author: LARSON, Justice.

text:
    WINNEBAGO INDUSTRIES, INC. and Sentry Insurance, Appellees, v. Mark HAVERLY, Appellant.
    No. 05-0493.
    Supreme Court of Iowa.
    Dec. 1, 2006.
    Rehearing Denied Feb. 27, 2007.

      Christopher D. Spaulding of Berg, Rouse, Spaulding & Schmidt, P.L.C., Des Moines, for appellant.
    Lee P. Hook and Joseph M. Barron of Peddicord, Wharton, Spencer & Hook, LLP, Des Moines, for appellees.
   LARSON, Justice.

Mark Haverly, who was employed by Winnebago Industries, Inc., filed a workers’ compensation claim under Iowa Code chapter 85 (2001) and won a favorable ruling from the Workers’ Compensation Commissioner. On judicial review, however, the district court reversed the commissioner’s ruling, and the court of appeals affirmed. On further review, we vacate the decision of the court of appeals, reverse the judgment of the district court, and remand.

1. Facts and Prior Proceedings.

Mark Haverly began working for Winnebago in 1983. In 1992 he suffered a work-related back injury and, in 1997, entered into a settlement of his workers’ compensation claim. Winnebago provided ongoing medical care for this back injury. Haverly continued to have back pain and underwent various courses of treatment, including surgery. On November 7, 2000, Haverly went to a doctor complaining of increased back pain, and the doctor recommended conservative treatment. Dissatisfied with the subsequent care provided by Winnebago, Haverly sought medical care from Dr. David Beck in February 2002. Dr. Beck recommended surgery. This surgery', however, was not authorized by Winnebago.

In March 2002 Haverly filed a petition for workers’ compensation benefits, alleging that a work-related back injury occurred on November 7, 2000. Winnebago responded that any injury sustained on November 7, 2000, related to Haverly’s 1992 injury and, at most, caused a temporary aggravation of his preexisting back condition.

Because Winnebago did not authorize Haverly to proceed with the surgery recommended by Dr. Beck, Haverly filed an application for alternate medical care on May 17, 2002. See Iowa Code § 85.27; Iowa Admin. Code r. 876-4.48. This petition alleged a November 7, 2000 injury date and requested that the surgery be provided by Winnebago. Haverly supported his request with an opinion from Dr. Beck that Haverly’s work duties had aggravated his preexisting back condition and that surgery was necessary. Winnebago filed an answer to the request for alternate medical care but, in its answer, did not dispute liability for the November 7 work injury. (A box on the answer form stating “employer denies [the claimant’s allegation of liability]” was not checked by Winnebago’s attorney.) Moreover, at the hearing on the application for alternate care, Winnebago’s attorney confirmed that Winnebago was not disputing liability for the injury. A deputy commissioner granted Haverly’s application for alternate care and ordered Winnebago to provide the surgery. Agency rules provide no intra-agency appeal from such orders, and Winnebago did not seek judicial review.

Haverly’s claim for benefits proceeded to a hearing in 2003. The deputy commissioner determined, in relevant part, that the issue of liability for the November 7 injury had been previously “litigated” in the alternate-medical-care proceeding and that this prior decision was, therefore, res judicata on the issue of liability. The deputy stated:

[IJnjury arising out of and in the course of employment has been established in a prior contested case proceeding entitled to the same preclusive effect as is this arbitration proceeding.

Winnebago appealed the arbitration decision on this and several other grounds. On the intra-agency appeal, the Workers’ Compensation Commissioner affirmed the deputy’s conclusion that Winnebago’s admission of liability in the alternate-medical-care proceeding was res judicata on the issue of liability for benefits. The commissioner also ruled that, even if issue preclusion did not prevent Winnebago from litigating the issue, the record “amply demonstrates” that Haverly suffered a new injury on November 7, 2000.

Winnebago sought judicial review, challenging the agency’s res judicata determination, as well as the existence of a new injury. The district court reversed, ruling that issue preclusion did not apply because the issue of liability had not been “raised and litigated” in the prior action. See United Fire & Cas. Co. v. Shelly Funeral Home, Inc., 642 N.W.2d 648, 655 (Iowa 2002). The district court found that Winnebago’s admission of liability in the alternate-medical-care proceeding was an admission of liability for medical care only and not an admission of liability for a new injury.

On appeal, the court of appeals affirmed. The court noted, but rejected, Haverly’s complaint that the district court’s conclusion permitted Winnebago to admit liability for the purpose of controlling medical care, but then deny it for the purpose of determining compensability. The court concluded that the requirements for issue preclusion were not met and that neither law-of-the-case nor judicial-estoppel doctrines could be applied to bar litigation of the liability issue.

Haverly contends Winnebago should not be permitted to admit liability in the alternate-medical-care proceeding when that worked to its advantage (by allowing Winnebago to control Haverly’s medical care) and then reverse its position in the arbitration hearing on the issue of liability for benefits. The arbitration decision stated a similar view of the case and questioned Winnebago’s motives in admitting liability in the alternate-medical-care proceeding. That decision observed

that, under 876 I.A.C. 4.48(7), the expedited procedure [for alternate medical care] is not available where liability is disputed. Indeed, [Winnebago] filed a formal answer admitting liability on May 29, 2002. At the beginning of the hearing, [Winnebago’s] attorney was asked directly whether liability was admitted, and answered just as directly that it was....
The decision in that case [on alternate medical care] constitutes final agency action and has not been appealed. [Winnebago], however, ha[s] experienced a change of heart and now seek[s] to dispute liability. In agency experience, it is not unheard of for certain employers and insurance carriers to “admit” liability when there is something to gain thereby (the right to control medical treatment), yet thereafter attempt to deny liability as to the case in chief. This litigation offers a classic example.

On Winnebago’s intra-agency appeal, the commissioner made a similar observation. While the commissioner did not identify the doctrine of judicial estoppel by name, he clearly stated the gist of it in this language:

It would be patently unfair to allow an employer to admit liability and control the medical care for a medical condition and then allow that employer, after the care is completed to deny liability and litigate the liability issue, unless there are good reasons for doing so.

II. The Issues.

Haverly raises a single issue: whether Winnebago is foreclosed from denying its liability for the November 7, 2000 injury by admitting its liability in the earlier alternate-medical-care proceeding. He raises three arguments in support of his appeal: issue preclusion, law of the case, and judicial estoppel.

III. Standard of Review.

Judicial review of a workers’ compensation decision by the commissioner is governed by Iowa Code chapter 17A, our Administrative Procedure Act. See Iowa Code § 86.26. A party challenging agency action bears the burden of proving both the invalidity of the agency’s action and resulting prejudice. Iowa Code § 17A.19(8)(a); Hill v. Fleetguard, 705 N.W.2d 665, 671 (Iowa 2005).

When a district court exercises its authority on judicial review, it acts in an appellate capacity to correct any errors of law by the agency. Hill, 705 N.W.2d at 669; Heartland Express, Inc. v. Terry, 631 N.W.2d 260, 265 (Iowa 2001). The district court may reverse, modify, or grant other appropriate relief if substantial rights of the petitioner have been prejudiced. Hill, 705 N.W.2d at 669; Heartland Express, Inc., 631 N.W.2d at 265.

On our review of the district court’s decision, we apply the standards of chapter 17A to determine if our conclusions are the same as those of the district court. If so, we affirm; otherwise, we reverse or otherwise modify. Hill, 705 N.W.2d at 669.

IV.Issue Preclusion.

Haverly argues, and the commissioner ruled, that the issue of Winnebago’s liability for the November 7 claim ha,d been decided in the proceeding on- Haverly’s application for alternate medical care because Winnebago conceded the point in its answer. Based on the principle of issue preclusion, the agency refused to revisit the issue of liability.

The doctrine of res judicata includes both claim preclusion and issue preclusion. Colvin v. Story County Bd. of Review, 653 N.W.2d 345, 348 (Iowa 2002). In this case, Haverly relies on issue preclusion, also known as collateral estoppel. See Hunter v. City of Des Moines, 300 N.W.2d 121, 123 n. 2 (Iowa 1981). Under issue preclusion, once a court has decided an issue of fact or law necessary to its judgment, the same issue cannot be reliti-gated in later proceedings. Id. at 123. Issue preclusion serves a dual purpose: to protect litigants from “the ‘vexation of re-litigating identical issues with identical parties or those persons with a significant connected interest to the prior litigation,’ ” and to further “the interest of judicial economy and efficiency by preventing unnecessary litigation.” Am. Family Mut. Ins. Co. v. Allied Mut. Ins. Co., 562 N.W.2d 159, 163 (Iowa 1997) (quoting State ex rel. Casas v. Fellmer, 521 N.W.2d 738, 740-41 (Iowa 1994)). Under our four-part test, the doctrine applies to prevent reliti-gation if:

(1) the . issue determined in the prior action is identical to the present issue;
(2) the issue was raised and litigated in the prior action; (3) the issue was material and relevant to the disposition in the prior action; and (4) the determination made of the issue in the prior action was necessary and essential to that resulting judgment.

United Fire & Cas. Co., 642 N.W.2d at 655.

The element of issue preclusion of concern in this case is whether the issue of Winnebago’s liability was “raised and litigated” in the alternate-care proceeding. Iowa law is clear that issue preclusion requires that the issue was “actually litigated” in the prior proceeding. Spiker v. Spiker, 708 N.W.2d 347, 353 (Iowa 2006); Hoth v. Iowa Mut. Ins. Co., 577 N.W.2d 390, 391-92 (Iowa 1998); see also Restatement (Second) of Judgments § 27 (“When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.”).

An issue is not actually litigated if the defendant might have interposed it as an affirmative defense but failed to do so; nor is it actually litigated if it is raised by a material allegation of the party’s pleading but is admitted (explicitly or by virtue of a failure to deny) in a responsive pleading; nor is it actually litigated if it is raised in an allegation by one party and is admitted by the other before evidence on the issue is adduced at trial; nor is it actually litigated if it is the subject of a stipulation between the parties. A stipulation may, however, be binding in a subsequent action between the parties if the parties have manifested an intention to-that effect. Furthermore, under the rules of evidence applicable in the jurisdiction, an admission by a party may be treated as conclusive or be admissible in evidence against that party in a subsequent action.
In the case of a judgment entered by confession, consent, or default, none of the issues is actually litigated. Therefore, the rule of this Section does not apply with respect to any issue in a subsequent action. The judgment may be conclusive, however, with respect to one or more issues, if the parties have entered an agreement manifesting such an intention.

Restatement (Second) of Judgments § 27 cmt. e; see also United States v. Young, 804 F.2d 116, 118 (8th Cir.1986) (“A fact establiáhed in prior litigation not by judicial resolution but by stipulation has not been ‘actually litigated’ and thus is the proper subject of proof in subsequent proceedings.”); 50 C.J.S. Judgments § 813, at 381 (1997) (“Facts determined by admissions and stipulations ordinarily are not entitled to collateral estoppel effect, because facts so determined are not actually litigated, unless the parties to the stipulation manifest an intent to be bound in a subsequent action.” (Footnotes omitted.)).

We agree with the court of appeals and the district court that Winnebago’s admission of liability in the alternate-care proceeding did not constitute actual litigation for the purpose of applying issue preclusion.

V. Law of the Case.

Haverly also argues that the deputy commissioner’s order requiring Winnebago to furnish alternate medical care is binding in future proceedings on that claim. “The doctrine of the law of the case represents the practice of courts to refuse to reconsider what has once been decided.” State v. Grosvenor, 402 N.W.2d 402, 405 (Iowa 1987); accord State ex rel. Goettsch v. Diacide Distrib., Inc., 596 N.W.2d 532, 537 (Iowa 1999). Pursuant to this principle,

legal principles announced and the views expressed by a reviewing court in an opinion, right or wrong, are binding throughout further progress of the case upon the litigants, the trial court and this court in later appeals.

Grosvenor, 402 N.W.2d at 405; 5 Am. Jur.2d Appellate Review § 605, at 300-01 (1995).

The answer to Haverly’s law-of-the-case argument is that the agency did not decide anything as to Winnebago’s liability for compensation benefits, but only his right to alternate care. In fact, for reasons we discuss later, the agency could not decide liability at that stage. See Iowa Admin. Code r. 876 — 4.48(7) (2001) (If liability is disputed, the application for alternate medical care would have to be dismissed.). Our resolution of the issue regarding Winnebago’s admission of liability in the alternate-care proceeding is not based on what the agency did or decided at that point, but what Winnebago did. As such, the law-of-the-case doctrine does not bar Winnebago’s denial of liability in this case. That brings us to the issue of judicial estoppel, Haverly’s third argument.

VI. Judicial Estoppel.

Haverly argues that Winnebago is judicially estopped from denying liability for the November 7, 2000 injury because it conceded that issue in the alternate-medical-care proceeding. In this case, Haverly did not raise the issue of judicial estoppel. In fact, it was only mentioned and rejected by the district court in its ruling on judicial review. However, because judicial estoppel is intended to protect the integrity of the fact-finding process by administrative agencies and courts, the issue may properly be raised by courts, even at the appellate stage, on their own motion. See In re Cassidy, 892 F.2d 637, 641 (7th Cir.1990); State v. Duncan, 710 N.W.2d 34, 43-44 (Iowa 2006).

Under our cases,

[t]he doctrine [of judicial estoppel] “prohibits a party who has successfully and unequivocally asserted a position in one proceeding from asserting an inconsistent position in a subsequent proceeding.” It is a “common sense” rule, designed to protect the integrity of the judicial process by preventing deliberately inconsistent — and potentially misleading — assertions from being successfully urged in succeeding tribunals. The doctrine is properly limited in its application to cases involving privity with, or prejudice to, the party invoking the doctrine. Another fundamental feature of the doctrine is the requirement of proof that the inconsistent position has been successfully asserted in the prior tribunal. Without such proof, “application of the rule is unwarranted because no risk of inconsistent, misleading results exists.”

Wilson v. Liberty Mut. Group, 666 N.W.2d 163, 166 (Iowa 2003) (quoting Vennerberg Farms, Inc. v. IGF Ins. Co., 405 N.W.2d 810, 814 (Iowa 1987)) (other citations omitted).

The doctrine at issue, although called “judicial” estoppel, is applicable in administrative, as well as judicial, cases. See Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d 597, 604 (9th Cir.1996).

Unsurprisingly given its name, judicial estoppel is often articulated as applying to “judicial” proceedings. However, many cases have applied the doctrine where the prior statement was made in an administrative proceeding, and we are not aware of any case refusing to apply the doctrine because the prior proceeding was administrative rather than judicial.

Id.; see also Chaveriat v. Williams Pipe Line Co., 11 F.3d 1420, 1427 (7th Cir.1993) (“Though called judicial estoppel, the doctrine has been applied, rightly in our view, to proceedings in which a party to an administrative proceeding obtains a favorable order that he seeks to repudiate in a subsequent judicial proceeding.”); Charles Alan Wright, et al., Federal Practice and Procedure § 4477, at 575 (2002) (judicial estoppel applicable to cases of inconsistent statement made to administrative agency). The rationale for this principle is that “[ajscertaining the truth is as important in an administrative inquiry as in judicial proceedings.” Simon v. Safelite Glass Corp., 128 F.3d 68, 72 (2d Cir.1997).

Our Wilson case is closely analogous to this one. In Wilson a workers’ compensation claimant settled his case with his employer under the provisions of Iowa Code section 85.35. As required by that statute, Wilson admitted there was a bona fide dispute with his employer regarding the cause of his injury. His employer’s insurance carrier paid benefits under the settlement agreement. Wilson then filed a lawsuit against the insurance carrier for alleged bad-faith failure to settle the claim. Wilson, 666 N.W.2d at 165.

We held that Wilson was precluded, in a civil action, to claim bad-faith failure to settle because this was exactly the opposite of what he had stated in his workers’ compensation settlement agreement, i.e., that there was a bona fide dispute on liability. Id. at 166-67. We reached that conclusion on the basis of judicial estoppel because

[pjlainly Wilson’s position in the bad faith action is inconsistent with the position he asserted in the workers’ compensation litigation. To prevail on his bad faith claim, Wilson would necessarily have to prove that Liberty Mutual had no reasonable basis to deny his claim. Yet in the section 85.35 proceedings before the workers’ compensation commissioner, Wilson successfully asserted there was a bona fide dispute as to whether his injuries were work-related so as to entitle him to additional benefits. These positions are clearly inconsistent.

Id. at 167 (citation omitted).

In Simon a worker told the Social Security Administration he was unable to work, and the court held he was judicially es-topped from later claiming damages for age discrimination against his employer because his later claim required proof that he was qualified and able to perform the duties required for his position. 128 F.3d at 73-74.

In DeGuiseppe v. Village of Bellwood, 68 F.3d 187 (7th Cir.1995), a police officer won a disability pension by claiming inability to perform his duties. He later sued the village for retaliatory discharge. As part of his retaliatory-discharge suit, the plaintiff was required to show he was not disabled. DeGuiseppe, 68 F.3d at 191. While the plaintiff contended he was not disabled, the court said:

Regardless of whether or not this contention is true, this Court is not disposed to consider it. Under the doctrine of judicial estoppel, which “prevents a party who has successfully taken a position in one litigation from taking the opposite position in a subsequent litigation,” courts are under no compulsion to heed the shifting theories of “chameleonic litigants.” Instead, we will accept a party’s prevailing position in previous litigation (or, as here, quasi-judicial proceedings) as dispositive.

Id. (quoting Czajkowski v. City of Chicago, 810 F.Supp. 1428, 1434 (N.D.Ill.1992)) (other citation omitted).

In this case, it is understandable why Winnebago admitted liability in the alternate-care proceeding. If an employer admits liability, it ordinarily has the right to control the care provided to the employee. Iowa Code § 85.27(4). The right to control treatment, however, is lost if the employer disputes liability. Trade Prof'ls, Inc. v. Shriver, 661 N.W.2d 119, 124 (Iowa 2003). In Trade Professionals we based this conclusion on the Workers’ Compensation Commissioner’s interpretation of an administrative rule. Under the Iowa Administrative Code,

[ajpplication cannot be filed under this rule [for applying for alternate care] if the liability of the employer is an issue. If an application is filed where the liability of the employer is at issue, the application will be dismissed without prejudice.

Iowa Admin. Code r. 876 — 4.48(7) (2001).

As we noted in Trade Professionals,
[t]he industrial commissioner has interpreted this section to mean that,
in Iowa, an employer and its insurer have the right to control the medical care claimant receives, with two exceptions. The first is where the employer has denied liability for the injury. The second is where claimant has sought and received authorization from this agency for alternative medical care.

Trade Prof'ls, 661 N.W.2d at 124 (quoting Freels v. Archer Daniels Midland Co., # 1151214 (7/30/2000)).

We can assume in this case that Winnebago decided to admit liability for the purpose of maintaining control over Haverly’s care, but rejected any broader application of that admission because it wanted to challenge its liability for payment of benefits. Under judicial estoppel, this ordinarily cannot be permitted. There might, in some cases, be a significant change in the facts after the admission of liability that could justify a change of position by the employer, but those facts are not present here.

VII. Conclusion.

For the reasons discussed, we vacate the decision of the court of appeals, reverse the judgment of the district court, and remand to the commission for computation of benefits.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT REVERSED; CASE REMANDED.

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

      . Haverly also filed a petition alleging that he suffered a work-related back injury on March 2, 2000. This alleged injury is not at issue on further review.


source: Caselaw Access Project

author: TERNUS, Chief Justice.

license: Public Domain

text:
    In re Marriage of Holly A. HYNICK and Bradley L. Hynick Upon the Petition of Holly A. Hynick, Appellee, And Concerning Bradley L. Hynick, Appellant.
    No. 05-2103.
    Supreme Court of Iowa.
    Feb. 16, 2007.

      Eric Borseth of Borseth Law Office, Al-toona, for appellant.
    Joel D. Yates of Clements, Pothoven, Stravers & Yates, Oskaloosa, for appellee.
   TERNUS, Chief Justice.

The issue presented in this dissolution-of-marriage case is whether the parties should be awarded joint physical care of their minor son. The district court awarded primary physical care to appellee, Holly Hynick. On appeal, the court of. appeals modified the trial court decree to award joint physical care to Holly and the appellant, Bradley Hynick. Upon review of the record and the governing statutes, we are convinced joint physical care is inappropriate under the circumstances of this case. Therefore, we vacate the court of appeals decision and affirm the district court.

I. Prior Proceedings.

Holly Hynick filed a petition for dissolution of marriage in March 2005. She and Bradley Hynick had been married since 2001 and had one child, Garisin, born in 2003. At the time of trial in October 2005, Holly was twenty-three years old, Brad was twenty-seven years old, and Garisin was two and one-half years old. The parties agreed at trial that they should share legal custody of Garisin, so the primary issue submitted to the district court was Garisin’s physical care. Brad argued that he should have primary physical care of Garisin, or alternatively, that the parties should share the child’s physical care. Holly requested that physical care be placed with her. She opposed joint physical care for two reasons: (1) Brad’s alleged abuse of her, and (2) the parties’ inability to communicate.

Concluding there was a history of domestic abuse, the trial court rejected Brad’s request for joint physical care and instead awarded primary physical care to Holly. Brad was allowed visitation of one evening a week, alternating three-day weekends and holidays, and three weeks in the summer. The district court’s judgment also ordered Brad to have no contact with Holly for one year.

Brad appealed, claiming it was in Gari-sin’s best interest that the parties be awarded joint physical care. The case was transferred to the court of appeals. A divided panel of that court modified the district court decree to provide that Brad and Holly would have joint physical care of Garisin. We granted Holly’s application for further review.

We review the district court’s decision de novo. See In re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006). “ ‘Although we decide the issues raised on appeal anew, we give weight to the trial court’s factual findings, especially with respect to the credibility of the witnesses.’ ” Id. (quoting In re Marriage of Witten, 672 N.W.2d 768, 778 (Iowa 2003)).

II. Underlying Facts.

When the parties married in 2001, Holly had completed a year of college and Brad, who has a GED, was employed. Holly completed her degree in May 2004 and took an advertising and marketing job with a local radio station. Brad was the primary income producer while Holly was in school. Holly was Garisin’s primary caretaker.

At trial, both parties highlighted past conditions and conduct of the other. The evidence showed Holly had counseling in high school for a possible eating disorder. She had also suffered from episodes of depression since marrying and was being treated for a major depressive disorder at the time of trial. Holly’s psychiatrist testified she was in full remission, however, and had no mental health issues that would affect her ability to parent. The evidence showed that prior to marrying Holly, Brad had had several run-ins with the law, including possession of alcohol by a minor, violation of the open container law, possession of methamphetamine, and operating a motor vehicle while intoxicated. He had no criminal record after 2000, however, until charges of domestic abuse were filed by Holly after the parties separated. Notwithstanding Holly’s and Brad’s problems and shortcomings, the trial court found, and we agree, that both were good parents to Garisin.

We turn now to the allegations of domestic abuse. Holly decided to leave Brad in February 2005; Brad did not want the marriage to end. The parties agreed to share physical care of their son by each parent living in the marital home with Garisin on an alternating schedule. When Holly was not in the parties’ residence, she initially lived with Deb Patterson, a person unknown to Brad. Patterson was the mother of Jason Hewitt, a friend of Holly. Brad suspected that Holly was having an affair with Hewitt, an allegation that Holly denied then and continued to deny at trial.

On February 26, 2005, Holly came to the parties’ house to see Garisin. Brad began questioning Holly about where she had been and with whom she had been. Rather than answering Brad’s questions, Holly decided to leave. . The parties’ explanations of what happened as Holly tried to walk out vary, but it is clear Holly wanted to leave and Brad wanted her to stay and talk. As Holly attempted to go out the door, Brad put his foot in the doorway to stop her, and Holly ended up with a bruise on her knee where her. leg was hit by the door. As a result of this incident, Holly obtained a temporary no-contact order under Iowa Code chapter 236 (2005).

Rather than pursue' a permanent no-contact order, Holly filed for divorce on March 7, 2001. The parties agreed to a temporary order allowing shared physical care of Garisin.

Brad did not handle the pending dissolution of his marriage well, and he was quite bothered by his suspicions that Holly was involved with another man. On March 26, he learned that Holly was with Hewitt at a third person’s home. Brad went there and pounded on the door, shouting for Holly. Holly was scared and called the police. The officers who responded spent several minutes talking with Brad before convincing him to leave.

On June 5, Brad called Holly to talk to her about the divorce. After speaking with him at length, Holly eventually hung up. Brad then came to her apartment and started pounding on the door. Holly told him to leave and threatened to call the police, but he kept knocking on the door. Holly finally called law enforcement, but Brad left before the officers arrived. While the officers were at Holly’s apartment, Brad called her. She gave the phone to an officer who told Brad to leave Holly alone. Nonetheless, later that day, Brad called Holly again, trying to talk her out of the divorce. Holly considered Brad’s phone calls not only harassing, but also threatening, as he asserted in his calls that he was not going to let her go through with the divorce.

In this same time frame, another incident occurred that eventually led Holly to seek a second no-contact order. Holly was at the home of Brad’s parents to pick up Garisin when Brad arrived. While inside the house, Brad pulled down Holly’s slacks and demanded to know when she stopped wearing underwear. He then went outside to Holly’s vehicle and began looking through it. As she was trying to leave, Brad said something to the effect that, if he gave Holly a gun, would she just shoot him, that that would make the whole situation easier.

On June 7, 2005, Holly filed a petition for relief from domestic abuse. The district court entered a no-contact order and granted temporary custody of Garisin to Holly. The parties agreed to a visitation schedule, pending a hearing on a permanent order.

While the temporary no-contact order was in place, Brad and Holly again crossed paths. On September 22, 2005, Holly stopped at Brad’s parents’ home to drop off Garisin. Typically, Brad would arrive ten or fifteen minutes after Holly left, but on that occasion he arrived while Holly was still there. As Holly got into her car to leave, Brad directed several derogatory remarks toward her in Garisin’s presence.

Brad was not the only person unhappy with Holly’s decision to seek a divorce. Holly’s family and the couple’s friends disapproved of her actions and sided with Brad at trial. They testified that Holly was manipulative, that Brad was more focused on his son than was Holly, and that Brad should have equal time with his son. They believed Holly had fabricated or at least exaggerated her claims of domestic abuse and harassment. Brad’s father and mother testified similarly. Friends described instances prior to the parties’ separation when Holly would criticize Brad in front of Garisin. Nonetheless, no one testified that Holly was a bad parent, and several family members acknowledged Holly was a good mother to Garisin.

III. Applicable Law.

In evaluating the propriety of shared physical care, it is helpful to consider this concept in the context of related principles and alternatives. When a district court dissolves a marriage involving a minor child, the court must determine who is to have legal custody of the child and who is to have physical care of the child. “Legal custody” carries with it certain rights and responsibilities, including, but not limited to, “decision making affecting the child’s legal status, medical care, education, extracurricular activities, and religious instruction.” Iowa Code § 598.1(3), (5). When parties are awarded “joint legal custody,” “both parents have legal custodial rights and responsibilities toward the child” and “neither parent has legal custodial rights superior to those of the other parent.” Id. § 598.1(3). In deciding whether joint custody is in the best interest of a minor child, the court must consider several factors, including “[wjhether the parents can communicate with each other regarding the child’s needs” and “whether a history of domestic abuse, as defined in section 236.2, exists.” Id. § 598.41(3). In fact, “if the court finds that a history of domestic abuse exists, a rebuttable presumption against the awarding of joint custody exists.” Id. § 598.41(1)(5). When parents agree to joint custody, the court need not consider the factors set forth in section 598.41(3). Id. § 598.41(4).

“If joint legal custody is awarded to both parents, the court may award joint physical care to both joint custodial parents upon the request of either parent.” Id. § 598.41(5)(a). “‘Physical care’ means the right and responsibility to maintain a home for the minor child and provide for the routine care of the child.” Id. § 598.1(7). Similarly to joint custody, “joint physical care” means both parents are awarded physical care of the child. Id. § 598.1(4). Under this arrangement, “both parents have rights and responsibilities toward the child, including, but not limited to, shared parenting time with the child, maintaining homes for the child, [and] providing routine care for the child.” Id.. “[N]either parent has physical care rights superior to those -of the other parent” when joint physical care is awarded. Id.

Joint physical care anticipates that parents will have equal, or roughly equal, residential time with the child. See generally Iowa Ct. R. 9.14 (setting forth rules for determining child support obligations “[i]n cases of court-ordered joint (equally shared) physical care”). Given the fact that neither parent has rights superior to the other with respect to the child’s routine care, joint physical care also envisions shared decision making on all routine matters. Obviously, such decision making requires good communication between the parents as well as mutual respect. Because domestic abuse reflects the ability of the parties to listen to one another and respect one another’s opinions and feelings, the existence of domestic abuse is a significant factor in determining whether joint physical care is appropriate. See generally In re Marriage of Daniels, 568 N.W.2d 51, 55 (Iowa Ct.App.1997) (stating “evidence of untreated domestic battering should be given considerable weight in determining the primary caretaker”).

When joint physical care is not warranted, the court must choose one parent to be the primary caretaker, awarding the other parent visitation rights. See generally Iowa Code § 598.41(l)(a), (5). Under this arrangement, the parent with primary physical care has the responsibility to maintain a residence for the child and has the sole right to make decisions concerning the child’s routine care. See generally id. § 598.1(7). The noncaretaker parent is relegated to the role of hosting the child for visits on a schedule determined by the court to be in the best interest of the child. Visitation time varies widely and can even approach an amount almost equal to the time spent with the caretaker parent. See generally Iowa Ct. R. 9.9 (setting forth graduated credits against child support obligation for extraordinary visitation including a twenty-five percent credit for “167 or more [visitation days] but less than equally shared physical care”). Thus, the main distinction between joint physical care and primary physical care with liberal visitation rights is the joint decision making on routine matters required when parents share physical care.

IV. Discussion.

As mentioned above, only physical care was contested in the present case because Holly and Brad agreed they would share custody. The critical question in deciding whether joint physical care is also appropriate is whether the parties can communicate effectively on the myriad of issues that arise daily in the routine care of a child. We are convinced the record shows they cannot.

Despite the fact Brad is a good father to Garisin, Brad has not brought the same level of maturity to his relationship with Holly. Divorce is never easy, so it is admirable that, when the parties first separated, they agreed to share physical care of Garisin. Unfortunately, Brad’s personal disagreements with Holly’s decisions soon led him to behave in a way that not only alienated Holly, but ultimately caused her to fear for her safety. Notwithstanding his denials and family members’ minimization of his conduct, the trial court found, and we agree, that his actions were harassing and constituted domestic abuse. See generally Iowa Code § 236.2 (defining “domestic abuse”). While his desperate efforts to learn why his wife had left him are understandable, we cannot ignore the fact that eventually his actions reflected not the attempts of a husband trying to save his marriage, but the bitterness of a man who had been rejected and who resented his former partner. Just three weeks before trial Brad encountered Holly and rather than behave in a mature manner, he called her derogatory names in front of Garisin. In addition, Brad has not cooperated with Holly on relatively minor matters. Prior to trial, the parties reached an agreement with respect to a division of their personal property. Pursuant to their agreement, Holly was to have a photo album that contained pictures of Garisin. When Brad finally gave her the photo album, he had removed all the pictures. Moreover, he refused to give Holly any pictures of their son until a few weeks before trial.

We cannot assume in the face of such hostile and petty conduct that, if Brad were given joint physical care of Garisin, he would respect Holly’s judgment and reach mutually agreeable decisions concerning their son. In spite of Brad’s testimony that he would effectively communicate with Holly if they shared Garisin’s physical care, we think the evidence shows Brad is simply not emotionally ready to interact with Holly in a responsible manner on a daily basis. Therefore, joint physical care is not feasible.

That brings us to the choice of which parent should be granted primary physical care. As noted earlier, we give weight to the trial court’s factual findings, particularly with respect to the credibility of witnesses. The trial court had the opportunity to observe the witnesses and concluded primary care should be awarded to Holly. We agree. Even the witnesses who supported Brad’s request for joint physical care agreed that Holly, while not perfect, was a good mother to her son. We also think the record demonstrates that Holly recognizes the importance of Brad’s involvement in Garisin’s-life, as well as the involvement of the parties’ extended families. She was supportive of shared physical care until Brad engaged in harassing and abusive conduct. In addition, despite the fact her parents and Brad’s parents have openly disapproved of her conduct, Holly has facilitated continuing contact between Garisin and his grandparents. We believe Holly will fulfill her legal responsibility as the parent with primary physical care to support Brad’s relationship with Garisin. See Iowa Code § 598.41(5)(6). It would be in Garisin’s best interest that Brad similarly support Holly’s relationship with their son.

We have reviewed the visitation schedule set by the trial court and find no reason to modify it.

V. Conclusion and Disposition.

The mutual respect and the ability to communicate essential for joint physical care is lacking in this case. Accordingly, we vacate the court of appeals decision modifying the district court’s decree and awarding the parties joint physical care of their son.

We agree with the trial court’s assessment that Holly should be awarded primary physical care of Garisin. Therefore, we affirm the trial court’s decree awarding Holly primary physical care with liberal visitation by Brad. We hope the parties, with the support of their extended families, will put their personal disappointments and anger aside and fashion a loving and stable environment for their son.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

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


author: MEYER, Justice.

text:
    STATE of Minnesota, Respondent, v. Anthony John PALUBICKI, Appellant.
    No. A06-401.
    Supreme Court of Minnesota.
    Feb. 22, 2007.
   OPINION

MEYER, Justice.

Appellant Anthony John Palubicki challenges an order to make restitution payments to K.O. and M.B., children of the man Palubicki was convicted of murdering. Palubicki contends that K.O. and M.B. are not entitled to restitution for their personal losses because they are entitled only to the expenses their father would have incurred had he survived, and even if KO.’s and M.B.’s personal expenses were permitted under Minnesota law, they are not entitled to restitution for expenses incurred while voluntarily attending the trial.

On January 25, 2003, the victim was found murdered in his Park Rapids home; the facts of the murder are discussed more fully in State v. Palubicki, 700 N.W.2d 476, 480 (Minn.2005). After a jury trial, Palu-bicki was convicted of one count of first-degree premeditated murder in violation of Minn.Stat. § 609.185(a)(1) (2006), two counts of first-degree felony murder in violation of Minn.Stat. § 609.185(a)(3) (2006), and was sentenced to life in prison for each of the three counts. Palubicki, 700 N.W.2d at 480. Palubicki appealed his conviction, citing numerous procedural, ev-identiary, and sentencing errors. Id. We concluded that the district court erred by entering separate adjudications and sentences for each of Palubicki’s convictions but rejected the remainder of Palubicki’s claims. Id. at 491. We remanded the case for readjudication and sentencing, ordering the district court to determine which of Palubicki’s convictions and sentences should be vacated. Id.

On remand, the district court entered a life sentence on Palubicki’s first-degree premeditated murder conviction and vacated the first-degree felony murder sentences, but failed to vacate Palubicki’s two first-degree felony murder convictions. After resentencing, the district court conducted a restitution hearing to address restitution requests from the Minnesota Crime Victims Reparations Board and the victim’s two children and next of kin, K.O. and M.B. K.O. and M.B. requested restitution for lost wages, the cost of meals, and travel expenses incurred throughout the murder investigation and subsequent trial. K.O. also requested restitution for cleaning his father’s home and long-distance telephone calls made during the criminal investigation and trial. Palubicki challenged KO.’s and MJB.’s restitution requests. Palubicki did not dispute the Crime Victims Reparations Board’s restitution request, acknowledging that the funds, which had been used to cover funeral expenses, were clearly reimbursable under the law.

K.O. testified at the grand jury proceedings and at trial. When not compelled to testify, K.O. voluntarily attended hearings and the trial. M.B. never testified, but she voluntarily attended Palubicki’s trial and related hearings. At the restitution hearing, she testified that she did so because she “felt a strong obligation to make sure that [her] father was treated with respect and * ⅜ * that this whole process would come to closure somehow.”

Palubicki conceded that any expenses arising from meetings with police investigators to give statements about the case were reimbursable under the statute. But Palubicki argued that when the family members voluntarily attended the criminal trial, they were not entitled to restitution.

The district court ordered restitution payments of $3,832 to be made to the Minnesota Crime Victims Reparations Board to cover the costs of the victim’s funeral expenses and cleaning the murder scene. The court also ordered Palubicki to pay $4,769 to M.B. in restitution for lost wages and transportation and to pay $5,134 to K.O. in restitution for lost wages, transportation, long-distance telephone calls, and meals. Palubieki appealed, challenging the legality of the restitution order, arguing that K.0. and M.B. are not entitled to restitution under Minnesota law and that the district court erred when it ordered restitution payments without offsetting his restitution by restitution payments the court had ordered Palubicki’s alleged accomplice to pay. He also claims that the district court erred when it failed to vacate two of his three convictions.

I.

Under Minnesota law, victims of crimes are permitted to request restitution from a defendant if the defendant is convicted. Minn.Stat. § 611A.04, subd. 1 (2006). When the crime victim is deceased, the victim’s surviving spouse or next of kin may receive restitution. Minn. Stat. § 611A.01(b) (2002). In the restitution context, we apply the common law definition of “next of kin,” which is the “nearest living blood relation.” State v. Jones, 678 N.W.2d 1, 26 (Minn.2004).

Neither party disputes that K.O. and M.B., the victim’s children and “nearest living blood relation,” are victims under Minn.Stat. § 611A.01(b). Palubieki, however, disputes the type of reimbursement to which K.O. and M.B. are entitled under the statute. Palubieki argues that K.O. and M.B. are entitled to seek restitution only for the expenses to which the victim, their father, would have been entitled had he survived. Palubieki bases his argument on the language in Jones, which indicates that “victims” under Minnesota law are those “who step into the shoes of the deceased direct victim of the crime.” 678 N.W.2d at 25. According to Palubieki, K.O. and M.B. are merely surrogates for the victim and have no right to restitution for their personal expenses. The state responds that Jones only establishes who qualifies as next of kin under the statute, not what expenses are reimbursable, and emphasizes the remedial nature of the restitution statute.

Although Jones limits the number of people eligible for compensation under the statute, Jones does not in any way limit the types of restitution recoverable under the statute. 678 N.W.2d at 25-26. In Jones, the sister of a murder victim sought restitution when the victim’s husband, a surviving spouse under the statute, and children, next of kin under the statute, did not. Id. at 25. The question was whether under Minn.Stat. § 611A.01(b) the language “surviving spouse or next of kin” permitted both the victim’s surviving spouse and next of kin to receive restitution. Jones, 678 N.W.2d at 25. After determining that either the surviving spouse or the victim’s next of kin, but not both, could request restitution, the court examined whether the victim’s sister qualified as next of kin. Id. In concluding that the victim’s children, but not her sister, qualified as next of kin, the court distinguished “next of kin” in a restitution action, a narrow class of individuals, from “next of kin” in a wrongful death action, a much broader class. Id. at 25-26.

We conclude that Jones was not meant to limit the recovery of a victim to only the losses that the deceased could have recovered had he or she survived. Moreover, nothing in the language of the statute limits reimbursable expenses in the manner that Palubicki proposes. Minnesota Statutes § 611A.01(b) defines “victim” as “a natural person who incurs loss or harm as a result of a crime.” If the victim is deceased, “ ‘victim’ means the deceased’s surviving spouse or next of kin.” Minn.Stat. § 611A.01(b). Nothing in the statute distinguishes living victims of a crime from individuals who become victims by virtue of being a surviving spouse or next of kin. Further, Minn.Stat. § 611A.01(b) states that its definition of victim applies for purposes of MinmStat. § 611A.04, subd. 1(a), which establishes what types of restitution requests are recoverable. Absent any limiting language in the statute, we will construe the statute to enable a surviving spouse or next of kin to receive restitution for personal losses if such losses resulted from the crime. Therefore, because K.O. and M.B. are victims under the statutory definition in Minn.Stat. § 611A.01(b), we conclude that they are not foreclosed from requesting restitution for their personal expenses resulting from the murder.

II.

We next turn to whether K.O. and M.B. are entitled to restitution for expenses arising from their voluntary attendance at Palubicki’s trial. Under Minn. Stat. § 611A.04, subd. 1(a), a restitution request “may include, but is not limited to, any out-of-pocket losses resulting from the crime, including * * * replacement of wages and services.” The primary purpose of the statute is to restore crime victims to the same financial position they were in before the crime. See, e.g., State v. Pflepsen, 590 N.W.2d 759, 768 (Minn.1999); State v. Terpstra, 546 N.W.2d 280, 283 (Minn.1996); State v. Fader, 358 N.W.2d 42, 48 (Minn.1984) (“[T]he word ‘restitution’ connotes restoring or compensating the victim for his loss. If the legislature intended the term to be used more loosely, as a form of punitive damages, it should have used some other word or made its particular use of the word clearer.”). We have recognized that the restitution statute’s broad language gives the district court significant discretion to award restitution for a victim’s expenses. See State v. Tenerelli, 598 N.W.2d 668, 671-72 (Minn.1999) (concluding that the need for a Hmong healing ceremony resulted from the appellant’s assault on the victim and that the district court did not abuse its discretion when it ordered the appellant to pay restitution); State v. Maidi, 537 N.W.2d 280, 284-85 (Minn.1995) (affirming a trial court order granting restitution for counter-abduction expenses when the appellant had been convicted of interfering with parental or custodial rights in violation of Minn.Stat. § 609.26 (2006)).

In this case, Palubicki acknowledges that he is liable for the funeral expenses of the victim. However, he contests the other claims brought by the victim’s children, claiming that their voluntary attendance at trial did not directly result from the crime. He asserts that the losses must be directly caused by the defendant’s conduct. See State v. Latimer, 604 N.W.2d 103, 105-06 (Minn.App.1999). Palubicki argues that the lost wages did not directly flow from his criminal conduct but, instead, flowed from the state’s decision to prosecute, the exercise of trial rights, and the choice of the next of kin to attend the trial. In other words, Palubicki argues that a boundary must be set by this court to limit a restitution claim lest its cause become too attenuated from the original criminal act.

The state argues for a more expansive interpretation of the statute, asserting that the costs of attending the trial resulted from the crime because the expenses would not have been incurred “but for” Palubicki’s commission of the crime. See In re Welfare of D.D.G., 532 N.W.2d 279, 282-83 (Minn.App.1995) (ruling that because a reward offer would not have occurred “but for” the defendant’s bomb threat, the school district was entitled to restitution); see also State v. DeGrote, No. A03-908, 2004 WL 556946, at *3 (Minn. App. Mar.23, 2004) (ruling that restitution is appropriate when a victim would not have incurred expense “but for” the unlawful activity).

We agree with Palubicki that the potential exists for a restitution claim to become so attenuated in its cause that it cannot be said to result from the defendant’s criminal act. For that reason, a but-for test has the potential to expand a restitution award beyond the statutory provision, and we decline to adopt such a broad test. We conclude, however, that this case does not present a claim where the claimed loss is too attenuated from the criminal act. The next of kin were in court as a direct result of Palubicki’s crime. As victims of the crime under the statute, the next of kin did not choose to attend the court proceedings as disinterested bystanders. They attended because they were unavoidably entwined in the criminal proceedings. At the restitution hearing, M.B. testified that she “felt a strong obligation” to attend the trial. M.B. did not attend Palubicki’s trial as an interested member of the public. Rather, she attended his trial to achieve closure in coping with her father’s death. It is a direct result of the crime that the children of the murder victim attended the proceedings and suffered lost wages. Therefore, we conclude that the district court did not abuse its discretion when it ordered Palu-bicki to pay restitution for K.O.’s and M.B.’s expenses.

III.

Palubicki also contends that the district court erred in reimbursing K.O. $300 for meal expenses because the state did not prove by a preponderance of the evidence that the meal request was an appropriate reimbursement request. “Information submitted relating to restitution must describe the items or elements of loss, itemize the total dollar amounts of restitution claimed, and specify the reasons justifying these amounts.” Minn. Stat. § 611A.04, subd. 1(a). KO.’s restitution request identified the days he attended the trial, thereby providing the court with a guide for the days for which meal reimbursement was requested. We conclude that the district court did not abuse its discretion when ordering $300 in compensation for K.O.’s meals because the restitution request in its entirety provided sufficient detail to meet the statutory requirement.

IV.

Palubicki asserts that even if K.O. and M.B. were entitled to restitution, the district court erred by ordering him to pay for KO.’s and M.B.’s entire loss, because his accomplice had already been ordered to pay $19,380.54 in restitution. Palubicki argues that since the purpose of restitution is to compensate a victim for his or her loss, the total amount of restitution ordered by the court cannot exceed the actual loss suffered by the victim. The state responds that because Palubicki was not ordered to pay restitution beyond KO.’s and M.B.’s recoverable costs, Palubicki does not have standing to pursue the matter.

Palubicki established at the restitution hearing that he has no assets and he earns only $1.25 per hour working at a prison job. The prospect of K.O. and M.B. receiving double recovery is unlikely and, in any event, the question is prematurely before the court. K.O. and M.B. have not yet received payment in excess of their economic loss. Palubicki is the only party before the court. Unless challenged by Palubicki’s accomplice, this court will not address the accomplice’s restitution order. Given Palubicki’s financial status, it is unlikely that K.O. and M.B. will ever be compensated for more than their economic loss. Therefore, we conclude that Palu-bicki’s claim of double recovery is not yet ripe for consideration.

V.

Palubicki argues that the district court erred when on remand it vacated two of his three sentences, but failed to vacate two of his convictions for first-degree murder. The state concedes that this was an error and in violation of Minn.Stat. § 609.035 (2006). Because the district court should have formally adjudicated and imposed sentence on one count only, and because this issue has already been remanded to the district court once, we vacate Palubicki’s two first-degree felony murder convictions in the interest of judicial economy. We acknowledge, however, that if Palubicki’s first-degree murder conviction is later vacated for any reason, the district court may then enter a first-degree felony murder judgment against Palubicki.

Affirmed in part; two convictions for first-degree felony murder in violation of Minn.Stat. § 609.185(a)(3) are vacated.

      . We also concluded that the district court erred when it ordered Palubicki to pay a $200 co-payment for public defender services without first determining whether he had the ability to pay. We vacated the order requiring payment. Palubicki, 700 N.W.2d at 491.

      . K.O.’s and M.B.'s restitution requests also included expenses incurred by K.O.’s significant other and the significant other's children, and M.B.'s husband during the investigation and trial. The district court concluded that only K.O. and M.B. qualified as victims under the restitution statutes and limited restitution costs to expenses actually incurred by ICO. and M.B. K.O. and M.B. did not appeal that decision.

      . The state contends that Palubicki's blanket assertion that K.O.’s and M.B.’s expenses were "not allowable” was not sufficiently detailed to meet the requirements for affidavits challenging restitution requests under Minn. Stat. § 611A.045, subd. 3(a) (2006), and therefore he is not entitled to challenge the restitution order. We conclude that although Palubicki’s affidavit meets only the bare minimum definition of "detailed,” the affidavit was sufficiently detailed for purposes of the statute and Palubieki preserved his restitution challenge for appeal.

      . Minnesota Statutes § 611A.01(b) was amended in 2005 and broadened the definition of "victim” to include "family members, guardian, or custodian of a minor, incompetent, incapacitated, or deceased person.” Act of June 2, 2005, ch. 136, art. 8, § 22, 2005 Minn. Laws 901, 1016.


author: MINGE, Judge.

text:
    STATE of Minnesota, Respondent, v. David Paul HAGER, Appellant.
    No. A05-2410.
    Court of Appeals of Minnesota.
    Feb. 23, 2007.

      Lori Swanson, Attorney General, St. Paul, MN; and John J. Muhar, Itasca County Attorney, Todd S. Webb, Assistant County Attorney, Grand Rapids, MN, for respondent.
    John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by HUDSON, Presiding Judge; SHUMAKER, Judge; and MINGE, Judge.
   OPINION

MINGE, Judge.

Appellant David Hager challenges his convictions of receiving stolen property, aiding an offender, and obstructing legal process. Appellant contends that the district court’s jury instructions on aiding an offender and obstructing legal process were prejudicially erroneous, that his conviction for possession of stolen property is not supported by sufficient evidence, and that the district court erred by imposing a sentence for both aiding an offender and obstructing legal process. We affirm in part, reverse in part, and remand. •

FACTS

D.S. reported theft from his Itasca County lake property. This was the second time in less than a year that items had been stolen from D.S.’s property. The items stolen included a four-wheeler, a generator, chain saws, tools, a pump, a tackle box, a garbage can, a television, a portable shed, a camper trailer, 'plastic chairs, a picnic table, and a grill.

Itasca County Deputy Sheriff Mark Greiner responded to D.S.’s report. He remembered seeing items similar to those reported stolen while he was executing an arrest warrant on appellant’s property. Deputy Greiner obtained a search warrant and, accompanied by four other deputies, went to appellant’s property to conduct a search. After knocking on the door of appellant’s home, Deputy Greiner saw appellant inside and heard him yell “cops.” Because the occupants did not open the door, the deputies forced their way into the residence. Appellant, appellant’s two sons, and three women were inside.

The officers testified that the residence’s occupants failed to comply with officers’ instructions. Deputy Greiner and Deputy Ryan Gunderson saw Samuel Hager, one of appellant’s sons, throw an object into a barrel stove, where a fire was burning. When the officers attempted to grab Samuel Hager, he resisted. At trial, Deputy Greiner testified that when he attempted to open the stove to determine what Samuel Hager had thrown inside, appellant pushed him out of the way and lay down in front of the stove, delaying the deputies from looking inside. The officers also testified that appellant pushed Deputy Aaron Apitz, which appellant disputed.

While the officers attempted to subdue the home’s occupants, the stove’s vent dislodged, smoke poured into the room, and there was a pervasive, irritating “chemical” smell. The smoke caused the officers to cough for 30-45 minutes. One officer became sick. Deputy Apitz testified that he believed the smell was burning methamphetamine.

After subduing the occupants and securing the scene, the deputies searched appellant’s residence. They found a glass pipe in the stove. They also observed several of the items listed in the search warrant. The officers applied for a second warrant to search the residence for other items, including drugs. During the second search, the officers found drug paraphernalia, including pen tubes containing a white, powdery substance, a roach clip, a razor blade, a digital scale, and plastic baggies. Deputy Greiner testified that the roach clip had a marijuana odor. The officers did not find any drugs during the search.

Behind appellant’s residence, officers found D.S.’s camper and a dismantled shed that matched the description of the one D.S. reported stolen. Appellant claimed that his son, Samuel Hager, had purchased the camper and shed from Sheldon Warner, but that otherwise, he did not know where the items had come from. Appellant also claimed that he did not know any of the items were stolen. Warner testified that he had never seen any of the items before.

Samuel Hager testified that he purchased the camper and shed from Warner in July or August 2004 for about $1,000, and that he did not know any of the items had been stolen. Samuel also confirmed that he threw a glass pipe into the stove after the officers entered the residence.

The record shows that Samuel Hager was convicted of gross misdemeanor obstructing legal process. The record is silent as to whether he was convicted of any other crimes. Appellant was charged with felony possession of stolen property (in violation of Minn.Stat. § 609.53, subd. 1 (2004)), felony aiding an offender (in violation of MinmStat. § 609.495, subd. 1(a) (2004)), and gross misdemeanor obstructing legal process (in violation of Minn.Stat. § 609.50, subds. 1(2), 2(2) (2004)). A jury found appellant guilty of all three counts. The district court sentenced appellant to 19 months in prison for receiving stolen property, a concurrent 19-month sentence for aiding an offender, and 90 days, concurrent, for obstructing legal process. This appeal follows.

ISSUES
I. Was the district court’s jury instruction for aiding an offender prejudicially erroneous, entitling appellant to a new trial?
II. Was the district court’s jury instruction for obstructing legal process prejudicially erroneous, entitling appellant to a new trial?
III. Is appellant’s conviction for possession of stolen property supported by sufficient evidence?
IV. Did the district court err by imposing sentences for appellant’s convictions of aiding an offender and obstructing legal process?

ANALYSIS

I.

The first issue is whether the district court’s aiding-an-offender jury instruction was prejudicially erroneous and, if so, whether appellant is entitled to a new trial on this charge. Appellant contends that the instruction was prejudicially erroneous because it neither identified the crime that appellant aided nor limited the conviction to aiding a crime that was a felony.

A. Plain Error

Appellant did not object at trial to the jury instruction he now challenges. A party’s failure to object to a jury instruction at trial generally waives consideration of the issue on appeal. State v. Cross, 577 N.W.2d 721, 726 (Minn.1998). But we may review the issue for plain error. State v. Griller, 583 N.W.2d 736, 740 (Minn.1998). For an appellate court to grant relief for “an unobjected-to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights.” Id. If all three prongs of this test are satisfied, the court may “remedy the error to ensure fairness and the integrity of the judicial proceedings.” State v. Ihle, 640 N.W.2d 910, 916 (Minn.2002).

District courts are allowed “considerable latitude” in the selection of language for jury instructions. State v. Baird, 654 N.W.2d 105, 113 (Minn.2002). We review jury instructions in their entirety to determine whether they fairly and adequately explain the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn.1988). “An instruction is in error if it materially misstates the law.” State v. Kuhnau, 622 N.W.2d 552, 556 (Minn.2001).

Minnesota’s aiding-an-offender statute provides:

Whoever harbors, conceals, aids, or assists by word or acts another whom the actor knows or has reason to know has committed a crime under the laws of this or another state or of the United States with intent that such offender shall avoid or escape from arrest, trial, conviction, or punishment, may be sentenced to imprisonment for not more than three years or to payment of a fine of not more than $5,000, or both if the crime committed or attempted by the other person is a felony.

Minn.Stat. § 609.495, subd. 1(a). The district court instructed the jury on the crime of aiding an offender, in pertinent part, as follows:

The elements of aiding an offender are:
First, Samuel Hager committed a crime.
Second, the defendant knew or had reason to know that Samuel Hager had committed a crime. “To know” requires that the defendant believed that Samuel Hager had committed a crime.

Here, the state concedes that the district court’s failure to specify the criminal offense that appellant aided constitutes plain error. We agree. Specificity in an aiding-the-offender offense instruction is important. See State v. Stempf, 627 N.W.2d 352, 355 (Minn.App.2001). When there is ambiguity about what predicate conduct by the original offender constitutes the crime, the instruction is erroneous. See id. at 354. Further, unless the full jury identifies the offender’s criminal act that the accused has aided, the accused may be denied the right to a unanimous verdict. See State v. Pendleton, 725 N.W.2d 717, 730-31 (Minn.2007); Stempf, 627 N.W.2d at 355; State v. Begbie, 415 N.W.2d 103, 105-06 (Minn.App.1987), review denied (Minn. Jan. 20,1988).

In Pendleton, the Minnesota Supreme Court reviewed United States Supreme Court and state court decisions and recognized the distinction between the basic elements of the crime and the facts underlying those basic elements. 725 N.W.2d at 731. While unanimity is required on the basic elements of the crime, it is not regarding the facts. Id. The Pendleton analysis limits the unanimous verdict requirement to situations where the offenses of the accused are inherently separate and juror confusion or disagreement would deny the accused due process. Id. at 732; see also Ihle, 640 N.W.2d at 917-19 (finding the requirement of unanimity inapplicable when the conduct of the accused obstructed officer action in several ways at the same time). Because, as concluded below, the predicate offense in this aiding-an-offender charge must be a felony, the identification of the offense is not simply an underlying fact, but a basic element of the crime.

The state argues that because the context- at trial made it clear that the predicate crime was Samuel Hager’s felony possession of methamphetamine, appellant failed to show that the error affected his substantial rights. This argument brings us back to the conduct of Samuel Hager, who appellant aided. The record indicates that, at trial, much of the evidence focused on Samuel’s possession of methamphetamine. The parties admitted that Samuel Hager had possessed methamphetamine in other contexts. The state argues that the only reason for the struggle at the time of the first search warrant’s execution was to prevent the officers from discovering Samuel’s methamphetamine. The state contends that the jury only had this criminal conduct by Samuel in mind when it reached its verdict.

However, we note that there were several things happening during the search and accompanying tumult. The officers discovered stolen property. Initially, the search was triggered by the theft complaint and the investigation into what property was at appellant’s home, who stole the property, whether Samuel Hager had bought the property, why appellant had the property, and possibly whether appellant was keeping some of the property for his son. A significant part of the trial testimony dealt with the theft offense. The jury may have decided that this line of evidence supported a charge that appellant aided Samuel Hager in concealing or covering up the crime of theft.

The state emphasizes that the record also indicates that by rolling on the floor in front of the barrel stove, appellant temporarily prevented the officers from opening the stove and delayed or prevented discovery of what Samuel had thrown inside the stove. The toxic smoke that sickened one of the officers is evidence that there was a potent substance inside and that appellant’s obstructionist activity may have prevented discovery of that substance. Also, the officers eventually found a glass pipe inside the stove. Samuel Hager admitted that he tossed that pipe in the stove. This was arguably a pipe used to smoke methamphetamine. The jury may have decided that possession of such a pipe by Samuel was a criminal act. See Minn.Stat. § 152.092 (2004) (providing that possession of drug paraphernalia is a petty misdemeanor).

Finally, the record is clear that Samuel was in fact convicted of obstructing legal process. Perhaps the jury determined that appellant aided Samuel in Samuel’s obstruction offense. The record does not clearly identify the crime or crimes appellant aided. In fact, the jury was not even clearly told which specific crimes were in play. Instead, the jury had the entire fact scenario to consider and was permitted to choose a crime that appellant may have aided.

This uncertainty is inherently prejudicial. As previously stated, appellant is entitled to a unanimous verdict on each basic element of his charged offense. Minn. R.Crim. P. 26.01, subd. 1(5); Pendleton, 725 N.W.2d at 730. When more than one predicate act could constitute the predicate offense and the acts relate to different crimes and arise out of complex circumstances, it is not clear which offense the jury identified. Here, one group of jurors may have determined that the theft offense by Samuel was the predicate criminal conduct, while another group may have disagreed but viewed methamphetamine possession as the requisite predicate offense, the third group may have only thought of paraphernalia possession as the offense, and a fourth may have focused on the obstruction charge against Samuel. There is no assurance that the jury reached a unanimous decision on the predicate offense by Samuel and the aiding conduct by appellant. Because we cannot be assured of a unanimous verdict, we conclude that appellant’s substantive rights have been affected and that the plain-error test is met. Accordingly, we reverse and remand the aiding-an-offender conviction.

B. Felony Requirement

We also face the issue of whether the predicate crime for an aiding-an-offender conviction must be a felony. Although the instruction used by the district court did not reach this question, the matter must be considered in a new trial.

The words “crime” and “felony” both appear in Minnesota’s aiding-an-offender statute. Minn.Stat. § 609.495, subd. 1(a). Arguably, because the statute describes the predicate offense as a “crime” and not a “felony,” if the aiding-an-offender sentence is only imprisonment or a fine, the predicate crime need only be a gross misdemeanor or even a misdemeanor. Id. But it is also possible to read the last phrase of the subsection, “if the crime committed or attempted by the other person is a felony,” as modifying the entire subsection and as a condition precedent for finding criminal liability. Id. Because the statutory language is ambiguous, we proceed to examine the statute’s legislative history. In re Molly, 712 N.W.2d 567, 571 (Minn.App.2006).

Minnesota’s aiding-an-offender statute was amended in 2001. See 2001 Minn. Laws 1st Spec. Sess. ch. 8, art. 8, § 24, at 2082-83. Prior to that amendment, the word “felony” appeared in the earlier portion of the subsection in place of the present word “crime.” Id. at 2082. Prior to the amendment, it was clear that the predicate offense must be a felony. The amendment not only substituted “crime” for “felony,” but it also reduced the state’s burden of proof by allowing the prosecutor to show that the accused “has reason to know” a crime has been committed. Id. At the same time, the amendment added the following language at the end of the subsection: “if the crime committed or attempted by the other person is a felony.” Id. at 2038.

Legislative history indicates that the amendment was a reaction to a court decision holding that the prosecution must prove that the accused actually knew that a felony was being committed. See In re Welfare of A.C.N., 583 N.W.2d 303, 306 (Minn.App.1998); Hearing on S.F. No. 1334 Before the Senate Comm, on Crime Prevention (Apr. 6, 2001). While the change eliminates this high standard, the legislative history does not indicate an intent to eliminate the requirement that the predicate crime be a felony.

We also note that allowing the statute to reach aiding of underlying crimes that are less than a felony creates a logical inconsistency. Under such an interpretation, a person convicted of aiding a misdemeanor offender could be subject to a more severe penalty than would be imposed on the person actually committing the underlying misdemeanor offense. Finally, as a general rule of law, courts have developed the rule of lenity. According to the rule of lenity, “[t]he ambit of an ambiguous criminal law should be construed narrowly....” State v. Zeimet, 696 N.W.2d 791, 794 (Minn.2005). As applied to this case, the rule of lenity suggests that the underlying offense must be a felony. Based on the foregoing considerations, we conclude that the predicate offense must be a felony and that the jury should make that determination.

II.

The next issue is whether the district court’s obstructing-legal-process jury instruction was prejudicially erroneous and, if so, whether appellant is entitled to a new trial on this charge. Generally, an appellant’s failure to object to the instruction at trial waives consideration of the issue on appeal. Cross, 577 N.W.2d at 726. But we may review for plain error, as described in our discussion of the previous issue. See Griller, 583 N.W.2d at 740.

Appellant contends that his conviction for obstructing legal process was the result of plain error, affecting his substantial rights, because the jury instruction failed to limit the offense to physical obstruction or interference with a peace officer. The relevant statute provides that an individual obstructs legal process when he intentionally “obstructs, resists, or interferes with a peace officer while the officer is engaged in the performance of official duties.” Minn.Stat. § 609.50, subd. 1(2). Minnesota caselaw requires that the words or acts of the accused have the effect of a physical obstruction. Ihle, 640 N.W.2d at 915-16; State v. Krawsky, 426 N.W.2d 875, 877 (Minn.1988). In Krawsky, for example, the supreme court construed the obstructing-legal-process statute to “forbid[ ] intentional physical obstruction or interference with a police officer in the performance of his official duties.” Krawsky, 426 N.W.2d at 877.

The recommended jury instruction for obstructing legal process has been updated to reflect the Ihle and Krawsky decisions. See 10A Minnesota Practice, CRIMJIG 24.26 cmt. (2006). This instruction describes the second element of the crime in this manner:

[T]he defendant physically obstructed, hindered, or prevented the execution of legal process. “Physically obstructed, hindered, or prevented” means the words and acts of the defendant must have the effect of substantially frustrating or hindering the officer in the performance of the officer’s duties.

10A Minnesota Practice, CRIMJIG 24.26 (2006).

Here, in contrast to the updated jury instructions, the district court instructed the jury, in pertinent part, as follows:

The elements of obstructing legal process are: ...
Second, the defendant obstructed, resisted, or interfered with Deputy Greiner, and/or Deputy Apitz, and/or Deputy Gunderson in the performance of official duties.

During its deliberations, the jury presented the district court with a question: “For Count 3 of obstructing legal process, does the definition of obstruction or interfer-enee include verbal actions, or is it limited to physical actions?” Both attorneys agreed that the jury should be told: “You have the instructions necessary to make your decision.” The district court then instructed the jury accordingly.

Here, the obstructing-legal-process jury instruction did not fairly and adequately explain the law as interpreted by the Ihle and Krawsky decisions. This error was plain. Respondent concedes that the instruction constitutes plain error but maintains that appellant has failed to prove that the error affected his substantial rights. But the jury asked a question during its deliberations regarding physical acts, indicating its uncertainty. Under these circumstances, we conclude that the erroneous instruction prejudiced appellant’s substantial rights, and we reverse and remand the conviction of obstructing legal process.

III.

The next issue is whether appellant’s conviction of possession of stolen property is supported by sufficient evidence. In considering a claim of insufficient evidence, “our review ... is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). We must assume that “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn.1989). This is especially true when resolution of the matter depends mainly on conflicting testimony. State v. Pieschke, 295 N.W.2d 580, 584 (Minn.1980). “We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that the defendant was proven guilty of the offense charged.” Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn.2004) (quotation omitted).

“[A] conviction based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence.” State v. Jones, 516 N.W.2d 545, 549 (Minn.1994). Even though we scrutinize circumstantial evidence more carefully, it “is entitled to the same weight as direct evidence.” State v. Bauer, 598 N.W.2d 352, 370 (Minn.1999). The circumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the defendant’s guilt as to exclude beyond a reasonable doubt any other reasonable inference. Jones, 516 N.W.2d at 549. But the jury is best suited to evaluate circumstantial evidence, and its verdict is deserving of deference. Webb, 440 N.W.2d at 430.

A person is guilty of receiving stolen property when that person “receives, possesses, transfers, buys or conceals any stolen property or property obtained by robbery, knowing or having reason to know the property was stolen or obtained by robbery....” MinmStat. § 609.53, subd. 1. The crime is a felony when the value of the property exceeds $500. Minn.Stat. § 609.52, subd. 3(3)(a) (2004).

Appellant contends that there is insufficient evidence that he knew or had reason to know that the property at issue was stolen. Here, property stolen from D.S. was found on appellant’s property, both inside and outside of his home. This property had been stolen from D.S. during two separate occasions. Legitimate acquisition of property from both thefts is improbable and presents a question of credibility. And, with few exceptions, appellant was unable to explain where the property had come from. An individual’s “unexplained possession of stolen property within a reasonable time after a ... theft will in and of itself be sufficient to sustain a conviction.” State v. Bagley, 286 Minn. 180, 188, 175 N.W.2d 448, 454 (1970).

Both appellant and Samuel Hager testified that Samuel purchased certain property from Sheldon Warner. But Warner denied, ever having seen the property in question. This presented a question of credibility, and we defer to the jury’s opportunity to view witnesses and make credibility determinations. State v. Pippitt, 645 N.W.2d 87, 94 (Minn.2002). Samuel also testified that he paid approximately $1,000 for the camper and shed. But D.S. estimated the total value of these two items at $2,700, nearly three times the amount Samuel claimed he paid. A jury may infer that the accused knows that property is stolen when the defendant purchases the property “shortly after it [is] stolen for a price far below its actual value.” State v. Simonson, 298 Minn. 235, 236, 214 N.W.2d 679, 681 (1974).

Appellant also contends that the evidence is insufficient to support his conviction because he did not attempt to hide the shed or camper. But the evidence regarding the property’s location was contradictory. Deputy Greiner testified that the camper “couldn’t really [be] see[n] from the road.” Appellant testified that the shed could be seen “from a mile away.” But the shed had been taken apart and may have been unrecognizable in its dismantled form. In any event, some of the smaller stolen items were found inside appellant’s home.

Based on the record in this ease, it was not unreasonable for the jury to draw the inference that appellant knew the property was stolen. Accordingly, we conclude that sufficient evidence supports appellant’s conviction for receiving stolen property and affirm that conviction.

IV.

The final issue is whether the district court erred by imposing a sentence for both aiding an offender and obstructing legal process. “[I]f a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses.... ” Minn.Stat. § 609.035, subd. 1 (2004). The single behavioral incident rule “protects defendants from both multiple sentences and multiple prosecutions and ensures that punishment [is] commensurate with the criminality of defendants’] misconduct.” State v. Williams, 608 N.W.2d 837, 841 (Minn.2000) (quotation omitted). The factors that we use to determine whether the offenses constitute a single behavioral incident include “time, place, and whether the offenses were motivated by a desire to obtain a single criminal objective.” State v. Soto, 562 N.W.2d 299, 304 (Minn.1997). The state bears, by a preponderance of the evidence, the burden to show that the conduct does not constitute a single behavioral incident. Williams, 608 N.W.2d at 840-41. We will not reverse a district court’s determination of whether the conduct arose from a single behavioral incident unless that determination is clearly erroneous. State v. Heath, 685 N.W.2d 48, 61 (Minn.App.2004), review denied (Minn. Nov. 16, 2004).

Here, the state concedes that the sentences of aiding an offender and obstructing legal process constitute error. In this appeal it appears that both charges are based on conduct that occurred during the execution of the first search warrant. As thus presented, both offenses occurred during a single course of conduct and sentencing appellant concurrently for both offenses was impermissible.

DECISION

Because appellant’s conviction for receiving stolen property is supported by sufficient evidence, we affirm. But because the district court erroneously instructed the jury on the law of aiding an offender and obstructing legal process, and impermissibly sentenced appellant for both convictions, we reverse those convictions and remand.

Affirmed in part, reversed in part, and remanded.

      . The criminal code identifies two “aiding” offenses. The first is the offense just set forth, addressing the conduct of aiding the offender. Minn.Stat. § 609.495, subd. 1(a). The statute sets forth the penalties for this offense. Id. The second “aiding” offense is aiding and abetting in the commission of a crime. Minn. Stat. § 609.05, subd. 1 (2004). This aiding offense is otherwise defined by the criminal law and carries the penalty specified for that offense. Id.