author: PAUL H. ANDERSON, Justice.

text:
    Gene W. CARPENTER, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A03-490.
    Supreme Court of Minnesota.
    Jan. 29, 2004.

      Mark D. Nyvold, Special Assistant State Public Defender, St. Paul, MN, Attorneys for Appellant.
    Mike Hatch, State Attorney General, Thomas R. Ragatz, St. Paul, MN, Norman J. Loren, Kanabec County Attorney, Mora, MN, Attorneys for Respondent.
   OPINION

PAUL H. ANDERSON, Justice.

On March 20, 2001, appellant Gene William Carpenter murdered Mark Place and later that same day murdered Tammy Olson. Carpenter entered guilty pleas to first-degree murder charges in both cases and was sentenced to two consecutive life sentences. Carpenter subsequently petitioned for postconviction relief on several grounds, including attorney-client conflict, judicial bias, vindictive prosecution, and diminished capacity. The court denied his petition and he now appeals, asserting that the second consecutive life sentence unfairly exaggerates his criminality. We affirm.

On January 26, 2001, the Hibbing police responded to a call from 11-year-old Nicole Carpenter concerning threats made by her father, Gene William Carpenter (Carpenter), against her mother, Tracy Carpenter. Subsequently, Tracy Carpenter petitioned for an order for protection from Carpenter and, on January 29, 2001, the Saint Louis County District Court granted her a temporary order for protection. On February 5, 2001, the court issued an order for protection excluding Carpenter from any residence of Tracy Carpenter — including the family’s mobile home in Hibbing — and provided for Carpenter’s supervised visitation of Nicole. Carpenter then began living with his sister in Hibbing.

Tracy and Nicole continued living in the family’s mobile home until February 23, 2001, when Tracy moved because she had heard that Carpenter had attempted to buy a weapon. Tracy and Nicole moved to a town in another county to live with a relative. Tracy kept the information about where she and Nicole were living secret from Carpenter. She did not even tell her twin sister, Tammy Olson, who lived in nearby Keewatin with her boyfriend, Mark Place. After she left Hibbing, Tracy gave Olson a key to the mobile home and asked Olson to remove Tracy’s and Nicole’s clothes and other possessions from the home. Olson and Place did this around Friday, March 16, 2001.

Carpenter knew Olson and Place socially and after Tracy moved away he continued to have contact with them. Carpenter somehow learned that Olson and Place had removed things from the mobile home. On the morning of March 20, 2001, Carpenter drove his all-terrain-vehicle from his sister’s home to the Olson-Place home. He stated that his purpose was to seek the return of the items removed from the mobile home. Carpenter arrived at the Olson-Place home between 9:45 a.m. and 10:15 a.m. Place was home alone working on the kitchen floor.

According to Carpenter’s plea statement, he confronted Place in the kitchen seeking the return of the items Olson and Place had removed from the mobile home and an argument ensued. This argument quickly escalated into a fight between the two men, but Place eventually gave up the fight. Place then took Carpenter to the garage where he said the items taken from the mobile home were stored. When the items in question were not in the garage, Carpenter took Place back into the house and bound him to a rocking chair in the living room using duct tape and cable ties that he had found in the garage. Carpenter eventually unbound one of Place’s hands so that Place could smoke a cigarette. Sometime thereafter, Carpenter unbound Place completely and allowed him to go to the bedroom for more cigarettes. Place returned holding a .22 caliber handgun and demanded that Carpenter leave. Carpenter told Place that he had already tried committing suicide and did not care if Place shot him. When Place hesitated, Carpenter overpowered him and the two fell to the floor. At some point during their struggle, Carpenter took the handgun from Place. As Carpenter got up from the floor, he shot Place twice in the chest. Carpenter subsequently placed a T-shirt over Place’s head and moved his body to the bedroom where he put it under a bed.

After hiding Place’s body, Carpenter left the Olson-Place home and drove Place’s car back to his sister’s house to retrieve a change of clothing. Still driving Place’s car, Carpenter went to Olson’s workplace in Hibbing. He arrived at about 2:15 p.m. Although Carpenter did not know which building Olson worked in, he eventually-found her and told her that Place, who usually picked her up from work, had injured his back and asked Carpenter to pick her up. Olson left work with Carpenter around 2:30 p.m.

Olson and Carpenter returned to the Olson-Place home in Keewatin. Once inside the home, Carpenter pushed Olson down on a couch and asked her where Tracy was. Olson responded by asking where Place was, but Carpenter refused to tell her unless she first told him where Tracy was. Olson told him that Tracy was with Carpenter’s half-sister who lived north of the Twin Cities.' At some point during this confrontation, Carpenter bound Olson’s wrists using duct tape. He then placed duct tape over her mouth because she was screaming. Olson' eventually agreed to help Carpenter find Tracy, so Carpenter removed the restraints. Carpenter and Olson then left the house at approximately 4:15 p.m. in Place’s car with Olson driving. Carpenter brought with him the .22 caliber handgun that he had used to shoot Place and also a nine-millimeter handgun that he had found in Place’s bedroom.

Carpenter and Olson drove south on Highway 65 toward where his half-sister lived. After a while, they stopped at a gas station to ask for directions and Carpenter discovered that they had traveled too far south. Olson then asked Carpenter to drive because she did not have her glasses with her. They then turned around and drove north. They still could not find the home of Carpenter’s half-sister and, because it was getting foggy, Carpenter decided to return to Keewatin. At approximately 10:00 p.m., Carpenter pulled off the highway near Mora in Kanabec County. The property where he pulled off contained an unoccupied trailer home, ¿ shed, and a portable bathroom. Carpenter and Olson remained inside the car and talked. Carpenter told Olson that he was sad and feeling down over Tracy leaving him. Olson then told Carpenter that Place was “screwing Tracy” and, after hearing this, Carpenter, became angry. .

At some point, Olson got out of the car to use the portable bathroom. Carpenter also got out of the car and brought the .22 caliber handgun with him. He subsequently stated that he brought the handgun. with him because he had decided to kill Olson. After Olson used the portable bathroom, she and Carpenter were behind the shed with Olson standing in front of Carpenter. Olson continued talking about Place “sleeping with” Tracy. Carpenter then shot Olson four times. Three of the shots hit Olson in the middle of her back and a fourth shot hit her in the back of the head. After shooting Olson, Carpenter returned to the car and drove away.

Carpenter eventually arrived at his half-sister’s home between 1:30 and 2:00 a.m. on March 21. Carpenter asked where Tracy was staying and stated that he wanted to see her. His half-sister denied knowing where Tracy was staying. She then called the police because she feared Carpenter was suicidal, but Carpenter left before the police arrived. He returned to his half-sister’s home at about 7:00 a.m. She again called the police. Carpenter was still at his half-sister’s home when the police arrived and took him into 72-hour protective custody.

Later that morning, a neighbor, checking on the property where Carpenter and Olson had stopped, discovered Olson’s body. The neighbor called the Kanabec County Sheriff. Officers responded to the call, secured the area, and an investigation ensued. Also on the morning of March 21, an Itasca County deputy sheriff entered the Place-Olson home in response to a request from Tracy for a welfare check on Olson. The deputy noticed an odor of decomposition and signs that a struggle had apparently occurred. The deputy then discovered Place’s body.

Carpenter became a suspect in the deaths of Olson and Place. Apparently while Carpenter was still in protective custody, he was formally arrested. After being charged in connection with the deaths of both Place and Olson, Carpenter was admitted to the Minnesota Security Hospital in Saint Peter. Doctors at the hospital evaluated Carpenter’s mental health status with respect to his competence to stand trial and his mental state at the time of the murders. The doctors concluded that there was no evidence that Carpenter exhibited any psychotic disorder and no evidence of “gross disturbances in thinking, perception, or reality testing.”

In Kanabec County, Carpenter was charged with first-degree felony murder (kidnapping), first-degree premeditated murder, second-degree intentional murder, second-degree intentional felony murder, and possession of a firearm by a felon. He was also charged with first-degree murder in Itasca County. Carpenter agreed to plead guilty to both first-degree murder charges in exchange for dismissal of other charges. His plea was received in Kana-bec County on November 26, 2001. Earlier, he had pleaded guilty in Saint Louis County to charges of making terroristic threats and being a felon in possession of a firearm stemming from the January incident in Hibbing. Carpenter was sentenced to a total of 60 months for those offenses on October 5, 2001.

On December 10, 2001, Carpenter was sentenced in Itasca County to a life sentence for the first-degree murder of Place to be served consecutive to the Saint Louis County sentences for making terroristic threats and being a felon in possession of a firearm. The next day, Carpenter was sentenced in Kanabec County to another consecutive life sentence for the murder of Olson. The Kanabec County District Court found that the murders of Place and Olson were separate behavioral incidents. The court noted that the murders took place at least eight hours and hundreds of miles apart and Carpenter had “plenty of time to cool down” between the two murders. The court found it important that Carpenter had a “long history of violence directed at family members.” While Carpenter had denied during his plea hearing that he had shot Olson at close range, the court noted that the physical evidence— powder burns on Olson’s jacket — suggested he shot her “at close range, in the back, in what could certainly be termed an execution-style killing.” The court also stated that Carpenter showed no mercy to Olson even though he had “[pjlenty of opportunities for a change of mind” after killing Place. The court reasoned that a consecutive life sentence was appropriate because a concurrent life sentence would “impose no penalty for the deliberate, intentional killing of his second victim.”

Carpenter filed a petition for posteonvietion relief seeking vacation of the conviction, modification of his second life sentence from a consecutive to a concurrent sentence, a new trial, an evidentiary hearing, and civil commitment. His petition was made pro se and reviewed by the same judge who presided over his plea and sentencing hearings. Carpenter alleged a number of grounds for relief including attorney-client conflict, judicial bias, vindictive prosecution, and diminished capacity. The postconviction court ruled that Carpenter’s allegations lacked any factual support in the record and denied the relief requested. On appeal, Carpenter argues that the second consecutive life sentence unfairly exaggerates his criminality and requests that we vacate this second life sentence with direction on remand for entry of a concurrent life sentence.

A postconviction court’s decision to deny a petition will not be reversed absent an abuse of discretion. Dukes v. State, 660 N.W.2d 804, 810 (Minn.2003). Although Carpenter’s pro se petition before the postconviction court and that court’s order do not specifically frame the issue as one of unfair exaggeration of criminality, we agree with the statement of Carpenter’s appellate attorney that, “in light of the sentence-related issues” Carpenter raised before the postconviction court, the argument that consecutive sentencing unfairly exaggerates Carpenter’s criminality “is the best way to state the issue for appeal.”

When a defendant is convicted of multiple first-degree murders, the district court has discretion to make the life sentences for those convictions concurrent or consecutive. Minn.Stat. § 609.15, subd. 1 (2002); State v. Brom, 463 N.W.2d 758, 765 (Minn.1990). When reviewing the imposition of consecutive life sentences, we consider whether consecutive sentences “result in punishment grossly out of proportion to the defendant’s culpability.” Bangert v. State, 282 N.W.2d 540, 547 (Minn.1979). There is no abuse of discretion when the consecutive sentence does not exaggerate the defendant’s criminality. See, e.g., id. (holding that consecutive life sentences were “commensurate with culpability and not an exaggeration of the defendant’s criminality”). In determining whether a consecutive sentence unfairly exaggerates' a defendant’s criminality, we are guided by past sentences received by other offenders for similar offenses. State v. Wilson, 539 N.W.2d 241, 246 (Minn.1995); State v. Vazquez, 330 N.W.2d 110, 112 (Minn.1983). We have the discretion to modify a sentence in individual cases when modification appears to be in the interests of fairness and uniformity. Vazquez, 330 N.W.2d at 112.

We have “consistently affirmed the imposition of consecutive life sentences where a defendant was convicted of multiple victim homicides.” Wilson, 539 N.W.2d at 246. Carpenter does not present a persuasive basis for treating his sentence differently from other cases. It’ is noteworthy that we have affirmed consecutive life sentences in numerous cases where there were multiple first-degree murders involving victims who were murdered as part of the same behavioral incident. See, e.g., Bangert, 282 N.W.2d at 547. Here, Carpenter’s murders were separate behavioral incidents. As the district court noted, the time and distance between the murders certainly gave Carpenter the opportunity to “cool down” and “change his mind.” Thus, the circumstances of Olson’s murder indicate that it was not an abuse of discretion to give Carpenter a consecutive sentence.

Carpenter also, asks that we hold that his mental health at the time of the murders mitigated his crimes “to the extent that it was unfair, excessive, and unreasonable and inappropriate” to make his second life sentence consecutive to the first life sentence. Carpenter supports this claim by noting that he had checked himself into the mental health ward of a hospital, attempted suicide several times during the months preceding the murders, and was using the prescription drug Paxil. Carpenter relies on State v. Norris, 428 N.W.2d 61 (Minn.1988), to support this claim. In Norris, we were asked to review the fairness of five consecutive 60-month sentences for second-degree assault and a consecutive life sentence for first-degree murder. Id. at 70. Although we noted that the sentencing was “technically permissible',” we concluded that, on the facts and circumstances there, such sentencing would unfairly exaggerate the criminality of the defendant’s conduct. Id. at 71. In reaching this conclusion, we reviewed other cases involving aggravated robbery, assault, and multiple victims where we affirmed consecutive sentences. Id. at 70-71. We noted that none of those other cases involved more than three multiple sentences and most involved two. Id. at 71. We held that five consecutive 60-month sentences added to a life sentence unfairly exaggerated that defendant’s criminality. Id. We then modified the total sentence by ordering that three of the five 60-month sentences be served concurrently. Id.

Norris does not support Carpenter’s argument. First, the sentences in Norris were for crimes against six different victims during the four to seven minutes of an armed robbery. Id. at 64. The situation here is distinctly different as it involves significant temporal and physical separation between the murders for which Carpenter is consecutively sentenced. Second, Norris does not support Carpenter’s claim that his mental health should serve to mitigate the total sentence. Norris dealt with exaggeration of criminality based on a comparison with other cases and the total number of consecutive sentences in those cases — not a claim of mental impairment. Id. at 71. Third, even if we were to follow the same process as we did in Norris, we would not modify Carpenter’s sentence because it is consistent with sentences imposed in other cases involving multiple first-degree murder victims. Indeed, “[t]ime after time [we have] affirmed consecutive sentences for multiple murders.” State v. Willis, 559 N.W.2d 693, 701 (Minn.1997). Finally, at sentencing, the district court considered information relevant to Carpenter’s mental health and we are not presented with sufficient evidence to conclude that either the court abused its discretion in sentencing Carpenter to a second consecutive life sentence or that a second consecutive life sentence unfairly exaggerated his criminality.

For the foregoing reasons, we conclude that the grounds asserted by Carpenter in support of his claim that his second life sentence unfairly exaggerated his criminality lack merit. Therefore, we hold that the postconviction court did not err when it denied Carpenter’s petition for postconviction relief.

Affirmed.


source: Caselaw Access Project

author: /s/ Helen Meyer, Associate Justice

license: Public Domain

text:
    Mark DIMON, Respondent, v. METZ BAKING and Sentry Claims Services, Relators, and Twin Cities Bakery Drivers Health & Welfare Fund and Team Care of Minnesota, P.C., Intervenors.
    No. A03-1694.
    Supreme Court of Minnesota.
    Jan. 29, 2004.
    John H. Guthmann, Kathleen M. Daly, Hansen, Dordell, Bradt, Odlaug & Bradt, PLLP, St. Paul, MN, for relators.
    David C. Wulff, Roseville, MN, 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 October 7, 2003, be, and the same is, affirmed without opinion. See Minn. R. CivApp. P. 136.01.

Employee is awarded $1,200 in attorney fees.

BY THE COURT:

/s/ Helen Meyer,

Associate Justice


author: SHUMAKER, Judge.

text:
    The CITY OF LAKE ELMO, Relator, v. METROPOLITAN COUNCIL, Respondent.
    No. A03-458.
    Court of Appeals of Minnesota.
    Dec. 16, 2003.
    Review Granted Feb. 25, 2004.

      Thomas F. Pursell, Forrest D. Nowlin, Lindquist & Vennum, PLLP, 444 Cedar Street, Suite 1700, St. Paul, MN 55101 (for relator).
    Andrew D. Parker, Michael D. Christen-son, Charles B. Holtman, Smith Parker, PLLP, 808 Colwell Building, 123 North Third Street, Minneapolis, MN 55401 (for respondent).
   OPINION

SHUMAKER, Judge.

Appellant City of Lake Elmo appeals from respondent Metropolitan Council’s adoption of the resolution requiring Lake Elmo to modify its proposed 1998 Comprehensive Plan Amendment. An administrative law judge reviewed this matter and recommended that the Metropolitan Council (the council) adopt the resolution because Lake Elmo’s plan has a substantial impact on or contains a substantial departure from metropolitan system plans. Thus, the council was authorized to require modifications of Lake Elmo’s plan. Because there is a preponderance of evidence in the record to support a conclusion that Lake Elmo’s plan will have a substantial impact and does substantially depart from the council’s plan, and the agency’s determinations are consistent with this finding, we affirm.

FACTS

Appellant City of Lake Elmo is located about ten miles east of St. Paul in Washington County. Lake Elmo is bounded to the south by 1-94, to the north by Highway 36, to the west by the city of Oakdale and 1-694. Lake Elmo is primarily rural with a population of about 7,000 people, and it has sought to retain a rural character. As of 2000, Lake Elmo had 2,347 households and 1,635 jobs.

Sewer System,

Most of Lake Elmo is served by individual sewage treatment systems that the city proposes to maintain and expand as necessary. However, the southwest corner of Lake Elmo, adjacent to 1-94, has a 120-acre area that is served by a metropolitan sewer system, called the WONE (Wood-bury, Oakdale, Northdale, East Oakdale) interceptor, which does not have much additional capacity and could not support large-scale urbanization in Lake Elmo. Because the WONE Interceptor will be fully utilized in the future, the council began planning for additional wastewater service to Lake Elmo.

The council, Lake Elmo, and representatives of other nearby cities met to consider alternatives for handling sewer-system demands. The council reviewed Lake Elmo’s plan to update its sewer systems in light of the council’s plan and determined that Lake Elmo’s plan to maintain and expand individual sewage treatment systems conflicts with the council’s plan. The council concluded that Lake Elmo’s plan had a substantial impact on and contained a substantial departure from the council’s system plans and thus required modification. Lake Elmo argues that the council’s requirement that the city modify its sewage system plan exceeds the council’s statutory authority.

Population Density

Three principal highways, 1-94, 1-694, and Highway 36 run through or border Lake Elmo. 1-94 will expand to improve traffic flow within the next 25 years. There is existing expansion capacity on I-94 through Lake Elmo. The council recommends a housing density of approximately seven units per acre as the standard for supporting cost-effective transit service.

The council advised Lake Elmo of the council’s plan and indicated what the city needed to plan for when updating its own plan. The council’s plan advised Lake Elmo to expand its existing urban area by 1,500 “sewered households” and 1,000 “sewered employees” by 2020. The council identified 1-94 as a freeway transit corridor and stated that Lake Elmo’s city plan should identify opportunities for development within one-quarter mile of this corridor. The council contends that if development does not occur in Lake Elmo to accommodate the growth predicted by the council, it is possible that the growth will occur in other surrounding cities where it will be more expensive to provide urban services. Lake Elmo argues that the council’s adoption of a resolution that requires Lake Elmo to modify its plan to accommodate growth in population density exceeds the council’s statutory authority.

After review by an administrative law judge (ALJ), the council adopted a resolution to require Lake Elmo to modify its Comprehensive Plan Amendment in accordance with the ALJ’s recommendation, and Lake Elmo filed a petition for writ of certiorari. This appeal followed.

ISSUES

1. What is the proper standard of review when an aggrieved party appeals from a final decision of the Metropolitan Council under Minn.Stat. § 473.866 (2002)?

2. Did the Metropolitan Council exceed its statutory authority when it required the City of Lake Elmo to conform to the council’s plan when it concluded that the City of Lake Elmo’s plan was in conflict with the council’s plan and would have a substantial impact on or contains a substantial departure from the Metropolitan Council’s plan?

3. On review, may this court examine evidence that the administrative law judge excluded from the record?

ANALYSIS

The council’s authority to require modifications in a local governmental unit’s comprehensive plan is granted by statute in the Metropolitan Land Use' Planning Act (MLPA). Minn.Stat. § 473.851 (2002). The parties agree that, under the MLPA, the council is responsible for the long-range planning and programming of the sewer and transportation infrastructure of the Twin Cities metropolitan area. Id. Under the MLPA, the council is required to develop a comprehensive development guide and system plan for the metropolitan area that considers, among other things, wastewater and transportation services. Id.

Also, under the MLPA, every governmental unit is to prepare a comprehensive municipal plan (city plan) that shows its land-use planning and projections. Minn. Stat. § 473.858, subd. 1 (2002). The city plan is implemented by adoption of zoning ordinances and zoning ordinances may not conflict with the city plan. Id. The council must then review and comment on the city plan of each city in the metropolitan area to determine its compatibility with other comprehensive plans and metropolitan system plans. Id., subd. 2 (2002). “A local governmental unit shall not adopt any official control or fiscal device [that] is in conflict with its comprehensive plan or [that] permits activity in conflict with metropolitan system plans.” Minn.Stat. § 473.865, subd. 2 (2002). But it is presumed that the legislature intends to favor a public interest over a private interest. Minn.Stat. 645.17(5) (2002).

1. Standard of Review

The parties to this appeal disagree as to the standard of review that applies and whether this court is to give deference to the administrative agency’s or the ALJ’s recommendation. Specifically, Lake Elmo argues that “the statutory standard of review requires that no deference be given to the Metropolitan Council’s decision,” while the council argues that this “court is to defer to the ALJ findings and conclusions and to [the] Council Resolution [that] adopt[ed] those findings and conclusions.” We agree with the council.

On judicial review of administrative decisions by this court, substantial deference must be accorded to the fact-finding processes of an administrative agency. Quinn Distrib. Co. v. Quast Transfer, Inc., 288 Minn. 442, 448, 181 N.W.2d 696, 699 (1970). In addition, Minn.Stat. § 473.866 (2002) is controlling in cases involving a challenge to the adoption of the council’s resolution and provides that

[ t]he scope of review shall be that of section 14.69, provided that: (1) the court shall not give preference to either the administrative law judge’s record and report or the findings, conclusions, and final decision of the council, and (2) the decision of the court shall be based upon a preponderance of the evidence as contained in the record on appeal.

(Emphasis added.) The judicial authority statutorily granted by section 14.69 provides in relevant part that this court may reverse or modify the decision of an agency if the administrative findings, inferences, conclusions, or decisions are “unsupported by substantial evidence in view of the entire record as submitted.” Minn. Stat. § 14.69 (2002).

A determination of the proper standard and scope of review here requires statutory interpretation of the language of Minn. Stat. § 473.866 and section 14.69, within the guidelines provided by caselaw on the review of administrative decisions. When the language of a statute is plain and unambiguous, that plain language must be followed. Minn.Stat. 645.16 (2002). Here, caselaw provides that this court gives deference to administrative agencies and supports the relevant statutory language. See, e.g., Quinn Distrib. Co., 288 Minn. at 448, 181 N.W.2d at 699. The language of the statute is plain and unambiguous, and our deferential review “shall not give preference to either the administrative law judge’s record and report or the findings, conclusions, and final decision of the council.” MinmStat. § 478.866 (emphasis added). Thus, this court will give deference to the agency, but will not give preference to either the agency’s determination or the ALJ’s recommendation.

This court also looks to the statutorily defined “record on appeal” and standard of proof in making our determination. We note that the legislature did provide specifically for a standard of proof in Minn.Stat. § 473.866, and that standard of proof is different from the standard of proof of “substantial evidence” provided generally under section 14.69. Thus, this court must determine that the evidence in the record meets a preponderance-of-evidence standard rather than a substantial-evidence standard. And because our decision is limited to the record as defined by statute, in making our determination we look only to “[t]he record on appeal [consisting] of: (1) the administrative law judge’s record and report, and (2) the findings, conclusions and final decision of the council.” Minn.Stat. § 473.866.

2. The Council’s Authority

Lake Elmo argues that the council does not have statutory authority to dictate ■ the future population density of a rural community by use of its Water Management Policy Plan or the MLPA. Thus, we look to the statutory provisions to determine the council’s purpose and authority-

The purpose of the MLPA is “to provide assistance to local governmental units ... for the preparation of plans and official controls appropriate for their areas and consistent with metropolitan system plans.” Minn.Stat. § 473.851. “ ‘Metropolitan System Plans’ means the airports and transportation portions of the metropolitan development guide, and the policy plans, and capital budgets for metropolitan wastewater service, transportation, and regional recreation open space.” Minn.Stat. § 473.852, subd. 8 (2002). Thus, both sewer and transportation fall within the ambit of the council’s authority.

In furtherance of its authority and purpose, the MLPA requires the council to “prepare and adopt guidelines and procedures relating to the requirements and provisions of [the MLPA] which will provide assistance to local governmental units ... in accomplishing the provisions of [the MLPA].” Minn.Stat. § 473.854 (2002). The MLPA requires each local governmental unit in a metropolitan area to prepare and adopt a local comprehensive plan to “guide public and private land use, development, redevelopment and preservation for all [local] lands and waters.” Minn. Stat. § 473.859, subd. 1 (2002). A local comprehensive plan has several required components, including a land-use plan. Id., subds. 2, 3 (2002).

The local land-use plan must include “a housing element containing standards, plans, and programs for providing adequate housing opportunities to meet existing and projected local regional housing needs ... to promote the availability of land for the development of low and moderate income housing.” Id., subd. 2(c). The local land-use plan must also “ensure conformity with [the Council’s] system plans.” Id., subd. 4 (2002). The plan must also “provide sufficient existing and new housing to meet the local unit’s share of the metropolitan area need for low and moderate income housing.” Id., subd. 4(3).

When a local governmental unit preliminarily approves its own land plan, the unit must submit its comprehensive plan to the council for review before its governing body grants final approval. Minn.Stat. § 473.858, subd. 3 (2002). On review of the unit’s plan, the council is required to determine (1) its compatibility with the comprehensive plans of other local governmental units in the metropolitan area and (2) its conformity with the council’s system plans. Minn.Stat. § 473.175, subd. 1 (2002).

“The council may require a local governmental unit to modify any comprehensive plan which may have a substantial impact on or contain a substantial departure from metropolitan system plans.” Id. (emphasis added).

Here, the council’s plan and Lake Elmo’s plan differ as to what specifically will be the impact of population growth on the area under the council’s authority. Thus, the issue here is what constitutes a “substantial impact on” or a “substantial departure from metropolitan system plans.”

Lake Elmo accepts the council’s 2020 population/household/employment forecasts, but the city wants to spread the households out in cluster developments. Lake Elmo does not directly address the differences between its plan and the council’s plan; rather, it argues that its plan will not harm the metropolitan sewer system. In addition, Lake Elmo does not dispute that its plan departs from the system plans. The record shows that Lake Elmo’s city planner described the council’s and Lake Elmo’s plans as being 180 degrees apart.

a. Sewer System

Lake Elmo challenges the council’s decision and subsequent requirements, arguing that the city’s decision to remain independent would not result in under-utilization of existing wastewater treatment infrastructure or in under-utilization of transportation infrastructure, and that the council conducted no studies to confirm its plan and corresponding claims that these infrastructures may be affected. Moreover, Lake Elmo argues that the only thing the council has is “a general view ... that people will tend to stay in the same general area and people that are going to move to Lake Elmo or to Washington County will most likely stay in Washington County,” and that this projection is “based on historical growth patterns, current land uses, and current local comprehensive plans.”

The council directed Lake Elmo to plan for expansion of its existing urban area through 2020 at a minimum density of three dwellings per acre; to plan for approximately two-thirds of the remainder of Lake Elmo to be “urban reserve” at a density of one dwelling per 40 acres; and to keep the remaining one-third of Lake Elmo “permanent rural,” at a density of one dwelling per ten acres. Lake Elmo does not dispute the accuracy of the council’s growth predictions for the region, but rather argues that such growth is not desired in Lake Elmo.

The council argues that Lake Elmo’s plan does not take into consideration the substantial urbanization of Lake Elmo that is projected to occur by 2040. The council based its plan on the forecasted need to accommodate 320,000 new households and 380,000 new jobs in the metropolitan region between 1995 and 2020, the close proximity of Lake Elmo to St. Paul, the availability of principal arterials (i.e., roads) immediately adjacent to Lake Elmo, the potential for transit services to the community in a cost-effective manner, and the availability of a regional park preserve within the city.

From 1990 to 2000, Lake Elmo’s population growth rate was about 16.3 percent. For the same ten-year period, neighboring Oakdale’s population growth rate was 45 percent, Woodbury’s population growth rate was about 131 percent, and Cottage Grove’s population growth rate was 33 percent.

The council argues that there is most likely sufficient existing capacity in the WONE Interceptor to accommodate the forecasted development in Lake Elmo only until 2030. The council’s plan includes a proposed interceptor that. will have the capacity to serve 13,500 households or residential equivalent units.

According to an analysis done by the council’s assistant general manager of environmental services, if Lake Elmo’s projected growth were to go elsewhere, it would be more costly to add sewage treatment capacity to those other areas in the metropolitan region to accommodate that growth than it would to build the Lake Elmo interceptor. The council’s planned provision of regional sewer service to Lake Elmo is to serve existing and future urbanization in the community. The council’s plan is not a result of any need to provide public sewer service because of failing or deficient individual sewage treatment systems or to prevent harm to the existing sewer system.

The record shows that (1) historical growth patterns, current land uses, and current local comprehensive plans project an overall increased population in this region based on evidence that neighboring community populations have increased anywhere from 33 percent to 131 percent from 1990 to 2000; (2) both parties agree that growth and increased land uses will impact sewer and transportation systems; (3) the council projects substantial urbanization of Lake Elmo by 2040; (4) Lake Elmo recognizes the potential for growth in general in the region, but desires to maintain its rural character; (5) if Lake Elmo maintains its rural character, other local governmental units are very likely to be impacted by Lake Elmo’s desire to maintain a rural character due to redirected commercial and residential development to other areas in the region, and that those other areas would likely bear the costs associated with growth and development; and (6) independent sewer systems may create environmental and financial risks.

Thus, the record sufficiently establishes by a preponderance of the evidence that Lake Elmo’s city plan will have both a substantial impact on and contain a substantial departure from the council’s plan. Because there is a preponderance of evidence to establish that Lake Elmo’s comprehensive plan will have a substantial impact on or contains a substantial departure from the council’s plan, the council acted within its statutory authority by requiring Lake Elmo to conform to the council’s plan.

Lake Elmo also argues that by requiring Lake Elmo to conform to the council’s plan, the council is forcing it to construct a new sewer system and that the council does not have this particular authority. Minn.Stat. § 473.871 provides: “Notwithstanding the provisions of sections 462.355, subd. 4, 473.175, and 473.851 to 473.871 the council shall have no authority under this chapter to require a local governmental unit to construct a new sewer system.” Minn.Stat. § 473.871 (2002).

Although the statute is clear that the council may not specifically require Lake Elmo to construct a new sewer system, it does not restrict the council’s authority to identify insufficiencies in municipal services and systems and to require corrections that will conform to the council’s plan. Such corrections might result in the need to build a new sewer system, which would be but a collateral result of conforming with the council’s plan. Merely requiring the correction of insufficiencies does not necessarily dictate any particular correction but rather leaves it open to the municipality to devise corrective measures that are both consistent with its own plan and in conformity to the council’s plan.

b. Population Density

Lake Elmo also argues that

the mandatory plan change authority of MinmStat. § 473.175, subd. 1 does not expressly grant or imply the power to determine municipal population or development density. It focuses exclusively on system plans and is stated as a check on the exercise of local authority. The Council’s power here to change a plan if it has a substantial impact on metro system can indirectly cause a change in development density.

(Emphasis added.) Lake Elmo’s argument is unsupported by law.

The language of the statute that provides the council must show that Lake Elmo’s plan “may have” substantial impact does not support Lake Elmo’s assertion that the council must show that Lake Elmo’s plan “has” a substantial impact. MinmStat. § 473.175, subd. 1 (2002). Lake Elmo’s argument that the term “substantial impact” means that an “actual and significant” impact has occurred results in an unreasonable interpretation that the legislature could not possibly have intended. For a “planning act” such as the MLPA to deal only after-the-fact with actual occurrences of impact rather than potential occurrences of impact would undermine the purpose of the Metropolitan Council’s planning function.

The record shows that (1) development in areas served by freeways that are at or near capacity results in less efficient use of existing freeway capacity and thus, Lake Elmo’s cluster homes may not conform to the region’s needs for development; (2) the need for housing in the region is increasing and will continue to increase based on current percentiles of growth; and (3) a Builders Association of the Twin Cities Area based study indicates that Lake Elmo’s proposed low-density development with on-site septic systems will make future urbanization cost-prohibitive.

The record establishes by a preponderance of the evidence that Lake Elmo’s city plan may have both a substantial impact on and contain a substantial departure from the council’s plan with respect to regional distribution of increasing population density. Because a preponderance of the evidence establishes that Lake Elmo’s comprehensive plan may have a substantial impact on or contain a substantial departure from the council’s plan, we conclude that the council acted within its statutory authority by requiring Lake Elmo to conform to the council’s plan.

Lake Elmo’s argument that the council’s requirements are arbitrary and capricious is without merit, because so long as an agency is engaged in reasoned decision-making a court will affirm. Cable Communications Bd. v. Nor-West Cable Communications P’ship, 356 N.W.2d 658, 668-69 (Minn.1984). Here, the council engaged in reasoned decision-making when it prepared three alternative planning maps for Lake Elmo officials to consider in an attempt to resolve differences and based its determinations on the reasons discussed above.

Further, we note that Lake Elmo is not statutorily prohibited from complying with the council’s resolution based on the mandate of Minn.Stat. § 473.865, subd. 2, that a local governmental unit may not adopt any official control or fiscal device in conflict with its existing comprehensive plan. The “object of statutory interpretation is to ascertain and effectuate legislative intent.” Boutin v. LaFleur, 591 N.W.2d 711, 715 (Minn.1999). A local governmental unit is not prohibited from adopting the council’s resolution even when it conflicts with the local governmental unit’s existing comprehensive plan. To prohibit a local governmental unit from adopting a council resolution that conflicts with the local governmental unit’s plans is plainly at odds with the purpose of the statute to address “problemfs] of urbanization and development [that] transcend local governmental boundaries,” thus creating a “need for the adoption of coordinated plans, programs, and controls by all local governmental unites ... to ensure coordinated, orderly and economic development.” Minn.Stat. § 473.851.

3. Excluded, Evidence

Lake Elmo argues that this court should consider the testimony that was excluded by the ALJ, but provides no authority that would permit this court to do so. The statute provides that this court’s review is limited to the administrative law judge’s record and report and the findings, conclusions and final decision of the council. Minn.Stat. § 473.866. The testimony that was excluded was objected to on the grounds that it either questioned the need for or reasonableness of the Lake Elmo interceptor or challenged the need for reasonable population forecasts as a basis for system plans. The ALJ excluded the testimony under Minn.Stat. § 473.866, which provides “the subject of the hearing shall not extend to questions concerning the need for or reasonableness of the metropolitan system plans or any part thereof.”

Because the statute limits our review to the record as provided, and the excluded testimony is outside of the record, this issue is not properly before this court. Even if this court had authority to consider the excluded testimony, the proposed testimony was properly excluded because it went to issues not within the scope of the hearing.

DECISION

Because the Metropolitan Council did not exceed its statutory authority when it required Lake Elmo to conform to the council’s plan when it concluded that the city’s plan would have a substantial impact on or contains substantial departure from the council’s plan, we affirm.

Affirmed.


author: G. BARRY ANDERSON, Judge.

text:
    STATE of Minnesota, Respondent, v. Ron Martin BRENNAN, Appellant.
    No. A03-429.
    Court of Appeals of Minnesota.
    Feb. 3, 2004.

      Mark D. Nyvold, St. Paul, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, Minneapolis, MN, for respondent.
    Considered and decided by WILLIS, Presiding Judge, KLAPHAKE, Judge, and ANDERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

After the district court denied appellant Ron Brennan’s motion to suppress evidence obtained during a search of his home, the parties submitted this case to the court on stipulated facts. The district court found Brennan guilty of five counts of possession of child pornography, in violation of Minn.Stat. §§ 617.246; 617.247, subd. 4 (2000). The district court sentenced Brennan to a 19-month stayed sentence, placed him on probation for three years, and ordered him to complete sex-offender treatment.

Brennan now challenges his conviction and sentence, arguing that (1) the search of his house was unlawful because the warrant authorizing the search was not supported by probable cause and (2) the district court abused its discretion by imposing an upward durational sentencing departure. We affirm in part, reverse in part, and remand.

FACTS

Brennan worked for the American Cancer Society (ACS) from March 1999 until March 2001. The ACS assigned Brennan a laptop computer to use at work. It later terminated Brennan’s employment, after discovering that Brennan had used the computer. to view pornography while at work. After the ACS terminated Brennan’s employment, it put Brennan’s laptop in a locked, secured storage area.

In September 2001, an ACS information- and-technology technician archived Brennan’s laptop and found hidden directories containing images of child pornography. The ACS contacted the Edina Police Department and relinquished the laptop to the police.

A subsequent forensic examination of Brennan’s laptop revealed multiple images of child pornography. These images had been stored on the laptop on different dates, including October 29, 2000; January 17, 2001; and February 22, 2001.

After Brennan admitted to police that he had stored images of child pornography on his ACS laptop, the police applied for a warrant to search Brennan’s house. In relevant part, the affidavit in support of the warrant stated:

Your affiant’s training and experience has shown that those engaged in the viewing of children engaged in sexually explicit acts in electronically stored data have also a tendency to view such material in other forms of media such as magazines, DVD’s, video’s or other paper or electronic imaging devices. Frequently these materials are kept in the pornography violator’s home where it is safe to observe without the interference of law enforcement and in assumed secrecy.

(Emphasis in original.) The district court issued the warrant to search Brennan’s house. The police executed the warrant and seized seven computers, as well as computer equipment.

A forensic examination of the computers and equipment seized from Brennan’s home revealed numerous images depicting child pornography. The examination determined that the illicit images had been created and accessed between June and September 2001.

Originally, the state charged Brennan with three counts of possessing child pornography based on the images seized from his work laptop. Later, the state amended the complaint to include two more counts of possession, stemming from the images found on Brennan’s home-computer equipment.

At the sentencing hearing, the district court determined that the offense-severity level of Brennan’s crimes was Level III. Treating the convictions as two behavioral incidents, the district court imposed one sentence for the first three counts and another sentence for the remaining two counts. The presumptive sentence for the last sentence was 13 months. But the district court imposed a sentence of 19 months that was to run concurrently with the first sentence. Brennan objected to the sentence on the ground that he had never received notice that the court was considering imposing an upward durational departure from the sentencing guidelines. The district court rejected this objection and placed Brennan on probation.

ISSUES

I. Did the affidavit in support of a warrant to search Brennan’s house articulate sufficient facts to support the district court’s finding that there was a fair probability that evidence of child pornography would be found in Brennan’s house?

II. Did the district court abuse its discretion by imposing an upward du-rational departure to Brennan’s stayed sentence?

ANALYSIS

I.

Brennan argues that the district court abused its discretion by basing its determination of probable cause on the affiant’s training and experience because, in Minnesota, an affiant’s training and experience alone cannot create a sufficient nexus between an individual’s possession of child pornography at work and his home, the place to be searched. Brennan argues that the information contained in the application for the warrant to search his house was therefore insufficient to establish probable cause. We disagree.

A neutral and detached magistrate, upon a finding of probable cause, may issue a search warrant. MinmStat. § 626.08 (2000); State v. Harris, 589 N.W.2d 782, 787 (Minn.1999). Probable cause to issue a warrant exists when the totality of the circumstances establishes that there is a fair probability that evidence of a crime will be found in a particular place. Id. at 788. The Minnesota Supreme Court “has historically required a direct connection, or nexus, between the alleged crime and the particular place to be searched.” State v. Souto, 578 N.W.2d 744, 747 (Minn.1998). The factors the is suing judge must consider in determining whether such a nexus exists include the nature of the crime, “the nature of the items sought, the extent of the suspect’s opportunity for concealment, and the normal inferences as to where the suspect would normally keep the items.” Harris, 589 N.W.2d at 788. Information linking the crime to the place to be searched and the freshness of the information are also relevant. Id. at 747 (citing 2 Wayne R. LaFave, Search and Seizure § 3.7(d) (3d ed.1996)). An issuing judge may not base a finding of probable cause on an investigator’s “wholly conclusory statement.” Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 2332-33, 76 L.Ed.2d 527 (1983). But the issuing judge “is entitled to draw common-sense and reasonable inferences from the facts and circumstances” set forth in an affidavit. State v. Eggler, 372 N.W.2d 12, 15 (Minn.App.1985), review denied (Minn. Sept. 19, 1985).

We review a determination of probable cause to ensure “that ‘the issuing judge had a substantial basis for concluding that probable cause existed.’ ” Harris, 589 N.W.2d at 788 (quoting State v. Zanter, 535 N.W.2d 624, 633 (Minn.1995)). In determining whether a substantial basis existed, our review is limited to determining whether, given the totality of the circumstances set forth in the affidavit before the issuing judge, including the veracity and basis of knowledge of persons supplying hearsay information, there was a fair probability that contraband or evidence of a crime would be found in a particular place. Souto, 578 N.W.2d at 747; Zanter, 535 N.W.2d at 633. We accord great deference to the issuing judge’s finding of probable cause. State v. Wiley, 366 N.W.2d 265, 268 (Minn.1985).

Brennan argues that the warrant to search his house was defective because there was no nexus between his crime of possessing child pornography on his work laptop and his house. We disagree. In Minnesota, there is no bright-line rule that a warrant will not issue merely because probable cause is based on deductions made from an affiant’s training and experience. In fact, the Minnesota Supreme Court held that a police affiant’s training and experience can be a proper factor to consider in making a probable-cause determination. State v. Miller, 666 N.W.2d 703, 714 (Minn.2003) (concluding that officer’s theory that based on her training and experience, and given the nature of the crime, plastic female head was symbolic of manner in which victim was decapitated supported finding of probable cause to seize plastic head).

In the context of child-pornography-related crime, federal courts have concluded that an affiant’s training and experience could support a finding of probable cause. The Eighth Circuit Court of Appeals, for example, has held that an affiant’s statement that child pornographers “almost always maintain and possess their materials in a place considered secure” could establish a nexus between the alleged crime and the suspect’s home. United States v. Chrobak, 289 F.3d 1043, 1046 (8th Cir.2002). Other federal courts have reached the same conclusion. See e.g., United States v. Hay, 231 F.3d 630, 635 (9th Cir.2000) (holding that where evidence showed that appellant received pornographic images at an internet address assigned to him at his apartment, affiant’s statement that individuals who possess and transport pornography do not dispose of the sexually explicit material and generally have additional images was sufficient to support probable cause for a warrant to search appellant’s apartment); United States v. Lacy, 119 F.3d 742, 746 (9th Cir.1997) (holding that when telephone records reflected that the appellant called a bulletin-board system that posted child pornography and downloaded images of child pornography from the bulletin-board system, affiant’s statements, based on her training and experience, that collectors of child pornography rarely, if ever, dispose of the explicit material and generally keep it in a secure place — typically their homes — demonstrated that probable cause existed to search appellant’s home). But see United States v. Zimmerman, 277 F.3d 426, 433 n. 4 (3rd Cir.2002) (noting that it was undisputed that there was no probable cause to search appellant’s apartment for child pornography, but that if the court was required to determine what weight to give the affiant’s statements, which were based on training and experience, it would most likely decide that the affiant’s boilerplate statements “added fat to the affidavit, but certainly no muscle”) (quotation omitted); United States v. Weber, 923 F.2d 1338, 1344-46 (9th Cir.1990) (holding that where appellant ordered four pictures of child pornography, affiant’s belief that those four pictures, as well as books, magazines, photographs, films, videotapes, and undeveloped films depicting acts of child pornography would be found at appellant’s home, and affiant’s boilerplate recitation of how child molesters, pedophiles, and child pornography collectors behaved did not establish probable cause that appellant ordered anything other than the four pictures at his house).

Brennan cites State v. Kahn, State v. Souto, and State v. Secord for the proposition that a warrant to search a particular location may issue only when there are specific facts that create a nexus between the alleged crime and the place to be searched by police. See Souto, 578 N.W.2d at 749 (holding that law-enforcement affiant’s statement that “he knew” defendant was involved in possession and distribution of drugs “was too vague and conelusory” to support finding of probable cause); Kahn, 555 N.W.2d 15, 18 (Minn.App.1996) (holding that issuing judge did not have probable cause to issue warrant to search defendant’s home where defendant’s arrest for possession of one ounce of cocaine occurred 75 to 85 miles from his home); Secord, 614 N.W.2d 227, 229 (Minn.App.2000), review denied (Minn. Sept. 13, 2000).

But Kahn and Souto are distinguishable from the present case because of the nature of the crime at issue. In making a probable-cause determination, courts must consider the nature of the crime “and the normal inferences as to where the suspect would normally keep the items [sought].” See Harris, 589 N.W.2d at 788 (quoting State v. Pierce, 358 N.W.2d 672, 673 (Minn.1984)). Unlike the drug-dealing activity discussed in Kahn and Souto, viewing and possessing child pornography is, by its nature, a solitary and secretive crime. A child-pornography case is, therefore, the type of case in which courts may properly consider an affiant’s training and experience in making the probable-cause determination because the court could reasonably draw an inference that the suspect would keep the illicit images in a place considered safe and secret, like the home. See Chrobak, 289 F.3d at 1046 (holding that affiant’s statement, based on her experience, that pedophiles maintain their child pornography in a secure place provided sufficient nexus to defendant’s home); see also Harris, 589 N.W.2d at 788 (concluding that one factor that an issuing judge may consider in making the probable-cause determination is a reasonable inference as to where a suspect would normally keep the type of items sought).

Here, several factors support the district court’s determination that probable cause existed to search Brennan’s house. First, the affidavit supporting the warrant included affiant’s statements that, based on his training and experience, those who engage in viewing child pornography have a tendency to view explicit images in their own homes. Basing his conclusions on experience, rather than merely making eonclusory statements, the affiant provided evidence that contributed to the district court’s finding that a fair probability existed that police would find child pornography in Brennan’s house.

Second, the possession of child pornography is a crime commonly committed in secret. By the very nature of the crime, it is reasonable to infer that someone who possesses and views child pornography would keep the illicit material in a safe and secretive place like the home. See Lacy, 119 F.3d at 746 (holding that nature of child pornography was such that there was “good reason” to believe downloaded image would be stored in defendant’s home). Because activities in the home are sheltered from public view, the home is a safe and secret place to keep child pornography. The secretive nature of the crime therefore supports the district court’s probable-cause determination to issue a warrant to search Brennan’s house.

Third, laptops, by nature, are easily transported. It was thus reasonable for the district court to infer that because of the ease with which Brennan could have transported his work laptop to his house, it was likely that the illicit images found on the laptop would also be found on Brennan’s home computer.

Fourth, because Brennan viewed child pornography at work, on a company laptop, it was reasonable for the district court to infer that Brennan also viewed child pornography on a computer at his house. See Eggler, 372 N.W.2d at 15 (supporting the proposition that the district court can draw reasonable inferences in evaluating an affidavit in support of a search warrant). The sheer brazenness with which Brennan flaunted both company policy and the law of the State of Minnesota by viewing illicit material at work supports an inference that Brennan would view such material at home, in a more private setting.

Fifth, the facts in this case are at least as compelling as the facts supporting probable cause in Chrobak, where a warrant to search Chrobak’s home was issued based on the facts that the moniker of a sender of child pornography was registered to Chrobak and that, in the affiant’s training and experience, child pornographers generally maintain and possess child pornography in a secure place. Chrobak, 289 F.3d at 1046.

The factors supporting the district court’s determination of probable cause in this case, if evaluated in isolation, may not have supported a finding of probable cause to search Brennan’s house. But because the “totality of the circumstances” established a substantial basis to believe that there was a fair probability that evidence of child pornography would be found in Brennan’s house, the district court did not abuse its discretion in finding probable cause to search Brennan’s house and properly issued the search warrant. See Wiley, 366 N.W.2d at 268 (holding that affidavit supporting application for search warrant set forth sufficient evidence to establish probable cause for the search). Therefore, on this record, we affirm the district court’s determination that probable cause existed to search Brennan’s house.

II.

Brennan next argues that the district court’s upward durational departure in sentencing should be reversed because (1) the district court did not provide him with proper notice of the possibility of an upward durational departure in his sentence, as required by Minn. R.Crim. P. 27.03; and (2) the departure is not justified by substantial and compelling circumstances.

Brennan argues that because the district court never gave notice of its intent to consider an upward departure from the sentencing guidelines, he was deprived of the notice required by rule 27.03, and the departure should therefore be reversed. We agree.

Minn. R.Crim. P. 27.03 governs sentencing proceedings in Minnesota. Minn. R.Crim. P. 27.03, subd. 1(A)(4), states, “[i]f the facts ascertained at the time of a plea or through trial cause the judge to consider departure from the sentencing guidelines appropriate, the court shall advise counsel of such consideration.” Further, Minn. R.Crim. P. 27.03, subd. 1(C), states, “[i]f departure from the sentencing guidelines appears appropriate, and the court has not previously notified the parties or counsel for the parties that the court is considering departure, the court shall forward notification of such consideration at the time the sentencing worksheet and any presentence investigation report is forwarded.”

Brennan hinges his argument on this court’s holding in State v. Bock, 490 N.W.2d 116, 123 (Minn.App.1992), review denied (Minn. Aug. 27,1992). In Bock, we discussed the requirement that a district court give notice of its intent to depart from the sentencing guidelines. Id. at 122. But in that case, we concluded that the district court’s failure to provide notice of its intent to depart was nonprejudicial because the state had filed a notice of motion and motion for an upward durational departure prior to the sentencing hearing and had reiterated the request for departure when defendant’s counsel moved for sentencing in accordance with the presumptive sentence and because the appellant did not object to the lack of notice. Id. Here, unlike Bock, Brennan did not have any notice that the state was seeking an upward durational departure until the sentencing hearing, and Brennan did object to the lack of notice at the sentencing hearing.

The rules of criminal procedure are clear; the court must give notice when considering a departure from the sentencing guidelines. Minn. R.Crim. P. 27.03, subd. 1(A)(4), (C). In Bock, we concluded that in some circumstances the court’s failure to notify defendant of its intention to consider an upward durational departure is nonprejudicial, but that is not the case here. Cf. Bock, 490 N.W.2d at 122. Because Brennan had no notice of the district court’s intention to consider an upward durational departure, and because Brennan objected to the lack of notice, we must reverse and remand the upward durational departure in Brennan’s sentence. We remand for resentencing to give Brennan an opportunity to prepare and submit arguments opposing the upward departure in his sentence. Because we remand for re-sentencing, we do not reach Brennan’s second challenge to the upward durational departure: that it was not justified by substantial and compelling circumstances.

DECISION

Because we hold that probable cause to search Brennan’s house existed, we affirm the district court’s decision to issue a warrant to search the house. But because Brennan did not have notice of the district court’s intention to consider an upward departure in sentencing and because Brennan objected to the lack of notice, we reverse and remand the sentencing issue to the district court with instructions to give Brennan an opportunity to prepare and submit arguments opposing the upward departure in his sentence.

Affirmed in part, reversed in part, and remanded.

      . But in Secord, the district court did not rely on the affiant’s statements based on training and experience. 614 N.W.2d at 229-30. This court, therefore, expressly declined to review the state’s claim that a deduction drawn from the affiant's training and experience could support a finding of probable cause in the context of child-pornography-related crime. Id at 230. Thus, Secord does not support Brennan’s challenge to the probable-cause determination here.

      . Because Brennan does not raise the issue, we expressly decline to reach the question of whether the scope of the search warrant issued to search Brennan's home exceeded the scope of the probable cause used to support the warrant.


author: RANDALL, Judge.

text:
    In the Matter of the WELFARE OF M.E.M., Jr.
    No. A03-245.
    Court of Appeals of Minnesota.
    Feb. 3, 2004.

      Leonardo Castro, Fourth District Public Defender, Melissa A. Haley, Assistant Public Defender, Minneapolis, MN, for appellant.
    Amy J. Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, Minneapolis, MN, and Mike Hatch, Attorney General, St. Paul, MN, for respondent.
    Considered and decided by RANDALL, Presiding Judge, SHUMAKER, Judge, and CRIPPEN, Judge .

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

RANDALL, Judge.

After being designated an extended-jurisdiction juvenile, appellant was tried and convicted of aiding and abetting aggravated robbery and third-degree assault. On appeal from the judgment and conviction, appellant argues that (1) he did not properly waive his right to a jury trial and an omnibus hearing; (2) he did not waive his right to testify in his defense, but if he did, the waiver was improper; (3) the admission of unduly suggestive show-up identification evidence violated his due-process right to a fair trial; and (4) the evidence to prove identity beyond a reasonable doubt was insufficient. The record supports a knowledgeable waiver of appellant’s rights; the district court’s reliance on the identification evidence was not clearly erroneous. We affirm.

FACTS

At approximately 9:30 p.m. on November 30, 2002, the victim, Q.A., was carrying her purse under her shoulder as she walked down Lake Street. Before entering a grocery store, she paused to read the store’s sign. While she was standing outside the store reading the sign, Q.A. was pushed to the ground by two assailants. The assailants took Q.A.’s purse, which contained credit cards, a debit card, and $40 in cash. As a result of the attack, Q.A. suffered a broken shoulder and a large cut on her forehead.

At trial, Q.A. testified that she believed there were two assailants because “I was like wrestling and I felt someone else helping push my head firm into the ground.” Q.A. testified that after she was pushed, she lost consciousness for a few seconds. When she regained consciousness, Q.A. looked up and observed two people running away from the scene. One was wearing a yellow jersey and the other was wearing a gray hooded sweatshirt. Q.A. stated that she was not able to see their faces.

Officer Dale was on patrol in his squad car in the area of the attack when he heard a woman screaming. He then observed a woman holding her head and two young men running from the scene. Officer Dale testified that the men were running at “a pretty good sprint” and appeared to be running side-by-side. Officer Dale also observed that one of the young men was wearing something light and that the other had on a dark sweatshirt.

Officer Dale followed the two individuals in his squad car. Although the individuals split up, Officer Dale did not lose sight of appellant, M.E.M. Office Dale was able to apprehend appellant at gunpoint and place him in the squad car. Officer Dale testified that he asked appellant what was going on, and appellant said something about “helping his dad move, trying to catch a U-haul, something like that.” A pat search did not reveal any of the property taken from Q.A.

Officer Dale returned with appellant to the scene of the assault where Q.A. was shaking, crying hysterically, and holding a bandage to her forehead. Despite her condition, Officer Dale conducted a show up, and Q.A. identified appellant as the assailant who was “the one wearing ... the jersey and shirts.” However, later, Q.A. could not make an in-court identification of appellant. Q.A. ultimately testified that the jersey was consistent with the person she saw running away, but there was inconsistency concerning whether the jersey had long or short sleeves.

Also present at the scene were Heidi Johnson and Jeremy Barthels. Johnson lived in the vicinity of the incident, and the two were walking to the video store to rent some videos. Johnson testified that as they walked down the street, they passed two males walking very fast and talking excitedly to each other. Johnson testified that she noticed the individuals because it was “pretty cold out,” causing her to wear “a lot of layers,” but one male was wearing only a sweatshirt and the other only a jersey. Johnson stated that the jersey was bright “orangish” colored and displayed “Astros.” Despite her uncertainty as to the exact details of the jersey, Johnson testified that it was the jersey worn by the male she had passed on the street on the night in question.

After passing the two males, Johnson and Barthels walked a few steps and then heard a scream. Johnson testified that they turned around and witnessed the two individuals running from the scene. Johnson and Barthels stopped to help Q.A., and shortly thereafter, Office Dale returned with appellant. Johnson identified appellant as, to the best of her recollection, the same person she had seen earlier. At trial, Johnson testified that she was “pretty sure” that appellant was the person who had walked by her immediately before Q.A. was assaulted, and she was positive that the jersey she observed on the night of the incident displayed “Astros.”

Barthels testified at trial. Barthels stated that he was with Johnson in the area of Lake Street when they passed two males. Barthels testified that he noticed the males because it was a cold night, but the two young men were not wearing coats. Bar-thels stated that the male he noticed right away was “wearing a baseball jersey, a Houston Astros baseball jersey and just the jersey and I kind of gave that a double look because it was a colder night and I noticed that he wasn’t wearing a coat and he had this bright jersey on.” Barthels noted that although it was night, a nearby mini-mart had lights around the outside so as to make the surroundings visible. Bar-thels testified further that as they passed the two males, he overheard one say “there’s one” or “that’s one.”

A “couple seconds” after passing the two men, Barthels stated that he heard a scream. Barthels instantly turned around and noticed the person wearing the jersey and the other individual fleeing from the scene. Barthels stated that the individuals were sprinting and it was not a casual run. When Officer Dale returned with appellant, Barthels identified appellant as the person that he passed and then saw running from the scene. Although Barthels could not describe the clothing of the other male, nor could he identify appellant in the courtroom, Barthels stated that the jersey was the same jersey worn by the individual that had passed him on the street and that he observed running away.

Following the identifications, appellant was arrested and charged with aggravated robbery in the first degree and assault in the third degree. Sergeant Ritschel interviewed appellant at the Juvenile Detention Center where appellant claimed that he was in front of another person named “Alonzo” and that “Alonzo” actually committed the robbery. Sergeant Ritschel testified that appellant denied involvement in the assault and robbery. Appellant’s descriptions of the events of the night of the incident were inconsistent.

The prosecution designated appellant as an extended-jurisdiction juvenile (EJJ), and the court determined the case would proceed as an EJJ matter. Before appellant waived any rights associated with the EJJ designation, the court had appellant take the stand where the court and counsel questioned appellant concerning his understanding of his rights. The court then accepted appellant’s waiver of his right to a jury trial, and a bench trial ensued. Appellant was found guilty of aiding and abetting aggravated robbery and third-degree assault. This appeal followed.

ISSUES

I. Did appellant properly waive his right to a jury trial and an omnibus hearing?

II. Did appellant waive his right to testify in his defense, and if so, was the waiver proper?

III. Did the admission of show-up evidence violate appellant’s due-process rights to a fair trial?

IV.Was there sufficient evidence to support the district court’s finding of guilt beyond a reasonable doubt?

DECISION

I.

Appellant contends that he was not fully and effectively informed of his rights to a jury trial and to an omnibus hearing. Under Minn. R. Juv. P. 19.07, any juvenile subject to EJJ prosecution is entitled to a jury trial pursuant to Minn. R.Crim. P. 26. See also Minn.Stat. § 260B.130, subd. 3 (2002). The right to a jury trial is fundamental and must be personally waived by the defendant. State v. Halseth, 653 N.W.2d 782, 786 (Minn.App.2002). The defendant may waive the right to a jury trial in writing or orally in court. Minn. R.Crim. P. 26.01, subd. l(2)(a). Interpreting the rules of criminal procedure is a question of law subject to de novo review. State v. Nerz, 587 N.W.2d 23, 24-25 (Minn.1998).

Minn. R.Crim. P. 26.01, subd. l(2)(a), requires that the court advise the defendant of the right to a jury trial and the opportunity to consult counsel. The defendant must make the waiver voluntarily, knowingly, and intelligently. State v. Ross, 472 N.W.2d 651, 653 (Minn.1991). The court is not obligated to make a searching inquiry as to why the defendant is waiving this right. Id. at 654. But the trial court should be certain that the defendant is adequately informed of his rights, and the court’s caution in accepting the waiver must increase with the gravity of the offenses with which the defendant is charged. Id. at 653.

When applying adult criminal rules to an EJJ proceeding, the district court should spend as much or more time with a juvenile than with an adult, satisfying itself that any waiver of an essential right is proper and that the juvenile understands the consequences of the waiver. The record here shows that the appellant’s counsel and the court both inquired into whether appellant understood every aspect of his right to a jury trial. This included an understanding of who decides the facts and who decides the law, that 12 jurors would decide his guilt, and an understanding of the requirement of a unanimous verdict. The record further reflects that appellant discussed this right with family and counsel, he was not coerced or unduly influenced to make the waiver, and he was of an age and maturity to understand the waiver.

Appellant argues that the court should have asked even more questions. We can only note that although you can “always ask more questions,” there is nothing in the record that indicates that this was not an intelligent waiver. We cannot find any injustice, on these facts, by inferring an intelligent and voluntary waiver.

Appellant also contends that his waiver of an omnibus hearing is required to be on the record pursuant to Minn. R.Crim. P. 8.03. Although nothing in the record sheds light on whether appellant waived an omnibus hearing, respondent asserts that it is commonplace in bench trials to forego a separate omnibus hearing before a bench trial because the judge decides issues of both fact and law. Appellant has the better argument. Appellant points out that even if that be so, a record should be made that by agreement there will be no pre-bench-trial omnibus hearing and both sides agree that eviden-tiary issues will be folded into the trial. No such record was made here. The EJJ rules do not point to Minnesota Rules of Criminal Procedure for omnibus-hearing requirements as they do for jury-trial requirements. We hold that it is the better practice in an EJJ bench trial to have the waiver of an omnibus hearing specifically on the record. But again, on these facts, we cannot find that the lack of a specific waiver of an omnibus hearing on the record mandates reversal.

II.

Next, appellant argues that he did not waive his right to testify in his defense, but if he did, the waiver was improper. A defendant’s decision to testify on his or her own behalf is a fundamental constitutional right. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983). The waiver of the right to testify must be knowing and voluntary. State v. Walen, 563 N.W.2d 742, 751 (Minn.1997). If the record is silent on waiver, the reviewing court presumes “the decision not to testify was made ... voluntarily and intelligently.” State v. Smith, 299 N.W.2d 504, 506 (Minn.1980). As with the previous issue, interpreting the rules of criminal procedure is a question of law subject to de novo review. Nerz, 587 N.W.2d at 24-25.

Here, the record is silent regarding whether appellant waived his right to testify, and appellant is presumed to have personally waived his right to testify. This is distinct from a trial on stipulated facts in which the waiver to testify must be in writing or on the record. Halseth, 653 N.W.2d at 786. This trial was not on stipulated facts.

III.

Appellant argues that the admission of show-up evidence violated his due-process rights to a fair trial. Whether show-up evidence must be suppressed depends on the reliability of the identifications. State v. Taylor, 594 N.W.2d 158, 161 (Minn.1999). A two-part test is applied to determine reliability. Id. First, the procedure producing the identification is evaluated to determine if it was unnecessarily suggestive. Id. Second, if the procedure is unnecessarily suggestive, the court then considers whether the totality of the circumstances created a substantial probability that the defendant was misidentified. Id. The police presenting to the victim a singled-out, handcuffed suspect may be unnecessarily suggestive. Id. at 162.

Absent corroboration, eyewitness identification based on “fleeting or limited observation” should not be the basis for conviction. State v. Spann, 287 N.W.2d 406, 407-08 (Minn.1979). The court then looks to five factors to determine whether there was a substantial probability of misidentification: (1) the witnesses’ view of the criminal at the time of the crime, (2) the witnesses’ degree of attention, (3) the accuracy of the witnesses’ descriptions, (4) the level of certainty of the witnesses when the identification was made, and (5) the time between the crime and the identification. State v. Ostrem, 535 N.W.2d 916, 921 (Minn.1995).

Here, appellant was singled out and presented by the police in handcuffs to the victim for identification. That fact undercuts the weight to be given the identification and taints the identification. Also, we note that the victim could not identify appellant as one of her attackers, but could identify appellant’s orange Astros jersey as the one she saw on a person fleeing the crime scene. The other witnesses corroborated her identification of appellant as the person wearing the orange Astros jersey. The one-man show up of the defendant in handcuffs was unnecessarily suggestive. But the combined testimony of all the witnesses, including police officer Dale, and the fairly consistent testimony about the jersey present the solid circumstantial chain of evidence leading from appellant fleeing the scene back to Q.A. and the person who attacked her. We do not find a perfect identification procedure, but we do not find reversible error in the trial court considering the eyewitness identification as part of the evidence supporting the conviction.

There is support in the record for the witnesses’ identification of the Astros jersey. Two witnesses at the scene and the fortunate circumstance of a police officer near enough to the scene to effectively detain the defendant quickly facilitated identification and corroborated the victim’s memory.

Between the Astros jersey, the corroboration of the victim’s memory by witnesses, and the short interval between the time of the crime and identification, the admission of identification of evidence of appellant was not clearly erroneous.

IV.

Finally, appellant argues that the evidence was insufficient to support the district court’s determination of guilt. In reviewing the sufficiency of the evidence the court applies the same standard to bench and jury trials. State v. Cox, 278 N.W.2d 62, 65 (Minn.1979). The sufficiency standard is that the reviewing court views the evidence in the light most favorable to the state and decides whether the fact-finder could have reasonably found the defendant guilty. Id. When the evidence is circumstantial, it must form a complete chain that, viewed as a whole, leads so directly to the guilt of the defendant as to exclude any reasonable inference of doubt of guilt. State v. Jones, 516 N.W.2d 545, 549 (Minn.1994). The factual findings of the district court are upheld unless clearly erroneous. State v. Williams, 535 N.W.2d 277, 286 (Minn.1995).

The circumstantial evidence was, when viewed as a whole, sufficient to exclude any rational hypothesis of innocence. The court found that the identification evidence was reliable enough to support a conviction. The show-up identification of the defendant was the link in the circumstantial chain that the appellant argues was incomplete. As we have determined, the admission of the show-up evidence was not clearly erroneous, not because it was not tainted, but because the totality of the facts surrounding the apprehension and arrest of appellant, including the testimony of all the on-scene witnesses, validates the admissibility of the victim’s eye-witness identification.

DECISION

The record shows that appellant was adequately informed of his right to a jury trial, his right to an omnibus hearing, and his right to testify on his own behalf. The record shows an adequate waiver by appellant of those rights. The identification evidence and the circumstantial evidence were sufficient to support the conviction.

Affirmed.