's interpretation of a rule corresponds with its plain meaning, the agency is not deemed to have promulgated a new rule).


author: TOUSSAINT, Chief Judge.

text:
    STATE of Minnesota, Respondent, v. Mark Anthony HEATH, Appellant.
    No. A03-737.
    Court of Appeals of Minnesota.
    Aug. 10, 2004.

      Mike Hatch, Attorney General, Kobie Kasimu Hudson, Assistant Attorney General, St. Paul, MN, and Brett Allyn Cor-son, Preston, MN, for respondent.
    John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by WILLIS, Presiding Judge; TOUSSAINT, Chief Judge; and LANSING, Judge.
   OPINION

TOUSSAINT, Chief Judge.

Appellant challenges his conviction of multiple counts of first-degree controlled-substance violations involving the sale and conspiracy to manufacture methamphetamine, making several arguments concerning the propriety and sufficiency of the evidence used to convict him, the possible exculpatory value of evidence destroyed by police after the methamphetamine lab raid, the court’s conduct during trial, and the appropriateness of the sentence appellant received. Because (1) federal and state regulations required the destruction of the allegedly exculpatory evidence; (2) the evidence used to convict appellant was both proper and sufficient; and (3) the court’s conduct during trial was proper under the circumstances, we affirm the conviction. But because the trial court erred in its sentencing determinations, we reverse and remand for resentencing.

FACTS

Acting on a tip from a local resident, Rushford Police Chief Samuel Stensgard, Fillmore County Sheriffs Deputy John DeGeorge, and two other law enforcement officers legally entered a residential garage and found Broc Buytaert, Timothy Prigge, and appellant Mark Heath inside. It was clear to Deputy DeGeorge, a member of the Southeast Drug Task Force, that the garage was being used for a clandestine drug laboratory, as he recognized several items consistent with the manufacture of methamphetamine.

Deputy DeGeorge then contacted a clandestine lab team to come and search the garage. Rochester Police Sergeant Daniel Pulford, who is certified by the Drug Enforcement Administration to process methamphetamine laboratories, responded to Deputy DeGeorge’s call and found numerous items in the garage consistent with the manufacture of methamphetamine. These items included solvents, tools, latex gloves, coffee filters, aluminum foil, packages of Sudafed, lithium batteries, rubber tubing, a blender, thermoses, and a fan. Sgt. Pulford also found a quantity of wet, white powder; a mirror; phone cards; and an electronic scale under the front of a vehicle inside the garage, where Heath was kneeling when the officers entered. Sgt. Pul-ford photographed the crime scene, and designated for destruction those items that he believed were contaminated.

After weighing and field-testing the wet, white powder found in the garage, along with amounts found during searches of Buytaert and Prigge, Deputy DeGeorge sent the powder to the BCA for testing. The BCA determined that the powder was, in fact, methamphetamine, and that its combined weight was 18.1 grams after it had dried — 9.6 grams from under the vehicle, 3.3 from Buytaert’s person, and 5.2 grams from Prigge’s person.

Heath was charged with five counts of controlled-substance crime, including felony conspiracy to manufacture methamphetamine, in violation of Minn.Stat. §§ 152.196, subd. 1 and 152.021, subd. 2a (2002), and felony aiding and abetting the possession with intent to sell a mixture weighing ten or more grams containing methamphetamine, in violation of Minn. Stat. §§ 152.021, subd. 1(1) and 609.05 (2002). After a lengthy trial, a jury found Heath guilty on all five counts.

The trial court sentenced Heath concurrently for the counts of conspiracy to manufacture and aiding and abetting possession with intent to sell. Based on the court’s findings of aggravating factors, Heath was sentenced to concurrent terms of 201 months and 237 months, both 50% upward durational departures. Heath now appeals.

ISSUES
I. Were Heath’s due-process rights violated by the state’s failure to preserve the materials used to manufacture methamphetamine?
II. Did the state fail to prove that Heath intended to sell ten or more grams of a mixture containing methamphetamine?
III. Did the trial court err by excluding potentially exculpatory evidence?
IV. Did the trial court properly evaluate the credibility of Spreigl evidence before its admission at trial?
V. Did the trial court err in its cautionary instruction regarding other-crime evidence?
VI. Did the trial court err in sentencing Heath for both the conspiracy and the aiding-and-abetting counts as separate behavioral incidents?
VII.Did the trial court err in departing durationally from the sentencing guidelines?

ANALYSIS

I.

Heath first argues that “[bjecause the police intentionally, and in bad faith, destroyed evidence that was potentially exculpatory,” the trial court erred by not granting his motion to dismiss. In so erring, Heath argues, the court denied him his due-process rights under the Fourteenth Amendment to the United States Constitution.

When constitutional issues involving due process are raised, this court reviews the trial court’s legal conclusions de novo. State v. Biron, 266 Minn. 272, 281, 123 N.W.2d 392, 398 (1963). A trial court’s factual findings, however, are subject to a clearly erroneous standard of review. State v. Critt, 554 N.W.2d 93, 95 (Minn.App.1996), review denied (Minn. Nov. 20,1996).

To establish reversible error, a defendant must establish that the destruction of evidence was intentional. State v. Friend, 493 N.W.2d 540, 545 (Minn.1992). The evidence must have had “an exculpatory value that was apparent before the evidence was destroyed.” State v. Edwards, 380 N.W.2d 503, 509 (Minn.App.1986) (citing California v. Trombetta, 467 U.S. 479, 488, 104 S.Ct. 2528, 2533-34, 81 L.Ed.2d 413 (1984)). When no more can be said of the evidence than it could have been subjected to tests, the results of which might have exonerated the defendant, the defendant must show bad faith on the part of the state to establish a due-process violation. Arizona v. Youngblood, 488 U.S. 51, 57, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988). The defendant must also show that he would be unable to obtain comparable evidence by other reasonably available means. State v. Nelson, 399 N.W.2d 629, 633 (Minn.App.1987), review denied (Minn. Apr. 17, 1987).

The United States Supreme Court’s view that the defendant should be required to show bad faith is based on its “unwillingness to read the ‘fundamental fairness’ requirement of the Due Process Clause ... as imposing on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution.” Youngblood, 488 U.S. at 58, 109 S.Ct. at 337. By placing the burden on the defendant to show bad faith, the state’s obligation to preserve evidence is confined to cases where the “interests of justice most clearly require it, ie., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant.” Id. “The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.” Id. at 56 n. *, 109 S.Ct. at 336 n. *.

Here, Heath has failed to meet his burden of showing the officers acted in bad faith. He offered no proof that the police destroyed the evidence knowing it had exculpatory value. In fact, he has not even established that the evidence had any exculpatory value. Instead, he merely asserts that “it cannot be said with any degree of certainty that Heath was not prejudiced by the intentional and selective destruction of potentially exculpatory evidence.” Such an assertion does not give rise to a violation of constitutional proportions.

Moreover, there is abundant testimony in the record showing the dangers of maintaining evidence that has been exposed to the methamphetamine manufacturing process. Sgt. Pulford testified that not only are many of the chemicals and ingredients inflammable and explosive, but also they emit toxic fumes that can cause liver and kidney disease. He also noted that some gases produced during the methamphetamine-manufacturing process are so poisonous that they can be deadly. Further, the byproducts of the manufacturing process are considered hazardous waste and are subject to substantial state and federal regulations. See, e.g., Minn. Stat. § 221.033(200) (transporting hazardous waste) 40 C.F.R. §§ 261.3 (defining hazardous waste), 263.10.31 (transporting hazardous waste), 264.1-.1202 (regulating operators of hazardous waste disposal facilities) (2002).

Because the officers acted in accordance with state and federal regulations in destroying contaminated evidence, and there is no showing that the officers acted in bad faith, the trial court properly denied Heath’s motion to dismiss.

II.

Heath next contends that his conviction of first-degree possession with intent to sell methamphetamine must be reversed because the state failed to prove either that the wet mixture found under the car, which he contends must be dried in order to be sold, weighed more than ten grams when dried; or that the amounts distributed to his co-conspirators were either intended for sale or in Heath’s “possession.” He therefore asserts that the state has failed to prove he possessed the ten-gram threshold required for a first-degree conviction.

On a challenge to the sufficiency of the evidence, this court’s review is limited to a “painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). A reviewing court must “assume that the jury believed the state’s witnesses and disbelieved any contradictory evidence.” State v. Merrill, 274 N.W.2d 99, 111 (Minn.1978). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the offense charged. State v. Alton, 482 N.W.2d 754, 756 (Minn.1988).

Here, the record provides sufficient factual basis to support the conviction. Officers testified, and photographs admitted into evidence show, that there were a number of evidentiary items that would allow a juror to infer that the co-conspirators were dividing the methamphetamine for sale: the methamphetamine found under the vehicle (weighing 9.6 grams after drying), packaging materials, a scale, and the presence of three separate cardboard bindles found on Prigge’s person after his arrest (weighing 3.4 grams after drying). When “viewed in the light most favorable to conviction,” this evidence clearly supports the finding of more than ten grams of methamphetamine.

Further, Heath cites no precedent to support his assertion that the jury must consider only the dry weight of the methamphetamine. When officers first confiscated the materials, the weight of the “wet” methamphetamine found under the vehicle was measured at 12.1 grams. Our statutes make no distinction between “wet” and “dry” methamphetamine, instead they simply forbid the sale of “mixtures ... containing ... methamphetamine.” Minn.Stat. § 152.021, subd. 1(1) (2002) (emphasis added). The jury could therefore find, simply from the amount of methamphetamine under the car, that Heath was aiding and abetting the illegal acts being performed.

III.

Heath also contends that the trial court committed reversible error by excluding defense testimony in two ways. First, Heath asserts that the trial court should have allowed testimony that Levi Storm, a defense witness, drove Heath to the garage the morning of Heath’s arrest so that Heath could retrieve his jacket from a vehicle parked outside the garage. Second, Heath asserts that the trial court abused its discretion in preventing defense counsel from making this assertion during closing arguments. He contends that these rulings deprived him of his right to present an effective defense, and that therefore he should be granted a new trial.

Absent an erroneous interpretation of the law, the question of whether to admit or exclude evidence is within the trial court’s discretion. Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn.1997). “Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrate prejudicial error.” Id. at 46 (citation omitted). When dealing with a claim of erroneous exclusion of evidence, “prejudicial error” occurs when there is a reasonable possibility that the verdict might have been more favorable to the defendant if the evidence had been admitted. State v. Post, 512 N.W.2d 99, 102 (Minn.1994).

Here, the trial court sustained the state’s hearsay objection after Storm testified about his interaction with Heath the mdrning of the offense. Strom testified, “Umm, I was asleep and apparently he had walked from [a friend’s] house to my house and he asked if he could get a ride, he forgot his jacket.” The court stated that the testimony was “clearly” hearsay and instructed the jury to disregard it. The court subsequently upheld the state’s objection to similar responses from Storm on three additional occasions.

Though Heath asserts that Storm’s testimony is not hearsay, it appears that this testimony is hearsay that falls within an exception as a statement of the declarant’s intent, motive, or design at the time. Statements of the declarant’s state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, or design are admissible even if the declarant is available. Minn. R. Evid. 803(3). This exception to the hearsay rule is based on the belief that such statements are sufficiently trustworthy to justify their admission into evidence. Id., 1989 comm. cmt.

The statement that Heath wished to retrieve his jacket shows the reason for his desire to go to Hiser’s residence. As such, it should have been admitted, and the trial court abused its discretion. The one occasion when the court sustained the state’s objection to Heath’s closing argument likely compounded this error.

But even if the trial court abused its discretion, we are not convinced that this error was prejudicial. Storm did testify that Heath needed a ride the morning of the offense, and that Storm offered to give him one. And, contrary to Heath’s assertions now, his counsel did successfully assert during his closing argument, without objection, that Heath was merely retrieving his jacket.

In short, Heath’s alibi was presented to the jury and, notwithstanding this assertion, the jury found Heath guilty. We therefore find the court’s error in excluding Storm’s testimony to be harmless.

IV.

Heath next asserts that the trial court improperly admitted testimony from Heath’s ex-girlfriend (and convicted felon), Machelle Weege, who testified that Heath knew how to manufacture methamphetamine and had done so in the past.

The admission of evidence of other crimes or bad acts under Minn. R. Evid. 404(b) — commonly known as Spreigl evidence — lies within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. State v. Spaeth, 552 N.W.2d 187, 193 (Minn.1996). There are, however, established requirements before Spreigl evidence may be admitted: (1) the trial court must determine whether proper notice was given; (2) the state must clearly indicate what the evidence will be offered for; (3) the evidence must be clear and convincing that the defendant participated in the Spreigl evidence; (4) the evidence must be relevant and material to the state’s case; and (5) the probative value cannot be outweighed by the potential for prejudice. State v. Asfeld, 662 N.W.2d 534, 542 (Minn.2003). Heath concedes that the first two requirements were met, but contends that the trial court abused its discretion in determining that Weege’s testimony adequately satisfied the remaining three.

A. Clear and Convincing

Heath focuses on a limited portion of the trial transcript in an effort to prove that the trial court completely failed to consider witness credibility, erroneously concluded that the evidence was clear and convincing, and improperly deferred all such credibility determinations to the jury. In so erring, he asserts, the court failed in its essential function as an evidentiary gatekeeper. The record read in its entirety, however, reflects that Heath’s arguments are inaccurate.

While the jury ultimately weighs the credibility of a witness who testifies at trial, “it is the function of the trial court to weigh the credibility of a witness” when determining at the Spreigl hearing whether allegations of misconduct are supported by clear and convincing evidence. State v. Doughman, 384 N.W.2d 450, 455 (Minn.1986). A finding of clear and convincing evidence can be based on the uncorroborated testimony of a single witness. State v. Kennedy, 585 N.W.2d 385, 389-90 (Minn.1998). A witness’s felony convictions do not, as a matter of law, render her testimony unworthy of belief. See State v. Pippitt, 645 N.W.2d 87, 94 (Minn.2002).

Here, Heath points to the following portion of the transcript as supporting his assertion that the trial court abused its discretion:

The issue of credibility, there was disagreement on that. It is the Court’s clear opinion after review of the evidence that the Court doesn’t make a credibility determination of a witness, that is for the fact finder to make, and it is in fact for the jury to make. Case law supports that and essentially makes that the jury’s exclusive prerogative.

This quote, however, is taken out of context. Though the trial court did make this statement, it later clarified its stance and noted that, as part of its “clear and convincing” determination, it clearly had the right to limit testimony that no reasonable trier of fact could believe. And after the court listened to Weege’s testimony in a Spreigl hearing, it determined “that her testimony could in fact be believed by a reasonable person.” Thus, despite Heath’s assertions to the contrary, Weege’s credibility was fully considered by the court, and we shall not disturb the trial court’s determinations about the admissibility of such evidence.

B. Relevant and Material

Heath next contends that Weege’s testimony was not relevant, stating that the state’s main reason for introducing the evidence was to show past joint criminal activity. He asserts, therefore, that the evidence was “merely a subterfuge for impugning Heath’s character and suggesting he was acting in conformity with that character.”

Notwithstanding these assertions, the evidence was clearly introduced to show Heath’s knowledge of methamphetamine manufacture, intent, common scheme, and to rebut Heath’s defense that he was an unfortunate victim of circumstance. For such reasons, the evidence was clearly admissible. See Minn. R. Evid. 404(b).

C. Probative Value v. Prejudicial Impact

Heath also asserts that the prejudicial impact of Weege’s testimony outweighs any probative value the evidence may have. He argues that an examination of the state’s closing argument reveals that the evidence was introduced solely to attack his character. He argues that the evidence, therefore, was unfairly prejudicial.

To support his assertions, Heath points to the following portion of the state’s closing argument:

[W]e know the defendant knows how to manufacture methamphetamine. His ex-girlfriend told us that. So is he the kind of person who knows how to manufacture at a methamphetamine lab? What are the chances that that person is involved? Pretty good.

Heath urges this court to consider this as a call to the jury to consider Weege’s testimony as propensity evidence. But the quote, taken in context, suggests that the state was merely attempting to establish that Heath had knowledge of methamphetamine manufacturing and that, where one of the involved parties was knowledgeable about manufacturing techniques, that party’s presence infers a common scheme or purpose. Reversal based on these grounds is unwarranted.

V.

Heath additionally contends that the trial court erred in refusing to instruct the jury on the specific purposes for which the Spreigl evidence was admitted. Heath argues that by failing to make such modifications to the jury instructions, the court failed to ensure that the jury would properly use the evidence and “not misuse the evidence as propensity evidence.”

Trial courts are allowed considerable latitude in selecting the language of jury instructions. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn.1986). We will not reverse a trial court’s decision unless the instructions constituted an abuse of discretion. See id. (concluding that appellant failed to demonstrate trial court’s instructions were an abuse of discretion).

In State v. DeYoung, 672 N.W.2d 208 (Minn.App.2003), this court determined that “when a defendant requests a limiting instruction, the district court must give such an instruction.” Id. at 212. We determined, however, that the error in DeY-oung was harmless because (1) the trial court instructed the jury that the Spreigl evidence could only be considered for the limited purpose of determining whether appellant committed the charged offense, and that he could not be convicted based on the previous occurrences; (2) during closing arguments, the defense attorney and the prosecutor both explained that the Spreigl evidence could only be used to establish motive and identity; and (3) the record was replete with evidence against the appellant. Id. at 212-13.

Similarly here, the trial court refused to modify the language of the jury instructions after Heath requested they be altered to reflect that the Spreigl evidence was being introduced solely to show knowledge. The trial court determined that such an instruction was erroneous, because the evidence could also be used for “showing more than mere knowledge.” But instead of expanding the scope of the requested modification, the trial court left the language out completely, and relied on Minnesota Practice Jury Instruction Guide CRIMJIG 2.01, a general cautionary instruction.

Like DeYoung, we find the error here harmless because the trial court offered a blanket cautionary instruction that warned jurors not to convict Heath for the crimes he may have committed in the past, defense counsel urged the jury not to consider Heath’s prior acts as proof of his guilt for the present offense, and the record reflects a strong case against Heath. The record shows that immediately upon their entry into the garage, officers observed that Heath slid a large amount of methamphetamine under the vehicle in the garage. The methamphetamine was still wet, and the bottle used to produce it still gaseous, both indications that the manufacturing process had just been completed. The position of Heath in relation to the two other defendants, as well as the evidence in the immediate area, suggests that he was dividing and distributing the methamphetamine, rather than having just arrived to make a purchase, as he suggests. In light of these facts, it is therefore clear that the trial court’s error did not have a significant impact on the verdict.

VI.

Heath next argues that the trial court erred by determining that the two crimes for which he was sentenced were separate behavioral incidents. He contends that “the conspiracy and manufacturing offenses were merely the means” to sell the methamphetamine found in the garage. A review of the record, however, justifies the trial court’s determinations.

The trial court may impose only one sentence if a person’s conduct constitutes more than one offense but is part of the same behavioral incident. See MinmStat. § 609.035, subd. 1 (2002). If multiple sentencing is barred under the statute, even concurrent sentencing is barred. State v. O’Hagan, 474 N.W.2d 613, 622 (Minn.App.1991), review denied (Minn. Sept. 25, 1991). The statute is intended “to protect against exaggerating the criminality of a person’s conduct and to make both punishment and prosecution commensurate with culpability.” State v. Secrest, 437 N.W.2d 683, 684 (Minn.App.1989) (quoting State v. Eaton, 292 N.W.2d 260, 266 (Minn.1980)) (other citation omitted), review denied (Minn. May 24, 1989).

Whether offenses arose out of the same behavioral incident depends on the facts and circumstances of the particular case. State v. Bookwalter, 541 N.W.2d 290, 294 (Minn.1995). The trial court, in making that determination, looks at the factors of time and place and whether the conduct was motivated by a single criminal objective. Id. Courts must also consider whether the offenses (1) arose from a continuous and uninterrupted course of conduct; (2) occurred at substantially the same time and place; and (3) manifested an indivisible state of mind. See id. at 294-97; see also State v. Soto, 562 N.W.2d 299, 304 (Minn.1997). The court’s decision is a fact determination that is not reversed on appeal unless clearly erroneous. Effinger v. State, 380 N.W.2d 483, 489 (Minn.1986). A factual determination is clearly erroneous if it is unsupported by the ree-ord. See State v. Wasson, 615 N.W.2d 316, 322 (Minn.2000).

Here, the record supports the trial court’s determination that conspiracy to manufacture and possession with intent to sell were not a single behavioral incident. A witness stated that Buytaert was seen with a “cooker” used to manufacture methamphetamine early that morning. Sgt. Pulford testified that he found numerous items used to manufacture methamphetamine, including solvents, tools, latex gloves, packages of Sudafed, and lithium batteries. The conspiracy was therefore committed when Buytaert, Prigge, and Heath agreed to manufacture the drug, and when they took their first overt act in furtherance thereof. See State v. Tracy, 667 N.W.2d 141, 146 (Minn.App.2003) (stating that conspiracy does not require proof of underlying crime). Thus, by the time the three purchased, borrowed, or brought this material to the garage, the conspiracy had already occurred. This “behavioral incident” therefore took place before the second behavioral incident in which methamphetamine was in their possession and was divided. The two offenses are therefore divisible.

Although the acts may have been part of a single plan to make a profit, “the criminal plan of obtaining as much money as possible” does not constitute a single criminal objective. Soto, 562 N.W.2d at 304. We therefore affirm the trial court’s imposition of concurrent sentences for conspiracy and aiding and abetting.

VII.

Heath’s final argument is that the trial court erred in imposing a 50% upward durational departure for both sentences. He asserts, and the record reflects, that the court departed for a “multiplicity” of reasons, but it would not have departed if only one of those aggravating factors existed. Heath now contends that a majority of the allegedly aggravating factors are invalid because they duplicate the elements of the crime of which he was convicted. He further asserts that the trial court erred by failing to consider the two offenses separately in order to identify what departure factors apply to each offense.

The decision to depart from the sentencing guidelines rests within the trial court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn.1996). When a court does make such a departure, “it must articulate substantial and compelling reasons” justifying its action. State v. Schmit, 601 N.W.2d 896, 898 (Minn.1999). Generally, in determining whether to depart durationally in sentencing, a court must decide “whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question.” State v. Broten, 343 N.W.2d 38, 41 (Minn.1984).

A. Aggravating Factors

In State v. McIntosh, the Minnesota Supreme Court expressed its concerns about the aggravating factors listed for major controlled-substanee crimes in the Minnesota Sentencing Guidelines. 641 N.W.2d 3, 11 (Minn.2002). It noted that these factors were established before drug offenses were based on the quantity of the substance in the charged offense. Id. It thereafter cautioned courts against using aggravating factors that “were considered by the legislature in determining the severity of the offense,” for doing so would duplicate an element of the offense. Id. at 11-12 (quoting State v. Peterson, 329 N.W.2d 58, 60 (Minn.1983)).

Here, the trial court’s sentencing report lists five reasons for its upward durational departure. First, children (ages 5 months and 19 months respectively) were present on the property and could be exposed to the potentially lethal chemicals. Second, the amount of the drug was “substantially larger than for personal use.” Third, the defendant manufactured for other parties. Fourth, Heath “occupied a high position within the drug distribution hierarchy and the offense involved sophistication and planning.” Fifth, Heath committed this act as part of a group of three or more individuals who were actively involved in the crime. Though Heath contests all the aggravating factors against him, he asserts that the majority of them cannot be justified because they duplicate elements of the crimes for which he was convicted.

Major Controlled-Substance Violation

The trial court determined that Heath’s offenses warranted departure from the guidelines because they were major controlled-substance offenses. It based its determination on the amount of the substance being greater than for personal use; the methamphetamine being intended for other parties outside the conspiracy; Heath’s high position within the hierarchy; and the sophistication of the operation. Heath concedes that all these aggravating factors are listed expressly in the sentencing guidelines. Minn. Sent. Guidelines II. D.2.b.(5). He asserts, however, that in light of McIntosh, even aggravating factors listed in the sentencing guidelines cannot justify an upward durational departure if those factors are elements of the offense.

With respect to the trial court’s first two factors (the amount of and intended use for the methamphetamine), we agree with Heath that those factors are elements of the possession offense and cannot be used as justification for an upward durational departure. To be convicted of first-degree possession with intent to sell, a defendant must (1) be in possession of ten or more grams of methamphetamine, a substantial amount that is often greater than for personal use and (2) have intent to “sell,” which is statutorily defined as selling, giving away, bartering, delivering, exchanging, distributing, or disposing of to another. Minn.Stat. §§ 152.01, subd. 15a; 152.021, subd. 1(1). And because these are essential elements of first-degree controlled-substance-sale crimes, the trial court could not consider these factors as aggravating the severity of the crime. McIntosh, 641 N.W.2d at 11-12.

Furthermore, while “sophisticated planning” is an aggravating factor, the record does not support the trial court’s finding that the clandestine laboratory here was sophisticated. In fact, Sgt. Pulford testified that the laboratory was quite common. The state asserts that a lab can be both common and sophisticated, pointing to “all of the ingredients involved in amateur methamphetamine manufacture,” but if the state were to succeed in this argument, it would justify upward dura-tional departures for all methamphetamine-manufacture convictions, because there is no known manufacturing process that is less sophisticated than the one at issue here.

With respect to the final aggravating factor for a major controiled-sub-stance offense, Heath argues that the record fails to support the trial court’s findings regarding his “high position.” To the contrary, Weege’s testimony indicated that Heath had training in chemistry, prior experience in manufacturing methamphetamine, and had instructed others on manufacturing the drug. This testimony thus supports the trial court’s finding that Heath’s “experience and finesse” put him into a “high position” in this particular drug conspiracy.

But even if the court properly found that Heath was in a “high position,” section II.D.2.b.(5) of the Minnesota Sentencing Guidelines requires that the trial court must find two or more of its listed aggravating factors to depart from the presumptive sentence for “major controlled substance offenses.” Because two of the trial court’s listed factors were elements of one of the crimes for which he was convicted, and because the evidence does not support the trial court’s finding of “sophisticated planning,” the trial court erred in using “major controlled substance offenses” to justify its upward durational departure for aiding and abetting the possession with intent to sell.

Three or More Persons

Heath also urges this court to find that the trial court erred in departing on the ground that three individuals were actively involved in the crime. Though the involvement of three or more persons in the commission of the crime is listed as an aggravating factor in the sentencing guidelines, Minn. Sent. Guidelines II.D. 2.b. (10), we agree that applying this factor was inappropriate under the circumstances. The trial court made the following observation:

Clearly the only requirements of the conspiracy statute are that there be at least two persons. Here there are three. I don’t know exactly why the Minnesota Guidelines Commission determined that it can be or is an aggravating departure if there are three or more persons who actively participate in a crime but they did so.

It appears from the record, then, that the trial court applied this aggravating factor without clearly providing justification for doing so. There is no basis in the record to support a conclusion that a three-member conspiracy here was substantially different from a two-member conspiracy under the same circumstances. Because the trial court failed to provide an adequate, “substantial and compelling” basis for this factor, we find that the trial court abused its discretion in making this determination.

Presence of Children

Heath also contends that the presence of children should not have been used as an aggravating factor. His assertion that the children were not present simply because they were not in the garage with the co-conspirators is unmeritorious; his overall argument that the court erred in considering the presence of the children, however, is persuasive.

Though the presence of children is not explicitly listed as an aggravating factor in the sentencing guidelines, section II.D.2 explicitly states that it is “a nonexclusive list of factors which may be used for reasons of departure.” In the context of violent crime, the presence of children has justified an upward departure. State v. Hart, 477 N.W.2d 732, 740 (Minn.App.1991), review denied (Minn. Jan. 16, 1992); State v. Dalsen, 444 N.W.2d 582, 584 (Minn.App.1989), review denied (Minn. Oct. 13, 1989).

Here, however, the presence of children is an improper aggravating factor of the crimes for which Heath was sentenced. Though the trial court correctly notes the inherent risk of the children’s belongings being exposed to the potentially lethal chemicals involved in manufacturing methamphetamine, not to mention the possibility of a toddler having access to such chemicals, Heath was not sentenced for the manufacture of the drug. Rather, he was sentenced for the conspiracy to manufacture the drug, a crime that took place some time before the manufacture took place, and the possession of the drug, which took place after the drug’s manufacture. Therefore, consideration of the children’s presence during the manufacturing process was error.

B. Separating Offenses

The trial court’s failure to distinguish the justifications for an upward du-rational departure between the offenses is problematic as well. In State v. Williams, the Minnesota Supreme Court noted its concern when the trial court relied on 15 aggravating factors to justify, in the aggregate, upward departures on three sentences. 608 N.W.2d 837, 840 (Minn.2000). It noted that the “separate analysis of the reasons for departure as to each sentence may have led to a different sentencing result, would have informed the appellant as to the rationale for each sentence, and of course would have provided a clear record for review.” Id. at 841. It further noted that the factors supporting departure on one sentence may not justify departure on another. Id.

Here, the sentencing order separately listed the two offenses of which Heath was convicted. For both offenses, however, the trial court refers to all of the aggravating factors from its sentencing departure report as justification for its upward dura-tional departure. In light of Williams, we must conclude that the trial court erred in failing to separate its justifications for departure.

In general, this court must adhere to the rules for evaluating guideline departures established in Williams v. State, 361 N.W.2d 840, 844 (Minn.1985), and if the reasons given for departure are improper or inadequate, this court must examine the record to determine whether there is sufficient evidence to affirm the district court’s departure. The record here reflects that the only possible justifiable departure would be the major controlled-substance violation of conspiracy to manufacture methamphetamine. But because the trial court here appeared reluctant to depart based solely on a single aggravated factor, and because the trial court erred in failing to separate its justifications for departure, we remand to the district court to make these sentencing determinations.

We note in conclusion that after the parties submitted their initial briefs, the United States Supreme Court filed Blakely v. Washington, — U.S. —, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In Blakely, the Supreme Court determined that by allowing judicially-found facts to enhance a sentence beyond the maximum sentence prescribed by the Washington sentencing guidelines, the Washington sentencing procedures deprived a defendant of the federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to sentencing. Id. at 2537. Because this case, like Blakely, involves judicially-found facts enhancing Heath’s sentence beyond that which is recommended in the guidelines, we instruct the district court, upon remand, to consider the applicability of Blakely to the sentence.

DECISION

Because (1) federal and state regulations required the destruction of the allegedly exculpatory evidence, and there is no evidence of bad-faith spoliation; (2) the evidence in the record sufficiently supports the convictions; and (3) the court’s conduct during trial was proper, we affirm the convictions. But because the trial court erred in its analysis of aggravating factors justifying upward durational departures, we reverse and remand for resentencing.

Affirmed in part, reversed in part, and remanded.

      . The state attempts to circumvent this argument by stating that Heath was convicted not for selling methamphetamine, but rather for the possession with intent to sell methamphetamine and/or aiding and abetting such an act. But possession with intent to sell, for statutory purposes, is part of the definition of "sell." Minn.Stat. § 152.01, subd. 15a (2002).