author: GILBERTSON, Chief Justice ZINTER, Justice AMUNDSON, Retired Justice

text:
    2003 SD 130
    Roy J. RODEN, Plaintiff and Appellee, v. GENERAL CASUALTY COMPANY OF WISCONSIN, Defendant and Appellant, and Wayne Anderson, Defendant.
    No. 22236.
    Supreme Court of South Dakota.
    Argued Oct. 8, 2002.
    Reassigned July 29, 2003.
    Decided Oct. 29, 2003.

      Steven C. Beardsley, Ted L. McBride of Beardsley, Jensen & Von Wald, Rapid City, South Dakota, Attorneys for plaintiff and appellee.
    William G. Beck of Woods, Fuller, Shultz & Smith, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
   GILBERTSON, Chief Justice

(on reassignment).

[¶ 1.] Roy Roden (Roden) filed a claim against General Casualty for underinsured motorist’s benefits. General Casualty moved for summary judgment, and Roden filed a cross-motion for partial summary judgment. The trial court denied General Casualty’s motion and granted Roden partial summary judgment. General Casualty appeals, and we now affirm.

FACTS AND PROCEDURE

[¶ 2.] On July 9, 1999, Roden, an employee of Fiber Logic, was standing beside his supervisor’s pickup parked on North Highway 79. At this time, a vehicle operated by Wayne Anderson struck Roden. As a result Roden was hospitalized for six weeks and sustained permanent physical injuries and had extensive medical expenses.

[¶ 3.] Roden settled his claim against Wayne Anderson and his insurer. Next, Roden filed a claim against his employer’s insurance company, General Casualty, for underinsured motorist benefits. In his claim against General Casualty, Roden contends he was occupying the vehicle and is therefore entitled to underinsured motorist coverage.

[¶ 4.] Both Roden and General Casualty filed cross Motions for Summary Judgment on the issue of whether he is covered by the insurance. The trial court denied General Casualty’s Motion for Summary Judgment and granted Roden Partial Summary Judgment on the issue of coverage. General Casualty appeals the following issues:

1. Whether Roy Roden was occupying the pickup insured by General Casualty for purposes of underinsured motorist coverage.
2. Whether the trial court erred in granting Roden’s Motion for Summary Judgment on the issue of coverage.

STANDARD OF REVIEW

[¶ 5.] Our standard of review for the grant or denial of summary judgment is well settled. Summary judgment is proper where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” SDCL 15-6-56(e). Thus, “[w]e will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided.” Holzer v. Dakota Speedway, 2000 SD 65, ¶ 8, 610 N.W.2d 787, 791 (citing Bego v. Gordon, 407 N.W.2d 801, 804 (S.D.1987)). We view all reasonable inferences drawn from the facts in the light most favorable to the non-moving party. Id. (citing Morgan v. Baldwin, 450 N.W.2d 783, 785 (S.D.1990)). In addition, the moving party has the burden of clearly demonstrating “an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law.” Dakota Speedway, 2000 SD 65, ¶ 8, 610 N.W.2d at 792, (citing Wilson v. Great N. Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968)).

[¶ 6.] The construction of a contract is a question of law that is reviewed de novo. Westfield Ins. Co., Inc. v. Rowe ex rel. Estate of Gallant, 2001 SD 87, ¶ 4, 631 N.W.2d 175, 176 (citing Sawyer v. Farm Bureau Mut. Ins. Co., 2000 SD 144, ¶ 13, 619 N.W.2d 644, 648). “This includes determining whether an insurance contract is ambiguous.” National Sun Industries, Inc. v. South Dakota Farm Bureau Ins. Co., 1999 SD 63, ¶7, 596 N.W.2d 45, 46 (citations omitted).

ANALYSIS AND DECISION
[¶ 7.] 1. Whether Roy Roden was occupying the pickup insured by General Casualty for purposes of under-insured motorist coverage.

[¶ 8.] The trial court ruled as a matter of law that Roden occupied the vehicle at the time of the accident. General Casualty, however, asserts that the term “occupying” is unambiguous and, therefore, this Court should interpret the term narrowly. Given a narrow interpretation of the term, General Casualty contends that Roden was not occupying the vehicle within the meaning of the policy definitions.

[¶ 9.] A. Whether the term “occupying” is ambiguous within the meaning of the policy definitions.

[¶ 10.] Whether or not the term “occupying” is ambiguous as used in the insurance contract is an issue of first impression for this Court. As we have previously stated, “[a]n insurance policy is ambiguous when it ‘is fairly susceptible to two constructions.’ ” Id., ¶ 18 (quoting American Family Mut. Inc. v. Elliot, 523 N.W.2d 100, 102 (S.D.1994)). Ambiguity is not created merely because the parties offer different interpretations of the contract. Alverson v. Northivestern Nat. Gas. Co., 1997 SD 9, ¶ 8, 559 N.W.2d 234, 235-36. In addition, “[ajmbiguity in an insurance policy is determined with reference to the policy as a whole and the plain meaning and effect of its words.” National Sun, 1999 SD 63, ¶ 18, 596 N.W.2d at 48. We apply strict rules of construction when interpreting an insurance policy:

Where the provisions of an insurance policy are fairly susceptible of different interpretations, the interpretation most favorable to the insured should be adopted. This rule of liberal construction in favor of the insured and strictly against the insurer applies only where the language of the insurance contract is ambiguous and susceptible of more than one interpretation.... This rule does not mean, however, that the court may seek out a strained or unusual meaning for the benefit of the insured.

Alverson, 1997 SD 9, ¶8, 559 N.W.2d at 235 (quoting Olson v. United States Fid. & Guar. Co., 1996 SD 66, ¶6, 549 N.W.2d 199, 200).

[¶ 11.] The policy issued by General Casualty provides in pertinent part:

We will pay all sums the ‘insured’ is legally entitled to recover as compensatory damages from the owner or driver of an ‘uninsured’ or ‘underinsured motor vehicle.’ The damages must result from ‘bodily injury’ sustained by the ‘insured’ caused by an ‘accident.’ The owner or driver’s liability for these damages must result from the ownership, maintenance, or use of the ‘uninsured’ or ‘underin-sured motor vehicle.’

Included in the definition of “insured” is “anyone else ‘occupying’ a covered ‘auto’ or a temporary substitute for a covered ‘auto.’ ” The policy defines “occupying” to mean “in, on, upon, getting in, on, out, or off.”

[¶ 12.] This language is fairly standard in the insurance industry. Although we have not specifically addressed this issue before, the definition of “occupying” or “in or upon” has given rise to repeated litigation in many jurisdictions. There is a split of authority on whether there is coverage under the definition of “occupying” and it appears that there is no bright line rule for determining coverage under the policy definition of “occupying.”

[¶ 13.] After examining the pertinent case law, we agree with those jurisdictions that have found the definition of “occupying” to be ambiguous. Indeed, the very fact that there is no bright line rule for interpreting “occupying” suggests that it is an ambiguous term. In Tata v. Nichols, the Supreme Court of Tennessee held the term “occupying” to be ambiguous and noted that “[t]he many different meanings given the word in the cases which have considered this issue, demonstrate that the word has no precise meaning, and is, therefore sufficiently ambiguous....” 848 S.W.2d 649, 651 (1993). The Supreme Court of Iowa has also found “occupying” to be ambiguous. Henderson v. Hawkeye-Security Ins. Co., 252 Iowa 97, 106 N.W.2d 86, 89 (Iowa 1960) (citations omitted). In addition, as an Illinois court observed in a similar situation to the case before us:

[I]t is the use of the word ‘upon’ which creates an ambiguity. It cannot mean that the insured, to be within the meaning of the clause, had to be couched on the roof of the car or on the running board or sitting on the hood.

Wolf v. American Casualty Co., 2 Ill. App.2d 124, 118 N.E.2d 777, 780 (1954) (holding that a man standing between two insured vehicles while attempting to jump start one of them was “occupying” them when one of the vehicles between which he was standing was struck by a third vehicle).

[¶ 14.] We hold that the term “occupying” as used in the insurance contract is ambiguous and subject to differing interpretations. Accordingly, the interpretation most favorable to Roden must be adopted. Alverson, 1997 SD 9, ¶ 8, 559 N.W.2d at 235.

[¶ 15.] B. Whether Roden was “occupying” the vehicle at the time of the accident.

[¶ 16.] We now turn to the question of whether Roden occupied the vehicle at the time of the accident. The trial court ruled as a matter of law that Roden was occupying the vehicle when struck by Anderson’s automobile; therefore, we review this finding de novo. City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25 (citations omitted). Generally, whether or not a person occupied a vehicle at a given time is factually intensive. Tata, 848 S.W.2d at 653. This case is unique, however. Because Roden remembers nothing about the accident, the testimony of the only other witness, Ryan Dunkle, is factually controlling. We have long recognized that facts proven by un-contradicted testimony not inherently improbable should be taken as conclusively established. National Bank of Commerce of New York v. Bottolfson, 55 SD 196, 225 N.W. 385, 386 (1929).

[¶ 17.] Courts have generally followed two basic approaches in determining whether a person occupied a vehicle for purposes of coverage under insurance contracts. The first approach is the literal approach in which a person cannot be “occupying” a vehicle unless part of him is inside the vehicle or he is in contact with the vehicle. The second approach does not define “occupying” literally, and centers upon whether the person was performing an act or acts that are normally associated with the immediate “use” of the vehicle. Cuevas v. State Farm Mut. Auto. Ins. Co., 130 N.M. 539, 28 P.3d 527, 529 (N.M.Ct. App.2001) (citations omitted).

[¶ 18.] The majority of the jurisdictions have adopted the second approach. Of those jurisdictions that have chosen to give “occupying” a liberal interpretation several have adopted a four-part test.

[¶ 19.] In Utica Mutual Ins. Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005, 1009 (1984), the court adopted a four-part test. In Contrisciane, Kenneth Contris-ciane was involved in a minor traffic accident. Id. at 1006. The police officer on the scene asked Mr. Contrisciane to get his license and registration from his vehicle. Mr. Contrisciane retrieved the requested items and was standing next to the officer’s car. Id. The officer was in the car finishing the accident report. Id. at 1007. While standing next to the officer’s car Mr. Contrisciane was struck and killed by an uninsured motorist. Mr. Contris-ciane’s car was approximately 97 feet from the squad car. Id.

[¶ 20.] Laura Contrisciane, as executrix of the estate of the decedent, filed an action against Utica Mutual Insurance claiming uninsured motorist coverage. Id. The issue before the court was whether the decedent was occupying the vehicle. Ultimately the Pennsylvania Supreme Court found that the decedent was occupying in terms of the policy definition. Id. at 1009. In making this determination the court relied heavily on a four-part test. The test applied in determining whether the decedent was occupying the vehicle is as follows:

(1)there is a causal relation or connection between the injury and the use of the insured vehicle;
(2) the person asserting coverage must be in a reasonably close geographic proximity to the insured vehicle, although the person need not be actually touching it;
(3) the person must be vehicle oriented rather than highway or sidewalk oriented at the time; and
(4) the person must also be engaged in a transaction essential to the use of the vehicle at the time.

Id. at 1009. The court in Contrisciane found the decedent was engaged in transactions related to the continued use of the vehicle. Id. The court pointed out that it was the use of the vehicle that precipitated the unfortunate series of events. Id. at 1009.

[¶ 21.] Many courts have since adopted the four-part test. See also Gorham v. Guidant Mutual Ins. Co., 80 F.Supp.2d 540, 546 (D.Md. 2000); Cuevas, 28 P.3d at 529; Downing v. Harleysville Ins. Co., 412 Pa.Super. 15, 602 A.2d 871, 874 (1992); Tata, 848 S.W.2d at 652 (Tenn.1993). The court in Gorham found the four-part test convincing and reasoned that:

The approach derived from Tata and Contrisciane offers a sensible structure for the task at hand. It takes into account, in one multifaceted test, many of the factors held to be critical in the analysis of occupancy clauses in uninsured motorist provisions by a variety of courts. As the submissions of the parties here bear out, the cases on this issue are intensely fact-driven. Results in favor of either party can be easily supported. The above test gives coherence to an area of the law where the use of a variety of tests creates the unseemly appearance of arbitrary decision making.

Gorham, 80 F.Supp. 2d at 547.

[¶ 22.] We also find the four-part test persuasive. We find the four-part test set forth above should be utilized in this jurisdiction when determining whether or not an individual is “occupying” the insured vehicle under the policy definitions. In analyzing the facts of this case under the four-part test, we must determine whether or not Roden was engaged in a transaction that was vehicle orientated and related to occupying the vehicle.

[¶ 23.] The first factor is whether there is a causal relation or connection between the injury and the use of the insured vehicle. Roden approached the pickup to talk to his supervisor about company business. The testimony of the supervisor, Ryan Dunkle was as follows:

Q: As the project supervisor, did you have to go to different locations in town in your pickup?
A: 99 percent of the time, yes.
Q: Is that basically your office was your pickup?
A: Yes.
Q: And so at times when you were checking on these jobs, were you having discussions with the foremen of particular crews?
A: Yes. That’s exactly, yes.
Q: And Roy Roden, was he foreman of a crew?
A: Yes, he was.
Q: Okay. So what were you guys talking about when he came over and was leaning on the vehicle?
A: At the time I had pulled over there I was going to basically do a routine check on what was going on, and I had asked him what was going on with his run, and that’s what he started to talk to me about, what he was doing, why he was down the line from where the rest of his crew was and such forth.
Q: So you guys weren’t just shooting the bull about some sporting event or something like that?
A: No.
Q: You were actually talking business? A: Yes.
Q: And was that typical of you as the project supervisor, that you ran business out of your pickup?
A: Yes, always.

[¶ 24.] The second factor is that the person asserting coverage must be in a reasonably close geographic proximity to the insured vehicle. Again the testimony of Dunkle who was sitting in the company vehicle, is factually controlling:

Q: What was [Roden’s] position in relation to the vehicle when you were talking to him?
A: When he first walked up he had basically pressed his body up against the driver’s side door of the truck, and I had my window open and he was leaning in talking to me.
Q: And when you say leaning in and talking, what parts of his body were actually leaning on the pickup?
A: I’d say every part of his body was touching the truck except his feet. He was completely pressed up against the truck, and his elbows were pretty much in the window, his head was pretty much in the window because he was talking to me.
Q: How about his hands?
A: They were inside the window.
Q: There are words that are used in the legal vernacular and one of them was he was occupying the vehicle. In your opinion, was he occupying the vehicle?
A: I;d say he was, yes.
Q: And how much of Mr. Roden could you see from where you were sitting? A: How much of him? He was in my face. He was two inches away from me. I remember smelling his breath.

[¶ 25.] The third factor is that the person must be vehicle oriented rather than highway or sidewalk oriented at the time. Both individuals were employees of the company and it was a company vehicle doing company business. From the above testimony, it is clear that Roden had his head in the truck and was talking company business with his immediate supervisor. That was his sole orientation rather than any connection with what was going on behind or to the side of him with a work project or otherwise.

[¶ 26.] The final factor is that the person must also be engaged in a transaction essential to the use of the vehicle at the time. This was not an instance of a stranger approaching the Fiber Logic vehicle for directions or the current score of a ball game. The vehicle was Dunkle’s mobile office for his work. There was no other alternative office for this meeting to take place. Dunkle testified he visited with Roden in the field a minimum of three times a day.

[¶ 27.] After applying the four-part test to the uncontradicted testimony of Dunkle, we agree that Roden was occupying the vehicle at the time of the accident. The vehicle was an office on wheels of Fiber Logic engaged in its business at the time of the accident. See Simpson v. U.S. Fidelity & Guar. Co., 562 N.W.2d 627, 631 (Iowa 1997). Therefore, we hold as a matter of law that Roden occupied the vehicle at the time of the accident within the meaning of General Casualty’s policy definitions.

[¶ 28.] 2. Whether the trial court erred in granting Roden’s Motion for Summary Judgment on the issue of coverage.

[¶ 29.] After finding as a matter of law that Roden was occupying the vehicle at the time of the accident, the trial court granted Roden summary judgment on the issue of .coverage. General Casualty contends that the trial court erred in granting Roden’s motion for summary judgment because genuine issues of material fact exist as to where Roden was standing when struck by Anderson.

[¶ 30.] In support of its argument, General Casualty points to hospital records that state Roden was “apparently crossing the road” when he was struck by Anderson. The report does not indicate, however, how the hospital obtained this information. Clearly, Roden who was incoherent at the time did not volunteer the information, and General Casualty has failed to identify any other source of this information. This statement in the hospital’s records amounts to hearsay within hearsay and is not admissible as a business record under SDCL 19-16-10.

[¶ 31.] General Casualty also argues that two other witnesses to the accident may offer different versions of the facts than the one offered by Dunkle. General Casualty did not depose these witnesses or offer affidavits stating their versions of the facts. According to SDCL 15-6-56(e), the non-moving party in a summary judgment proceeding “must set forth specific facts showing that there is a genuine issue for trial.” Thus, General Casualty may not rely on mere conclusory statements that these witnesses may offer alternate versions of the facts. Because General Casualty has failed to present specific facts showing that a genuine issue exists for trial, the trial court did not err in granting Roden’s motion for summary judgment. See Casazza v. State, 2000 SD 120, ¶ 16, 616 N.W.2d 872, 876.

[¶ 32.] KONENKAMP, Justice, and JOHNSON, Circuit Judge, concur.

[¶ 33.] ZINTER, Justice, concurs with a writing.

[¶ 34.] AMUNDSON, Retired Justice, dissents.

[¶ 35.] MEIERHENRY, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

[¶ 36.] JOHNSON, Circuit Judge, sitting for SABERS, Justice, disqualified.

ZINTER, Justice

(concurring).

[¶ 37.] I join the Court’s opinion and write only to amplify its reasoning. First, it is noteworthy that the policy language at issue has been the subject of countless disputes in numerous courts for more than five decades. Yet, there has been no resolution of its meaning. In light of this history of conflicting results, one must conclude that the language “in, upon ...” is ambiguous. “A contract is ambiguous when application of rules of interpretation leave a genuine uncertainty as to which of two or more meanings is correct.” Alverson v. Northwestern Nat’l Cas. Co., 1997 SD 9, ¶ 8, 559 N.W.2d 234, 235 (citations omitted). Because courts cannot agree upon this provision’s meaning, the ambiguity conclusion is compelling.

[¶ 38.] It is also compelling because, as the Court notes, the word “upon” is included in the definition of “occupying.” All words of the definition must be presumed to mean something, and the word “upon” must mean something other than the remaining definitional words. See Tata v. Nichols, 848 S.W.2d 649, 653 (Tenn.1993) (stating that “unless ‘upon’ should be considered to have no meaning, it includes some relationship [with the automobile] different from ⅛,’ ‘getting in,’ ‘getting on,’ ‘getting out,’ and ‘getting off ”). However, the exact nature of that other relationship is uncertain. That uncertainty and ambiguity require our interpretation of “upon” in favor of Roden. See Alverson, 1997 SD 9, ¶ 8, 559 N.W.2d at 235.

[¶ 39.] It is also noteworthy that, notwithstanding the extensive litigation over the contradictory interpretations of this insurance clause, the policy definition of “occupying” remains essentially unchanged today. In light of this history, it is not unreasonable to require insurers to specifically exclude this type of nexus with an auto if they claim it excluded from coverage. Until the Legislature or the insurance industry so acts, we must follow the majority of jurisdictions that attempt to establish a “rational limit” on the activity that may be encompassed within the term “occupying” and hold that “ ‘occupying’ ... includes those [cases that] can establish a certain ‘relationship’ with the insured car at the time of the accident.” Tata, 848 S.W.2d at 651. The factors used to determine that relationship are recited by the Court. I join the Court’s application of those factors to this case. That application is consistent with the purpose of uninsured (and therefore underinsured) motorist statutes. Id. at 654.

[¶ 40.] With respect to summary judgment, I only add the observation that the medical records do not conflict with Mr. Dunkel’s description of Roden’s physical contact with the vehicle. The physicians’ reports merely state that Roden crossed the highway, which he obviously had to do before conducting business with Dunkel at the company pickup. Therefore, even if the medical records were admissible, they did not create a material issue of disputed fact.

[¶ 41.] I therefore concur.

AMUNDSON, Retired Justice

(dissenting).

[¶ 42.] I respectfully dissent. The policy issued by General Casualty provides in pertinent part:

We will pay all sums the ‘insured’ is legally entitled to recover as compensatory damages from the owner or driver of an ‘uninsured’ or ‘underinsured motor vehicle.’ The damages must result from ‘bodily injury’ sustained by the ‘insured’ caused by an ‘accident.’ The owner or driver’s liability for these damages must result from the ownership, maintenance, or use of the ‘uninsured’ or ‘underin-sured motor vehicle.’

Included in the definition of ‘insured’ is “anyone else ‘occupying’ a covered ‘auto’ or a temporary substitute for a covered ‘auto.’ “ The policy defines “occupying” to mean “in, on, upon, getting in, on, out, or off.”

[¶ 43.] I agree with the majority opinion’s determination that “occupying” as used in the insurance contract is ambiguous. I also agree with the majority opinion’s application of the four-part test, as set forth in Utica Mutual Ins. Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005, 1009 (1984), to resolve the ambiguity of “occupying” in this context. That test requires this Court to consider whether:

(1) there is a causal relation or connection between the injury and the use of the insured vehicle;
(2) the person asserting coverage must be in a reasonably close geographic proximity to the insured vehicle, although the person need not be actually touching it;
(3) the person must be vehicle oriented rather than highway or sidewalk oriented at the time; and
(4) the person must also be engaged in a transaction essential to the use of the vehicle at the time.

[¶ 44.] Where I part company from the majority opinion is the determination that Roden was “vehicle oriented rather than highway or sidewalk oriented at the time.” In addressing this issue the majority opinion determines that because Roden “had his head in the truck and was talking company business with his immediate supervisor” the vehicle was his “sole orientation,” thereby supporting its determination that Roden was “occupying” the vehicle.

[¶ 45.] The majority opinion’s discussion is more suited to a workers’ compensation claim than an underinsured motorist claim. Roden has already settled with the negligent tortfeasor, presumably he could also have filed a worker’s compensation claim against his employer, now he is seeking to recover from his employer’s motor vehicle insurance company for underin-sured motorist coverage. Roden relies heavily upon the fact that the vehicle was an “office on wheels,” as characterized by the majority opinion; however, Roden is attempting to recover from a motor vehicle liability policy and not an office liability policy. Nevertheless, the majority opinion is persuaded by this characterization in determining Roden was occupying the vehicle as a matter of law because the vehicle was somehow related to his work. While that may be relevant it is not determinative. In my opinion, the majority opinion’s interpretation to the contrary is erroneous.

[¶ 46.] In determining if Roden was vehicle oriented the following facts are particularly relevant: (1) Roden was not assigned use of this vehicle; (2) Roden was not traveling in the vehicle; (3) Roden was not using the vehicle as a vehicle whatsoever; (4) Roden did not go to work that day in the vehicle; (5) Roden was not using the vehicle in his work; (6) Roden was not working on the vehicle; (7) Roden was not attempting to use the vehicle for transportation to leave work; and, (8) Ro-den was not engaged in any act essential to the use of the vehicle. Instead, Roden was standing on the ground next to the vehicle, leaning against the vehicle and talking to its actual occupant.

[¶ 47.] Clearly, Roden was seriously injured, however, that does not mean that the terms of the underinsured policy should be rewritten and interpreted so that a third insurance coverage is provided so that there is another pocket to dig into.

[¶ 48.] For the reasons set forth above, I respectfully dissent.

      . The Utica policy read, " 'occupying' means in or upon or entering into or alighting from.” Contrisciane, 473 A.2d at 1008.

      . Dunkle's testimony is the only eye-witness to the accident. Roden’s injuries were so extensive that he has no recollection of the event. No other eye-witnesses were identified.


source: Caselaw Access Project

author: STREIT, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Hubert Gene EVANS, Appellant.
    No. 02-0668.
    Supreme Court of Iowa.
    Nov. 13, 2003.

      Raymond M. Tinnian, Bjorklund Law Firm, LLC, Coralville, for appellant.
    Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, William E. Davis, County Attorney, and Robert Bradfield, Assistant County Attorney, for appellee.
   STREIT, Justice.

A man claiming to have a foot fetish appeals his convictions for stalking and two counts of harassment. He alleges there is insufficient evidence to support the convictions, his first amendment rights were violated, extreme prejudice demanded a change of venue, and his sentence was unreasonable. After reviewing the record, we reject these arguments and affirm the district court on all counts.

I. Background and Facts

The evidence, as viewed most favorably to the state, reveals the following facts. Hubert Gene Evans has a foot fetish. He is also, it appears, a published photographer. While a nursing student at Scott County Community College in the late 1990s, Evans asked Rebecca Arnold if she would let him photograph her feet. Evans told Arnold he took pictures for a magazine in New York and had helped other women become “big models.” Arnold declined Evans’ offer.

In 1998, Evans called Arnold at her house, and left a message with Arnold’s father. Evans called a second time. Arnold’s father told him not to call her again.

In 2000, Arnold saw Evans in a drug store parking lot. As Arnold made her way from her car to the store, Evans asked her if he could take pictures of her feet. He told her he would like her “legs bare and apart.” A nervous and repulsed Arnold again declined Evans’ offer, and went into the store.

On August 7, 2001, Evans called Arnold’s house and left his phone number and a message with Arnold’s mother. In the message, Evans said he had a surprise for Arnold. Arnold did not return Evans’ phone call. Worried Evans would discover where she lived, Arnold called the police the next day. At a later date, this incident resulted in a charge of harassment, of which a jury found Evans not guilty.

On August 31, 2001, Evans went to Arnold’s house. Evans asked Arnold if she would be willing to play a dominant female role in a new pictorial he was producing about Dred Scott. Arnold told Evans she thought it was weird. Evans replied, ‘Well, I do weird things because I’m a weird guy.” Evans offered Arnold $100 simply to read his script. Arnold repeatedly said she wasn’t interested. After Evans left, Arnold called the police. This encounter, too, would later result in another harassment charge against Evans. On this count, a jury found him guilty.

After this incident, Arnold saw Evans’ phone number on her caller identification screen four or five times.

On September 21, 2001, Arnold went to a car wash. While standing at a change machine, Evans approached her. Evans told her he noticed she had gotten a new car. As she fled the car wash, Arnold, attempting to mislead Evans, told him the car wasn’t hers. Arnold left without getting her change or washing her car. That evening, Evans called Arnold at home. Arnold “told him [she] wasn’t interested” and immediately hung up.

On September 25, 2001, Evans and a friend went to Arnold’s house. A frightened Arnold asked her mother to answer the door and to tell Evans she wasn’t home. Evans told Arnold’s mother to let Arnold know he had dropped by and wanted to take photographs of her. As Evans left, Arnold’s mother noticed Evans was wearing “red strap high heels” and had painted his toenails red. Eventually, the State charged Evans with a third count of harassment for this second incident at Arnold’s home, and a jury again found him guilty.

On October 12, 2001, Arnold saw a woman standing outside her front door. When Arnold opened the door, Evans, who apparently had been bent over in front of the woman, “pop[ped] up” and asked Arnold for a drink of water. Arnold cussed at Evans, told him to “get off my property,” and slammed the door shut. Arnold called the police. She then went to her window in order to try to catch Evans’ license plate. Evans smiled and waved at Arnold. This incident did not result in a harassment charge, but was used to prove Evans stalked Arnold.

Evans was arrested for all these incidents and tried by jury for first-offense stalking (Count I) and three counts of first-degree harassment (Counts II-IV). See Iowa Code §§ 708.11, 708.7 (2001). Whereas the stalking charge drew upon the entire course of the defendant’s conduct which culminated with Evans’ appearance at Arnold’s house on October 12, the three harassment charges were focused upon three discrete incidents, as indicated above: 1) on August 7, 2001, when Evans left a message for Arnold indicating he had a “surprise” for her (Count II); 2) on August 31, 2001, when Evans asked Arnold to read his “script” (Count III); and 3) on September 25, 2001, when Evans went to Arnold’s house in high heels and with painted toenails (Count IV). The harassment charges were elevated to the first-degree because Evans had previously been convicted of harassment four times. See id. § 708.7(2) (enhancing harassment charge to the first-degree where defendant has three or more convictions for harassment within the previous ten years).

A jury convicted Evans of stalking and two counts of first-degree harassment. The jury acquitted Evans of Count II. The judge sentenced Evans to a term not to exceed two years of prison for each conviction, to be served consecutively. He also ordered Evans to pay $3000 in fines.

On appeal, Evans claims there is insufficient evidence to support the convictions, his first amendment rights were violated, extreme prejudice demanded a change of venue, and his sentence was unreasonable. We now consider each of these claims, in turn.

II. The Merits

A. Insufficiency of Evidence & Free Speech Claim

Evans claims the district court erred in denying his motion for a judgment of acquittal, because there was insufficient evidence to support his convictions for stalking and harassment. In tandem with this argument, Evans contends he could not have committed harassment because his actions were protected by his right to free speech. See U.S. Const, amend. I. We recently considered and rejected a similar claim in another case involving Evans. See State v. Evans, 672 N.W.2d 328, 331 (Iowa 2003).

As a threshold matter, in this case we refuse to consider Evans’ constitutional claim, because Evans did not preserve error. Reviewing the record, we find Evans did not raise this issue in the district court. “Issues not raised before the district court, including constitutional issues, cannot be raised for the first time on appeal.” State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997). We now con sider Evans’ claim there was insufficient evidence presented at trial to support his convictions for harassment and stalking.

We review insufficiency claims for errors at law. State v. Sanborn, 564 N.W.2d 813, 816 (Iowa 1997) (quoting State v. Bayles, 551 N.W.2d 600, 608 (Iowa 1996)). We view the evidence in the light most favorable to the State, and will not disturb a jury verdict unless we find the evidence supporting the conviction was not substantial. Id. “Evidence is substantial if it could convince a rational fact finder that the defendant is guilty beyond a reasonable doubt.” Id.

1. Harassment

Evans was convicted of two counts of first-degree harassment in violation of Iowa Code sections 708.7(2) and 708.7(1)(6). In order to address Evans’ sufficiency challenge, we review Iowa Code section 708.7(1)(⅞), which states, in relevant part:

A person commits harassment when the person, purposefully and without legitimate purpose, has personal contact with another person, with the intent to threaten, intimidate, or alarm that other person....

Iowa Code § 708.7(1)(6). Evans claims that, as a published photographer, his sole purpose in contacting Arnold was to take her picture. Moreover, the defendant maintains he never threatened Arnold; he points out we have yet to sustain a conviction for harassment in the absence of a showing of a threat on the part of the defendant, and therefore ought not to do so here.

We are satisfied a reasonable jury could find the defendant guilty on the charges of harassment beyond a reasonable doubt. Threatening the victim is not a necessary element of our harassment statute. To conclude otherwise would ignore the disjunctive language of section 708.7(1)(5), which forbids a person from “personally and without legitimate purpose ... [having] personal contact with another person, with the intent to threaten, intimidate, or alarm that other person.” Iowa Code § 708.7(1)(6) (emphasis added); see State v. Anderson, 636 N.W.2d 26, 37 (Iowa 2001) (“We avoid interpreting a statute to render any part of it superfluous.”).

There is substantial evidence in the record Evans intended to alarm, if not intimidate, Arnold. Our court has not previously had occasion to define “alarm” for the purposes of Iowa Code section 708.7(1)(6). “In the absence of a legislative definition of a term or a particular meaning in the law, we give words their ordinary meaning.” State v. White, 563 N.W.2d 615, 617 (Iowa 1997). To ascertain the ordinary meaning of a word, we may consult the dictionary. Id. The dictionary defines “alarm” as to “cause (someone) to feel frightened, disturbed, or in danger. ...” The New Oxford American Dictionary 36 (2001).

Evans correctly points out harassment is a specific intent crime. State v. Button, 622 N.W.2d 480, 483 (Iowa 2001). Intent is “seldom capable of direct proof,” however, and “a trier of fact may infer intent from the normal consequences of one’s actions.” Evans, 672 N.W.2d at 331 (citing State v. Chang, 587 N.W.2d 459, 462 (Iowa 1998); State v. Farnum, 554 N.W.2d 716, 720 (Iowa CtApp.1996)).

Given the prior history between the two parties, we believe the evidence was sufficient to permit a reasonable jury to find the defendant acted with the intent to alarm or intimidate Arnold in the two incidents for which he was convicted of harassment. By August 31, when Evans showed up at Arnold’s home uninvited and asked Arnold if she would be willing to play a dominant female role in a new pictorial he was producing about Dred Scott, Arnold had repeatedly rebuffed Evans’ offers. By September 25, Evans had made several more unsuccessful attempts to persuade Arnold to pose for him, including the incident at the car wash where Arnold hurriedly ran away from Evans without washing her car or picking up her change. It should not have been unexpected on Evans’ part that his conduct would alarm Arnold.

In the context of the history between these two parties, we think a reasonable jury could find, at the very least, Evans intended to alarm Arnold when he showed up at her front door asking to take her picture on August 31. This behavior would easily cause Arnold to feel frightened, disturbed, or in danger; such is the natural consequence of Evans’ acts, from which the requisite intent for harassment may be inferred. See Evans, 672 N.W.2d at 331 (citing Chang, 587 N.W.2d at 462; Famum, 554 N.W.2d at 720). This inference becomes even stronger by the September 25 incident, in light of the additional unsuccessful attempts which occurred in the interim and the fact Evans appeared wearing red, strappy high heels with matching toenails. There is ample evidence here of a ratcheting up of bizarre and alarming behavior. For both incidents, a rational jury could conclude Evans intended to alarm Arnold.

2. Stalking

Evans also claims there was insufficient evidence presented at trial to sustain his conviction for stalking Arnold. Evans contends Arnold never explicitly told him to leave her alone before October 12; rather, he alleges, Arnold only told him she wasn’t interested, which, according to Evans, means something entirely different. Moreover, Evans points out there is no evidence the police told Evans to leave Arnold alone nor any allegation Evans violated a protective order. And lastly, absent any threats on his part, Evans maintains there is no evidence a reasonable person would fear bodily injury or death because of his behavior. Again, we must reject Evans’ claims.

Iowa’s stalking statute states:
A person commits stalking when all of the following occur:
a. The person purposefully engages in a course of conduct directed at a specific person that would cause a reasonable person to fear bodily injury to, or the death of, that specific person or a member of the specific person’s immediate family.
b. The person has knowledge or should have knowledge that the specific person will be placed in reasonable fear of bodily injury to, or the death of, that specific person or a member of that specific person’s immediate family by the course of conduct.
c. The person’s course of conduct induces fear in the specific person of bodily injury to, or the death of, the specific person or a member of the specific person’s immediate family.

Iowa Code § 708.11(2). Proof of all three elements, beyond a reasonable doubt, is necessary to sustain a conviction under Iowa’s stalking statute. Id,.; see State v. Limbrecht, 600 N.W.2d 316, 318 (Iowa 1999).

We think a reasonable jury could find the prosecution met its burden on all three elements of Iowa Code section 708.11(2) in the present case. Although the defendant never threatened Arnold, making a threat is not an element of our stalking statute. See Limbrecht, 600 N.W.2d at 319 (“Instead of targeting a ‘credible threat,’ the statute criminalizes a ‘course of conduct’ that may or may not include threats.”). Nor is it necessary the defendant receive official notice from the police his behavior is causing the victim fear. Given the persistent, repeated, and sexual nature of Evans’ questioning, including his unexpected arrivals at Arnold’s home, we think a rational jury could find Evans guilty of stalking Arnold.

We think the record clearly shows Evans purposefully engaged in a course of conduct directed at Arnold which would cause a reasonable person to fear bodily injury, and Evans knew Arnold would be placed in such fear. The record discloses a course of conduct in which Arnold repeatedly said she was not interested in Evans’ disturbing offers. On two occasions, she fled from Evans. Importantly, Evans’ behavior escalated over time, culminating in two uninvited visits to Arnold’s home, even though Arnold did not tell Evans where she lived. On the first visit, Evans wore red strappy heels with painted toenails to match; on the second, he hid in front of his companion and jumped out when Arnold answered the door. Given Evans’ repeated and ever-escalating attempts to photograph Arnold, her steadfast refusals, and the bizarre sexual nature of Evans’ proposals, a rational jury could find a reasonable person would fear injury. Moreover, there is sufficient evidence Evans knew Arnold would have such fears. Nor is there any question Arnold, in fact, feared Evans would injure her. Arnold testified at trial she now takes a different route to work, parks her ear in a secure lot, and is afraid to answer the door or even the telephone.

B. Venue

Evans also claims the district court erred in failing to move the trial to another county. Our review of a denial of a motion for a change of venue is de novo. State v. Siemer, 454 N.W.2d 857, 860 (Iowa 1990). We will reverse only upon a showing the district court abused its discretion in failing to move the trial. Id.

Our rules of criminal procedure allow a court to order a change of venue

[i]f the court is satisfied from a motion for a change of venue and the evidence introduced in support of the motion that such degree of prejudice exists in the county in which the trial is to be held that there is a substantial likelihood a fair and impartial trial cannot be preserved with a jury selected from that county....

Iowa R.Crim. P. 2.11(10). Before we will reverse an order denying a motion to change venue, the defendant must show, in the absence of proof of actual prejudice on the part of the jury, that the “publicity attending the trial ... is so pervasive that prejudice must be presumed.” Siemer, 454 N.W.2d at 860-61 (citing State v. Spargo, 364 N.W.2d 203, 207 (1985)). There is no evidence of actual prejudice in the record. In order to determine whether publicity is presumptively prejudicial, we consider several factors: “the nature, tone, and accuracy of the articles; their timing in relation to the trial; and the impact of the publicity on the jurors as revealed through voir dire.” Id. (citing State v. Walters, 426 N.W.2d 136, 138 (Iowa 1988)).

Evans contends the salacious details of the case made it “absurd to think that any segment of the community would not eventually hear something prejudicial to [Evans] ...” The record does not support Evans’ belief that his case was the epicenter of public attention. Although Evans alludes to other inflammatory media coverage, in the record we have only one newspaper article presented for our review. As in Siemer, the nature and tone of the record was “predominately factual and no more sensational than the crimes alleged.” Siemer, 454 N.W.2d at 861. Importantly, in the present case we have no record of voir dire. From the facts presented in the record, we cannot presume prejudice; we have no way of knowing the impact of publicity on the jurors. After reviewing this record, we cannot say the district court abused its discretion in failing to move Evans’ trial.

C. Sentencing

The district court sentenced Evans to serve, consecutively, the maximum two-year indeterminate sentence for each of his three convictions. The sentencing judge also mandated Evans’ sentences run consecutively with his sentences for similar behavior in two other cases. See, e.g., Evans, 672 N.W.2d at 831-32. Evans claims the sentences in the present case are clearly unreasonable, because, in part, his behavior could have been much worse, and yet no harsher penalty could have been imposed.

The Iowa Rules of Criminal Procedure require the district court to “state on the record its reason for selecting the particular sentence [it imposes].” Iowa R.Crim. P. 2.23(3){d). Where a consecutive sentence is imposed, the sentencing judge must give a reason for doing so. Evans, 672 N.W.2d at 331-32 (citing State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000)). “Although the reasons do not need to be detailed, they must be sufficient to allow appellate review of the discretionary action.” Id. Appellate review of a sentencing decision is for an abuse of discretion. Id. (citing State v. Lajfey, 600 N.W.2d 57, 62 (Iowa 1999)).

The sentencing judge gave several reasons for his decision. The judge recognized Evans’ recidivism, his lack of remorse, and the effect of his behavior upon others. The judge determined Evans “just do[esn’t] seem to get it, that this is about scaring people.” We agree. Evans’ behavior is an ongoing problem. The record shows he has a lengthy history of contact with law enforcement, including four convictions for harassment. The judge also took into account the effects of Evans’ actions upon Arnold, noting Evans “made it a point to figure out where it was she lived.” We do not think the district court abused its discretion in rendering its sentence, and reject all of Evans’ contentions to the contrary.

III. Conclusion

We affirm the district court on all counts. Because the defendant failed to preserve error on his constitutional claim, we do not consider whether his convictions of harassment violated his right to free speech. We find there is sufficient evidence to support Evans’ convictions for harassment and stalking. The record does not show the district court erred in denying Evans’ motion to change venue. Lastly, we conclude the sentence imposed by the district court was reasonable.

AFFIRMED.

All justices concur except WIGGINS, J., who takes no part.

      . Evans testified his photographs were last printed in Leg Sex in 2000.


author: /s/Kathleen A. Blatz Chief Justice.

text:
    Carl A. BOEDER, Relator, v. MINNESOTA DEPARTMENT OF NATURAL RESOURCES, Self-Insured, Respondent, and Minnesota Department of Employment and Economic Development, Intervenor.
    No. A03-1259.
    Supreme Court of Minnesota.
    Nov. 26, 2003.
    John W. Person, Brainerd, for Relator’s Attorney.
    James A. Froeber, Safety & Workers’ Comp. Div. St. Paul, for Respondent’s Attorney.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed August 7, 2003, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01.

BY THE COURT:

/s/Kathleen A. Blatz

Chief Justice.


author: /s/Sam Hanson Associate Justice

text:
    Joan LANGLOIS, Relator, v. UNIVERSITY OF MINNESOTA, Self-Insured, Respondent, and Ruth Ryan, Relator, v. University of Minnesota, Self-Insured, Respondent.
    No. A03-1268.
    Supreme Court of Minnesota.
    Dec. 1, 2003.
    Dean Michael Salita, Minneapolis, Attorney for Langlois, Joan: Relator/Ryan, Ruth: Relator.
    Peter J Pustorino, Pustorino, Pederson, Tilton, and Jeffrey James Lindquist, Minneapolis, Attorneys for University of Minnesota, Respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed August 6, 2003, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01.

BY THE COURT:

/s/Sam Hanson

Associate Justice

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


author: /s/Alan C. Page Associate Justice

text:
    Warren F. SHELTON, Respondent, v. INDEPENDENT SCHOOL DISTRICT # 625, Self-Insured/Preferred Works, Relator, and Twin Cities Spine Center, Fairview Health Services, Intervenors.
    No. A03-1276.
    Supreme Court of Minnesota.
    Dec. 1, 2003.
    James S. Pikala, Christine Louise Tuft, Jennifer M. Spalding, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, for Relator.
    Raymond R. Peterson, McCoy, Peterson & Jorstad, Minneapolis, for Respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed August 6, 2003, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01.

Employee is awarded $1,200 in attorney fees.

BY THE COURT:

/s/Alan C. Page

Associate Justice


author: /s/ Paul H. Anderson Associate Justice

text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST C. Charles CHINQUIST, a Minnesota Attorney.
    No. A03-1693.
    Supreme Court of Minnesota.
    Dec. 2, 2003.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent C. Charles Chinquist has committed professional misconduct warranting public discipline, namely, failure to file or timely file state and federal individual income tax returns for the years 1991 through 2001 in violation of Minn. R. Prof. Conduct 8.4(d).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is a 90-day suspension with no waiver of the reinstatement hearing provided for in Rule 18, RLPR. The parties further recommend that reinstatement be conditioned on (1) payment of costs in the amount of $900 under Rule 24(d), RLPR; (2) compliance with Rule 26, RLPR; (3) successful completion of the professional responsibility bar examination under Rule 18(e), RLPR; and (4) satisfaction of continuing legal education requirements under Rule 18(e), RLPR; (5) evidence that all state and federal tax returns that are due have been filed; and (6) agreements with the state and federal authorities for payment of all outstanding tax liability.

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

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent C. Charles Chinquist is suspended from the practice of law for 90 days, subject to the agreed-upon conditions set forth above, with no waiver of the reinstatement hearing provided in Rule 18, RLPR. Respondent shall pay $900 in costs under Rule 24, RLPR.

BY THE COURT:

/s/ Paul H. Anderson Associate Justice


author: PAUL H. ANDERSON, Associate Justice. /s/Paul H. Anderson Associate Justice

text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST James M. BURSETH, a Minnesota Attorney.
    No. CX-00-2004.
    Supreme Court of Minnesota.
    Dec. 2, 2003.
   ORDER

PAUL H. ANDERSON, Associate Justice.

On January 22, 2002, pursuant to a stipulation entered into by the Director of the Office of Lawyers Professional Responsibility and respondent James M. Burseth, we publicly reprimanded respondent for failing to abide by the terms of his probation and continued his probation until January 14, 2003, or the completion of six consecutive months of valid (non-dilute) random urinalysis test results — whichever was later. In re Burseth, 638 N.W.2d 432 (Minn.2002). The parties agreed that as a condition of probation, and we ordered that, respondent was to abstain from nonprescription mood-altering chemicals and that:

If respondent has another confirmed positive test result for alcohol or other mood altering chemicals, except for those allowed under paragraph (d) of this order [prescription medicine prescribed by a physician fully informed of respondent’s chemical dependency], respondent shall be automatically suspended from the practice of law until such time that he can provide six consecutive valid (non-dilute) random urinalysis tests, at which time he may petition for reinstatement by affidavit pursuant to Rule 18(e), [Rules on Lawyers Professional Responsibility],

Id. at 432-33.

The Director has filed a petition for immediate suspension under the January 22, 2002 order, on the ground that respondent tested positive for THC (Cannabi-noids) on September 29, 2003. In his answer to the petition, respondent admits that he tested positive for THC but requests a hearing before a referee to determine whether a sanction less severe than suspension is appropriate based on mitigating factors.

We conclude that a referee hearing to determine whether less severe discipline is warranted is not necessary and that indefinite suspension from the practice of law is appropriate. The January 22, 2002 order is clear that the consequence to respondent if he tested positive for mood-altering chemicals is immediate suspension and respondent agreed to this condition. Respondent admits he tested positive for THC and thus under the terms of the January 22, 2002 order, suspension is warranted. While immediate suspension may result in a hardship to respondent’s clients and his employer, this does not mitigate respondent’s use of mood-altering chemicals under these circumstances. Respondent has received two extensions of probation for violating the requirement that he remain abstinent from mood-altering chemicals. Under these circumstances, we conclude that more severe discipline in the form of indefinite suspension is warranted.

Based on all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent James M. Burseth is indefinitely suspended from the practice of law effective January 1, 2004. Respondent shall continue to fully cooperate with the random urinalysis testing as set forth in the January 22, 2002 order. Respondent may petition for reinstatement by affidavit under Rule 18(e), Rules on Lawyers Professional Responsibility, upon a showing of six consecutive valid (non-dilute) random urinalysis tests. Respondent shall pay $900 in costs and disbursements.

BY THE COURT:

/s/Paul H. Anderson Associate Justice


author: HANSON, Justice.

text:
    Lemoyne D. JONES, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A03-334.
    Supreme Court of Minnesota.
    Dec. 4, 2003.

      Lemoyne D. Jones, Minnesota Correctional Facility, Stillwater, MN, for Appellant Pro Se.
    Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, St. Paul, MN; and Arden J. Fritz, Kathleen A. Heaney, Assistant Sherburne County Attorney, Elk River, MN, for Respondent’s.
   OPINION

HANSON, Justice.

Appellant Lemoyne D. Jones was convicted of first-degree felony murder and second-degree murder in connection with the May 7, 1984, death of Bruce Swanson. He appeals from an order dismissing without a hearing his third petition for post-conviction relief. Because all of the issues raised in this third petition were raised or could have been raised in Jones’ direct appeal or his two previous petitions for postconviction relief, we affirm.

On May 7, 1984, Bruce Swanson was found dead after a fire in his home. Dr. Michael B. McGee, the medical examiner, concluded that Swanson died from a bullet wound inflicted prior to the fire. Based almost entirely on accomplice testimony, a jury found Jones guilty of intentional felony murder in the first degree and murder in the second degree but not guilty of arson. Jones was sentenced to life imprisonment for intentional felony murder under Minn.Stat. § 609.185(3) (1984). Jones I, 392 N.W.2d at 230.

Jones filed a direct appeal of his conviction to this court, arguing that: (1) the state’s plea agreements with codefendants violated his due process rights; (2) the district court erred in admitting Spreigl evidence; (3) his right to a speedy trial was violated; and (4) he received ineffective assistance of counsel. Id. at 231. This court rejected those arguments and upheld Jones’ conviction. Id. at 237.

Five years later, Jones filed his first petition for postconviction relief. Jones argued that the state willfully concealed evidence of promises and inducements made to the state’s witnesses. Jones requested and was granted funds to cover the cost of investigative services. After completing an “exhaustive investigation,” defense counsel informed the court that there was no additional evidence or legal arguments to submit to tfye court and the court granted Jones’ request that the petition be dismissed.

Nineteen months later, Jones filed an application for a writ of habeas corpus in federal district court. Jones based his ha-beas action on the claims that: (1) the state failed to disclose the scope of the plea agreement with his codefendants; (2) the district court improperly admitted Spreigl evidence; (3) Jones was denied the right to a speedy trial; and (4) Jones received ineffective assistance of counsel. The federal district court denied Jones’ habeas corpus petition. Jones’ appeal to the Eighth Circuit Court of Appeals was dismissed. Jones v. Humphrey, 66 F.3d 330 (8th Cir.1995). Jones’ petition for a writ of certiorari to the United States Supreme Court was also denied. Jones v. Humphrey, 516 U.S. 949, 116 S.Ct. 393, 133 L.Ed.2d 314 (1995).

Jones filed his second petition for post-conviction relief just over 2 years later. Jones argued that: (1) the state intentionally withheld evidence that was favorable to the defense; (2) the state knowingly presented false testimony; (3) the state intimidated, threatened or .bribed witnesses into giving false testimony against Jones; (4) a third party’s vehicle was improperly searched; and (5) there was pros-ecutorial misconduct. The district court dismissed the petition without an eviden-tiary hearing, finding that it was without factual support and raised issues that were raised, or could have been raised, in his direct appeal to this court and the proceedings in federal court. Jones did not appeal.

On October 2, 2002, 17 years after his original conviction, Jones filed his third (and present) petition for postconviction relief. The legal issues presented in this petition include: (1) prosecutorial misconduct by failure to disclose information as required by Minn. R.Crim. P. 9.01; (2) ineffective assistance of counsel; and (3) failure to prove all of the elements of felony murder. In his petition, Jones essentially discusses what he claims are inconsistencies in the trial testimony. The single item of new “evidence” referred to by Jones is a letter of April 2,. 1996, to Jones from the director of a funeral home, stating in part that the body of Bruce Swanson was cremated on May 9, 1984, and the burial of the remains took place on May 12, 1984. The significance of this letter is not clear. Jones appears to use the letter to discredit the testimony of Dr. McGee by suggesting that the cremation of May 9, 1984, would have prevented Dr. McGee from performing the examinations that he described as occurring “two or three days” after May 8.

The district court denied Jones’ petition without an evidentiary hearing. The court interpreted Jones’ petition as raising issues of prosecutorial misconduct (failure to disclose evidence and coercion of witnesses) and ineffective assistance of counsel. The court concluded that: (1) Jones had failed to meet his burden of proof because his request for relief was without any factual support; and (2) the issues raised by Jones were procedurally barred because they were the same issues that had been decided by this court as well as the federal courts. Jones appealed.

In his brief to this court, Jones’ arguments are not clearly delineated. Jones identifies as legal issues: (1) prosecutorial misconduct; (2) ineffective assistance of counsel; and (3) the need for an evidentia-ry hearing because “the trial court record is insufficient.” In essence, Jones appears to suggest that the trial testimony of Dr. McGee is inconsistent with other evidence in the record. Jones claims that some evidence would suggest that Swanson was still alive after the gunshot wound and actually died from the fire. (Jones was acquitted of the charge of arson, and presumably would argue that the evidence would not support a murder conviction if the cause of death was the fire.) Jones suggests that Dr. McGee committed perjury, that Jones was not allowed at trial to question witnesses fully on this issue, and that some items of physical evidence supporting the conclusion that Swanson was shot were not credible due to “chain of possession” issues.

A person convicted of a crime may file a petition in district court to “vacate and set aside the judgment and to discharge the petitioner or to resentenee the petitioner or grant a new trial or correct the sentence or make other disposition as may be appropriate.” Minn.Stat. § 590.01, subd. 1(2) (2002). The district court must hold an evidentiary hearing unless the petition, files, and records of the proceedings “conclusively show that the petitioner is entitled to no relief.” Minn.Stat. § 590.04, subd. 1 (2002). “The court may summarily deny a second or successive petition for similar relief on behalf of the same petitioner and may summarily deny a petition when the issues raised in it have previously been decided by the Court of Appeals or the Supreme Court in the same case.” Minn.Stat. § 590.04, subd. 3 (2002).

Once a petitioner has directly appealed his criminal conviction and has filed previous petitions for postconviction relief, any matter raised in the direct appeal or matters that were known to the defendant and could have been raised in the previous petitions will not be considered upon a subsequent petition for postconviction relief. Wayne v. State, 601 N.W.2d 440, 441 (Minn.1999) (citing State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976) (the “Knaffla rule”)). We have recognized two exceptions to the Knaffla rule. In Case v. State, 364 N.W.2d 797, 800 (Minn. 1985), we held that only “where a claim is so novel that it can be said that its legal basis was not reasonably available to counsel at the time the direct appeal was taken and decided will postconviction relief be allowed.” In Fox v. State, 474 N.W.2d 821, 825 (Minn.1991), we concluded that, in limited circumstances, a substantive review of a case is warranted where fairness demands, even if the petitioner knew of the issue at the time of the direct appeal “unless the petitioner deliberately and inexcusably fails to raise the issue on direct appeal.” Id. (quotation marks omitted). Jones does not argue that either of these exceptions is applicable here.

Jones bases his present claims on the inferences he would draw from trial testimony. Clearly, that testimony was known by Jones at the time of his direct appeal and his earlier postconviction petitions. The only evidence that Jones relies upon that is not from the trial record is the letter describing Swanson’s cremation and burial. The information described in that letter was available at the time of Jones’ trial. Moreover, Jones does not provide us with a clear statement of the relevance of that evidence to any of his claims.

We conclude that the district court did not abuse its discretion when it summarily denied Jones’ third petition for postconviction relief.

Affirmed.

      . Jones was convicted under the name of Le-moyne Peter Jones and filed his direct appeal under that name. He was also known at that time as Lemoyne "Buddy” Jones. Jones' true and correct legal name is LeMoyne Dio Jones.

      . A detailed account of the facts leading to Jones’ conviction is set forth in his direct appeal. See State v. Jones, 392 N.W.2d 224, 230 (Minn.1986) (Jones I).

      .This statute was amended in 2002 and is now codified at Minn.Stat. § 609.185(a)(3)(2002).

      . To the extent that Jones’ brief to this court raises other arguments that were not made in the district court, we decline to consider them. State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989).


author: KLAPHAKE, Judge.

text:
    In re the ESTATE OF Bette Janiece SAVICH, Decedent.
    No. A03-414.
    Court of Appeals of Minnesota.
    Nov. 25, 2003.

      Jerome S. Ophoven, Anderson & Opho-ven, P.A., Grand Rapids, MN, for appellant Brad Lovdahl.
    Richard R. Burns, Jacob J. Baker, Hanft Fride, Duluth, MN, for appellants Buddy John and Buddy Jason Savich and Gary Lotton.
    Timothy Aldrich, Aldrich Law Office, Grand Rapids, MN, for respondents Hen-dricksons.
    Considered and decided by KLAPHAKE, Presiding Judge, WILLIS, Judge, and ANDERSON, Judge.
   OPINION

KLAPHAKE, Judge.

Appellants Brad Lovdahl, personal representative of the estate of Bette Janiece Savich, and Buddy John Savich, Buddy Jason Savich, and Gary Lotton, devisees of the estate, challenge the district court’s order (1) determining that quitclaim deeds signed after Savich’s death were ineffective to transfer title; (2) refusing to reform these deeds; and (3) refusing to impose a constructive trust on land conveyed by Sa-vich to respondents Bobbie Hendrickson, Philip Hendrickson, and Brian Hendrick-son. Because real property may not be transferred to a decedent by deed signed after the death and because there was not clear and convincing evidence that would support reformation of the deeds, we affirm the district court on these issues. But because there is clear and convincing evidence here that Savich intended respondents to hold the land in trust for others, we conclude that the district court abused its discretion by refusing to impose a constructive trust. We therefore reverse and remand for imposition of a constructive trust consistent with this decision.

FACTS

Decedent Savich and her' husband owned a farm of approximately 500 acres. Shortly after her husband’s death in 1997, Savich decided to deed her farm acreage to her children, reserving a life estate, in order to protect the land if she had to enter a nursing home. Savich divided the land into parcels of various sizes, placed slips of paper with the descriptions of the parcels into a hat, and permitted her children, Brenda, Buddy Jason, Buddy John, Dana, and her nephew Gary Lotton to each pick a parcel. However, because Dana was in the midst of a divorce, Savich decided not to deed Dana any property. In May 1997, Savich deeded her farm acreage as follows:

1. Buddy John 80 acres
2. Buddy Jason * 65 acres
3. Brenda 80 acres
4. Gary Lotton 120 acres
5. Bobbie Hendrickson 80 acres
6. Brian & Phillip Hendrickson 40 acres

Bobbie, Brian, and Phillip Hendrickson are Brenda’s children and Savich’s grandchildren, and were minors at the time of the 1997 transfer. The parcel deeded to Bobbie was the same parcel that Dana had chosen from the hat. Appellants testified that Savich intended Bobbie to hold the 80 acres for Dana’s benefit, until her divorce was final. Appellants testified that Brian and Phillip were to hold their 40 acres for the benefit of all of Savich’s grandchildren. Savich did not memorialize these intentions in writing.

Respondents did not exercise any ownership rights over the land and Savich retained a life estate interest in the parcels. At trial, respondents testified that they worked on the family farm each summer throughout their childhoods and that they were the only grandchildren of Sa-vich’s to do so. Respondents testified that Savich had not told them that they were to hold the deeded land in trust for others; Bobbie testified that she did not even know about the 1997 conveyance until after Savich’s death.

In July 2001, Savich was dying of cancer and entered hospice care. She decided that she wanted to keep the farm intact and, on the advice of her attorney, asked her family to quitclaim the property back to her, so that she could form a limited liability corporation (LLC), which she would then devise to them through her will. On July 2, 2001, appellants attended a meeting at Sa-vich’s home. During this meeting, they agreed to quitclaim the land back to Savich and to form an LLC. Brenda drew up the quitclaim deeds and these were signed on that date or shortly thereafter by Brenda, Buddy John, Buddy Jason, Lotton and their spouses. Respondents were not present at this meeting, but their mother, Brenda, agreed to draw up quitclaim deeds for them to sign and to obtain their signatures. Buddy John recorded this meeting; a transcript of the tape was made available to the court.

Savich signed 'the LLC documents on July 11, 2001. The quitclaim deeds from Brenda, Buddy John, Buddy Jason, and Lotton were filed on July 12; Savich signed her last will and testament on the same day. Savich left the LLC to Brenda, Buddy John, Buddy Jason, and Lotton, and stated that she intended to provide for Dana through the LLC buy-sell agreement. She left the rest and residue of her property to Brenda, Dana, Buddy John, Buddy Jason, and Lotton in equal shares. Savich died on July 24, 2001.

On August 1 and 2, 2001, Brenda gave respondents quitclaim deeds to sign. Respondents testified that they did not discuss these documents with their mother; she merely directed them to sign because the attorneys needed the documents. Respondents testified that they were not aware of the contents of the deeds and did not understand the effect of signing the documents.

During the probate process, Brenda became increasingly disenchanted with her siblings. On August 13, 2002, she filed an objection to the final accounting, which she withdrew on November 19, 2002. Respondents filed an objection to the final accounting on November 26, asserting that the quitclaim deeds that they had signed in August 2001 were defective because they did not know what they were signing and because Savich had died.

An evidentiary hearing was held on December 13, 2002. On February 27, 2003, the district court issued its order, concluding that the deeds signed by respondents were void because the grantee, Savich, was already dead, and because respondents did not know what they were signing and thus lacked the requisite intent to transfer land. Further, the district court refused to impose a constructive trust on this land or to reform the quitclaim deeds to reflect the estate of Savich as grantee, because of a lack of intent. Brad Lovdahl, as personal representative, and Buddy John, Buddy Jason, and Lotton, as devisees, appeal from the district court’s decision.

ISSUES

1. Did the district court err by determining that the posthumous quitclaim deeds were ineffective to transfer property?

2. Did the district court abuse its discretion by refusing to reform the quitclaim deeds?

3. Did the district court abuse its discretion by refusing to impose a constructive trust on the property deeded by decedent to respondents?

ANALYSIS

1. Posthumous Deed

When reviewing mixed questions of law and fact, “we will correct erroneous applications of law, but accord the [district] court discretion in its ultimate conclusions and review such conclusions under an abuse of discretion standard.” Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn.1997). Findings of fact made by a district court will not be set aside unless clearly erroneous, with due deference given to the district court’s opportunity to judge the credibility of witnesses. Minn. R. Civ. P. 52.01.

In order to transfer title, a deed must be delivered. Slawik v. Loseth, 207 Minn. 137, 139, 290 N.W. 228, 229 (1940). The essential elements of delivery are surrender of control by the grantor and intent to convey title. Id. Physical delivery is not necessary; the grantor must merely show a present, unconditional intention to part with ownership. Mollico v. Mollico, 628 N.W.2d 637, 641-42 (Minn.App.2001). A deed signed, but not delivered, before the death of the grantor is void. Sauter v. Dollman, 46 Minn. 504, 504-05, 49 N.W. 258, 258 (1891). Likewise, a deed cannot be delivered to a deceased grantee. “Thus, ... a conveyance cannot be made to a deceased person. Not only would there be a failure to comply with historical requirements [of seisin], but it also would be impossible to make delivery to such a grantee.” 14 Richard R. Powell, Powell on Real Property § 81A.04[l][a][iii] (Michael Allan Wolf ed., 2003).

It is undisputed here that respondents signed these quitclaim deeds only after Savich’s death. The district court therefore did not err in concluding that the deeds were void and unenforceable.

2. Reformation of the Deed

Appellants argue that the district court erred by refusing to reform the quitclaim deeds to reflect the grantee as the estate of Savich or the LLC. A court using its equitable powers may order the reformation of a deed if it is proved that

(1) there was a valid agreement between the parties expressing their real intentions; (2) the written instrument allegedly evidencing the agreement failed to express the real intentions of the parties; and (3) this failure was due to a mutual mistake of the parties, or a unilateral mistake accompanied by fraud or inequitable conduct by the other party-

Theros v. Phillips, 256 N.W.2d 852, 857 (Minn.1977). The evidence supporting reformation must be “consistent, clear, unequivocal, and convincing.” Id. The proponent of reformation must demonstrate not only that a mistake was made, but must also submit clear proof of the actual agreement between the parties. Id. at 858. On review, the district court’s decision will be overturned only if it is manifestly contrary to the evidence. Yliniemi v. Mausolf, 371 N.W.2d 218, 222 (Minn.App.1985).

Here, there is no evidence that respondents intended, but mistakenly failed, to deed the property to the estate or to the LLC. Therefore, the district court’s refusal to reform the deed was not an abuse of discretion.

3. Constructive Trust

Appellants argue that the district court abused its discretion by failing to impose a constructive trust on the property in question. “A constructive trust is an equitable remedy imposed to prevent unjust enrichment and is completely dissimilar to an express or resulting trust.” Freundschuh v. Freundschuh, 559 N.W.2d 706, 711 (Minn.App.1997), review denied (Minn. Apr. 24, 1997). When imposing a constructive trust, “the court is not bound by a formula, but is free to effect justice to avoid unjust enrichment according to the equities.” Id. The court must be “persuaded by clear and convincing evidence that the imposition of a constructive trust is justified to prevent unjust enrichment.” In re Estate of Eriksen, 337 N.W.2d 671, 674 (Minn.1983). A constructive trust is not limited to situations involving fraud or other wrongdoing, but may be imposed when there is clear and convincing evidence that it would be “morally wrong for the property holder to retain” the property. Spiess v. Schumm, 448 N.W.2d 106, 108 (Minn.App.1989).

A constructive trust has been imposed in cases where an ad hoc estate plan has gone awry, similar to the situation here. In Spiess, the decedent wanted to leave his assets to his stepchildren and step grandchildren, and he transferred most of his assets into a payable-on-death [POD] account, naming his executor, Schumm, as the payee. Id. at 107. This transfer was made shortly before Spiess’ death. When a bank employee explained the legal significance of a POD account, Spiess stated, “Put [Schumm’s] name on there, he will know what to do with it.” Id. Because Schumm failed to distribute the assets after Spiess’s death, the district court imposed a constructive trust on the account. Id. at 108. Despite the legality of Schumm’s actions, this court affirmed the district court’s imposition of the constructive trust, reasoning that it would be morally wrong to ignore clear and convincing evidence of Spiess’ intent and Schumm’s unjust enrichment. Id.

In Borsgard v. Elverum, 248 Minn. 405, 406, 80 N.W.2d 604, 606 (1957), decedent Elverum owned a farm in her own right, which she transferred to herself and her husband as joint tenants. She and her husband continued to treat that parcel.of property as her own. Id. During her last illness, she made a will devising the farm to her sisters and nieces; her husband was present and aware of the devises and acquiesced in them. Id. at 407, 80 N.W.2d at 606. On Elverum’s death, her husband took title as the surviving joint tenant; on his death two years later, the farm passed to his relatives, who eventually sold the farm. Id. at 409, 80 N.W.2d at 607. The district court concluded that Elverum’s de-visees were entitled to equitable relief and imposed a constructive trust for their benefit, reasoning that Elverum’s husband’s failure to carry out her wishes established the basis for that relief. Id. at 413-14, 80 N.W.2d at 610.

Here, the evidence is clear and convincing that (1) Savich made the original transfer in 1997 to protect the property if she had to enter a nursing home; (2) she transferred the parcel of land intended for her daughter Dana to respondent Bobbie Hendrickson, because of Dana’s impending divorce; (3) she told appellants that the land she transferred to respondents Brian and Philip Hendrickson was for all of her grandchildren; (4) she asked all of the recipients of land in 1997 to deed the property back to her at a family meeting shortly before her death; (5) although respondents were not present at this meeting, their mother assured Savich that she had prepared deeds for respondents and that she would have them signed and filed; (6) a tape recording of the meeting was contemporaneously made, memorializing these assurances, and was presented to the district court during the hearing; (7) Sa-vich made her will in the belief that all of the property had been transferred back to her name and died shortly thereafter; (8) respondents initially deeded or attempted to deed the property back to Savich, although the transfer was not effective because of her death; and (9) respondents did not object to acceding to Savich’s wishes until relations soured between their mother and Savich’s other devisees. Given this clear and convincing evidence, we conclude that it would be unjust or morally wrong for respondents to continue to hold property that they had an equitable duty to convey to decedent.

DECISION

We affirm the district court’s decision, concluding that the posthumous deeds were ineffective to transfer real property and that appellant had failed to produce clear and convincing evidence supporting reformation of the deeds. Although imposition of a constructive trust is usually a matter for the district court in its equitable powers, we are persuaded here that the district court erred by considering only the intent of respondents, rather than equities of the situation. We therefore reverse the district court’s order and remand for imposition of a constructive trust on the land held by respondents for the benefit of Savich’s devisees.

Affirmed in part, reversed in part, and remanded.


author: STONEBURNER, Judge.

text:
    STATE of Minnesota, Respondent, v. Terry Burnie WILKENS, Appellant.
    No. CX-02-2136.
    Court of Appeals of Minnesota.
    Dec. 2, 2003.

      Douglas G. Sauter, William D. Siegel, Barna, Guzy & Steffen, Ltd., Minneapolis, for appellant.
    Mike Hatch, Attorney General, Steven H. Alpert, Assistant Attorney General, St. Paul, and Jeffrey Edblad, Isanti County Attorney, Cambridge, for respondent.
    Considered and decided by STONEBURNER, Judge, WILLIS, Judge, and SHUMAKER, Judge.
   OPINION

STONEBURNER, Judge.

Appellant Terry Burnie Wilkens challenges his conviction of criminal sexual conduct in the fourth degree for engaging in sexual contact with his minor daughter, arguing that the district court erred by failing to suppress statements he made in a non-custodial interrogation and evidence obtained pursuant to a search warrant that was based on those statements. He also argues that the district court erred in awarding restitution to Isanti County for the cost of his daughter’s foster care and awarding restitution for the cost of personal property allegedly disposed of by respondent, unrelated to the sexual offense. We affirm the district court’s denial of appellant’s motion to suppress, reverse the restitution award for property allegedly destroyed in an act not related to the crime of which appellant was convicted, and remand for a recalculation of the restitution award to Isanti County.

FACTS

Appellant’s 16-year-old daughter, TW, ran away from home. The next day she was found and was interviewed by a child protection investigator (Zierden) and an investigator from the Isanti County Sheriffs Department (Akers). TW claimed that she ran away because of three incidents of sexual abuse by her father. TW was initially placed on a 72-hour child-protection hold and was later placed in foster care.

Akers and Zierden asked appellant to come to an interview to discuss his daughter’s circumstances. Appellant claims he was not informed of the allegations of sexual abuse. Akers claims he was so informed. Appellant voluntarily appeared for an interview by Akers and Zierden. Appellant has stipulated that this was a non-custodial interview, and therefore not subject to the requirements of Scales or Miranda.

The beginning of the interview was not recorded. Appellant was provided with a “Tennessen Warning Statement,” which he read and signed. The warning informed appellant that he did not have to answer any questions and that any information given could be used for investigations by other agencies, including local and state law enforcement. Appellant claims that he only signed the warning because Akers told him that any statements he made were confidential. Akers testified that he would not have made such a statement in the circumstances of this case.

The remainder of the interview was recorded and appellant admitted that he engaged in the sexual conduct alleged by his daughter. Appellant told Akers and Zier-den that he kept a journal to help him deal with his wife’s death. After the interview was over, appellant called Zierden and told her that he had written a letter that explained what had happened. Based on appellant’s statements, the police obtained a search warrant for appellant’s home and seized the journal and the letter, which were used as evidence in his trial.

On two occasions, the district court denied appellant’s motions to suppress his statements and the evidence seized under the warrant. Appellant was convicted after a bench trial and was sentenced to prison for a year and a day, with all but 120 days stayed, and probation for five years. The district court also ordered appellant to pay restitution in the amount of $12,926.99 to reimburse the county for the cost of his daughter’s foster care and to reimburse his daughter for personal property that appellant allegedly destroyed in an act unrelated to this crime. This appeal followed.

ISSUES

1. Did the district court err in determining that appellant’s statements were voluntary?

2. Did the district court abuse its discretion by awarding restitution to Isanti County for the full cost of appellant’s daughter’s foster care and by awarding restitution to appellant’s daughter for destruction of property that was not related to the crime of which appellant was convicted?

ANALYSIS

1. Motion to suppress

When a defendant seeks to suppress a confession on the ground that it was involuntary, the state has the burden to prove voluntariness by a fair preponderance of the evidence. State v. Thaggard, 527 N.W.2d 804, 807 (Minn.1995). The district court’s role, in such a case, is to resolve evidentiary factual disputes. Id. This court is not bound by the district court’s determination; we review to independently determine, based on factual findings that are not clearly erroneous, whether or not the confession was voluntary. Id. We look to all of the relevant factors to determine whether a confession was voluntary, including the defendant’s age, maturity, intelligence, education, experience, and ability to comprehend; the lack of or adequacy of a warning; the nature of the interrogation; and whether the defendant was deprived of physical needs or denied access to friends. Id. at 808.

The record supports the district court’s findings that appellant was “alert, responsive, did not object to the questioning, nor did he decline to answer any question or ask to suspend the interview at any time.” The district court’s findings that appellant was not deprived of any physical needs or forced to endure a lengthy or threatening interview are also supported by the record. The district court correctly noted that the relevant factors in this ease include the fact that appellant read and signed the Tennessen warning that was labeled in bold at the front and center top of the first page “Your Privacy Rights — Child Protective Services,” and informed appellant that he need not answer and that information he provided was not confidential. Local and state law enforcement were among the 12 agencies specifically listed in the Tennes-sen warning as agencies that may receive the information. The district court did not err in concluding that appellant’s statements and confession were voluntary.

2. Restitution

Appellant also challenges the restitution award to Isanti County for the cost of his daughter’s foster care and the award of $633 to his daughter for personal property appellant allegedly destroyed in an act unrelated to his conviction.

A district court has broad discretion in ordering reasonable restitution. State v. Tenerelli, 598 N.W.2d 668, 671 (Minn.1999), cert. denied, 528 U.S. 1165, 120 S.Ct. 1183, 145 L.Ed.2d 1089 (2000). Restitution includes payment of compensation to a "government entity that incurs a loss as a direct result of a crime. Minn. Stat. § 609.10, subd. 2(a)(2) (2002); see Minn.Stat. § 611A.01 (b) (2002) (defining “victim” to include a government entity that incurs loss or harm as a result of a crime). A request for restitution may include, but is not limited to, any out-of-pocket losses resulting from the crime, including replacement of services. Minn. Stat. § 611A.04, subd. 1(a) (2002).

Appellant asserted for the first time on appeal the proposition that Isanti County is not a victim of appellant’s crime and is not entitled to claim restitution, arguing that the costs of foster care were not a direct consequence of appellant’s crime. Because this argument was not raised in the district court, we consider it waived. See Roby v. State, 547 N.W.2d 354, 357. (Minn.1996). But appellant argued to the district court that in determining whether to award restitution and the amount of restitution, the district court is required to consider the income, resources and obligations of the defendant, pursuant to Minn.Stat. § 611A.045 subd. 1(a)(2).

Appellant asserts that he does not have the ability to pay the amount of restitution claimed by Isanti County. The district court did not consider appellant’s income or obligations, other than to note that appellant has $100,000 net equity in his homestead “which can be accessed to pay it.”

Furthermore, Minn.Stat. § 260C.331 subd. 1(a)(1), (c) provides that

(a) Except where parental rights are terminated,
(1) whenever legal custody of a child is transferred by the court to a responsible social services agency,
(c) If the income and resources attributable to the child are not enough to reimburse the county for the full cost of the care, ... the court shall inquire into the ability of the parents to support the child and, after giving the parents a reasonable opportunity to be heard, the court shall order, and the responsible social services agency shall require, the parents to contribute to the cost of care, ... When determining the amount to be contributed by the parents, the court shall use a fee schedule based upon ability to pay that is established by the responsible social services agency and approved by the commissioner of human services.

Minn.Stat. § 260C.331 subd. 1(a)(1), (c) (2002). Because this statute applies to all non-termination-of-parental-rights transfers of custody to a social service agency, and requires the use of an established fee schedule, we conclude that when the district court orders a parent to pay restitution for foster care, it should apply the provisions of Minn.Stat. § 260C.331, subd. l(l)(c), to determine the amount. We therefore remand to the district court for a recalculation of appellant’s restitution obligation to Isanti County.

There is nothing in the record to support the award of $633 to appellant’s daughter for destruction of personal property. No evidence was presented that any personal property was destroyed as a result of appellant’s crime. The district court abused its discretion by awarding $633 for undocumented damages unrelated to appellant’s crime.

DECISION

Appellant’s non-custodial statement was voluntarily given. The district court did not err in denying appellant’s motions to suppress his statement and the evidence seized under a search warrant that was issued based on his statements. The restitution award to Isanti County for the cost of foster care that was required for appellant’s daughter as a result of his criminal sexual conduct against her is affirmed but remanded for a redetermination of the amount under Minn.Stat. §§ 611A.045, subd. 1 and 260C.331, subd. 1. The restitution award for destruction of personal property is reversed.

Affirmed in part, reversed in part, and remanded.

      . The Minnesota Government Data Practice Act provides: “An individual asked to supply private or confidential data concerning the individual shall be informed of: (a) the purpose and intended us of the requested data ...; (b) whether the individual may refuse or is legally required to supply the requested data; (c) any known consequences arising from supplying or refusing to supply private or confidential data; and (d) the identity of other persons or entities authorized to receive the data”. Minn.Stat. § 13.04, subd. 2 (2002). This warning is known as a Tennessen warning.

      . The district court did not make a credibility determination on this issue, concluding that whether appellant was promised confidentiality was moot in light of the Tennessen warning to the contrary.

      . We note, however, that the cases relied on by appellant to assert tliat the county is not a victim predate the 1997 amendment to Minn. Stat. § 609.10, subd. 2(2) that defines restitution to include payment of compensation to a government entity that incurs loss as a direct result of a crime.