author: GILBERTSON, Chief Justice.

text:
    2006 SD 89
    STATE of South Dakota, Plaintiff and Appellee, v. John C. NUZUM, Defendant and Appellant.
    No. 23850.
    Supreme Court of South Dakota.
    Considered on Briefs on Aug. 28, 2006.
    Decided Oct. 18, 2006.

      Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Donald D. Richards, Richards Law Firm, P.C., Spearfish, South Dakota, Attorney for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] John C. Nuzum was convicted by a Meade County jury of two counts of Sexual Contact With a Child Under the Age of Sixteen and was sentenced to two consecutive 12-year terms. He appeals his conviction on Count I. We affirm.

FACTS AND PROCEDURE

[¶ 2.] John C. Nuzum (Nuzum) married Marla Evans (Evans) in 1999. Nuzum had four children from two prior marriages. Evans also had four children from a prior marriage. Nuzum and Evans divorced in July 2001. Evans’ youngest child from her previous marriage (herein referred to as M.V.) was 11 years old at the time.

[¶ 3.] Following the divorce, Nuzum and M.V. continued to be friends. M.V. looked up to Nuzum and thought of him like an uncle. The two stayed in contact by telephone. Nuzum was an over-the-road trucker and began inviting M.V. to accompany him on his trips.

[¶ 4.] At some point during these trips, Nuzum began to sexually molest M.V. On two separate occasions, Nuzum also invited M.V. to stay with him in Spearfish, South Dakota. Since Nuzum lived there with his mother he would take M.V. to a local motel where he would molest the boy. M.V. was still 11 years old when the molestations began. Although, he was uncomfortable with what Nuzum was doing to him, he could not grasp the full extent of the wrongfulness of these acts.

[¶ 5.] While M.V. was uncomfortable with these episodes of molestation, he still enjoyed the good times he was having with Nuzum. He enjoyed traveling and seeing the country with Nuzum on the trucking trips. M.V. also enjoyed the adult things that Nuzum would let him do like shooting guns and drinking beer. Another of M.V.’s favorite activities with Nuzum was hunting. Nuzum took M.V. to hunt prairie chickens on several occasions.

[¶ 6.] Some of these “chicken hunts” took place on the John O’Grady Ranch in Eastern Meade County near the hamlet of White Owl. Located next to his home, O’Grady had a bunkhouse used for guest quarters. It was there that Nuzum and M.V. would stay when hunting at O’Grad/s. M.y. testified that on two separate occasions, once during October 2001, and again between September 1, and December 31, 2002, Nuzum molested him while they were staying in the bunkhouse.

[¶ 7.] Nuzum was ultimately charged with two counts of Sexual Contact with a Child Under the Age of 16 in Lawrence County for the molestations occurring in Spearfish, South Dakota and two counts in Meade County for the molestations on the O’Grady Ranch. In addition, Nuzum was charged in Butte County with two counts for the same offense against one of M.V.’s siblings. This appeal focuses on issues arising out of Nuzum’s conduct in Meade County. On February 17, 2005, Nuzum was convicted on both counts of Sexual Contact filed in Meade County.

[¶ 8.] Nuzum raises two issues on appeal:

1. Whether an alibi defense made the date of the offense charged in Count I material such that it was reversible error for the circuit court to give a jury instruction that allowed for a finding of guilt without proof of the exact date of the offense.
2. Whether Nuzum established that it was factually impossible for him to commit the act charged in Count' I such that he was entitled to a judgment of acquittal as a matter of law.

STANDARD OF REVIEW

[¶ 9.] This Court reviews the refusal of proposed jury instructions under the abuse of discretion standard. State v. St. John, 2004 SD 15, ¶ 8, 675 N.W.2d 426, 427 (citing State v. Downing, 2002 SD 148, ¶ 26, 654 N.W.2d 793, 800 (citing State v. Webster, 2001 SD 141, ¶ 7, 637 N.W.2d 392, 394)). A trial court has discretion in the wording and arrangement of its jury instructions, and therefore we generally review a trial court’s decision to grant or deny a particular instruction under the abuse of discretion standard. Vetter v. Cam Wal Elec. Co-op., Inc., 2006 SD 21, ¶ 10, 711 N.W.2d 612, 615 (citations omitted). The manner in which this Court reviews a denial of a motion for judgment of acquittal is well established:

The standard of review for denial of a motion for judgment of acquittal is whether the “evidence was sufficient to sustain the convictions.” “When reviewing sufficiency of the evidence, this [Cjourt, considers the evidence in a light most favorable to the verdict.” “A guilty verdict will not be set aside if the state’s evidence and all favorable inferences that can be drawn therefrom support a rational theory of guilt.” “We do not resolve conflicts in the evidence, pass on the credibility of the witnesses, determine the plausibility of an explanation, or weigh the evidence.”

State v. Running Bird, 2002 SD 86, ¶ 19, 649 N.W.2d 609, 613 (quoting State v. Verhoef, 2001 SD 58, ¶22, 627 N.W.2d 437, 442) (internal citations omitted).

ANALYSIS AND DECISION

[¶ 10.] 1. Whether an alibi defense made the date of the offense charged in Count I material such that it was reversible error for the circuit court to give a jury instruction that allowed for a finding of guilt without proof of the exact date of the offense.

[¶ 11.] Nuzum argues that the date on which the offense in Count I occurred became material when he raised an alibi defense. He contends that the circuit court erred with respect to Count I when it issued a jury instruction that did not require the State to establish the date of the offense with specificity. At Nuzum’s trial, the following jury instruction was given:

The Indictment charges that the offense was committed “on or about” a certain date. The proof need not establish with certainty the exact date of the offense alleged. It is sufficient if the evidence establishes beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged.

South Dakota Pattern Jury Instruction 1-11-6. As a result, Nuzum asserts that his alibi, with respect to the October 2001 offense charged in Count I, was nullified.

[¶ 12.] Nuzum cites People v. Jones, 9 Cal.3d 546, 108 Cal.Rptr. 345, 510 P.2d 705, 713 (1973), overruled on other grounds, and United States v. Goodrich, 493 F.2d 390, 393 (9th Cir.1974) in support of his argument that the assertion of an alibi defense makes the date of an offense material. However, the facts of these cases are distinguishable from Nuzum’s. In Jones, the date became material to the offense charged when a witness for the prosecution testified that a drug transaction occurred on a specific date. 108 Cal.Rptr. 345, 510 P.2d at 713-714. Again in Goodrich, the date was material because the prosecution based its case on a date specific offense and the defendant relied on the date when proffering an alibi defense. 493 F.2d at 394.

[¶ 13.] Nuzum also points to People v. Suter, 292 Ill.App.3d 358, 226 Ill.Dec. 568, 685 N.E.2d 1023, 1029 (1997); State v. Infante, 157 Vt. 109, 596 A.2d 1289, 1291 (1991) and State v. Brown, 35 Wash.2d 379, 213 P.2d 305, 307-08 (1949) to bear his contention that the instruction should have restricted the jury’s determination of guilt to a finding that the offense occurred on a specific date. The facts in these eases are also distinguishable from the instant case.

[¶ 14.] In Suter, the information charged that the offense occurred “on or about” July 30, 1995, but the evidence presented at trial indicated the offense occurred if at all on the afternoon of that date. 226 Ill.Dec. 568, 685 N.E.2d at 1028. Error resulted from the jury being instructed that the prosecution was not required to prove the offense occurred on the- particular date. Id. at 1027. Once again in Brown, although the charging information used general wording with respect to the date of the offense, the prosecution elected to build its case on the ground that the offense occurred on a specific date. 213 P.2d at 307. A jury instruction that relieved the prosecution from showing the offense occurred on that exact date was held to be erroneous. Id. In Infante, both the charging information and evidence presented at trial specified the offense occurred on a particular date. 596 A.2d at 1291. Error occurred when the trial court refused to instruct the jury that a determination of guilt required finding that the offense occurred on the date charged. Id. at 1290.

[¶ 15.] Nuzum offered an alibi defense, largely consisting of cellular phone records, to prove that he could not have been present at the O’Grady Ranch when the offense charged in Count I was alleged to have been committed. Nuzum now postures that the State, in its indictment and evidence presented at trial, did in fact specify a date on which the Sexual Contact offense. charged in Count I occurred. This is incorrect.

[¶ 16.] Count I of the December 8, 2004, indictment charges that Nuzum committed the offense “on or about October 26, 2001.” The evidence presented at trial did anything but tie the date of the offense with specificity to October 26, 2001. The transcript of M:V.’s trial testimony contains in excess of 50 pages covering attempts by the State and defense counsel to help him remember with particularity dates from three years earlier when he was 11 years old. In an effort to jog his memory, M.Y. was asked to review cellular phone records; he looked at school attendance records; he was asked when snow was on the ground; he was asked about people that were present at the O’Grady Ranch in relation to specific events; he was asked about the beginning and ending of grouse hunting seasons, including the best time of the season to hunt grouse and whether on a particular year it got cold in November. At no time, whether during law enforcement’s investigation, at trial or other proceedings was M.V. able to state with conviction the dates on which he was molested by Nuzum.

[¶ 17.] When asked by the prosecutor about his difficulty with particular dates related to the molestations at O’Grady’s, M.V. replied, “It’s something I didn’t want to remember, ... I didn’t have a calendar by or think about it, and it was something I wanted to forget....” What M.V. was able to be specific about were the details of the molestations in the sleeper of Nuzum’s truck while they were on over-the-road trips, the two molestations by Nuzum at the Super-8 motel in Spearfish, and the molestations on two occasions in the bunkhouse at the O’Grady Ranch. He was able to recall with graphic detail the sexual assaults to which Nuzum had subjected him. M.V. knew that he had been to O’Grady’s with Nuzum to hunt in successive years. Neither the indictment nor the State’s evidence at trial offered October 26, 2001 as an exact date on which the offense occurred. Rather, based on the totality of the evidence, that date and a reasonable period encompassing it were offered as the time that the offense charged in Count I occurred.

[¶ 18.] “We have previously held in cases of sexual abuse of minors that time is not a material element of the offense.” State v. Darby 1996 SD 127, ¶ 10, 556 N.W.2d 311, 316. See also State v. Floody, 481 N.W.2d 242, 247 (S.D.1992); State v. Basker, 468 N.W.2d 413, 416 (S.D.1991); State v. Wurtz, 436 N.W.2d 839, 842 (S.D.1989); State v. Swallow, 350 N.W.2d 606, 608 (S.D.1984). In Darby, we stated that our rationale for this holding was adopted from the Minnesota Supreme Court:

We also take note of the nature of the offenses charged, and the fact that they involve minor children. The Minnesota Supreme Court, in dealing with child molestation cases, has stated that although an information should be as specific as possible with respect to time, it is not always possible to know with certainty when the offenses occurred; this is especially true in cases where there is a minor victim who does not immediately complain to the authorities; thus, specificity of time is not always required in the information.

1996 SD 127, ¶10, 556 N.W.2d at 316 (citing State v. Bird, 292 N.W.2d 3 (Minn.1980); State v. Waukazo, 269 N.W.2d 373 (Minn.1978)). A defendant cannot make the date of an offense material by merely offering an alibi defense. Floody, 481 N.W.2d at 248 (citing State v. Goddard, 69 Or. 73, 138 P. 243, 246 (1914)). “The fact that an alibi defense is interposed does not, ipso facto, make the ‘on or about’ instruction erroneous.” State v. Nelson, 310 N.W.2d 777, 779 (S.D.1981) (citing State v. Danley, 9 Wash.App. 354, 513 P.2d 96 (1973)). In Nelson this Court held, as long as the jury is not misled into improperly rejecting the defendant’s alibi defense, the use of “on or about” language in a jury instruction, with respect to a particular date, is not prejudicial to the defendant when the date is indefinite both in the indictment and in the evidence presented at trial. 310 N.W.2d at 780.

[¶ 19.] M.V. was victimized by Nuzum over a period of two years. After breaking off relations with Nuzum following the 2002 trip to O’Grady’s, M.V. for a year and half attempted to bury the painful and humiliating experience. It was not until he confided in his mother in March 2004, that the acts of Nuzum came to light. It is reasonable to conclude that what remains etched in M.V.’s mind is neither the date on the calendar nor the time on the clock when he was molested, but his memory of being confined with a grown man who forced him to do sexual acts.

[¶ 20.] Under our statute, the offense of Sexual Contact With a Child is accomplished when “any person, sixteen years of age or older,” “knowingly engages in sexual contact with another person, other than that person’s spouse if the other person is under the age of sixteen years.... ” SDCL 22-22-7. Nuzum now claims that his interposition of an alibi defense turns settled law on its ear by ipso facto adding a new material element to the offense- — time. We do not agree.

[¶ 21.] Nuzum’s argument might perhaps be more persuasive if he could demonstrate that he specifically relied on the October 26, 2001 date in constructing his alibi. The indictment alleging the offense to have occurred “on or about” that date was filed on December 8, 2004. Thus, Nuzum was fully apprised of the indefinite reference to date in the indictment by the time he filed his notice of intent to offer an alibi on January 18, 2005. For him to assert otherwise at this time is not credible.

[¶ 22.] Nuzum also fails to show that the jury was in any way improperly misled into rejecting his alibi by the challenged jury instruction. It is entirely plausible that the jury merely did not believe that Nuzum’s alibi, accepted in its entirety, foreclosed his ability to commit the crime on October 26, 2001. Nuzum offers cell phone records to prove that he could not have been at the O’Grady Ranch on October 26, 2001. These records show that he made three calls on that day, one from Gillette, Wyoming in the afternoon and two from Spearfish, South Dakota at 8:14 p.m. and 8:16 p.m. M.V. testified that the molestation occurred the night before the hunt. Nuzum’s alibi witness testified the hunt was on October 27, 2001. The South Dakota Official Highway Map shows the distance between Spearfish and White Owl to be approximately 82 miles. It is reasonable to conclude that the jury inferred notwithstanding his alibi, that Nuzum could have been at the O’Grady Ranch on the night of October 26, 2001.

[¶ 23.] The date of the offense in Count I was not established with certainty in the indictment or at trial. Nuzum did not rely on a precise date in the indictment. Nor has he shown prejudice resulting from the jury instruction. Therefore, we find no merit to his argument on this issue.

[¶ 24.] 2. Whether Nuzum established that it was factually impossible for him to commit the act charged in Count I such that he was entitled to a judgment of acquittal as a matter of law.

[¶ 25.] Nuzum asks for a judgment of acquittal on Count I in the indictment. He argues that he was entitled to an acquittal on his motion for a directed verdict because his cellular phone records establish that he could not have been at the O’Grady Ranch on October 26, 2001. Clearly he could have been. Nuzum’s cellular phone records show that he could have in fact been present at the O’Grady Ranch on that night. Since there was sufficient evidence from which the jury could draw this inference we find his claim to be without merit.

[¶ 26.] Affirmed.

[¶ 27.] SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.


source: Caselaw Access Project

author: KONENKAMP, Justice.

license: Public Domain

text:
    2006 SD 90
    Timothy MASTELLER and Ronna Masteller, individually and as Guardian Ad Litem for S.R.S. and J.R.E.S., Minor Children, Plaintiffs and Appellees, v. CHAMPION HOME BUILDERS, CO. and Iseman Corp., Defendants and Appellants.
    No. 23936.
    Supreme Court of South Dakota.
    Considered on Briefs on Aug. 28, 2006.
    Decided Oct. 18, 2006.

      Christina L. Fischer of May, Adam, Gerdes & Thompson L.L.P. Pierre, South Dakota, Attorneys for plaintiffs and appel-lees.
    Robert C. Riter, Jr. of Riter, Rogers, Wattier & Brown L.L.P., Pierre, South Dakota, Attorneys for defendants and appellants.
   KONENKAMP, Justice.

[¶ 1.] In this lawsuit against Champion Home Builders Company and Iseman Corporation, the circuit court ruled that an arbitration clause in Champion’s warranty booklet was not enforceable. We affirm.

Background

[¶ 2.] Timothy and Ronna Masteller signed a purchase agreement with Iseman Corporation on June 13, 2004, to buy a home manufactured by Champion Homes Company. With respect to warranties, the purchase agreement provided three relevant clauses. First, at the beginning of the agreement, it stated, “Purchaser acknowledges that there is an expressed warranty provided by the manufacturer and there are no other warranties expressed or implied being given by the dealer nor is the purchase being guaranteed for any particular purpose or use.” Second, in a section entitled “Additional Terms and Conditions,” the agreement stated, “The structure of a new mobile or manufactured home, or other described unit are warranted assuming reasonable wear and tear for a period of one year from the date of delivery against defects in workmanship and materials by the manufacturer.” Third, the agreement closed with, “THIS AGREEMENT CONTAINS THE ENTIRE UNDERSTANDING BETWEEN US AND NO OTHER REPRESENTATION OR INDUCEMENT, VERBAL OR WRITTEN, HAS BEEN MADE WHICH IS NOT SET FORTH HEREIN.” Nothing in this document mentioned any existing or future arbitration clause.

[¶ 3.] After installation of the home, on November 30, 2004, a representative of Iseman handed the Mastellers Champion’s “Homeowner’s Guide, Limited Warranty and Arbitration Agreement.” The Mastel-lers signed a “New Home Delivery and Inspection Walk Through Form.” In this form, they were asked whether the “[factory & supplier warranties were received and understood.” To this, they answered, ‘Tes.” The following December, January, March, and April 2005, the Mastellers requested and received service work on their home. On all but one occasion, after the work was performed, one of the Mastellers signed a “Champion Homes Division, Service Work Order,” which contained the following phrase under the signature line: “confirms acceptance and satisfaction of warranty work performed.”

' [¶ 4.] In May 2005, the Mastellers brought suit against Iseman and Champion Home Builders (defendants), asserting five causes of action related to defects that existed at the time the home was delivered, which had not been remedied by defendants. Defendants moved in circuit court to compel arbitration.

[¶ 5.] At the hearing, defendants maintained that the Mastellers agreed to arbitrate all claims, controversies, and disputes related to both defendants. According to defendants, when the Mastellers signed the June 13, 2004 contract with Iseman, they acknowledged that the manufacturer would provide an express warranty. Then, on November 30, 2004, the Mastellers received this express warranty in a document entitled, “Homeowner’s Guide, Limited Warranty and Arbitration Agreement” (Homeowner’s Guide). Although the Mas-tellers did not sign the Homeowner’s Guide, defendants claimed that, by later requesting and receiving warranty work, their conduct effected the necessary assent. Further, because the Mastellers’ second cause of action was for breach of Champion’s express warranty, defendants asserted that the Mastellers were es-topped from seeking only the benefits of an agreement, but not the burdens.

[¶ 6.] In response, the Mastellers argued that the only agreement they were aware of was the June 13 contract, which did not include an arbitration clause. The June 13 contract, they claimed, contained an express warranty, which was the only warranty they “agreed to accept.” Moreover, according to the Mastellers, at no time did they request warranty work from defendants. Instead, they argued that the work performed by defendants was related to its continued effort to remedy the defects that existed when the home was installed. Therefore, they insisted that defendants should not be able to unilaterally enforce the arbitration clause because they were neither informed of its existence at the time they signed the purchase agreement nor asked to sign the document purporting to bind them.

[¶ 7.] At the conclusion of the hearing, the circuit court denied defendants’ motion to compel arbitration. It found that “defendants delivered the [Homeowner’s Guide] to the [Mastellers] but that there was no meeting of the minds between [the parties] regarding the said document.” Because there was not a meeting of the minds, the court held that the Homeowner’s Guide did “not constitute a valid or enforceable contract.”

[¶ 8.] Defendants appeal, claiming that the circuit court erred when it did not compel arbitration because (a) a written arbitration agreement does not require a party’s signature to be binding, and (b) by requesting and receiving warranty work, the Mastellers are bound by the arbitration clause in Champion’s Homeowner’s Guide.

Standard of Review

[¶ 9.] The validity of an arbitration agreement is a mixed question of law and fact. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 947-48, 115 S.Ct. 1920, 1926, 131 L.Ed.2d 985, 996 (1995). Therefore, we review de novo the circuit court’s interpretation of an arbitration agreement. See Flandreau Public School Dist. No. 50-3 v. G.A. Johnson Const., Inc., 2005 SD 87, ¶ 7, 701 N.W.2d 430, 434 (citing First Options, 514 U.S. at 947-48, 115 S.Ct. at 1926, 131 L.Ed.2d at 996). A circuit court’s factual findings supporting its decision, however, are reviewed under the clearly erroneous standard of review. Dominium Austin Partners, L.L.C. v. Emerson, 248 F.3d 720, 727 (8th Cir.2001) (citing PCS Nitrogen Fertilizer, L.P. v. The Christy Refractories, L.L.C., 225 F.3d 974, 978 (8th Cir.2000)); see also First Options, 514 U.S. at 947-48, 115 S.Ct. at 1926, 131 L.Ed.2d at 996; Lyster v. Ryan’s Family Steak Houses, Inc., 239 F.3d 943, 945 (8th Cir.2001).

Analysis and Decision

[¶ 10.] This case presents the question whether an arbitration agreement neither signed by the parties upon whom it is sought to be enforced, nor accepted through written acknowledgement or oral agreement, may still be enforceable by acceptance through conduct. Defendants argue that the arbitration agreement was accepted when the Mastellers assented to it by requesting and receiving the benefits (warranty work) of the agreement containing the arbitration clause.

[¶ 11.] The Federal Arbitration Act provides that “[a] written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2; see also SDCL 21-25A-1. While arbitration agreements are favored, they are “a matter of consent, not coercion[.]” Volt Info. Sciences, Inc. v. Bd. of Trs. of the Leland Stanford Junior Univ., 489 U.S. 468, 479, 109 S.Ct. 1248, 1256, 103 L.Ed.2d 488 (1989). Therefore, the law requires that there be a valid agreement to arbitrate before parties will be compelled to arbitrate a dispute. Dinsmore v. Piper Jaffray, Inc., 1999 SD 56, ¶ 11, 593 N.W.2d 41, 44. When examining whether a party is bound by an arbitration agreement, we apply South Dakota contract law. Id. (citing First Options, 514 U.S. at 943, 115 S.Ct. at 1924, 131 L.Ed.2d at 993; Houlihan v. Offerman & Co., Inc., 31 F.3d 692, 694-95 (8th Cir.1994)).

[¶ 12.] The Mastellers contend that there was no meeting of the minds on the provisions of the Homeowner’s Guide. They claim that the only agreement and warranties they accepted were those provided through the June 13, 2004 contract. Therefore, they insist that the arbitration agreement lacks mutual assent and is unenforceable under SDCL 53-3-3. Defendants, on the other hand, contend that the June 13, 2004 contract did not give the Mastellers a warranty, but instead informed them that a “warranty would be provided.” Then, defendants argue, because the actual warranty was provided on November 30, 2004, in the Homeowner’s Guide, and the Mastellers requested and accepted warranty work, the arbitration agreement should be enforced.

[¶ 13.] It is undisputed that the June 13, 2004 contract did not contain an arbitration agreement or indicate that one was forthcoming. It declares that “Purchaser acknowledges that there is an express warranty provided by manufacturer.” (Emphasis added). On the second page of the contract, a warranty statement is expressly included: “[t]he structure of a new mobile or manufactured home, or other described unit are warranted, assuming reasonable wear and tear, for a period of one year from the date of delivery against defects in workmanship and materials by the manufacturer.” Therefore, defendants’ contention that the Mastellers knew or should have known a manufacturer’s warranty would be provided in the future is problematic. Still, even if a later warranty document should have been anticipated, nothing in the contract they signed portended an arbitration clause. Parties cannot be bound to contracts they never agreed to accept. SDCL 53-3-3. The Mastellers only expressly agreed to accept the terms and conditions of the June 13, 2004 contract. The fact that defendants later provided them with a warranty document containing an arbitration clause cannot bind the Mastellers to arbitrate their claims. When they received the Homeowner’s Guide, they only acknowledged that the “[f]actory and supplier warranties were received and understood.”

[¶ 14.] Defendants argue that because the Mastellers’ second cause of action alludes to a one year express warranty provided by Champion Homes, the Mastellers cannot sue to enforce the benefits of a contract without also incurring its burdens. The Mastellers’ second cause of action states: “The Defendant, Champion, issued a one year express warranty for the repair of manufacturers [sic] defects.... The Defendant, Champion, has breached its expressed warranty and warranty of habitability by failing to correct the manufacturers [sic] defects.” Defendants argue that the Mastellers are “bound by all the provisions of the warranty they seek to enforce, including the arbitration provision.” (Emphasis in original). From our reading of the complaint, it is unclear whether this allegation specifically seeks to enforce the warranty provided in the Homeowner’s Guide or the warranty in the June 13, 2004 contract. No other contention in the Mastellers’ complaint specifically relies on or identifies the warranty from the Homeowner’s Guide. In their appellate brief, however, the Mastellers claim to seek only enforcement of the one year express warranty provided in the June 13 contract. Although Champion was not a signatory, this contract identifies Champion as the manufacturer and states that the manufacturer expressly warrants the home “against defects in workmanship and materials[.]” Simply because the Mastel-lers’ second cause of action alleges a breach of Champion’s “one year express warranty,” we cannot conclude that they are seeking enforcement of the warranty provided in the Homeowner’s Guide.

[¶ 15.] On the other hand, it is undisputed that after the Mastellers received the Homeowner’s Guide defendants worked on their home on several occasions. Although the Mastellers did not sign any document assenting to the warranty or arbitration language, they did sign multiple documents entitled “Champion Homes Division Service Work Order,” confirming that they accepted and were satisfied with the warranty work provided. “An offeree that takes the benefit of services offered is bound by the terms of the offer if the offeree had a reasonable opportunity to reject them.” E. Alan Farnsworth, Contracts § 3.15, 156 (2d ed 1990). A South Dakota statute reinforces this point. SDCL 53-3-5 (“voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations”). With respect to arbitration agreements in manufactured home sales, other states have concluded that when homebuyers accept the warranties, they also accept the accompanying arbitration provisions. For example, in Southern Energy Homes, Inc. v. Ard, 772 So.2d 1131, 1134 (Ma.2000), the Aabama Supreme Court held that by accepting the benefits of the warranty containing an arbitration clause, that acceptance also constituted “acceptance of the arbitration provisions themselves.” See also Stinson v. America’s Home Place, Inc., 108 FSupp2d 1278, 1283 (M.D.Ala.2000).

[¶ 16.] Yet, while unequivocal conduct can certainly establish the necessary consent to be bound by the terms of a contract, there was no such conduct here. According to their appellate brief, the only warranty claim the Mastellers make against defendants is in regard to the June 13 contract. That contract provides that the “manufactured home ... [is] warranted assuming reasonable wear and tear for a period of one year from the date of delivery against defects in workmanship and materials by the manufacturer.” Nothing in the service work orders the Mastellers signed indicates whether the warranty work was provided through the June 13 contract or the Homeowner’s Guide. Thus, there was no unambiguous conduct evincing acceptance of the benefits of the Homeowner’s Guide with its mandatory arbitration clause. In the end, the only contract the Mastellers signed and now seek to enforce was the June 13, 2004 agreement. The circuit court properly concluded that there was no mutual assent with respect to the Homeowner’s Guide, Limited Warranty and Arbitration Agreement.

[¶ 17.] Affirmed.

[¶ 18.] GILBERTSON, Chief Justice, and SABERS, ZINTER and MEIERHENRY, Justices, concur.

      . The first cause of action alleges that defendants failed to seasonably cure a defect in the roof. The second cause of action asserts, “The Defendant, Champion, has breached its express warranty and warranty of habitability by failing to correct the manufacturers defects.” The third claim asserts that both defendants are merchants and that by failing to cure the nonconformity in the roof, defendants have breached the implied warranty of merchantability. Fourth, they claim that "[tjhere has been a failure of consideration on the part of defendants by delivering a product which was nonconforming, defective and then by failing to remedy the situation after several opportunities.” Finally, the Mastellers claim that defendants, their agents or employees, have breached the duty owed to them to manufacture, deliver, and install a home free of defects.

      . Whether the manufacturer will be bound by this agreement when it was not a signatory is a question we do not reach.

      . Defendants cite In re Palm Harbor Homes, Inc., 195 S.W.3d 672 (Tex.2006). In that case, the buyers and the retailer signed the arbitration agreement but the manufacturer did not. When the buyers sought to avoid arbitration, the court held that the arbitration agreement was binding on both the buyers and the manufacturer. Here, however, neither party signed an arbitration agreement.


author: ANDERSON, G. BARRY, Justice.

text:
    STATE of Minnesota, Respondent, v. Robert D. KENDELL, Appellant.
    No. A05-0427.
    Supreme Court of Minnesota.
    Nov. 9, 2006.

      Bridget Kearns Sabo, Asst. State Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, St. Paul, MN, Amy Klobuehar, Hennepin County Attorney, Jean E. Burdorf, Asst. County Attorney, Minneapolis, MN, for Respondent.
   OPINION

ANDERSON, G. BARRY, Justice.

A jury found appellant Robert D. Ken-dell guilty of first-degree premeditated murder and second-degree intentional murder for the shooting death of Robert Hannah. The jury also found Kendell guilty of three counts of attempted first-degree murder, three counts of attempted second-degree murder, three counts of first-degree assault, and one count of child endangermént for the shootings of Mandie Coburn and her two children, Yasmeen Coburn-Bryant and Patrick Walker. The district court sentenced Kendell to life imprisonment for first-degree premeditated murder, 240 months for attempted first-degree murder of Coburn, 240 months for attempted first-degree murder of Yas-meen, and 240 months for attempted first-degree murder of Patrick, with the sentences to run consecutively. The district court also sentenced Kendell to a concurrent term of 365 days for child endangerment. Kendell appeals, arguing that: (1) the evidence was insufficient to prove beyond a reasonable doubt that he premeditated the murders of Hannah, Yasmeen, and Patrick; (2) the district court erred when it denied Kendell’s motion to sever the charges relating to Hannah; (3) the district court erred when it submitted to the jury a special interrogatory regarding a fact used to enhance Kendell’s sentence; (4) Kendell was denied due process because the state failed to provide adequate notice of its intent to seek an upward sentencing departure and failed to include the departure factor in the indictment; (5) the district court erred when it permitted witnesses to testify that, after the shootings, Kendell said, “I’m going to hell”; and (6) the district court erred when it permitted a recording of two 911 calls to be played during the state’s closing argument. We affirm.

On December 17, 2003, Robert Hannah was found shot to death in the entryway of his apartment in Brooklyn Park, Minnesota. On the same day, police also found Manche Coburn and two of her children shot and seriously injured in the apartment next door. Coburn and her children survived the shootings.

In September 2002, Robert Kendell moved into apartment 304, Mandie Co-burn’s home, with Coburn and her two children, Yasmeen and Patrick. In 2003, Coburn became pregnant with Kendell’s child and, on December 3, gave birth to a girl, Charess. After Charess was born, Coburn and Kendell began arguing about Charess’s care. At trial, Kendell’s cousin testified that prior to the shootings Ken-dell had said that he loved Coburn and her children but that he would kill all three of them if Coburn “kept playing with him about his baby.”

At approximately five o’clock in the evening on December 17, 2003, Coburn and Kendell got into an argument about who was to watch Charess that evening. Co-burn testified that Kendell began swearing at her and that she eventually told him to leave. Kendell agreed to leave and called his friend, Marques Bates, who agreed to pick up Kendell and his belongings at the apartment. After assisting Kendell with his packing, Coburn left the apartment to visit her friend, Erica McClellan, who lived nearby.

At approximately 8:30 p.m., Kendell went to McClellan’s apartment building and told McClellan that his ride had arrived and that Coburn should come home so the children would not be alone. Co-burn, angry that Kendell had left Charess alone, returned to her apartment with Kendell. On the way back from McClellan’s apartment, Coburn told Kendell that she was going to call the police and report that he had left her children unattended.

Once back at the apartment, Kendell asked Coburn if she “wanted to be with him,” and Coburn said no. According to Coburn, Kendell then said that the only way Coburn “was going to leave him was in a body bag.” At that point, Coburn called 911. While she was on the phone in the kitchen, Kendell shot her once in the chest. After the first shot, Kendell’s gun jammed, and Coburn hung up the phone, hoping that doing so would calm Kendell down. As Kendell attempted to fix the gun, Coburn called 911 a second time. While Coburn was on the second call, Ken-dell Shot her two more times.

After shooting Coburn, Kendell left the kitchen and walked toward the back bedroom where the children were. Coburn heard gunshots coming from the back bedroom. Coburn then saw Kendell head toward the apartment door, throw his jacket hood over his head, and leave the apartment. After his departure, Coburn remained on the telephone with the 911 dispatcher. A recording of the 911 calls was played at trial and corroborates significant portions of Coburn’s testimony.

Police officers arrived and proceeded to the third floor, where they noticed that the door to apartment 303 was open and a man, Robert Hannah, the resident of apartment 303, was lying in the entryway. Hannah was pronounced dead at the scene. The officers also observed wood from the door frame of apartment 303 strewn about the common area in front of the doorway. The door frame and the area around the door’s molding were broken, and the deadbolt was extended. At trial, Officer Aaron Albright testified that the door appeared to have been forced open.

Additional officers arrived on the scene, and several officers turned their attention to apartment 304. Upon finding the door to apartment 304 locked, Officer Michael Ploumen kicked in the door, and several officers entered the apartment. Inside, the officers found Coburn seated on the kitchen floor, conscious but bleeding from the chest. Two officers testified that Co-burn told them that her boyfriend, Robert Kendell, had shot her. The officers also found Yasmeen, Patrick, and Charess on the bed in the back bedroom. Yasmeen and Patrick had been shot, but Charess was uninjured. The officer who attended to Yasmeen testified that, when asked who had shot her, Yasmeen replied, “It was daddy.”

At trial, Marques Bates testified that between 8:15 p.m. and 8:30 p.m. on December 17 he arrived at Coburn’s building and helped Kendell load his belongings into Bates’s car. Bates then drove to another apartment building while Kendell went to get Coburn from McClellan’s apartment. When Bates returned, Kendell got into Bates’s car, and they drove off. Not long after Kendell got into the car, Bates and one of the passengers in the car heard Kendell say, “I’m going to hell.” Bates drove Kendell to his aunt’s house where he transferred a few garbage bags containing his belongings to another car, got into the ' car, and drove off. The next day, Kendell saw a photograph of himself on the news. On the evening of December 18, Kendell turned himself in to the police.

As a result of the shooting, Coburn suffered injures to her chest, left arm, right buttock, right leg, and left thigh. Yas-meen sustained a single gunshot to her right buttock. Patrick was hit by three separate gunshots and incurred injuries to his right hip and left leg. An emergency room physician who examined Coburn, Yasmeen, and Patrick after the shootings testified that all three had sustained life-threatening injuries.

An autopsy of Hannah’s body revealed that he had been shot twice, first in the abdomen and then in the back. The medical examiner who performed the autopsy testified that the wound to Hannah’s back was fatal and that Hannah could have lived only a couple of minutes after receiving it. The examiner also testified that Hannah’s injuries were consistent with the door to his apartment opening, Hannah receiving the abdomen wound, and then turning and being shot in the back.

The state presented testimony of two of Hannah’s neighbors from apartment 301 who testified that they visited Hannah at his apartment on the evening of December 17. One of the neighbors, Covetta Thag-gard, stated that while she was at Hannah’s apartment she heard a noise that sounded like a firecracker coming from apartment 304. Thaggard further testified that, five or six minutes after leaving Hannah’s apartment at approximately. 8:30 p.m., she heard noises in the hallway outside her apartment. She described the noises as sounding like an object banging against a wall or a door and then a “pop.” The other neighbor also testified that she heard noises from the hallway that sounded .like banging against a wall followed by three gunshots. Both women testified that Hannah was alive when they left his apartment. Thaggard also testified that she did not notice anything unusual about Hannah’s door when she left his apartment.

Kurt Moline, a forensic scientist at the Minnesota Bureau of Criminal Apprehension, examined the bullets and casings recovered from apartments 303 and 304. At trial, Moline testified that one of the bullets found in apartment 303 had features matching the bullets found in apartment 304, indicating that the bullets found in the two apartments were fired from the same gun. The gun used in the shootings was not recovered by police.

A grand jury returned an indictment charging Kendell with 12 counts arising out of the shootings — first- and second-degree murder for the death of Hannah, attempted first- and second-degree murder and first-degree assault for the shootings of Coburn, Yasmeen, and Patrick, and child endangerment with respect to Char-ess. Kendell moved to dismiss the indictment on the grounds that the offenses charged did not arise from a single behavioral incident. In the alternative, Kendell requested that the charges relating to Hannah be severed from the remaining 10 counts. The district court denied the motion, concluding that the offenses arose from a single behavioral incident and that joinder of the offenses would not prejudice Kendell. Subsequently, following a jury trial at which Kendell neither testified nor presented any witnesses, Kendell was found guilty of all 12 counts.

Before trial, the state notified Kendell’s attorney that it intended to seek an upward sentencing departure under Minn. Stat. § 609.1095 (2004) (amended 2005), the dangerous-offender statute. To address concerns arising from Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the district court agreed to submit a special interrogatory to the jury regarding the facts necessary to enhance Kendell’s sentence under section 609.1095, subd. 2. Consequently, after the jury returned its verdict, the district court submitted a special interrogatory to the jury asking, “Is the defendant, Robert Dia-blo Kendell, a danger to public safety?” The state then presented evidence regarding Kendell’s two prior assault convictions and his prior conviction for felon in possession of a firearm. Kendell’s attorney objected to the use of the special interrogatory, arguing that the court lacked authority to implement such a procedure. After deliberating, the jury, on a special verdict form, found Kendell to be a danger to public safety because of his “long history of escalating violent crime.”

Pursuant to this finding, the district court sentenced Kendell to consecutive terms of 240 months for each of the three attempted first-degree murders, an upward departure from the presumptive sentences. The court also sentenced Kendell to life imprisonment for first-degree murder, with that sentence to run consecutively to the sentences for attempted murder. Finally, the court imposed a concurrent 365-day sentence for child endangerment. This direct appeal followed.

I.

We first address Kendell’s contention that the evidence presented at trial was insufficient to prove beyond a reasonable doubt the element of premeditation with respect to Hannah’s murder and the attempted murders of Yasmeen and Patrick. When reviewing a claim of eviden-tiary insufficiency, we view the evidence in the light most favorable to the verdict and assume that the fact finder disbelieved any contrary evidence. State v. Leake, 699 N.W.2d 312, 319 (Minn.2005), cert, denied, — U.S. -, 126 S.Ct. 745, 163 L.Ed.2d 583 (2005). “The verdict will not be overturned if, giving due regard to the presumption of innocence and to the prosecution’s burden of proving guilt beyond a reasonable doubt, the jury could reasonably have found the defendant guilty of the charged offense.” Ld.

A person who “causes the death of a human being with premeditation and with intent to effect the death of the person or of another” is guilty of first-degree murder. Minn.Stat. § 609.185 (2004). Premeditation means “to consider, plan or prepare for, or determine to commit, the act * * * prior to its commission.” Minn. Stat. § 609.18 (2004). “A finding of premeditation does not require proof of extensive planning or preparation to kill, nor does it require any specific period of time for deliberation.” State v. Cooper, 561 N.W.2d 175, 180 (Minn.1997). However, the state must prove that, before the commission of the act but after the defendant formed the intent to kill, some appreciable time passed during which the defendant considered, planned, or prepared to commit the act. Leake, 699 N.W.2d at 319.

“Premeditation is a state of mind and, thus, generally proven through circumstantial evidence.” Id. A conviction based on circumstantial evidence stands only when the circumstances form “a complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.” State v. Wahlberg, 296 N.W.2d 408, 411 (Minn.1980).

“[A] defendant’s actions before and after the murder are relevant to the question of premeditation.” Leake, 699 N.W.2d at 321. We have recognized three categories of evidence relevant to an inference of premeditation: (1) planning activity, i.e., “‘facts about how and what the defendant did prior to the actual killing which show he was engaged in activity directed toward the killing’ (2) motive evidence, i.e., “ ‘facts about the defendant’s prior relationship and conduct with the victim from which motive may be inferred’ and (3) evidence as to the nature of the killing, i.e., facts “ ‘from which it may be inferred that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design.’ ” State v. Moua, 678 N.W.2d 29, 40-41 (Minn.2004) (quoting State v. Moore, 481 N.W.2d 355, 361 (Minn.1992)).

The record in this case contains ample evidence of premeditation. The most obvious evidence of premeditation in the attempted murders of Yasmeen and Patrick is Kendell’s prior threat to kill Coburn’s children. At trial, Kendell’s cousin testified that Kendell told her that he would kill Coburn and her children if Coburn “kept playing with him about his baby.” Motive evidence supporting a finding of premeditation “includes prior threats by the defendant to injure the victim.” Moua, 678 N.W.2d at 41.

The nature of the injuries to Yasmeen and Patrick also supports the jury’s finding of premeditation. Both children sustained life-threatening injuries. Patrick was hit by three separate gunshots. Evidence of multiple gunshot wounds can support a finding of premeditation. Id. at 39. In addition, the fact that, after shooting Coburn, Kendell walked down the hallway to the back bedroom, away from the front door of the apartment, to shoot Yasmeen and Patrick, reveals that he had time to consider the attack before its commission. See Bangert v. State, 282 N.W.2d 540, 544 (Minn.1979).

Finally, Kendell’s behavior after the shootings reveals a cool, calm demeanor consistent with premeditation. Coburn testified that Kendell took the time to pull his jacket hood over his head, presumably to conceal his identity, before leaving her apartment. Evidence presented at trial also indicated that Kendell paused to lock the door to the apartment after the shootings. The totality of the evidence, viewed in the light most favorable to the jury’s verdict, is sufficient to support the jury’s finding that Kendell premeditated the murders of Yasmeen and Patrick.

The record also reveals sufficient evidence to support the jury’s finding that Kendell premeditated Hannah’s murder. At trial, the state’s theory of motive was that Kendell killed Hannah to avoid apprehension for the shootings in apartment 304. The state posited that Hannah heard the shots in 304, opened his apartment door, saw Kendell leaving 304, and quickly shut the door. The state theorized that Kendell noticed Hannah and broke down his door and killed him to eliminate him as a potential witness. Consistent with this theory, evidence presented at trial showed that Hannah’s door had been forced open. Breaking down a door to gain access to a person in order to shoot him reveals advance planning and is inconsistent with Kendell’s theory that the shooting was a “rash impulse.”

The presence of motive evidence strengthens the inference that Kendell premeditated the killing. See Moore, 481 N.W.2d at 362. “Motive evidence includes * * * plans or desires of the defendant that would have been facilitated by the victim’s death * * *.” Moua, 678 N.W.2d at 41. Here, evidence showing that Ken-dell shot three people in the apartment adjacent to Hannah’s apartment immediately prior to Hannah’s death supports an inference that Kendell killed Hannah to eliminate him as a potential witness and to avoid apprehension for the shootings in apartment 304.

We have also recognized that the number of times the defendant used the murder weapon and the number of wounds inflicted are relevant to an assessment of premeditation. Id. at 41. In addition, premeditation may be inferred from evidence showing “that ‘wounds were deliberately placed at vital areas of the body.’ ” State v. Chomnarith, 654 N.W.2d 660, 665 (Minn.2003) (quoting Moore, 481 N.W.2d at 361). Hannah was shot twice, once in the abdomen and once in the back, both vital areas. The autopsy indicated that Hannah likely turned away from his attacker after the first shot and was then shot in the back. A single shot squarely in the back can support a finding of premeditation because it indicates that the shooter took careful aim at the victim. See State v. Johnson, 616 N.W.2d 720, 726 (Minn.2000). The evidence relating to Hannah’s murder is consistent with an inference of premeditation and is inconsistent with any other rational explanation. Accordingly, we hold that the evidence presented at trial was sufficient to prove beyond a reasonable doubt the element of premeditation with respect to Hannah’s murder and the attempted murders of Yasmeen and Patrick.

II.

We next address Kendell’s contention that the district court erred when it denied his motion to sever the counts relating to Hannah’s murder from the other counts charged. We take this opportunity to clarify the appropriate standard for reviewing a district court’s denial of a motion to sever offenses under Minn. R.Crim. P. 17.03, an issue which we have not squarely addressed in previous cases. A district court’s decision on severance involves the same inquiry used to decide whether multiple offenses arose from a single behavioral incident for purposes of Minn.Stat. § 609.035 (2004). See State v. Profit, 591 N.W.2d 451, 458 (Minn.1999), cert. denied, 528 U.S. 862, 120 S.Ct. 153, 145 L.Ed.2d 130 (1999); State v. Dukes, 544 N.W.2d 13, 20 (Minn.1996). The single-behavioral-incident analysis presents a mixed question of law and fact. See State v. Marchbanks, 632 N.W.2d 725, 731 (Minn.App.2001). Generally, we review mixed questions of law and fact de novo. See, e.g., Heine v. Simon, 702 N.W.2d 752, 761 (Minn.2005); State v. Blanche, 696 N.W.2d 351, 376 (Minn.2005). Therefore, we hold that de novo review is the appropriate standard for reviewing a district court’s denial of a motion for severance of offenses under Minn. R.Crim. P. 17.03.

Minnesota Rule of Criminal Procedure 17.03, subd. 3 delineates the standards for severance of offenses. Rule 17.03, subd. 3(l)(a) provides that on motion of the prosecutor or the defendant, the district court “shall sever offenses or charges if * * * the offenses or charges are not related.” The rule also provides that the district court must sever offenses if the court “determines severance is appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense.” Minn. R.Crim. P. 17.03, subd. 3(l)(b). Therefore, when faced with a motion for severance of offenses, a district court must first decide whether the offenses are related and, if they are related, must determine whether joinder would prejudice the defendant. Profit, 591 N.W.2d at 459.

Offenses are “related,” and severance is not required under rule 17.03, subd. 3(l)(a), if the offenses arose out of a single behavioral incident. See Profit, 591 N.W.2d at 460; Dukes, 544 N.W.2d at 20. We have indicated that courts should evaluate the temporal and geographic proximity of the offenses and assess whether the conduct was motivated by an effort to obtain a single criminal objective in order to determine whether offenses are part of a single behavioral incident for severance purposes. Dukes, 544 N.W.2d at 20; see also Profit, 591 N.W.2d at 458, 460.

Here, Hannah’s murder occurred in the apartment immediately adjacent to apartment 304 mere minutes after the shootings in 304. In addition, the explanation advanced by the state for Hannah’s murder, and the oné presumably adopted by the jury, was that Kendell shot Hannah to avoid apprehension for the shootings in apartment 304. Thus, the same criminal objective underlies the 303 offenses and the 304 offenses — the desire to kill Coburn and her children without detection by police. When a defendant commits a second crime to avoid apprehension for a previous crime committed close in time and location to the second crime, the offenses constitute a single behavioral incident. See State v. Gibson, 478 N.W.2d 496, 497 (Minn.1991); State v. White, 292 N.W.2d 16, 18 (Minn.1980). We therefore conclude that the district court correctly determined that the offenses in this case were part of a single behavioral incident and, thus, were related.

Rule 17.03 requires severance of offenses, even related offenses, if severance is “appropriate to promote a fair determination of the defendant’s guilt” — that is, if joinder would unfairly prejudice the defendant. Minn. R.Crim. P. 17.03, subd. 3(l)(b); see Profit, 591 N.W.2d at 459; White, 292 N.W.2d at 18. Joinder is not unfairly prejudicial if evidence of each offense would have been admissible at a trial of the other offenses had the offenses been tried separately. See Profit, 591 N.W.2d at 460-61; State v. Conaway, 319 N.W.2d 35, 42 (Minn.1982).

Here, evidence of the shootings in apartment 304 would have been admissible as “immediate episode” evidence at a separate trial for Hannah’s murder, and vice versa. See State v. Townsend, 546 N.W.2d 292, 296 (Minn.1996). We have said that “evidence relating to offenses that were part of the ‘immediate episode for which defendant is being tried’ may be admissible.” Id. (quoting State v. Spreigl, 272 Minn. 488, 497, 139 N.W.2d 167, 173 (1965)). Immediate episode evidence is a separate category from evidence of other bad acts under Minn. R. Evid. 404(b). See Townsend, 546 N.W.2d at 296. Immediate episode evidence is not subject to the notice requirement announced in State v. Spreigl. See State v. Bolte, 530 N.W.2d 191, 197 & n. 1 (Minn.1995); Spreigl, 272 Minn. at 497, 139 N.W.2d at 173; Minn. R.Crim. P. 7.02 (codifying Spreigl’s notice requirements).

The offenses in this case were committed as part of a single course of conduct constituting a single episode. See Townsend, 546 N.W.2d at 296 (concluding that a shooting committed close in time to the shooting for which the defendant was being tried was part of the immediate episode). The shootings in the two apartments were so closely linked that “one cannot be fully shown without proving the other”; they were “part of one transaction.” State v. Wofford, 262 Minn. 112, 118, 114 N.W.2d 267, 271-72 (1962). Furthermore, evidence of the 304 offenses is relevant to proof of the 303 offenses by establishing the identity of Hannah’s killer and Kendell’s motive for the murder. Evidence of the 303 offenses is relevant to proof of the 304 offenses because the evidence supports an inference of intent to kill Coburn, Yasmeen, and Patrick. See Minn. R. Evid. 402 (providing that evidence must be relevant to be admissible).

Evidence of the 304 offenses offered at a trial for the 303 offenses and evidence of the 303 offenses offered at a trial for the 304 offenses would have been subject to the probative value/unfair prejudice balancing test of Minn. R. Evid. 403. Minn. R. Evid. 403 (“[EJvidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice * * Here, where the offenses were part of the same course of conduct, evidence of each offense would have been highly probative of the other offenses. Given the close connection between the offenses, the probative value of the evidence of each offense would not have been substantially outweighed by the risk of unfair prejudice at a trial for the other offenses.

The mere fact that evidence of the 304 offenses might have been harmful to Kendell’s case at a trial for the 303 offenses, or vice versa, would not have sufficed to require exclusion because “evidence is unfairly prejudicial, and thus ex-cludable, only if used ‘to persuade by illegitimate means.’ ” Profit, 591 N.W.2d at 461 (quoting Townsend, 546 N.W.2d at 296). Evidence of the 303 offenses offered at a trial for the 304 offenses and evidence of the 304 offenses offered at a trial for the 303 offenses would not have persuaded by “illegitimate means” nor led a jury to reach a verdict on an improper basis. Such evidence would not have been so distracting, complex, or inflammatory as to have confused a jury about the state’s burden of proof at each trial. Because evidence of each offense would have been admissible at a separate trial for the other offenses, joinder of the offenses did not unfairly prejudice Ken-dell, and severance was not required to promote a fair determination of Kendell’s guilt. See Minn. R.Crim. P. 17.03, subd. 3. Accordingly, we hold that the district court did not err in denying Ken-dell’s motion for severance.

III.

Kendell next argues that the district court lacked authority to submit a special interrogatory to the jury asking whether Kendell was a danger to public safety. Kendell contends that because Minn.Stat. § 609.1095, prior to its amendment in 2005, provided that “the court” must find that a defendant is a danger to public safety in order to impose an upward sentencing departure, a court may not permit a jury to make that finding. Whether a district court has authority to implement a particular court procedure is a question of law, which we review de novo. See State v. Pflepsen, 590 N.W.2d 759, 763 (Minn.1999).

Resolution of this issue is controlled by our recent decision in State v. Chauvin, 723 N.W.2d 20, 2006 WL 3026126 (Minn.2006). In Chauvin, we held that a district court had inherent judicial authority to respond to Blakely by impaneling a jury to make factual findings on aggravating sentencing factors when the legislature had not yet amended the unconstitutional judicial-fact-finding portions of the Minnesota Sentencing Guidelines in response to Blakely. 723 N.W.2d 20, 2006 WL 3026126, at *1, *9. The procedures implemented by the district court at Kendell’s trial are not distinguishable in any relevant way from the procedures we approved in Chauvin. See Id., 723 N.W.2d 20, 2006 WL 3026126, at *1-3. As in Chauvin, at the time of Kendell’s trial, the legislature had not yet amended the dangerous offender statute, Minn.Stat. § 609.1095, to remedy its constitutional deficiencies in light of Blakely. See Id., 723 N.W.2d 20, 2006 WL 3026126, at *6. Moreover, as in Chauvin, the special interrogatory used at Kendell’s trial was necessary to achieve a unique judicial function and did not infringe on the legislature’s function of setting the limits on penalties for criminal offenses. Id., 723 N.W.2d 20, 2006 WL 3026126, at *5-6; see State v. Shattuck, 704 N.W.2d 131, 148 (Minn.2005) (noting that the “power to fix the limits of punishment for criminal acts lies with the legislature”). On the contrary, the special interrogatory procedure effectuated the legislative policy expressed in section 609.1095, subdivision 2, of permitting upward sentencing departures for defendants who pose a special danger to public safety. See Minn.Stat. § 609.1095, subd. 2. Consequently, we hold that the district court had inherent judicial authority to submit to the jury the special interrogatory regarding a factor used to enhance Kendell’s sentence.

IV.

Kendell also argues the state denied him due process of law by failing to include in the indictment the grounds used to enhance his sentence. In addition, Ken-dell contends that even if the departure grounds need not have been charged in the indictment, the state violated his due process rights by failing to provide him with adequate notice of its intent to seek an upward durational departure under section 609.1095. We review questions of constitutional interpretation de novo. Shattuck, 704 N.W.2d at 135.

The Sixth Amendment, applicable to the states through the Fourteenth Amendment Due Process Clause, demands that a defendant “be informed of the nature and cause of the accusation.” U.S. Const, amends. VI, XIV; Faretta v. California, 422 U.S. 806, 818, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). This “nature and cause” requirement is satisfied if an indictment “contains such descriptions of the offense charged as will enable [a defendant] to make his defense and to plead the judgment in bar of any further prosecution for the same crime.” State v. Becker, 351 N.W.2d 923, 926 (Minn.1984) (quoting Rosen v. United States, 161 U.S. 29, 34, 16 S.Ct. 434, 40 L.Ed. 606 (1896)). In applying this requirement, we have said that an indictment in Minnesota must contain all of the elements or “essential facts” necessary to constitute the offense charged. State v. Serstock, 402 N.W.2d 514, 518 (Minn.1987); State v. Oman, 265 Minn. 277, 281, 121 N.W.2d 616, 619-20 (1963). However, we have held that an indictment need not specify the sentencing statute that will govern a defendant’s sentence in order to satisfy due process. McCollum v. State, 640 N.W.2d 610, 617-19 (Minn.2002).

In Apprendi v. New Jersey, the United States Supreme Court stated that a fact used to enhance a sentence beyond the statutory maximum is the “functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict.” 530 U.S. 466, 494 n. 19, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); see also Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Because enhancement factors operate as elements, the Court concluded that, like elements, they must be submitted to a jury and proven beyond a reasonable doubt. Apprendi 530 U.S. at 490, 120 S.Ct. 2348.

Kendell argues that the Supreme Court’s equation of aggravating sentencing factors with elements of an offense mandates that such factors must be included in the indictment. See Jones v. United States, 526 U.S. 227, 232, 243 n. 6, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). But the Court’s conclusion that sentencing factors operate as the “functional equivalent” of elements for purposes of the Sixth Amendment jury trial right does not dictate that such factors are elements for purposes of a Minnesota indictment. ,See McKaney v. Foreman, 209 Ariz. 268, 100 P.3d 18, 22 (2004). The right to a jury trial serves a different purpose than the “nature and cause” requirement and the due process notice requirement; the former addresses the adequacy of proof of the offense charged and of the aggravating sentencing factors, while the latter simply provides a defendant notice of the charges. Id. We therefore conclude that aggravating sentencing factors need not be charged in an indictment in Minnesota. This conclusion is in line with the vast majority of states that have considered this issue. See Evans v. State, 389 Md. 456, 886 A.2d 562, 573-74 (2005); State v. Hunt, 357 N.C. 257, 582 S.E.2d 593, 604 (2003). Accordingly, we hold that Kendell was not denied due process by the state’s failure to include in the indictment the factor used to enhance his sentence.

In Chauvin, we recently determined that due process and the Sixth Amendment “nature and cause” requirement do not demand that aggravating sentencing factors be charged in a criminal complaint. 723 N.W.2d 20, 2006 WL 3026126, at *10. We concluded that due process and the Sixth Amendment “nature and cause” requirement are satisfied when a defendant is notified of the maximum potential sentence for the crime charged and receives adequate pretrial notice of the state’s intent to seek an upward sentencing departure. Id.

Here, the indictment informed Kendell that the maximum potential sentence for attempted first-degree murder is 20 years. Contrary to Kendell’s assertion, the state notified Kendell one week before trial of its intent to seek an upward departure based on the dangerous offender statute. As in Chauvin, this pretrial notice satisfied due process and the Sixth Amendment “nature and cause” requirement by providing Kendell with sufficient notice of the proposed departure grounds to enable him to present a defense. Indeed, Kendell advances no argument as to how the claimed deficiencies in the state’s notice impeded his defense. Thus, we hold that Kendell received sufficient notice of the state’s intent to seek an upward departure under the dangerous-offender statute to satisfy due process.

V.

We now address the two arguments Kendell advances in his pro se supplemental brief. First, Kendell contends that it was improper for the district court to permit two witnesses to testify that, soon after Kendell got into Bates’s car following the shootings, they heard Ken-dell say, “I’m going to hell.” We review a district court’s evidentiary rulings for abuse of discretion. State v. Morton, 701 N.W.2d 225, 234 (Minn.2005).

The testimony regarding Kendell’s statement was properly admitted because the statement was an admission by a party opponent. Minnesota Rule of Evidence 801(d)(2) provides that a statement made by a party and offered against that party is an admissible party admission, not hearsay. Here, Kendell’s own statement was offered against him and therefore is not hearsay. In addition, contrary to Ken-dell’s assertion, this statement is not improper character evidence because it does not tend to prove a propensity to engage in certain conduct. See Minn. R. Evid. 404. Kendell’s statement is relevant because it assisted the jury in understanding his state of mind immediately after the shootings. Further, the statement’s probative value is not outweighed by the risk of unfair prejudice. See Minn. R. Evid. 403. The statement is not unfairly prejudicial because it does not “persuade by illegitimate means.” Townsend, 546 N.W.2d at 296. Consequently, we hold that the district court did not abuse its discretion by allowing witnesses to testify that they heard Kendell say, “I’m going to hell.”

Kendell’s second claim in his pro se brief is that the district court erred in permitting a recording of Coburn’s 911 calls to be played during the state’s closing argument. During the state’s case in chief, the recording was admitted into evidence and was played for the jury, and Kendell does not challenge its admissibility. Instead, he argues that it was improper for the district court to permit the jury to hear the recording a second time during closing arguments. We review the district court’s decision to permit the replaying of the recording for abuse of discretion. See Morton, 701 N.W.2d at 234.

While it is possible that excessive replaying of the 911 recording could have unduly inflamed the jury, we have indicated that it is not error to permit a jury to replay a taped interview of a victim which was properly admitted into evidence. See State v. Kraushaar, 470 N.W.2d 509, 515-16 (Minn.1991). Furthermore, in closing, a prosecutor may read from the transcribed testimony of a witness and may refer to admitted evidence. See State v. Robinson, 539 N.W.2d 231, 240 (Minn.1995); State v. Waters, 276 N.W.2d 34, 36 (Minn.1979). Here, simply allowing the state to play the recording one additional time was not unduly cumulative or unfairly prejudicial and was well within the broad discretion of the district court. Therefore, we hold that the district court did not abuse its discretion by permitting the 911 recording to be played during closing argument. Further, any error in permitting the recording to be replayed was harmless, as the jury merely heard again what it had already heard once, and ample testimony by Coburn, Yasmeen, and police officers corroborated the content of the recording. Cf. Kraushaar, 470 N.W.2d at 516.

Affirmed.

GILDEA, J., took no part in the consideration or decision of this case.

      . At the time, Yasmeen was seven years old; Patrick was three years old; and Charess was two weeks old.

      . A diagram of the floor plans of apartments 303 and 304 reveals that the entrances to the two apartments are immediately adjacent to each other, separated by no more than a few feet.

      . Yasmeen refers to Kendell as "daddy.”

      . Prior to its amendment in 2005, section 609.1095, subd. 2, provided that, when a person is convicted of a violent felony and is at least 18 years old at the time of the commission of the offense, a court may impose an upward durational departure if: (1) "the court determines on the record at the time of sentencing that the offender has two or more prior convictions for violent crimes”; and (2) "the court finds that the offender is a danger to public safety and specifies on the record the basis for the finding.” Minn.Stat. § 609.1095, subd. 2 (2004).

      . For consecutive sentencing, the presumptive duration of Kendell's sentences was 220 months for the attempted murder of Coburn, 180 months for the attempted murder of Yas-meen, and 180 months for the attempted murder of Patrick. See Minn. Sent. Guidelines II.F., II.G, VI.

      . Kendell does not challenge the sufficiency of the evidence of premeditation as to the attempted murder of Coburn.

      . For the sake of simplicity, we will, where appropriate, refer to the shootings in apartment 304 as the "304 offenses” and the offenses arising out of Hannah’s murder as the "303 offenses.”

      . Evidence of the 304 offenses also would have been admissible at a separate trial for the 303 offenses under Minn. R. Evid. 404(b) to prove the identity and motive of Hannah’s killer. See Minn. R. Evid. 404(b); State v. Bailey, 677 N.W.2d 380, 402 (Minn.2004); State v. Ferguson, 581 N.W.2d 824, 834-35 (Minn.1998).

      . The state contends that State v. Wofford, 262 Minn. 112, 114 N.W.2d 267 (1962), provides independent grounds for introducing evidence of the 304 offenses at a trial for the 303 offenses. Wofford provides that evidence of a related offense may be admissible to prove the charged offense where the offenses "are linked together in point of time or circumstances so that one cannot be fully shown without proving the other.” Id. at 118, 114 N.W.2d at 271. We interpret this statement in Wofford to be simply another way of phrasing the concept of "immediate episode” evidence.

      . Related to his argument on severance, Kendell claims that the district court erred by failing to give the jury instruction required by State v. Kates, 610 N.W.2d 629, 631 (Minn.2000). In Kates, we announced a new rule requiring district courts to instruct juries to consider separately each of multiple charged offenses. Id. Kendell correctly notes that the district court in this case did not give the instruction required by Kates. Because Ken-dell did not object at trial to the absence of the Kates instruction, we review his claim only for plain error affecting substantial rights. See State v. Griller, 583 N.W.2d 736, 740 (Minn.1998). While it was plainly erroneous for the court to fail to give the instruction expressly required by Kates, the absence of the instruction did not have a significant impact on the verdict because the court instructed the juiy separately on the elements of each of the 12 charged offenses. These instructions likely performed the same function that a Kates instruction would have performed. Further, the fact that the verdicts returned on the different offenses were separated in time reveals that the jury considered each offense individually.

      . The sentence enhancement in this case involves the dangerous offender statute, not the Sentencing Guidelines. As with the Sentencing Guidelines, however, the judicial fact finding authorized by the dangerous offender statute — section 609.1095, subdivision 2 — -prior to its amendment in 2005 was found unconstitutional in light of Blakely by the Minnesota Court of Appeals. State v. Fairbanks, 688 N.W.2d 333, 336-37 (Minn.App.2004), rev. granted. (Minn. Jan. 20, 2005), rev. denied (Minn. Dec. 13, 2005)'.

      . The special interrogatory procedures at Kendell's trial differed slightly from those at Chauvin’s trial in that the state presented additional evidence — evidence of Kendell’s prior convictions — at the second phase of Kendell's trial, whereas no new evidence was presented at the sentencing phase of Chauvin’s trial. Chauvin, 723 N.W.2d 20, 2006 WL 3026126, at *3. But the absence of new evidence in the second phase of Chauvin's trial was not critical to our decision in that case that the district court had inherent judicial authority to submit a special interrogatory to the jury regarding an aggravating sentencing factor.

      . Language in cases in the Apprendi line suggests that in federal prosecutions aggravating sentencing factors must be charged in. an indictment. See, e.g., United States v. Cotton, 535 U.S. 625, 627, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002); Jones, 526 U.S. at 243 n. 6, 119 S.Ct. 1215. But the Supreme Court has never held that the United States Constitution requires that aggravating sentencing factors must be charged in a state court indictment. On the contrary, in both Apprendi and Ring, the Court specifically declined to address “the indictment question.” Ring, 536 U.S. at 597 n. 4, 122 S.Ct. 2428; Apprendi, 530 U.S. at 477 n. 3, 120 S.Ct. 2348. Furthermore, in Apprendi the Court noted that the Fifth Amendment indictment requirement has not been construed to apply to state prosecutions. Apprendi, 530 U.S. at 477 n. 3, 120 S.Ct. 2348.

      . In addition, approximately five weeks before trial, the state informed defense counsel that it would seek an upward departure in Kendell’s case, though it did not mention the dangerous offender statute at that time.