author: PAGE, Justice. HANSON, Justice MEYER, Justice

text:
    STATE of Minnesota, Respondent, v. Paul (NMN) GUTIERREZ, Jr., Appellant.
    No. C5-02-908.
    Supreme Court of Minnesota.
    Aug. 21, 2003.

      John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant State Public Defender, Minneapolis, for Appellant.
    Mike Hatch, Attorney General, Catherine M. Keane, Assistant Attorney General, St. Paul, Craig S. Nelson, Freeborn County Attorney, Albert Lea, for Respondent.
   OPINION

PAGE, Justice.

On May 25, 2001, appellant Paul (NMN) Gutierrez, Jr., was indicted for causing the death of 18-month-old Makaio Lynn Rad-ke on April 20 or 21, 2001. The indictment charged Gutierrez with three counts: (1) first-degree murder while committing or attempting to commit criminal sexual conduct in the first or second degree in violation of Minn.Stat. § 609.185(2) (2002); (2) first-degree murder while committing child abuse in violation of Minn.Stat. § 609.185(5) (2002); and (3) second-degree felony murder while committing or attempting to commit assault in the first degree in violation of Minn.Stat. § 609.19, subd. 2(1) (2002). On March 4, 2002, a jury found Gutierrez guilty on all counts. He was sentenced on count one to life imprisonment without the possibility of release. We affirm.

We begin with a recitation of the facts underlying Gutierrez’s conviction. Peggy Radke (Radke) had three children: Ma-kaio and Alaeatra Radke from her marriage with Matthew Radke, and Dana Jacobs from a previous marriage. At the time of Makaio’s death, Radke was going through a divorce from Matthew Radke, who moved out of their house on January 11, 2001. Approximately one week later, Gutierrez and Kristina Baker moved into the Radke home. Although never formally agreed upon, Gutierrez and Baker took care of Radke’s children while Radke was at work in exchange for being allowed to live at the Radke home. Once Baker began working as well, Gutierrez became the primary caregiver for the children.

Soon after Gutierrez and Baker moved into the Radke home, Matthew Radke and various health care providers began noticing unusual bruising on Makaio. Makaio was seen by doctors on January 24, 2001, and again on February 1, 2001, for symptoms related to ear infections and bronchitis. No evidence of physical or sexual abuse was noted at the time of either visit to the doctor. Chest x-rays taken at the time of the January 24 visit showed no signs of fractures to Makaio’s ribs. However, when Makaio was brought to the doctor’s office for a follow-up visit on February 28, 2001, his doctor noticed a half-inch bruise on each of Makaio’s cheeks. Although Radke stated that these bruises had been caused when Makaio fell while learning to walk, the doctor felt that this did not adequately account for the location, size, and shape of the bruises and a child abuse report was filed.

On March 2, 2001, a child protection worker made an unannounced visit to the Radke home. The worker noted a slight bruise on one of Makaio’s cheeks. Radke’s explanation for the bruise was that Makaio was learning to walk and frequently fell. Ultimately, the child protection worker concluded that the child abuse report could not be substantiated.

On March 21, 2001, Matthew Radke took Makaio to a police station to report an injury to Makaio’s left foot. The police photographed Makaio’s foot and head, and suggested that he be taken to urgent care for treatment. Examination at urgent care confirmed the foot injury and revealed, in addition, an injury on Makaio’s right hip, which appeared to have been caused by a blow from or a collision with a straight-edged object, several bruises on his face and chin, including a small bruise on the center of his forehead, and abrasions on his head, which were scabbed over. These injuries were reported to child protection and on March 26, 2001, the child protection worker made a second unannounced visit to Radke’s home. The child protection worker again concluded that the report of abuse could not be substantiated.

The next reported incident occurred on April 11, 2001, when Matthew Radke took Makaio to the police for the second time. This time it was to report bruises on Ma-kaio’s face, legs, and back, which according to Matthew Radke made Makaio look as though he had been beaten up. Matthew Radke told the police that three days earlier Makaio had had no bruising in those areas. The police again photographed and documented the bruising.

Two days later, on April 13, 2001, the children’s guardian ad litem visited the Radke home and observed two bruises on Makaio’s cheeks. Radke stated that Ma-kaio had slipped in the bathtub while she was bathing him. The guardian ad litem reported these injuries to the Department of Human Services and asked the police to investigate them, which they did that day. Pictures of Makaio’s injuries were taken by the same police officer who photographed Makaio on April 11, 2001. The officer testified that, while he did not see any injuries beyond those apparent on April 11, he noticed that the bruising on Makaio’s left cheek was more pronounced on April 13.

As a result of these incidents, a different child protection worker conducted an unannounced visit to the Radke home on the morning of April 20, 2001. At trial, this child protection worker testified that while she saw three healing bruises on Makaio’s body that morning, no other injuries were visible, and that during the time she spent at the Radke home Makaio did not show any hesitancy to be around his mother, although he seemed abnormally quiet and listless. She also testified that Alaeatra appeared to be a normal, healthy child and that there was no evidence of any abusive behavior by Radke toward Alaeatra. Based on her observations, the social worker concluded that there was no evidence that Radke had intentionally injured Makaio.

At approximately 1 p.m. that afternoon, Radke and Baker left for the day, leaving Makaio, Alaeatra, and Reanna in Gutierrez’s care. Dana was at school, after which she went to her father’s house for the evening. After they ran some errands, Baker took Radke to Baker’s parent’s house so that Radke could rest while Baker was at work. Baker returned to pick up Radke at 11:15 p.m. and the two arrived at the Radke home at approximately 1 a.m. on Saturday, April 21, 2001. When they arrived, Gutierrez and Reanna were asleep on the living room couch. At some point, having woken up, Gutierrez told Radke that the day had gone well except that he had spanked Alaeatra because she had fed the dog pizza and that Makaio had almost poked himself in the eye with a pencil. Baker and Gutierrez stayed up until about 2 a.m. before going to sleep. Radke stayed awake all night. Radke testified that the door to Makaio and Alaea-tra’s bedroom was closed when she got home and that she did not check on them because she assumed that they were in there.

When Alaeatra woke up the next morning, Radke fixed her breakfast. Gutierrez woke up at approximately 8 a.m. and peeked into Makaio and Alaeatra’s room before closing the door. Baker got up at around 8:30 a.m. At some point during the morning, Gutierrez called Radke into the bedroom to tell her about some bruises that Alaeatra had on her buttocks. He stated that he assumed that the bruising was caused by a spanking he gave Alaea-tra for feeding the dog pizza the night before. Because Matthew Radke was scheduled to pick up Alaeatra and Makaio later that afternoon, Radke called the children’s guardian ad litem to self-report the bruising. Radke told the guardian that Alaeatra had gotten the bruises from falling on a toy. That morning, Radke also noticed that Alaeatra was missing some hair from the top of her head. When she asked Gutierrez about it, he told her that Makaio had pulled Alaeatra’s hair out.

Around 9:50 a.m., Radke decided to wake Makaio. She had not checked on him during the morning because he had been suffering from a cold and thought it would be good to let him sleep late. While Radke was finishing a cigarette, Gutierrez went to wake Makaio. A few minutes later, Gutierrez yelled Radke’s name. Radke ran into Makaio’s room and saw Gutierrez standing over Makaio’s crib. Makaio was laying on his back, had bruises on his head, and was not moving. His arms were in the red sleeper he was wearing, but his legs were not, his skin was pale, and his lips were blue. Radke picked up Makaio’s body and ran into the firing room and began calling 911. Before she could complete the call, Gutierrez told her to take Makaio to the hospital, which Baker and Radke did. At the hospital, Makaio was pronounced dead at 10:19 a.m. from multiple traumatic injuries due to child abuse.

When Baker and Radke left for the hospital, Gutierrez called Kimberly Halstead to come to the house and watch Alaeatra and Reanna. He explained to Halstead that Makaio had been taken to the hospital because he was purple and not breathing. He stated that he was worried that he might have played too rough with Makaio the night before, that he was scared to touch his own daughter, and indicated that he wanted to leave the house before the police arrived. In the meantime, Baker returned to the house, told Gutierrez that it did not look good, and that the police were probably right behind her. As Gutierrez went out the back door, the police came in the front door. Gutierrez went to a former girlfriend’s house, stayed there for about 15 minutes, then got a ride to another former girlfriend’s house, Valeri Carroll. According to Carroll, he told Carroll and her husband that a baby had died “on his watch.” He also told them that Makaio had fallen asleep in front of the television and that when he carried Makaio to bed, Makaio was wheezing and having trouble breathing.

At about 9 p.m. that evening, Gutierrez called Janice Vandervoort, his childhood foster mother. He told Vandervoort that he had wrestled with Makaio, that Makaio had fallen asleep on the floor about 9 p.m., and that he had put him to bed a half an hour later. He also told Vandervoort about finding Makaio cold and discolored that morning.

Gutierrez was arrested at Carroll’s house later that evening. Gutierrez was read his rights and agreed to talk to the police. Gutierrez told them that he was alone with the children all day on Friday, but denied killing Makaio. He told the police that in roughhousing with the kids he had tied Makaio’s legs up in his pajamas, had rolled him around on the couch and floor, and had thrown him up in the air. Gutierrez also described how Makaio fell asleep on the floor and how he was breathing a little funny. He indicated that after putting Makaio to bed he did not hear Makaio again. He noted that he was a light sleeper and would have heard Ma-kaio if he had cried during the night. Gutierrez told police that, “He died on my shift, while I was watching him.” Gutierrez also told police that Makaio had previously gotten a bruise when he was giving Makaio a bath and that Gutierrez had once accidentally given Makaio a carpet burn.

An autopsy was performed on Makaio’s body. The autopsy revealed that Makaio had died from exsanguination as a result of numerous soft tissue and internal injuries combined with an inability to breath due to blood accumulation in his left chest cavity. The autopsy report noted that the injuries would have been painful and as a result Makaio would have been crying, would have had labored breathing, and would likely have been wheezing. There were 75 bruises and abrasions on Makaio’s body, including bruises on the shaft of his penis and the anterior surface of the right scrotal sack, abrasions on the perineum, and a periorbital hematoma around his left eye. There were also two lacerations of note: a V-shaped anal laceration extending into the anal cavity and a laceration on the inside of his mouth. The bruises were described as having a somewhat circular and oval configuration and appeared to match the size and shape of the head of a black plastic rod found in the Radke home and were consistent with Makaio having been struck multiple times. According to the report, with the exception of two or three of the bruises, all of the external injuries were fresh. In addition to the external injuries, there were: (1) fractures to Makaio’s ribs, numbers four through nine on the left side, and two and three on the right side; (2) scattered areas of hemorrhaging inside the scalp covering multiple surfaces on the sides, front, back, and top; (3) bruises to and a laceration of the lung; and (4) trauma and damage to the spleen, diaphragm, and liver.

At trial, the medical examiner who performed the autopsy testified that, based on the condition of the body, Makaio died a full 10 to 12 hours before he was pronounced dead at the hospital and that he most likely died between 10 p.m. and midnight on Friday, April 20. The medical examiner further testified that death would have occurred anywhere from several minutes up to just over an hour after the injuries were inflicted and acknowledged that it was possible that Makaio did not die until sometime after 1 a.m. The pathologist who testified on behalf of Gutierrez indicated that he could not rule out the possibility that Makaio’s injuries were inflicted after 1 a.m., although it was most likely that the injuries and death occurred before 1 a.m.

DNA testing conducted on a crusty white spot found on Makaio’s red sleeper revealed the presence of sperm and semen. The testing detected the presence of DNA from two or more individuals. The DNA profile of the primary contributor matched Makaio’s, and Gutierrez could not be eliminated as the other contributor. At trial, the prosecution elicited testimony that, because of his young age, Makaio could not produce semen, and therefore the semen found on the sleeper had to come from someone else.

Gutierrez raises seven issues on appeal: (1) whether the trial court committed plain error in its jury instruction on the elements of first-degree murder while committing or attempting to commit criminal sexual conduct; (2) whether the trial court properly admitted evidence of PCR-STR DNA testing; (3) whether the trial court properly admitted evidence of Gutierrez’s relationship with Alaeatra; (4) whether the trial court properly admitted evidence of Gutierrez’s preference for anal sex; (5) whether the trial court properly excluded third-party perpetrator evidence; (6) whether Gutierrez’s mandatory sentence of life imprisonment without possibility of release violates Article I, Section 5, of the Minnesota Constitution; and (7) whether there was sufficient evidence to support the child abuse murder conviction. We affirm.

I.

Initially, we address whether the trial court committed plain error in its unobjected-to jury instructions on first-degree murder. In general, when a defendant fails to object to instructions before they are given to the jury, the right to appeal is waived. State v. Cross, 577 N.W.2d 721, 726 (Minn.1998). However, this court may grant relief when the defendant fails to object to an error that constitutes plain error affecting substantial rights or is one of fundamental law. Id. In order to constitute plain error: (1) there must be error; (2) which is plain; and (3) which affects the defendant’s substantial rights. State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn.2001). Each prong of the plain error test must be met before we will correct the error, and then, only if the error “ ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” Id. (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (internal citations omitted)). Trial courts are permitted considerable freedom when determining how to instruct the jury as long as the jury instruction is not confusing or misleading on fundamental points of the law. State v. Ihle, 640 N.W.2d 910, 916 (Minn.2002); see Cross, 577 N.W.2d at 726 (finding that on appeal jury instructions are to be read in their entirety, and if the reviewing court determines that the instructions “correctly state[s] the law in language that can be understood by the jury there is no reversible error”).

Gutierrez was charged with murder in the first degree under Minn.Stat. § 609.185(2) (2002), which provides that anyone who “causes the death of a human being while committing or attempting to commit criminal sexual conduct in the first or second degree with force or violence, either upon or affecting the person or another,” is guilty of murder in the first degree and shall be sentenced to imprisonment for life. He claims that the trial court committed plain error when it instructed the jury on the elements the state was required .to prove to convict him under section 609.185(2). Specifically, he contends that the trial court failed to give any instruction with respect to the statute’s requirement that the force or violence involved in committing or attempting to commit criminal sexual conduct in the first or second degree be “either upon or affecting the person or another” and that the instruction given with respect to “force or violence” was-erroneous.

Our review of the trial court’s instruction satisfies us that the instruction given with respect to committing criminal sexual conduct with “force or violence, either upon or affecting the person,” was not confusing or misleading and did not materially misstate the law and therefore no error, much less plain error, occurred. The trial court instructed the jury as follows:

Fourth, the defendant acted with force or violence. A person acts with force or violence if a person intentionally inflicts or attempts to inflict bodily harm upon another person or intentionally causes fear in the other person of immediate bodily harm or death. Bodily harm means physical pain or injury, illness or any impairment of physical condition.

This instruction, as given, belies Gutierrez’s claim that the trial court did not instruct the jury on the statutory requirement that the force or violence be “either upon or affecting the person or another.” While the trial court did not use the specific statutory language, it is clear from the instruction that the force or violence used by the defendant had to be upon another person. Based on the considerable freedom we give to trial courts when instructing juries, we are satisfied that the instruction given adequately informed the jury with respect to the claimed error. Therefore, Gutierrez’s claim fails.

Gutierrez’s argument that the inclusion of the language “intentionally causes fear * * * of immediate bodily harm” in this instruction was plain error is also unavailing because he fails to show that this error affected substantial rights, the third prong of the plain error test. Generally, an ■ error affects substantial rights when “the defendant can prove that the error was prejudicial and affected the outcome of the case.” State v. Rhodes; 657 N.W.2d 823, 839 n. 7 (Minn.2003). In the context of jury instructions, we have held that an error affects substantial rights when there is a “reasonable likelihood that a more accurate instruction would have changed the outcome in this case.” Ihle, 640 N.W.2d at 917. Here, Gutierrez cannot prove that there is a reasonable likelihood that a more accurate instruction would have changed the outcome of the case. While the trial court’s instruction included the words “intentionally causes fear in the other person of immediate bodily harm,” the record establishes that the state never argued, presented evidence, insinuated, or suggested that this was the basis for their case against Gutierrez. Indeed, the state’s entire case was based on the extensive injuries that were inflicted on Makaio before his death. The evidence in the record establishes that Makaio suffered: (1) 75 soft-tissue injuries; (2) fractures to eight of his ribs; (3) scattered areas of hemorrhaging inside his scalp covering multiple surfaces on the sides, front, back, and top; (4) bruises to and a laceration of his lung; and (5) trauma and damage to his spleen, diaphragm, and liver. Based on this record, even if this language had been excluded, there is little, if any, possibility that the jury would have reached a different result. Thus, we cannot conclude that the instruction as given was prejudicial and affected Gutierrez’s substantial rights.

II.

We next address Gutierrez’s contention that the trial court erred when it ruled that the evidence of his alleged physical abuse of Alaeatra was non-Spreigl relationship evidence. At trial, the evidence Gutierrez now complains about was found to be admissible on two grounds: (1) under Minn.Stat. § 634.20, as evidence of similar conduct by the accused against other family or household members; and as (2) non-Spreigl relationship evidence. Gutierrez does not challenge the admissibility of the evidence under section 634.20 and our review of the record satisfies us that the evidence was properly admitted under that section. Because we conclude that the evidence was properly admitted on alternative grounds, we need not address Gutierrez’s claim that it was erroneously admitted as non-Spreigl relationship evidence.

III.

Gutierrez also contends that the trial court erred in admitting testimony regarding his preference for anal sex based on its determination that “the door was opened” by his attorney’s questioning of Baker about his sexual preferences. Specifically, he argues that the prosecution’s subsequent questions regarding anal sex were outside the scope of issues raised during the cross-examination of Baker and therefore the rebuttal evidence elicited by the prosecution was improper.

In general, rebuttal evidence is evidence that explains, contradicts, or refutes evidence elicited by the defense. State v. Swanson, 498 N.W.2d 435, 440 (Minn.1993). The determination of whether or not something is appropriate rebuttal evidence rests within the discretion of the trial court and will only be reversed upon a showing of a clear abuse of discretion. Id.; see State v. Kennedy, 585 N.W.2d 385, 389 (Minn.1998). Proper rebuttal evidence may include evidence that might not otherwise be admissible. 8 Henry McCarr & Jack Nordby, Minnesota Practice-Crim. Law and Proc. § 32.54 (3d ed.2001) (defining the concept of “opening the door” as circumstances under which the introduction of certain material, either in the form of evidence, argument, or as a question or remark, by one party creates a right to respond with material that would otherwise be inadmissible).

Here, the defense elicited testimony from Baker regarding Gutierrez’s lack of sexual attraction to children, whether she had ever seen him sexually abuse a child, and whether Gutierrez had ever raped her or Radke. The defense also questioned Baker regarding her awareness of Ma-kaio’s anal injury, whether she personally saw the injury, and whether or not anyone in the house had any vibrators. Given the nature and scope of these questions as asked by defense counsel, particularly the questions related to Makaio’s anal injury, we conclude that the trial court did not abuse its discretion when it allowed the prosecution to inquire into Gutierrez’s preference for anal sex.

IV.

Gutierrez next asks us to determine whether the trial court erred when it refused to allow third-party perpetrator evidence that Radke was responsible for Makaio’s death. Gutierrez contends that Radke had the opportunity to cause Ma-kaio’s death and alleges that he should have been able to introduce evidence that Radke abused and neglected her children and that Makaio suffered from “failure to thrive” as a result of this treatment. He argues that it was his constitutional right to present this evidence and maintains that the trial court used the wrong standard to determine whether the third-party evidence was admissible.' Based on the other evidence presented at trial, the trial court found that evidence of Radke being present in the home at the time Makaio was injured was not established by clear and convincing evidence.

As noted above, evidentiary rulings are within the discretion of the trial court and will only be reversed when that discretion is abused. State v. Johnson, 568 N.W.2d 426, 432 (Minn.1997). Under Rule 404(b) of the Minnesota Rules of Evidence, a criminal defendant may seek to introduce evidence of other crimes or bad acts of a third person that would tend to prove that the third person committed the crime for which the defendant is on trial. Johnson, 568 N.W.2d at 433; see State v. Hawkins, 260 N.W.2d 150, 158-59 (Minn.1977) (concluding that the purpose of such evidence is “not to prove the guilt of the [third person], but to generate a reasonable doubt of the guilt of the defendant”). Before evidence of a third party’s bad acts, often referred to as reverse-Spreigl evidence, may be admitted, the defendant must first lay a foundation consisting of additional evidence which has “ ‘an inherent tendency to connect such other person with the actual commission of the crime.’ ” Hawkins, 260 N.W.2d at 159 (internal citations omitted). If such a foundation is not laid, the proffered reverse-Spreigl evidence is inadmissible and the trial court need not consider it further. Id. (noting that this requirement “avoids the use of bare suspicion and safeguards the third person from indiscriminate use of past differences with the deceased”).

If the defendant presents evidence having an inherent tendency to connect the alleged third-party perpetrator to the charged offense, the defendant may go forward with evidence showing “crimes of a similar nature have been committed by [the third person] when the acts of such other person are so closely connected in point of time and method of operation as to cast doubt upon the identification of defendant as the person who committed the [charged offense].” See State v. Bock, 229 Minn. 449, 458, 39 N.W.2d 887, 892 (1949), quoted in Johnson, 568 N.W.2d at 433 (defining revers e-Spreigl evidence). Before reverse-Spreigl evidence may be admitted, the defendant must establish: “(1) by clear and convincing evidence that the third party participated in the reverse-Spreigl evidence; (2) that the reverse-Spreigl incident is relevant and material to [the] defendant’s case; and (3) that the probative value of the revers e-Spreigl evidence outweighs its potential for unfair prejudice.” See Johnson, 568 N.W.2d at 433-34. Failure to satisfy any part of this test results in the evidence being inadmissible. Thus, third-party perpetrator evidence may only be admitted when both a proper foundation has been laid and each part of the revers e-Spreigl test has been met.

In this case, the trial court found that Gutierrez failed to prove by clear and convincing evidence that Radke was present in her home at the time Makaio was injured. It appears from this finding that the trial court may have blended the requirements for laying a proper foundation for the admission of third-party perpetrator evidence with the requirement for the admission of revers e-Spreigl evidence. Notwithstanding the fact that the trial court may have blended the two standards, we conclude that the trial court did not abuse its discretion in finding the proffered revers e-Spreigl evidence inadmissible.

Whether Gutierrez laid a proper foundation for the consideration of the reverse-Spreigl evidence is a close question. The forensic experts for the state and Gutierrez testified that while it was possible Makaio’s death occurred after Radke returned to the home at 1 a.m. on the morning of April 21, 2001, it was more likely that he died between 10 p.m. and midnight the night before. The forensic evidence raises the following question: Does the fact that Radke was present in the home at a time when it was possible, but unlikely, that Makaio died have an inherent tendency, to connect Radke to the commission of Makaio’s murder? On the facts presented, we tend to think that it does not. We need not answer that question definitively, however, because even if we were to conclude that a proper foundation had been laid the record satisfies us that the third-party perpetrator evidence Gutierrez sought to admit fails the reverse-Spreigl test.

Gutierrez sought to admit evidence relating to a number of incidents that occurred in 1993 and 1994 between Radke and Dana Jacob’s father, a number of incidents between Radke and Matthew Radke, and a number of incidents of alleged abuse and neglect of her children. However, our review of this evidence leads us to conclude that it has limited probative value and serves no purpose other than to attempt to persuade the jury that Radke was in some way responsible for Makaio’s death merely because she was not an ideal mother. Because we conclude that this evidence is more prejudicial than probative, it fails the third part of the reverse-Spreigl test and was properly excluded by the trial court.

Gutierrez also sought to admit evidence relating to a cigarette burn Alaeatra allegedly suffered on February 1, 1999, which he claims was Radke’s fault. Beyond Gutierrez’s allegation that Radke was responsible for the cigarette burn, the record before us is devoid of any evidence as to who was to blame for the cigarette burn. Mere allegations without additional proof cannot satisfy the clear and convincing requirement of the reverse-Spreigl test. Therefore, this evidence was properly excluded.

Because the excluded third-party perpetrator evidence complained of was inadmissible under the revers e-Spreigl test, we conclude that any error resulting from the trial court’s determination was not an abuse of discretion.

V.

We are also asked to determine whether Gutierrez’s sentence is so excessive and disproportionate to the crime that it constitutes cruel or unusual punishment in violation of Article I, Section 5, of the Minnesota Constitution. Gutierrez was sentenced under Minn.Stat. § 609.106, subd. 2(1) (2002), which provides for a mandatory life sentence without the possibility of release for anyone convicted of first-degree murder while committing or attempting to commit criminal sexual conduct in violation of Minn.Stat. § 609.185(2) (2002).

When a defendant asserts that a life sentence without the possibility of release violates the prohibition against cruel or unusual punishment, this court reviews the constitutional challenge de novo. See State v. Chambers, 589 N.W.2d 466, 479 (Minn.1999). The Minnesota Constitution provides that no person may be subject to “cruel or unusual punishment.” Minn. Const, art. I, § 5; see also U.S. Const. Amend. VIII (prohibiting “cruel and unusual punishment”); State v. Mitchell, 577 N.W.2d 481, 488 (Minn.1998) (recognizing the Minnesota Constitution provides a defendant with greater protection than the U.S. Constitution). In general, to determine whether a sentence is unconstitutional, the court focuses on whether the punishment is proportional to the crime. Mitchell, 577 N.W.2d at 489. Because statutes are presumed constitutional, the defendant bears a heavy burden and is required to show that “ ‘our culture and laws emphatically and well nigh universally reject’” the sentence the defendant is claiming is cruel or unusual. Chambers, 589 N.W.2d at 479-80 (quoting Harris v. Wright, 93 F.3d 581, 583 (9th Cir.1996)).

Minnesota has a long tradition of classifying murder while committing criminal sexual conduct in the first or second degree as first-degree murder. See Minn. Stat. § 609.185(2) (1963). Since 1989, this crime has been classified as a “heinous crime,” which is punishable by the imposition of a mandatory life sentence without the possibility of release. See Minn.Stat. § 609.184 (1989), recodified at Minn. Stat § 609.106 (1998). While making a number of arguments in support of his challenge to his sentence, Gutierrez offers no factual support that would allow this court to conclude that “our culture and laws emphatically and well nigh universally reject” incarceration for life without the possibility of release as a legislatively mandated sentence for murders committed during the commission of criminal sexual conduct in the first or second degree. Therefore, we affirm his sentence.

VI.

Finally, Gutierrez challenges the sufficiency of the evidence supporting the jury’s verdict finding him guilty of first-degree murder based on a past pattern of child abuse. Because we affirm Gutierrez’s conviction and sentence for first-degree murder while committing or attempting to commit criminal sexual conduct in the first or second degree, we need not address this issue.

Affirmed.

HANSON, Justice

(concurring specially)-

I concur in the court’s decision but write separately to expand on the court’s discussion of the third-party or alternate-perpetrator issue. This expansion is necessary because of the potential confusion produced by our prior decisions on this issue.

Gutierrez made a pretrial motion that he be allowed to introduce evidence tending to prove that Peggy Radke, not he, caused Makaio Radke’s death. When third-party perpetrator evidence is offered, it is important to distinguish between two types of evidence: (1) evidence that connects the third party to the offense for which the defendant is charged (i.e., testimony placing the third party at the scene of the crime around the time it was committed; physical evidence of a third party’s prints or DNA at the scene or on or near the victim; or testimony that the third party admitted to committing the crime); and (2) evidence that the third party committed other bad acts in addition to the charged offense (offered to show the motive, intent or opportunity of the third party to commit the charged offense or to identify the third party as the perpetrator). This distinction is important because the admissibility of the former type of evidence requires only that it meet the ordinary evidentiary standards for relevance and foundation, whereas the latter type of evidence of other bad acts, as revers e-Spreigl evidence, is admissible only if it meets the heightened “clear and convincing evidence” standard. Some of our prior decisions have mistakenly labeled both types of evidence as being “reverse-Spreigl evidence,” when only the second type, evidence of bad acts other than the charged offense, can correctly be called revers e-Spreigl evidence.

The potential for confusion is perhaps increased because the first type of third-party perpetrator evidence, connecting the third party to the charged offense, serves both as exculpatory evidence for the defendant and as foundation evidence for the use of revers e-Spreigl evidence. See Hawkins, 260 N.W.2d at 159. But this latter function should not change the evidentiary standard applicable to this evidence — it should continue to be judged by the ordinary standards of relevance.

Gutierrez was allowed to offer evidence connecting Peggy Radke to the charged offense. There was proof that Peggy Rad-ke was at her home, where Makaio died, by 1 a.m. on the night of his death and the medical evidence could not establish definitively that Makaio’s death-causing injuries had occurred before that time. Gutierrez’s motion asked that he be allowed to also offer revers e-Spreigl evidence to prove that Peggy Radke had been abusive to others, but not Makaio. As to this evidence, Gutierrez’s motion did not qualify as an offer of proof because it only generally described the other bad acts he wanted to prove and did not identify the specific evidence he would offer. See, e.g., Minn. R. Evid. 103(a)(2).

The district court applied the incorrect evidentiary standard as the basis for its rejection of Gutierrez’s motion to allow revers e-Spreigl evidence. The court determined that Gutierrez had failed to prove “by clear and convincing evidence” that a necessary link between Peggy Rad-ke and Makaio’s murder existed, and that this failure eliminated the foundational requirement for revers e-Spreigl evidence, namely, that a defendant first present evidence that has “an inherent tendency to connect such other person with the actual commission of the crime.” Hawkins, 260 N.W.2d at 159 (quoting Marrone v. State, 359 P.2d 969, 984 (Alaska 1961)). As noted earlier, this threshold evidence connecting a third party to the charged offense does not have to meet the clear and convincing standard. Thus, therefore, the district court’s basis for rejecting the proffered revers e-Spreigl evidence was erroneous. Nonetheless, I would conclude that that error was harmless for several reasons.

As to the evidence connecting Peggy Radke to the charged offense, the court’s ruling on Gutierrez’s motion did not preclude it. To the contrary, Gutierrez was permitted to show that Peggy Radke arrived at the home at about 1 a.m. and to attempt to show that the injury and death of Makaio occurred after that time. In fact, Gutierrez argued to the jury that the evidence did not prove beyond a reasonable doubt that Gutierrez had committed the crime because, in part, there was evidence from which the jury could find that Peggy Radke had done so (her DNA was found on the plastic rod whereas Gutierrez’s DNA was not; Kristina Baker had testified that she heard Makaio cry as late as 7:30 in the morning; there was no investigation as to precisely where in the house Makaio was injured and it could have been in the basement, where Peggy Radke’s room was located, etc.).

As to the evidence properly characterized as revers e-Spreigl, although the district court’s denial of Gutierrez’s motion was based upon an erroneous evidentiary standard, that error was harmless because the revers e-Spreigl evidence was inadmissible on several other grounds. First, Gutierrez’s motion was insufficient to constitute an appropriate offer of proof. It failed to identify what clear and convincing evidence Gutierrez could provide to show that Peggy Radke had actually committed the other bad acts she was alleged to have committed. Gutierrez’s bare allegations are not sufficient. Second, the proposed reverse-Spreigl evidence was not relevant to the injury to or death of Makaio. The allegations contained in Gutierrez’s motion would, if proven, only show that Peggy Radke was abusive to others, not to Ma-kaio, and most of those allegations referred to events that occurred 5 to 10 years prior to Makaio’s death. Third, the probative value of the proposed reverse-Spreigl evidence was weak and did not outweigh the prejudicial effect of showing Peggy Radke to be a bad person or a bad mother.

Accordingly, the rejection of Gutierrez’s motion to allow revers e-Spreigl evidence was not reversible error.

MEYER, Justice

(concurring specially).

I join in the special concurrence of Justice Hanson.

      . Baker gave birth to Gutierrez’s daughter Rearma on March 20, 2001.

      . Matthew Radke testified at trial that before he left the Radke home he had never seen any unusual bruising on Makaio.

      . At trial, Radke testified that her statement to the guardian was not accurate because the bruising had occurred while Makaio was in Gutierrez’s care. She further explained that her statement to the guardian was based on what Gutierrez had told her happened when she asked him about the bruises.

      . It appears from the record that during the visits by the child protection workers and the guardian ad litem the focus was on Radke’s treatment of Makaio. Apparently, no one considered the possibility that someone else in the home might be abusing him.

      . At trial, Baker testified that Gutierrez would tie Makaio's arms and legs up like this and that one time Gutierrez told her that he had tied Makaio up and hung him upside down from a bunk bed post for 10 to 15 minutes.

      . At trial, the coroner testified that Alaeatra’s bruising matched the bruising that was visible on Makaio’s body and that it was possible that the same object was used to strike both children.

      . While this case was on appeal, this court decided State v. Traylor, 656 N.W.2d 885, 893 (Minn.2003). Because Gutierrez raises the same issue with respect to the admission of PCR-STR DNA testing that we resolved in Traylor, we need not address this issue here other than to say that his DNA testing claim fails.

      . Reverse-Spreigl evidence is different from evidence offered by a defendant to connect the third party directly to the charged crime, such as testimony placing the third party at the crime scene around the time the crime was committed, physical evidence, such as fingerprints or DNA at the crime scene, or testimony that the third party admitted to committing the crime. Evidence offered by the defendant to connect a third party to the charged crime is admissible so long as it meets the requirements of the Minnesota Rules of Evidence, generally and specifically Minn. R. Evid. 402. The concurring opinion would permit a defendant to satisfy the foundational requirement for the admission of reverse-Spreigl evidence based on whether that evidence was relevant. Permitting the foundational requirement to be met on that basis, however, would require that we ignore the line of cases from State v. Bock, 229 Minn. 449, 39 N.W.2d 887 (1949), to State v. Manley, 664 N.W.2d 275 (Minn.2003). It would also frustrate the underlying purpose, as set out in Hawkins, for having the foundational requirement.

      . This blending of the two standards is understandable given this court's recent decisions addressing the admissibility of third-party perpetrator evidence. See State v. Manley, 664 N.W.2d 275, 285 (Minn.2003); Woodruff v. State, 608 N.W.2d 881, 885 (Minn.2000). But see State v. Williams, 593 N.W.2d 227, 237 (Minn.1999).

      . See State v. Bock, 229 Minn. 449, 458, 39 N.W.2d 887, 892 (Minn.1949); State v. Hawkins, 260 N.W.2d 150, 158 (Minn.1977); State v. Flores, 595 N.W.2d 860, 868 (Minn.1999).

      . State v. Williams, 593 N.W.2d 227, 233 (Minn.1999); State v. Johnson, 568 N.W.2d 426, 433 (Minn.1997).

        .See State v. Manley, 664 N.W.2d 275, 285 (Minn.2003); see also Woodruff v. State, 608 N.W.2d 881, 885 (Minn.2000); 9 Henry McCarr & Jack Nordby, Minnesota Practice—Crim. Law and Proc. § 47.41 (3d ed.2001).


source: Caselaw Access Project

author: KALITOWSKI, Judge.

license: Public Domain

text:
    GENERAL CASUALTY COMPANY OF WISCONSIN, Appellant, v. OUTDOOR CONCEPTS, et al., Respondents.
    No. C7-03-256.
    Court of Appeals of Minnesota.
    Aug. 12, 2003.

      Michael W. McNee, Andrea E. Reis-bord, Cousineau, McGuire & Anderson, Minneapolis, MN, for appellant.
    Joel W. Brodd, Brodd Law Firm, LLC, Hudson, WI, for respondents.
    Considered and decided by SCHUMACHER, Presiding Judge, RANDALL, Judge, and KALITOWSKI, Judge.
   OPINION

KALITOWSKI, Judge.

On appeal from summary judgment, appellant contends that (1) respondent Joe Ebertz was not an “insured” under a commercial automobile policy issued to “Outdoor Concepts Joe Ebertz DBA”; and (2) Ebertz made an election within the meaning of MinmStat. § 65B.49, subd. 3a(5) (2002), and is precluded from recovering Personal Injury Protection or Underin-sured Motorist benefits under his commercial policy or from otherwise stacking coverage.

FACTS

On August 25, 2001, respondent Joe Ebertz was riding his bicycle on a country road north of his home in Hudson, Wisconsin, when he was struck head-on by a pickup truck driven by an underinsured motorist. Following the accident, Ebertz settled his claims against the underinsured motorist for $50,000, the liability limit under the motorist’s policy.

At the time of the accident, respondent and his wife were insured under a personal automobile insurance policy issued by Allstate Insurance Company pursuant to the laws of Wisconsin. In June 2002, respondent settled with Allstate for $50,000 in Underinsured Motorist benefits (UIM) for damages incurred in the accident.

Ebertz also insured the vehicles used in his landscaping business, Outdoor Concepts, under a commercial automobile policy obtained through his insurance agent in Minnesota. The agent completed an application with appellant, listing the applicant as “Outdoor Concepts Joe Ebertz DBA,” and applied for no-fault coverage and $250,000 in UIM coverage. Appellant prepared a declarations page for the commercial automobile policy, listing the named insured as “Outdoor Concepts Joe Ebertz DBA.”

The commercial automobile policy contained an endorsement entitled “Minnesota Uninsured and Underinsured Motorists Coverage,” which stated that appellant will pay all sums the “insured” is legally entitled to recover as compensatory damages from the owner or driver of an underin-sured motor vehicle. The endorsement defined “insured” as follows:

B. WHO IS AN INSURED
1. You.
2. If you are an individual, any “family member.”
3. Anyone else “occupying” a covered “auto” or a temporary substitute for a covered “auto.”
4. Anyone for damages he or she is entitled to recover because of “bodily injury” sustained by another “insured.”

The commercial policy contained another endorsement entitled the “Minnesota Personal Injury Protection” (PIP). The PIP endorsement provides that appellant will pay PIP benefits incurred for “bodily injury” sustained by an “insured” caused in an “accident.” The policy defines “insured” as the “named insured.”

Ebertz made a demand on appellant for no-fault benefits and payment of the $250,000 in UIM benefits. Appellant denied the claim, contending Ebertz was not an “insured” under the policy.

Appellant commenced a declaratory-judgment action to determine its obligations under the commercial automobile policy issued to Outdoor Concepts Joe Ebertz DBA. Cross-motions for summary judgment were presented to the district court. The parties agreed there were no genuine issues of material fact and requested that the court determine whether Ebertz was an “insured” under the policy and whether he waived his right to recover pursuant to the anti-stacMng provision of Minn.Stat. § 65B.49, subd. 3a(5) (2002).

The district court ruled in favor of Ebertz, concluding that (1) Ebertz was a named insured under appellant’s policy; and (2) because the Allstate policy was not a “plan of reparation security” as defined by statute, adding the UIM limits of the Wisconsin Allstate policy to the UIM limits of appellant’s policy did not constitute stacking. Appellant challenges the district court’s grant of summary judgment to Ebertz.

ISSUES

1. Did the district court err in determining that Ebertz was an “insured” under the commercial automobile policy issued by appellant?

2. Did the district court err in determining that Ebertz did not waive his claims against appellant by accepting the available UIM limits under the Allstate policy?

ANALYSIS

I.

On appeal from summary judgment, this court asks two questions: (1) whether there are any genuine issues of material fact; and (2) whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990).

Construction of an insurance policy involves a question of law. Iowa Kemper Ins. Co. v. Stone, 269 N.W.2d 885, 886-87 (Minn.1978). When, as here, there is no dispute of material fact, this court independently reviews the district court’s interpretation of the insurance contract. Zimmerman v. Safeco Ins. Co. of Am., 605 N.W.2d 727, 729 (Minn.2000).

Appellant argues that the commercial automobile policy covers only the named insured and that the named insured is Outdoor Concepts, Ebertz’s business, not Ebertz as an individual. Appellant relies primarily on Jensen v. United Fire & Cas. Co., 524 N.W.2d 536 (Minn.App.1994), review denied (Minn. Feb. 3, 1995). In Jensen, a father claimed UIM benefits for his daughter under an insurance policy that fisted the father’s sole proprietorship as the named insured. Id. at 539-40. Specifically, the insurance policy fisted the named insured as “EAGLE EXCAVATING JENSEN ROGER DBA.” Id. This court affirmed the district court’s grant of summary judgment in favor of the insurer, finding that the named insured was a business, not an individual, and noting the “commercial” nature of the policy. Id.

But the language in Jensen addressing who is insured when a commercial automobile policy insures a sole proprietorship is contrary to the Minnesota Supreme Court’s decision in Gabrelcik v. Nat’l Indem. Co., 269 Minn. 445, 131 N.W.2d 534 (1964). Gabrelcik involved a woman who was involved in an accident while driving a car she borrowed from the used-car dealership owned by her husband as a sole proprietor. Id. at 445-47, 131 N.W.2d at 535. The woman asserted she was entitled to liability benefits under the substituted vehicle clause of her policy. Id. But because the substituted vehicle clause did not provide coverage where the named insured or the named insured’s spouse owned the substituted vehicle, the insurer argued that the woman’s husband owned the borrowed car as the sole proprietor of the business, and therefore, the woman was not entitled to coverage. Id. The woman argued that her husband did not own the car because it was owned by a separate legal entity' — the used-car dealership. Id. The Minnesota Supreme Court ruled in favor of the insurer, holding the husband and the used-car dealership were one and the same. Id. at 449, 131 N.W.2d at 537.

Whether the vehicle is registered in the husband’s name or in the name of the business which he owns and operates as a sole proprietorship, the result is the same; namely, that this vehicle was owned by the insured’s spouse who resides in the same household.

Id. at 536.

Here, the district court concluded that because it was a decision of the Minnesota Supreme Court, the holding in Gabre.lc.ik is controlling, and Ebertz qualifies as a named insured under the commercial automobile policy. We agree.

A significant majority of authorities support the view that when an insurance policy lists a sole proprietorship’s trade name as the “named insured,” the policy extends coverage to the sole proprietor as well as the business. For example, in O’Hanlon v. Hartford Accident & Indem. Co., 639 F.2d 1019, 1026 (3d Cir.1981), the Third Circuit held that an insurance policy issued in the insured’s trade name, and agreeing to cover the named insured’s resident relatives, provided uninsured motorist coverage to the named insured’s son. In that case, O’Hanlon sought uninsured motorist coverage under the policy after his son suffered serious injuries. The policy agreed to cover “the Named Insured * * ⅜ and, while residents of the same household, the * * * relatives of [the named insured].” Id. at 1026. The policy designated the named insured as “Coe Management Company,” the trade name under which O’Hanlon operated his business. Id. at 1021. In conducting its analysis, the Third Circuit stated that “an insured’s trade name and given name should be equated” and that “where an insured purchases a policy in a trade name, the policy will be viewed as if issued in his given name.” Id. at 1025.

Similarly, in Purcell v. Allstate Ins. Co., 168 Ga.App. 863, 310 S.E.2d 530, 533 (1983), the Court of Appeals in Georgia held that Purcell was the named insured under a commercial automobile policy listing the named insured as “Purcell Radiator Serv.” and that Purcell’s wife could recover as a relative of the named insured. The court based its decision primarily on the inability of Purcell Radiator Service, a sole proprietorship with no separate legal identity, to own the vehicle listed in the policy. Id. at 532. The court concluded that

Purcell, as the owner of the vehicle, was the ‘entity’ to whom the uninsured motorist coverage was extended by Allstate’s policy and was the true ‘named insured’ in that regard.

Id.

Numerous other jurisdictions have agreed that policies that list a trade name as the “named insured” extend coverage to the individuals operating those businesses. See, e.g., Simmons v. Ins. Co. of N. Am., 17 P.3d 56, 62 (Alaska 2001) (when a business owner acquires insurance in his trade name, coverage extends to the owner as well as the business); Bushey v. N. Assurance Co. of Am., 362 Md. 626, 766 A.2d 598, 603 (2001) (policy identifying insured as ‘William Bushey t/a Bushey’s Automotive Repair” covers the individual); Chmielewski v. Aetna Cas. & Sur. Co., 218 Conn. 646, 591 A.2d 101, 113 (1991) (“We also agree that one who operates a business under a trade name is nonetheless an individual insured under a policy issued in that trade name.”); Carlson v. Doekson Gross, Inc., 372 N.W.2d 902, 905 (N.D.1985) (“A sole proprietorship which is conducted under a trade name is not a separate legal entity”); Patrevito v. Country Mut. Ins. Co., 118 Ill.App.3d 573, 74 Ill.Dec. 259, 455 N.E.2d 289, 290-91 (1983) (driver was “named insured” within automobile policy provisions issued to his non-corporate business).

Likewise, several insurance treatises support the proposition that when issuing a policy to an individual operating a business under a trade name, the named insured is the individual. Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 110:5 at 110-12, 110-13 (3d ed.1997) (a policy purchased by an insured father in his trade name would be interpreted as issued in his given name, and references to the named insured would be deemed to refer to him individually); Irvin E. Sehermer, Automobile Liability Insurance § 40.02[2] at 40-13, 40-14 (3d ed.1995); Alan I. Widiss, Uninsured and Underin-sured Motorist Coverage § 4.4(C) at 62 (2d ed.1985) (when automobile insurance is issued in an insured’s trade name, coverage claims by that individual’s relatives have usually been sustained).

In addition, as an alternative holding, the district court concluded that because the declaration page of the commercial automobile policy states that the named insured is an “Individual” but then lists the named insured as “Outdoor Concepts Joe Ebertz DBA,” the language in appellant’s policy is ambiguous and must be resolved against the insurer. See Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn.1989) (courts must construe ambiguous language in an insurance policy against the insurer and in favor of the insured). We agree.

And other jurisdictions have concluded that listing the named insured as an individual d/b/a a trade name results in an ambiguity. In Stockton v. N.C. Farm Bureau Mut. Ins. Co., 139 N.C.App. 196, 532 S.E.2d 566, 568-69 (2000), the North Carolina Court of Appeals concluded that an ambiguity was present when the named insured was listed as “Oak Farm.” The court reasoned that “Oak Farm” had no legal existence in itself and the named insured had meaning only in reference to the person who bought the policy and gave the listing as “Oak Farm.” Id. Likewise, the appeals court in New Jersey concluded that an automobile insurance policy issued to “Mobile Wash Systems,” an unincorporated trade name, was ambiguous and the sole proprietor was the named insured. American Bankers Ins. Co. v. Stack, 208 N.J.Super. 75, 504 A.2d 1219, 1221-22 (Law Div.1984); see also Young v. Ray Am., Inc., 673 S.W.2d 74, 81 (Mo.Ct.App.1984) (finding that listing the named insured as “Dennis and Marjorie Klatt, DBA Klatt Real Estate, Inc.” created an ambiguity).

In conclusion, following Gabrelcik, we hold that the commercial policy at issue that insured “Outdoor Concepts Joe Ebertz DBA” provided coverage for Joe Ebertz, the sole proprietor, as an individual.

II.

Appellant argues that even if we conclude that the commercial automobile policy insures Ebertz as an individual, it is still not liable for payment of benefits. Appellant contends that because Ebertz accepted available coverage under the Allstate policy, requiring appellant to pay benefits to Ebertz would violate Minnesota’s prohibition on stacking. See Minn. Stat. § 65B.49, subd. 3a(5) (insured must select any one limit of liability for any one vehicle). We disagree.

Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998). The anti-stacking provision in section 65B.49, subdivision 3a(5), directs “insureds” to select a limit of liability afforded by a “plan of reparation security.” According to Minn.Stat. § 65B.43 (2002), certain words and phrases are defined by statute for the purposes of Minn.Stat. §§ 65B.41 to 65B.71 (2002). Thus, an “insured” is defined by statute as “an insured under a plan of reparation security as provided by sections 65B.41 to 65B.71 * * Minn.Stat. § 65B.43, subd. 5 (2002). Moreover, “plan of reparation security” is defined as

a contract, self-insurance, or other legal means under which there is an obligation to pay the benefits described in section 65B.49 [the anti-stacking provision].

Minn.Stat. § 65B.43, subd. 15 (2002).

Here, Ebertz’s Allstate policy is not a plan of reparation security as defined by the statute because there was no obligation for Allstate to pay the benefits described in the Minnesota No-Fault Automobile Insurance Act, Minn.Stat. §§ 65B.41 to 65B.71. The Allstate policy was issued to Ebertz as a Wisconsin resident and is governed by the laws of the State of Wisconsin. Because the Allstate policy is not a “plan of reparation security,” Ebertz is not an “insured” for the purposes of the Minnesota No-Fault Automobile Insurance Act. Thus, the restrictive language of the anti-stacking provision in Minn.Stat. § 65B.49, subd. 3a(5), does not apply to Ebertz. We therefore conclude that Ebertz did not waive his claims against appellant or make an election in accepting the available coverage under the Allstate policy issued pursuant to the laws of Wisconsin.

Finally, appellant argues that the district court erred by refusing to award it an offset from the UIM benefits Ebertz recovered under the Allstate policy. But this argument relates to damages and the ultimate amount of recovery, issues that are not before us in this appeal of a declaratory-judgment action brought to determine liability. Thus, we grant respondents’ motion to strike appellant’s May 2, 2003, letter submission on the ground that the issue it raises was not presented to the district court. Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988).

DECISION

The district court properly held that Ebertz is an “insured” under the commercial automobile insurance policy. And Ebertz did not waive his claims against appellant by accepting benefits under the Allstate policy, which was issued pursuant to the laws of Wisconsin.

Affirmed; motion granted.


author: HARTEN, Judge.

text:
    STAR TRIBUNE COMPANY, Respondent, The Minnesota Daily, et al., Respondents, Northwest Publications, Inc., Respondent, v. UNIVERSITY OF MINNESOTA BOARD OF REGENTS, et al., Appellants; Star Tribune Company, Respondent, The Minnesota Daily, et al., Respondents, Northwest Publications, Inc., Respondent, v. University of Minnesota Board of Regents, et al., Petitioners.
    Nos. A03-124, A03-155.
    Court of Appeals of Minnesota.
    Aug. 19, 2003.

      Mark B. Rotenberg, General Counsel, Lorie S. Gildea, Associate General Counsel, University of Minnesota, Minneapolis, MN, for appellants.
    John E. Simonett, Clifford M. Greene, John M. Baker, Greene Espel, P.L.L.P., Minneapolis, MN, of counsel for appellants.
    John P. Borger, Eric E. Jorstad, Patricia R. Stembridge, Faegre & Benson LLP, Minneapolis, MN, for respondent Star Tribune.
    Mark R. Anfinson, Minneapolis, MN, for respondents Minnesota Daily, et al.
    Paul R. Hannah, St. Paul, MN, for respondent Northwest Publications, Inc.
    Kent G. Harbison, Daniel J. Brennan, Fredrikson & Byron, P.A., Minneapolis, MN, for amici curiae John Does.
    Considered and decided by HARTEN, Presiding Judge, ANDERSON, Judge, and WRIGHT, Judge.
   OPINION

HARTEN, Judge.

Appellant University of Minnesota Board of Regents (the board) conducted closed meetings with selected candidates for the university presidency and refused the requests of respondents, print media news organizations, for data on the unsuccessful candidates. Respondents then brought this action, alleging violations of the Minnesota Open Meeting Law, Minn. Stat. §§ 13D.01-.07 (2002) (OML), and the Minnesota Government Data Practices Act, MinmStat. §§ 13.01-.90 (2002) (DPA); respondents also sought an order compelling disclosure of the data on the unsuccessful candidates and enjoining the board from conducting closed meetings. The board moved to dismiss; respondents moved for partial summary judgment on the board’s alleged violation of the DPA. Following a hearing, the district court concluded that both the OML and the DPA applied to the board’s search for a university president, denied the board’s motion, granted respondents’ motion, and ordered the board to disclose data on the unsuccessful candidates.

The board sought review in this court and moved to stay the order requiring it to disclose pending resolution of its appeal. This court granted the motion to stay. The undisclosed unsuccessful candidates sought either to intervene or to file an amici curiae brief; they were granted leave to file an amici curiae brief.

FACTS

When the president of the University of Minnesota announced his resignation, the board began a search for his replacement. Some individuals declined to apply for the position unless they were guaranteed that their candidacy would be kept confidential.

The board voted to suspend its adherence to the OML and to conduct closed meetings with the candidates. Respondents requested information on the candidates; the board denied their requests, claiming that information on candidates was not subject to the DPA. After conducting closed interviews of the candidates, the board selected one finalist, who was duly installed as president.

ISSUES

1. Does the DPA apply to information about the board’s search for a university president?

2. Does the OML apply to the board’s search for a university president?

3. Does the Minnesota Constitution preclude the application of the OML or the DPA to the board’s search for a university president?

ANALYSIS

The application of law to stipulated facts is a question of law, which this court reviews de novo. Morton Bldgs., Inc. v. Comm’r of Revenue, 488 N.W.2d 254, 257 (Minn.1992).

1. Application of the DPA

[T]he following personnel data on current and former applicants for employment by a state agency, statewide system or political subdivision or appointment to an advisory board or commission is public: veteran status; relevant test scores; rank on eligible list; job history; education and training; and work availability. Names of applicants shall be private data except when certified as eligible for appointment to a vacancy or when applicants are considered by the appointing authority to be finalists for a position in public employment. For purposes of this subdivision, “finalist” means an individual who is selected to be interviewed by the appointing authority prior to selection.

Minn.Stat. § 13.43, subd. 3 (2002) (emphasis added).

“State agency” means the state, the University of Minnesota, and any office, officer, department, division, bureau, board, commission, authority, district or agency of the state.

Minn.Stat. § 18.02, subd. 17 (2002) (emphasis added). The board relies on Win-berg v. Univ. of Minn., 499 N.W.2d 799 (Minn.1993), to argue that the DPA does not apply because it does not specifically say that it applies to a search for the university president. The board’s reliance is misplaced; Winberg is distinguishable. Winberg addressed whether the university was subject to the Veterans Preference Act, specifically to Minn.Stat. § 197.455 (1990), granting preference to veterans under “ordinances, rules or regulations of a county, city, town, school district, or other municipality or political subdivision of this state,” and to Minn.Stat. § 197.46 (1990), granting veterans a hearing prior to removal from positions “in the several counties, cities, towns, school districts and all other political subdivisions in the state.” Mat801.

Nowhere in the Veterans Preference Act has the legislature specifically named ■ the University as an entity to which the Act applies. * * ⅜
⅜ # * ⅜ ⅜ ⅜
* * * [I]f the legislature had intended the Veterans Preference Act to apply to the University of Minnesota, it most likely would have included the University by specific reference. * * *
Furthermore, the Act does not seem to have been drafted with the University in mind. * * *
Nor does the case law suggest that the University should be considered a political subdivision of the state to which the Act applies. * * *
Finally, the term “political subdivision” is commonly understood to mean an entity with a prescribed area and authority for subordinate local government.
The legislature has had countless opportunities in the last eighty-six years to specifically include the University within the purview of the Veterans Preference Act. It has not done so, nor will we. We hold that the University of Minnesota is not a “political subdivision” of the state to which the Veterans Preference Act, including Minn.Stat. §§ 197.455 and 197.46, applies.

Id. at 801-03. In contrast to the Veterans Preference Act, the DPA does include the university: “ ‘State agency’ means * * * the University of Minnesota.” Minn.Stat. § 13.02, subd. 17. Accordingly, the Win-berg holding is distinguishable.

The board contends that, even if the DPA applies to the university generally, it does not apply to the board’s search for a university president because it does not mention that activity. But the statute has no language that would support this contention, and this court may not add to the statute what the legislature deliberately or inadvertently omitted. Ullom v. Indep. Sch. Dist. No. 112, 515 N.W.2d 615, 617 (Minn.App.1994).

We conclude that the DPA applies to the university’s procedure for selecting its president.

2. Application of the OML

All meetings, including executive sessions, must be open to the public (a) of a state (1) agency * * * when required or permitted by law to transact public business in a meeting; * * ⅜ (c) of any * * ⅜ (3) board * * * of a public body

Minn.Stat. § 13D.01, subd. 1 (2002). To argue that the university is not a “public body,” the board seeks to extend the Win- berg holding that the university is not a “political subdivision.” Winberg, 499 N.W.2d at 803. But Winberg itself precludes such an extension.

[T]he language of the Open Meeting Law, making it applicable to “any state agency, board, commission or department, * * * governing body of any school district, * * * county, city, town, or other public body,” Minn.Stat. § 471.705, subd. 1 (1992), is broader than the words “political subdivision” used in the Veterans Preference Act

Id. at 802; see also Kalia v. St Cloud State Univ., 539 N.W.2d 828, 830 (Minn. App.1995) (university “claimed that, as a public body, it is entitled to protection by vicarious official immunity for the acts of [its] president”).

Moreover, the OML includes its own list of exceptions:

This chapter does not apply
(1) to meetings of the commissioner of corrections;
(2) to a state agency, board, or commission when it is exercising quasi-judicial functions involving disciplinary proceedings; or
(3) as otherwise expressly provided ' by statute.

Minn.Stat. § 13D.01, subd. 2 (2002). The board in effect asks this court to add a fourth exception: searches for a university president. Again, this court cannot add to statutory exceptions that the legislature provided. Ullom, 515 N.W.2d at 617. There being no statutory provision to the contrary, we conclude that the OML applies to the university’s procedure for selecting its president.

3. Constitutional Implications

The board also argues that applying the DPA and the OML to its procedure for selecting a university president violates its constitutional mandate to control and manage the university. For this argument, the board relies on Regents of Univ. of Minn. v. Lord, 257 N.W.2d 796 (Minn.1977). Again, its reliance is misplaced. Lord concerned the application of the state designer selection board act to the university; it held that the application was not unconstitutional because the conditions imposed by the act did not “[intrude] into the internal control and management of the university by its Board of Regents.” Id. at 802. The act, however, required designers for major university building projects to be chosen by the state designer selection board instead of by the regents, who had previously chosen designers. Id. at 797-98. Lord therefore approved a substantive legislative restriction on the regents’ operation. The restrictions imposed by the DPA and the OML, in contrast, are merely procedural: the board may choose the president at its sole discretion, but it must do so in accord with the DPA and the OML. We conclude that the constitution does not preclude imposing the OML and the DPA on the university’s procedure for selecting its president.

DECISION

Both the DPA and the OML apply to the board’s procedure for selecting a university president, and that application does not violate the board’s constitutional mandate. We affirm the partial summary judgment and order that upon the expiration of 30 days following the filing of this opinion, this court’s stay of the district court’s disclosure order will automatically terminate.

Affirmed; motion granted.

      . The board filed a notice of appeal and petitioned for discretionary review. Because this court granted the petition for discretionary review, it did not reach the issue of the ap-pealability of the district court’s order. See Star Tribune Co. v. Univ. of Minn. Bd. of Regents, - N.W.2d -, No. A03-124 (Minn.App. 19 August 2003) (order).

      . Respondents moved to strike two affidavits included in the board’s appendix and the portions of the board’s brief and the amici curiae brief that rely on those affidavits, contending that the affidavits are not part of the record because they were not before the district court. See Minn. R. Civ.App. P. 110.01 (record on appeal is papers filed in the trial court, the ■ exhibits, and the transcript of the proceedings, if any). Because the affidavits were not before the district court when it issued the order that is the subject of this appeal, we grant respondents' motion to strike.

      . We note that many other states have addressed this issue and that their decisions are not consistent. See, e.g., Federated Puhl’ns, Inc. v. Bd. of Trustees of Mich. State Univ., 460 Mich. 75, 594 N.W.2d 491 (1999) (holding that Michigan’s OML did not apply to regents' search for president); Bd. of Trustees of State Insts. of Higher Learning v. Miss. Publishers Corp., 478 So.2d 269 (Miss.1985) (holding that Mississippi's eqúivalent of the OML did apply to regents). However, the trend appears to be towards open presidential searches. See Charles N. Davis, Scaling the Ivory Tower: State Public Records Laws and University Presidential Searches, 21 Journal of College and University Law 353, 354, 367 (1994) (“most state public-records laws require open presidential-search records” and "cases * ⅜ * demonstrate that the public’s right to access to the search process outweighs the privacy interests of either the applicants or the university”).


text:
    John H. BREKKE, Respondent, v. THM BIOMEDICAL, INC., Appellant.
    No. C8-03-119.
    Court of Appeals of Minnesota.
    Aug. 19, 2003.

      Gerald J. Brown, Aaron R. Bransky, Brown, Andrew & Signorelli, P.A., Duluth, MN, for appellant.
    John G. Fillenworth, Juhl S. Halvorson, Fillenworth Law Office, PLLC, Duluth, MN, for respondent.

      Considered and decided by HARTEN, Presiding Judge, ANDERSON, Judge, and WRIGHT, Judge.
   OPINION

HARTEN, Judge.

Respondent employee brought an action against appellant employer under Minn. Stat. § 181.79 (2000) after appellant, without respondent’s consent, deducted the amount necessary to repay a loan from respondent’s accrued salary. Appellant counterclaimed for interest on the loan. The district court denied appellant’s counterclaim and awarded respondent twice the amount of the deduction as provided by law. Because we conclude that the district court did not err by determining that respondent violated Minn.Stat. § 181.79, we affirm.

FACTS

In November 1990, respondent John Brekke and three other individuals formed appellant THM Biomedical, Inc. (THM) for the purpose of commercializing biomedical devices developed and patented by Brekke. Under the investment agreement, Brekke was issued THM common stock in exchange for “services previously performed and to be performed pursuant to * * * an Employment Agreement attached hereto.” Brekke and THM entered into the employment agreement; Brekke served as an officer and as one of the three members of THM’s board of directors in addition to being a full-time employee.

In 1991, THM made two loans to Brekke totaling $65,000. Brekke signed a promissory note for each loan, agreeing to repay the principal “along with 8% interest.” In 1993, Brekke paid $5,000 on the loans.

THM had cash flow problems and often could not pay Brekke’s salary when due. A June 2000 corporate balance sheet listed Brekke’s “accrued wages” as $188,873.

In July 2000, THM received $950,000 in settlement funds after resolving a long-running licensing dispute with a third party. THM’s board met to discuss the use of the funds. At the meeting, Brekke was told that he would net about $20,000 of his accrued salary after deductions for payroll taxes, $60,000 in loan principal, and accrued interest. Brekke requested that THM forgive the loans, but THM denied his request. THM issued Brekke a check for $59,700, the amount that remained after payroll taxes and $60,000 were deducted from his accrued salary. The $60,000 deduction was labeled “Other.” Brekke cashed the cheek on the following day.

THM sold its assets to Kensey Nash Corporation on 1 September 2000. Brekke, who owned 18.6% of THM’s shares, received more than $2 million from the sale.

Brekke sued THM in October 2000, claiming that it had violated MinmStat. § 181.79 (2000) by deducting the loan payment from his salary without his consent. THM counterclaimed for $42,506 in unpaid interest. The district court denied THM’s counterclaim and awarded Brekke $120,000 under the penalty provision of section 181.79. Both parties moved for amended findings and/or a new trial, and Brekke moved for attorney fees. The district court denied all post-trial motions. This appeal followed.

ISSUE

Did the district court err by determining that Brekke was entitled to recover under Minn.Stat. § 181.79 (2000)?

ANALYSIS

Application of a statute to the undisputed facts of a case involves a question of law, and the district court’s decision is not binding on this court. O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.1996). If a statute is unambiguous when construed according to the ordinary rules of grammar, a court may engage in no further statutory construction and must apply its plain meaning. State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn.1996). Penalty provisions must be strictly construed. Chatfield v. Henderson, 252 Minn. 404, 410, 90 N.W.2d 227, 232 (1958).

MinmStat. § 181.79, subd. 1 (2000), provides:

No employer shall make any deduction, directly or indirectly, from the wages due or earned by any employee, who is not an independent contractor, for lost or stolen property, damage to property, or to recover any other claimed indebtedness running from employee to employer, unless the employee, after the loss has occurred or the claimed indebtedness has arisen, voluntarily authorizes the employer in writing to make the deduction or unless the employee is held liable in a court of competent jurisdiction for the loss or indebtedness.

Employers who violate the statute “shall be liable in a civil action brought by the employee for twice the amount of the deduction or credit taken.” MinmStat. § 181.79, subd. 2 (2000). The statute does not apply in certain cases involving collective bargaining agreements, commissioned salespersons, and prior written authorization by the employee. Id., subd. 1.

It is undisputed that Brekke was an employee of THM, that THM deducted a $60,000 loan payment from Brekke’s accrued salary, and that Brekke did not authorize the deduction in writing. Moreover, none of the statute’s exceptions applies: Brekke was not an independent contractor or a commissioned salesperson, and he was not working under a collective bargaining agreement. Although THM argues that Brekke’s accrued salary was not “wages,” the statute makes no exception for salaried employees, and THM’s own balance sheet listed the amount due as “Accrued wages— John Brekke.” Under the plain language of the statute, THM was liable to Brekke for twice the amount of the deduction.

THM argues that section 181.79 should not apply to employees who are also shareholders, officers, and directors of closely held corporations. But THM offers no legal support for its argument, and the statute makes no exception for employees who hold such positions. Brekke’s status did not alter his position as an employee: his employment agreement required him to serve at the direction of THM’s president, outlined his duties and compensation, and limited his actions following termination. The fact that THM deducted the loan payment despite Brekke’s explicit objection demonstrates that Brekke had limited control over THM’s actions. We conclude that the district court did not err by determining that Brekke was entitled to recover under Minn.Stat. § 181.79.

THM also raises two equitable arguments: accord and satisfaction and estoppel. Whether an accord and satisfaction occurs is a fact question. Webb Bus. Promotions, Inc. v. Am. Elec. & Entm’t Corp., 617 N.W.2d 67, 73 (Minn.2000).

The critical issue is the intent of the parties. If the parties objectively intended the new promise to constitute full settlement of the original claim, the defense of accord and satisfaction is established.

Ladwig & Ladwig, Inc. v. Orlin Ladwig, Inc., 372 N.W.2d 408, 411 (Minn.App.1985) (citation omitted); see also Webb, 617 N.W.2d at 69 (mutual agreement is required for an accord and satisfaction to be enforceable under Minn.Stat. § 336.3-311). Accord and satisfaction may be achieved through the use of a check or other negotiable instrument. Weed v. Comm’r of Revenue, 550 N.W.2d 285, 288 (Minn.1996). But the instrument or an accompanying written communication must contain “a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim.” Id. (quotation and citation omitted). Brekke’s payroll check contained no statement that it was tendered as full satisfaction of any claim, and the paycheck stub merely referred to the deduction as “Other.” The record also demonstrates that neither party intended to enter into an accord and satisfaction. Brekke testified and THM concedes that he objected to the deduction, and THM later attempted to collect the interest on the loans. The district court’s finding that there was no accord and satisfaction was not clearly erroneous.

THM argues that Brekke should be estopped from recovery because he breached his fiduciary duty to the company by failing to disclose material information. Granting equitable relief is within the district court’s discretion, and this court will not reverse absent a clear abuse of that discretion. Nadeau v. County of Ramsey, 277 N.W.2d 520, 524 (Minn.1979). Although Brekke testified that his attorney informed him about the penalty provision in Minn.Stat. § 181.79 the night before he cashed the check, he also testified that he did not intend to pursue the claim and that he filed the claim only after THM demanded the interest on the loans. The record corroborates Brekke’s testimony: THM sent a letter to Brekke demanding the interest on 24 September 2000, and Brekke filed his claim on 27 October 2000. The district court’s decision not to grant equitable relief based on the , alleged breach of fiduciary duty was not a clear abuse of discretion.

DECISION

Under MinmStat. § 181.79 (2000), THM was lawfully penalized twice the amount of its unauthorized deduction from Brekke’s salary.

Affirmed.

      . THM also attempted to force arbitration, but the district court determined that the arbitration agreement did not apply. This court affirmed the district court in Brekke v. THM Biomedical, Inc., No. C5-01-574, 2001 WL 1187098 (Minn.App. 9 Oct. 2001).

      . THM also argues that, because Kensey Nash assumed some of its liabilities, successor liability absolved it of any liability to Brekke. Successor corporations are not liable for the actions of transferor corporations unless certain exceptions apply. Niccum v. Hydra Tool Corp., 438 N.W.2d 96, 98 (Minn. 1989). THM cites no authority for the implication that successor liability precludes Brekke from bringing a claim against it for violating Minn. Stat. § 181.79.

      . Brekke argues that the district court erred in denying his motion for attorney fees because his employment agreement provided that the unsuccessful party would pay attorney fees in any action "filed in relation to this Agreement.” Brekke sued under Minn.Stat. § 181.79; he did not pursue remedies for breach of the employment agreement. Accordingly, the district court did not err in denying him attorney fees.