author: WILLIS, Judge. RANDALL, Judge

text:
    Chad Scott MASTAKOSKI, Appellant, v. 2003 DODGE DURANGO, VIN # 1D8HS78Z13F530764, Respondent.
    No. A06-2396.
    Court of Appeals of Minnesota.
    Sept. 11, 2007.

      Rachel C. Delich-Sullivan, Hibbing, MN, for appellant.
    Melanie S. Ford, St. Louis County Attorney, Thomas G. Stanley, Assistant County Attorney, Duluth, MN, for respondent.
    Considered and decided by WILLIS, Presiding Judge; RANDALL, Judge; and ROSS, Judge.
   OPINION

WILLIS, Judge.

Appellant challenges the forfeiture of his vehicle, arguing that because he was not convicted of the designated offense on which the forfeiture was based, the forfeiture was unlawful. Because we conclude that a vehicle is subject to forfeiture under the vehicle-forfeiture statute if it was used in the commission of a designated offense, even if the driver was not convicted of that offense, and because here it is undisputed that appellant committed a designated offense, we affirm.

FACTS

On July 10, 2006, appellant Chad Masta-koski was arrested for driving while impaired (DWI). Although he took a preliminary breath test in the field, appellant refused to take an alcohol-concentration test after his arrest. Appellant had been convicted of gross-misdemeanor DWI in 2000. He was charged in the case before us with second-degree refusal to test, in violation of Minn.Stat. § 169A.20, subd. 2 (2004); and third-degree DWI, in violation of Minn.Stat. § 169A.20, subd. 1(1) (2004). Appellant’s vehicle was towed, his license plates were taken, and he received a “notice of seizure and intent to forfeit vehicle.” Appellant petitioned the district court for a judicial decision regarding the forfeiture of his vehicle and demanded its return, arguing that the police had no probable cause to stop his vehicle and no articulable basis for believing that he had been drinking alcohol.

Appellant pleaded guilty to third-degree DWI, and the state dismissed the charge of second-degree refusal to test. The parties submitted to the district court, on stipulated facts, the issue of whether appellant’s vehicle was lawfully forfeited. Appellant argued that because he was not convicted of second-degree refusal to test and the forfeiture was based on that designated offense, the forfeiture was unlawful. The district court concluded that appellant’s vehicle was subject to forfeiture, and this appeal follows.

ISSUES

I. Was appellant’s vehicle lawfully subject to forfeiture under the vehicle-forfeiture statute even though he was not convicted of the designated offense on which the forfeiture was based?

II. Is the vehicle-forfeiture statute unconstitutionally vague?

ANALYSIS

I.

Appellant argues that because he was not convicted of second-degree refusal to test — the charge was dismissed in accordance with his plea agreement — and the forfeiture was based on that designated offense, the forfeiture was unlawful.

Resolution of this issue requires interpretation of the forfeiture statute, Minn. Stat. § 169A.63 (2006). Statutory interpretation is a question of law, subject to de novo review. See State v. Stevenson, 656 N.W.2d 235, 238 (Minn.2003). When interpreting a statute, the role of this court is to determine the legislature’s intent. See id. Appellate courts must first decide whether the statute’s language, on its face, is clear or ambiguous. Id. If a statute is unambiguous, a court must apply its plain meaning. State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn.1996).

The forfeiture statute provides that “[a] motor vehicle is subject to forfeiture under this section if it was used in the commission of a designated offense or was used in conduct resulting in a designated license revocation.” Minn.Stat. § 169A.63, subd. 6(a) (2006). The definition of a “designated offense” includes “a violation of section 169A.20 (driving while impaired) under the circumstances described in section 169A.24 (first-degree driving while impaired), or 169A.25 (second-degree driving while impaired).” Minn.Stat. § 169A.63, subd. 1(e)(1).

There is no dispute that appellant’s refusal to test while having a DWI conviction within the preceding ten years (which is within the definition of second-degree DWI) is a designated offense. In concluding that appellant’s car was lawfully subject to forfeiture, the district court noted that appellant had not been convicted of refusal to test but concluded that “[t]he entire record, including this court taking judicial notice of the criminal case, establishes that [appellant] did in fact refuse to submit to chemical testing under circumstances where all of the elements of that offense, § 169A.20, subd. 2, have been established as a matter of fact” and therefore that appellant committed a designated offense under the forfeiture statute.

Appellant argues that a person must be convicted of a designated offense for the vehicle used to be subject to forfeiture. He relies on Minn.Stat. § 169A.63, subd. 7, entitled “Limitations on vehicle forfeiture,” which provides that “[a] vehicle is presumed subject to forfeiture under this section if ... the driver is convicted of the designated offense upon which the forfeiture is based.” Minn.Stat. § 169A.63, subd. 7(a)(1).

Appellant points to two district-court opinions concluding that a defendant must be convicted of a designated offense for his vehicle to be subject to forfeiture. But district-court opinions are not binding on this court. And regardless, district courts have been divided on the issue. Appellant points also to three opinions of this court concluding that a vehicle was subject to forfeiture because the driver had been convicted of a designated offense. See City of New Brighton v. 2000 Ford Excursion, 622 N.W.2d 364, 367 (Minn.App.2001), review denied (Minn. Apr. 17, 2001); Hawes v. 1997 Jeep Wrangler, 602 N.W.2d 874, 876 (Minn.App.1999); City of New Hope v. 1986 Mazda 626, 546 N.W.2d 300, 301 (Minn.App.1996). But these opinions do not address the issue of whether the vehicles would have been subject to forfeiture absent a conviction.

The state argues that the plain language of the forfeiture statute, as well as the legislative intent and the purpose of the statute (protecting the public from impaired drivers), supports a determination that a conviction is not necessary for the vehicle used in the commission of an offense to be subject to forfeiture. As the state notes, this issue has been addressed by Minnesota appellate courts only in a special concurrence in Garde v. One 1992 Ford Explorer XLT, 662 N.W.2d 165, 167 (Minn.App.2003). In Garde, the appellant’s vehicle was seized after he was charged with first-degree DWI but before he had been convicted of a designated offense. He later pleaded guilty to second-degree DWI. Id. at 166. Because the majority determined that the appellant had failed to properly serve his demand for judicial determination of forfeiture as the forfeiture statute requires, it declined to address whether the appellant had committed a designated offense. Id. at 167. But the special concurrence noted its disagreement with the district court’s determination that for a vehicle to be subject to forfeiture, the driver must be convicted of first-degree DWI. Garde, 662 N.W.2d at 167 (Minge, J., concurring specially). The statute at that time described a designated offense as a conviction of DWI “under the circumstances described in” the first-degree DWI statute. Although the driver ultimately pleaded guilty to second-degree DWI, it was undisputed that the driver had “previous driving offenses” that would have supported a conviction of first-degree DWI, so he was convicted of DWI “under the circumstances described in” the first-degree DWI statute. Therefore, the special concurrence concluded, the vehicle was subject to forfeiture even though the driver was not actually convicted of first-degree DWI. Id.

Although it is not precedential, the Garde concurrence supports an interpretation of the forfeiture statute that would not require appellant to have been convicted of the designated offense, provided that he committed the designated offense.

We agree with the district court’s interpretation of the forfeiture statute. We construe a statute as a whole and interpret it, whenever possible, to give effect to all of its provisions — “no word, phrase, or sentence should be deemed superfluous, void, or insignificant.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000) (quoting Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999)). Although subdivision 7 of the statute requires that a driver was “convicted of the designated offense” to create a presumption of forfeiture, subdivision 6 requires only that a vehicle was “used in the commission of a designated offense” to make it “subject to forfeiture.” Minn.Stat. § 169A.63, subds. 6, 7(a)(1). The legislature thus knew how to use the words “convicted of’ when it intended to. To render a vehicle “subject to forfeiture,” it did not use those words.

Additionally, as the state notes, subdivision 7 was amended in 2004. Minn. Laws 2004, ch. 235, §§ 3 to 8 at 728-34. Before the amendment, the subdivision provided that “[a] vehicle is subject to forfeiture under this section only if ... the driver is convicted of the designated offense.” Minn.Stat. § 169A.63, subd. 7(a)(1) (2002) (emphasis added). It was amended to its current language, which is “[a] vehicle is presumed subject to forfeiture under this section if ... the driver is convicted of the designated offense,” and subdivision 6 provides that a vehicle is “subject to forfeiture ... if it was used in the commission of a designated offense.” Minn.Stat. § 169A.63, subds. 6, 7(a)(1) (2006). We assume that such a change in language was not inadvertent.

The statute is not ambiguous. By its plain language, the statute does not require that a driver be convicted of a designated offense for the vehicle used to be subject to forfeiture. Commission of a designated offense is sufficient, and here it is undisputed that appellant committed a designated offense. His vehicle was, therefore, subject to forfeiture under Minn.Stat. § 169A.63.

II.

Appellant also argues that the forfeiture statute “encourages arbitrary enforcement and, as a result, is void for vagueness.” The state argues that because appellant did not raise a constitutional challenge to the statute in the district court, he cannot raise it for the first time on appeal. The state is correct. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988). But even if we were to evaluate appellant’s constitutional argument on the merits, we would reject it. A party challenging the constitutionality of a statute has the burden of demonstrating beyond a reasonable doubt that a constitutional provision has been violated. In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989); see also Miller Brewing Co. v. State, 284 N.W.2d 353, 356 (Minn.1979) (stating that a person challenging the constitutionality of a statute must “demonstrate!] beyond a reasonable doubt that the statute violates some constitutional provision”). Appellant points only to inconsistent application of the statute in the Minnesota district courts to support his argument. But he provides no authority to support his contention that inconsistent application by district courts renders a statute unconstitutionally vague. And interpretation of the statute by this court should prevent any further inconsistency.

DECISION

Because we conclude that a vehicle is subject to forfeiture under Minn.Stat. § 169A.63 (2006) if it is used in the commission of a designated offense, even if the driver was not convicted of that offense, and because here it is undisputed that appellant committed a designated offense, his vehicle was lawfully forfeited.

Affirmed.

RANDALL, Judge

(concurring specially)-

I concur in the result.

      . The vehicle-forfeiture statute that applied when Garde was decided defined a “designated offense” as a first-degree DWI. Minn.Stat. § 169A.63, subd. 1(d)(1) (2000). The definition was later amended to include a second-degree DWI. Minn. Laws 2001, ch. 8, art. 11, § 11; Minn. Laws 2001, ch. 9, art. 19, § 12.


source: Caselaw Access Project

author: MINGE, Judge.

license: Public Domain

text:
    PARADIGM ENTERPRISES, INC., Respondent, v. WESTFIELD NATIONAL INSURANCE CO., Appellant.
    No. A07-635.
    Court of Appeals of Minnesota.
    Sept. 11, 2007.

      Jeffrey R. Hannig, Hannig & Associates, P.A., Fargo, ND, for respondent.
    Richard P. Wright, Cheryl Hood Langel, McCollum, Crowley, Moschet & Miller, Ltd., Minneapolis, MN, for appellant.
    Considered and decided by WILLIS, Presiding Judge; MINGE, Judge; and HUDSON, Judge.
   OPINION

MINGE, Judge.

Appellant-insurer challenges the district court’s grant of summary judgment in favor of respondent-employer for claimed overpayment of respondent’s workers’ compensation insurance premium. Because the district court did not err in interpreting Minn.Stat. § 176.041, subd. 1(g) (2006), or in construing the parties’ insurance contract, we conclude that overpayment occurred, and we affirm.

FACTS

Respondent Paradigm Enterprises, Inc. (Paradigm) is the employer and the insured. Glen and Ron Morken each own at least 25% of the stock of and are executives of Paradigm. Under the Minnesota Workers’ Compensation Act, respondent is required to compensate its employees for injuries or death arising in the course of employment, without regard to the question of negligence. Minn.Stat. § 176.021, subd. 1 (2006). Unless it elects to do so, respondent is not required to so compensate executive officers who own 25% of the closely-held corporation’s stock, as long as respondent had less than 22,880 payroll hours in the preceding calendar year. Minn.Stat. § 176.041, subd. 1(g).

Respondent purchased workers’ compensation insurance from appellant West-field National Insurance Company to cover its workers’ compensation liability. The policy year in question began April 19, 2004, and ended April 19, 2005. No coverage was elected for owner/executives Glen or Ron Morken. Appellant had insured respondent for the 2003-04 policy period without including Glen or Ron Morken. In accordance with its standard business practice, appellant first calculates a preliminary premium for its insured employers based on the risk associated with employee work and the payroll for the previous year. This preliminary premium is billed at the beginning of the policy period. Then, after expiration of the policy period, appellant audits the employer and assesses a final premium based on the actual payroll for the policy period. The final premium may be more or less than the preliminary figure.

Consistent with this practice, appellant prepared a preliminary premium estimate in early 2004 calculating respondent’s premium for the 2004-05 policy as $46,359. Because respondent’s payroll hours for the 2003 calendar year were less than 22,880 and because respondent had not elected coverage for their compensation, Glen and Ron Morken were excluded in calculating the preliminary premium for the 2004-05 policy year. Respondent paid this preliminary premium in installments.

In the summer of 2005, after expiration of the 2004-05 policy year, appellant conducted a final audit to determine the actual insurance premium owed by respondent for that period. The audit revealed that respondent’s payroll hours were in excess of 22,880 for the 200⅛ calendar year. Based on this audit, appellant issued respondent a “Premium Adjustment Statement,” charging respondent a premium of $73,083 for the 2004-05 policy year. In contrast to the initial estimated premium, this final adjusted premium included workers’ compensation coverage for and the compensation paid to Glen and Ron Morken.

Upon receiving notice of the premium adjustment, respondent started paying the deficiency to appellant in installments. However, after learning of the exception included for officers of closely-held corporations in Minn.Stat. § 176.041, subd. 1(g), respondent ceased making payments and filed suit seeking reimbursement for the “overpaid premium.” Respondent moved for, and the district court granted, summary judgment awarding respondent $24,557.55 plus interest for an overpaid portion of respondent’s insurance premium. This appeal follows.

ISSUES

I. Did the district court err in interpreting Minn.Stat. § 176.041, subd. 1(g) (2006)?

II. Did the district court err in construing the scope of the parties’ insurance contract as extending no further than the workers’ compensation coverage mandated under the Minnesota Workers’ Compensation Act?

ANALYSIS

On appeal from summary judgment, we consider two questions: “(1) whether there are any genuine issues of material fact and (2) whether the [district] court[ ] erred in [its] application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). No genuine issue of material fact exists when “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (quotation omitted).

When there are no genuine issues of material fact, we are faced with pure legal issues, and we need not defer to the district court’s decision. Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984). Here, because the parties agree that there are no genuine issues of material fact, we review the district court’s interpretation of the relevant statutory provisions and the parties’ contract de novo. Camacho v. Todd & Leiser Homes, 706 N.W.2d 49, 53 (Minn.2005); Yang v. Voyagaire Houseboats, Inc., 701 N.W.2d 783, 788-89 (Minn.2005).

I.

The first issue is whether the district court erred in interpreting Minn.Stat. § 176.041, subd. 1(g) (2006). Before addressing this statutory-interpretation issue, we note that on appeal appellant does not clearly challenge the district court’s interpretation of that statute. Rather, appellant focuses its appeal on the claim that the district court erred in interpreting the insurance policy. However, because workers’ compensation insurance policies are written in the context of the Minnesota Workers’ Compensation Act (see Minn. Stat. § 176.185, subd. 3 (2006)), the language of the Act is important to our interpretation of the parties’ insurance contract.

Basic standards for statutory interpretation have been codified. See MinmStat. ch. 645 (2006). The goal of statutory interpretation is to effectuate the intent of the legislature. Minn.Stat. § 645.16; Educ. Minn.-Chisholm v. Indep. Sch. Dist. No. 695, 662 N.W.2d 139, 143 (Minn.2003). If the meaning of a statute is unambiguous, we interpret the statute’s text according to its plain language. Molloy v. Meier, 679 N.W.2d 711, 723 (Minn.2004). If a statute is ambiguous, we apply other canons of construction to discern the legislature’s, intent. See Minn.Stat. §§ 645.08, 645.16, 645.17 (2006); Gomon v. Northland Family Physicians, Ltd., 645 N.W.2d 413, 416 (Minn.2002).

The Minnesota Workers’ Compensation Act defines “[ejmployee” as including “an executive officer of a corporation, except those executive officers excluded by section 176.041.” Minn.Stat. § 176.011, subd. 9(7). The Act further provides that the coverage requirements of the Act do not apply to

an executive officer of a closely held corporation having less than 22,880 hours of payroll in the preceding calendar year if that executive officer owns at least 25 percent of the stock of the corporation[.]

Minn.Stat. § 176.041, subd. 1(g).

In the case before us, the critical question is the meaning of “preceding calendar year.” Id. Appellant argues that “preceding calendar year” refers to the year prior to final calculation of the insurance policy premium and that because final calculation was made in the spring of 2005, the preceding year is the calendar year 2004. Pursuant to its interpretation, appellant argued to the district court that because respondent’s payroll hours exceeded 22,880 hours in the calendar year 2004, respondent was required to carry workers’ compensation coverage for executive officers Glen and Ron Morken in the 2004-05 policy year. The district court disagreed, concluding that “preceding calendar year” refers to the year 2003, which is the full calendar year preceding the April 19, 2004, effective date of policy coverage.

The context of Minn.Stat. § 176.041 within the greater Workers’ Compensation Act is crucial to our interpretation of “preceding calendar year” in subpart (g) of that statute. Minn.Stat. § 176.041 identifies who are employees for purposes of workers’ compensation insurance coverage. Subdivision 1 enumerates 21 employment categories that are excluded from the Act’s requirements. Id. Subdivision la then goes on to provide the means by which employers may elect insurance coverage greater than that required under the Act. Id., subd. la. Specifically, subdivision la provides:

Notice of election of coverage or of termination of election under this subdivision shall be provided in writing to the insurer. Coverage or termination of coverage is effective the day following receipt of notice by the insurer.... The insurance policy shall be endorsed to indicate the names of those persons for whom coverage has been elected or terminated under this subdivision.

Id.

The clear purpose of Minn.Stat. § 176.041 is to define the scope of mandatory insurance coverage and provide for the means by which employers may elect greater coverage. One would expect parties to agree to the scope of policy coverage before the policy actually takes effect. The only reasonable interpretation of sub-part (g) of subdivision 1 is that “preceding calendar year” refers to the calendar year preceding the policy’s effective date.

To construe “preceding calendar year” as the year preceding calculation of the final insurance premium, as appellant urges, would mean that insurers, insured employers, and employees would defer determination of the scope of policy coverage and their corresponding insurance status until after the policy at issue has expired. This is an awkward, if not absurd, result. The result is inconsistent with businesses’ interests in predictable and efficient implementation of contractual obligations. Not knowing whether there is workers’ compensation insurance coverage, the employer and the executive employees would not know whether alternative insurance is necessary. This could lead to purchase of duplicative insurance coverage and possibly disputes over primary coverage and subrogation or, perhaps worse, no insurance. Although this problem could be avoided by the employer electing optional coverage, under the law employers and executive owners are given the flexibility to limit the reach of the workers’ compensation requirement. Employers and executive employees may conclude such coverage is not desirable. The law should be interpreted to function in a workable manner.

In the course of this proceeding, appellant has asserted that the district court’s interpretation of “preceding calendar year” as the year preceding the policy’s effective date undermines the insurance industry’s standard method of calculating premiums. Appellant’s argument is unpersuasive. The interpretation that the district court made and with which we agree does not complicate the calculation of premiums. Here, looking back to the 2003 calendar year should not be harder than using the 2004 calendar year. If anything, our interpretation should simplify the calculation and make coverage more predictable.

II.

The next issue is whether the district court erred in interpreting the scope of the parties’ insurance contract to extend no further than the minimum workers’ compensation coverage mandated under the Minnesota Workers’ Compensation Act.

We note that appellant only marginally referred to the scope of the contract’s coverage in its arguments to the district court. Generally, we will not consider matters not argued and considered in the district court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988). However, because: (1) the issue was mentioned; (2) we consider it important to fully address appellant’s challenge to the district court’s ruling; and (3) our interpretation of the parties’ contract presents a legal issue for which further development of the record is not required; we consider whether the parties’ insurance contract extends coverage and premium liability beyond the minimum required under the Act.

“[T]he primary goal of contract interpretation is to determine and enforce the intent of the parties.” Motorsports Racing Plus, Inc., v. Arctic Cat Sales, Inc., 666 N.W.2d 320, 323 (Minn.2003). Where there is a written agreement, we determine the parties’ intent based on the plain language of the document. Metro. Sports Facilities Comm’n v. Gen. Mills, Inc., 470 N.W.2d 118, 123 (Minn.1991). “[W]hen a contractual provision is clear and unambiguous, courts should not rewrite, modify, or limit its effect by a strained construction.” Travertine Corp. v. Lexington-Silverwood, 683 N.W.2d 267, 271 (Minn.2004).

The parties’ insurance contract describes the method used to calculate the cost to insure respondent as follows:

The premium shown on the Information Page, schedules, and endorsements is an estimate. The final premium will be determined after this policy ends by using the actual, not the estimated, premium basis and the proper classifications and rates that lawfully apply to the business and work covered by this policy.

(Emphasis added.) The policy states that the premium basis used to calculate estimated and actual premiums

includes payroll and all other remuneration paid or payable during the policy period for the services of ... all your officers and employees engaged in work covered by this policy [.]

(Emphasis added.) Appellant relies on these policy provisions for the proposition that the parties contracted to extend insurance coverage beyond the Act’s minimum requirements to include Glen and Ron Morken.

In analyzing these provisions, we note that the first quoted provision only describes the process by which appellant calculates insurance premiums: assessing a preliminary estimate followed by a final premium calculated on the insured’s actual payroll hours. This provision does not purport to define the policy’s scope of coverage.

Appellant asserts that the second quoted contractual provision is determinative and that the phrase “all your officers” extends the liability for premiums (and presumably coverage) beyond the minimum, default coverage required by the Workers’ Compensation Act. The appellant’s argument begs the question. The policy language does not simply provide that the premium includes all compensation payable during the policy period for the services of all of respondent’s officers and employees. If that was the case, our interpretation of the parties’ insurance contract may be different. Rather, the policy states that its premium basis is for “all your officers and employees engaged in work covered by this policy [.] ”. (Emphasis added.) The text of this provision does not define the scope of the policy’s coverage, so appellant’s reliance on this provision is misplaced. We are still left with the question of what work is “covered by this policy.”

The plain language of Minn.Stat. § 176.041, subd. la, makes clear that absent the parties’ election to provide workers’ compensation insurance coverage greater than the Minnesota Workers’ Compensation Act’s minimum coverage re-quireraents, the coverage is defined in the Act. Here, the parties’ contract contains no such election for Glen and Ron Morken. In fact, the policy limits the insurer-appellant’s obligation to the payment of “benefits required ... by the workers!’] compensation law.” Moreover, in accordance with the law, the policy contains a special schedule that explicitly elects greater coverage for officers Russel, Jennifer, Chris, Brianne, and Kaleb Morken, stating that the policy’s premium basis “includes the remuneration on such persons.” By explicitly including these officers, it implicitly excludes those not listed in the contract. Without an election to provide coverage for Glen and Ron Morken, the Act provides the operative definition of coverage.

As already discussed, the Act does not include coverage for officers of closely-held corporations who own more than 25 percent of the corporation’s stock, when the corporation had less than 22,880 payroll hours in the year preceding the insurance policy’s effective date of coverage. Minn. Stat. § 176.041, subd. 1(g). Here, it is undisputed that officers Glen and Ron Morken each owned more than 25 percent of respondent’s corporation, that respondent-employer did not elect coverage for them, and that respondent had less than 22,880 payroll hours in the 2003 calendar year. Also, we have concluded that 2003 is the year preceding the effective date of policy coverage. Accordingly, we conclude that the premium due under the 2004-05 policy period may not be based on the compensation paid Glen and Ron Morken. We further conclude that the district court did not err in determining that respondent overpaid premiums and that appellant was required to repay certain amounts plus interest for the 2004-05 policy year.

DECISION

Because we conclude that the district court did not err in interpreting Minn.Stat. § 176.041, subd. 1(g) (2006), in construing the parties’ insurance contract, and in ordering appellant to refund overpayment of premiums plus interest, we affirm.

Affirmed.


author: MUEHLBERG, Judge.

text:
    STATE of Minnesota, Respondent, v. Pedro Maldono RODRIGUEZ, Jr., Appellant.
    No. A06-974.
    Court of Appeals of Minnesota.
    Sept. 11, 2007.

      Lori Swanson, Attorney General, St. Paul, MN; and Gregory A. Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney, Crookston, MN, for respondent.
    John M. Stuart, State Public Defender, Paul J. Maravigli, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by HALBROOKS, Presiding Judge; KALITOWSKI, Judge; and MUEHLBERG, Judge.
   OPINION

MUEHLBERG, Judge.

Appellant challenges the district court’s order sentencing him to a total of 338 months in prison, arguing that (1) the admission of hearsay evidence during a sentencing-jury proceeding violated his federal and state constitutional rights to confront witnesses against him; (2) the district court erred by failing to give an accomplice instruction to the jury; and (3) the district court erred by imposing consecutive sentences. Because we conclude that a criminal defendant does not have a federal or state constitutional right to confront witnesses against him in sentencing-jury proceedings, any potential error in failing to give an accomplice instruction to the jury was harmless error, and the district court did not err by imposing consecutive sentences, we affirm.

FACTS

In March 2004, Crookston police learned that appellant Pedro Maldono Rodriguez, Jr. and another individual, Glen Eric McGee, had returned from Texas with a substantial amount of cocaine. A Crook-ston police officer spotted appellant’s Ford Explorer and saw McGee get out of appellant’s truck with a bag and enter his residence. The officer stopped appellant, and a police drug-detection dog sniffed the car. The dog alerted to the presence of a controlled substance in and around appellant’s car. Appellant was subsequently arrested.

After drugs were detected in appellant’s car, the officer informed Deputy Randy Sondrol of the Polk County Sheriffs Office. Sondrol and another deputy sheriff went to McGee’s residence to speak to him. McGee admitted that he had been in Texas during the past few days with appellant and another person, although he was on probation and did not have permission to leave the state. Sondrol informed McGee that he had information that McGee and appellant had just returned from Texas with a large amount of cocaine and asked McGee if he was involved. McGee responded, “Okay, come here,” and led the officers to a bag filled with 60 individually-wrapped baggies of white powder, later analyzed by the BCA to contain cocaine. McGee also gave the police a semi-automatic pistol and ammunition.

After being advised of and waiving his rights, McGee stated that he and appellant had traveled to Big Wells, Texas, in March 2004, along with appellant’s step-daughter, A.W., who was a minor at the time, in order to purchase drugs to sell in Minnesota. Once they arrived in Big Wells, McGee gave appellant $12,000, and appellant and A.W. went to purchase the drugs. Eight hours later, appellant returned with a Hershey’s syrup container containing cocaine. McGee stated that he and appellant had made the trip on two other occasions. McGee was arrested and taken to the Crookston jail.

After arresting McGee, Sondrol interviewed appellant. After being advised of and waiving his rights, appellant repeated the story told by McGee about traveling to Texas to buy drugs. He said that he had shot the pistol found in McGee’s possession in Texas, and he brought it back to Minnesota to sell to McGee or trade to him for drugs. He also admitted giving cocaine to minors during parties in the past.

Deputy Sondrol received consent to search appellant’s home and recovered drug paraphernalia and rifle ammunition. When Sondrol interviewed McGee again, McGee stated that the first time he and appellant went to Texas was in January 2003, and the second time was in September 2003. McGee informed Deputy Son-drol that on the second trip, appellant bought four to five ounces of cocaine and a handgun; the cocaine was brought back to Crookston and given to another person to sell.

Appellant pleaded guilty to four counts of controlled-substance crime, one count of failing to affix a tax stamp, and one count of felon in possession of a firearm, arising out of activity that occurred between January 2003 and March 2004. Count I, the relevant crime here, was conspiracy to commit controlled-substance crime in violation of Minn.Stat. §§ 152.096, subd. 1; 152.021, subds. 1(1), 2(1), and 3(b); 152.0261, subds. 1, 3; and 609.11, subd. 5a. The district court sentenced appellant to 278 months for conspiracy to commit controlled-substance crime, an upward dura-tional departure; as well as 158 months for possession of a controlled substance with intent to sell, to be served concurrently; and 60 months for felon in possession of a firearm, to be served consecutively. Appellant challenged the sentences imposed by the district court.

In July 2005, this court concluded that because the district court imposed a sentence for conspiracy to commit eontrolled-substance crime that was an upward dura-tional departure from the presumptive sentence based solely on judicially found facts, it violated appellant’s Sixth Amendment rights. See State v. Rodriguez, 2005 WL 1669493 (Minn.App. July 19, 2005), review denied (Minn. Sept. 28, 2005). This court reversed and remanded for resen-tencing in accordance with Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

On remand, in February 2006, the district court convened a sentencing-jury proceeding on the aggravating facts required for an upward durational departure. Pri- or to the jury’s empanelment, appellant made a number of motions. Appellant moved in limine to exclude (1) his taped admission that he provided cocaine to juveniles; (2) BCA lab results of cocaine without the testimony of the lab chemist; and (3) evidence of any cocaine beyond the statutorily required amount for charging. The district court denied these motions. Appellant also moved to exclude his guilty-plea transcript and to allow him to stipulate to the felon in possession of a firearm conviction, which were also denied.

The state moved for an order denying the applicability of the rules of evidence and the right of confrontation to the sentencing-jury proceeding, which was granted. The district court instructed the jury that “[appellant] is presumed innocent with respect to the issues that you are being asked to decide, even though the defendant already has pled guilty to committing the charged crimes.”

At the sentencing trial, the state presented its entire case through the testimony of Deputy Sondrol. The state put into evidence a number of photographs, BCA reports on the examination of physical evidence, two tape-recorded statements by McGee, and appellant’s tape-recorded statement. The jury was also informed of the six charges to which appellant pleaded guilty. Appellant objected to the admission of McGee’s taped statements on the grounds of foundation, confrontation, hearsay, and relevance, but was overruled. Appellant also objected to the admission of his own taped statement, but was overruled.

Prior to final jury instructions, appellant requested an accomplice instruction, but it was denied. The district court granted appellant’s request for a “right not to testify” instruction. The jury found that the following factors were proved beyond a reasonable doubt: (1) Count I (conspiracy) was a major controlled-substance offense, based on findings that (a) the offense involved at least three separate transactions wherein controlled substances were sold, transferred, or possessed with intent to sell, (b) the offense involved an attempted or actual sale or transfer of controlled substances substantially larger than for personal use, (c) appellant knowingly possessed a firearm during commission of the offense, and (d) the offense involved a high degree of sophistication or planning over a lengthy period of time or involved a broad geographic area of disbursement; (2) appellant sold cocaine to juveniles during the course of Count I; (3) Count I was committed as part of a group of three or more persons who all actively participated in the crime; and (4) a juvenile was present during the commission of Count I, and appellant was a parent, legal guardian, or caretaker of the juvenile. The district court reimposed the sentences that it had originally ordered. This appeal follows.

ISSUES

I. Did the district court err by admitting hearsay evidence during a sentencing-jury proceeding in violation of appellant’s federal and state constitutional rights to confront witnesses against him?

II. Did the district court abuse its discretion by admitting hearsay evidence during a sentencing-jury proceeding in violation of the rules of evidence?

III. Did the district court err by failing to give an accomplice instruction to the sentencing jury?

IV. Did the district court err by imposing consecutive sentences in violation of Blakely v. Washington?

ANALYSIS

I.

Appellant argues the district court erred by allowing the admission of hearsay evidence during a sentencing-jury proceeding in violation of the Confrontation Clause of the Sixth Amendment. Respondent argues that even if there was a violation of appellant’s Sixth Amendment rights, any error was harmless. Normally, this court will not address issues of constitutional law unless necessary to decide a case. State v. Otterstad, 734 N.W.2d 642, 647 (Minn.2007); State v. Hoyt, 304 N.W.2d 884, 888 (Minn.1981). Therefore, we first consider whether any potential error was “harmless.”

Appellant contends the state’s use of McGee’s recorded statements and the BCA report led to the upward dura-tional departure and, therefore, their admission was not harmless error. Confrontation Clause violations under Crawford are subject to a constitutional harmless-error analysis. State v. Caulfield, 722 N.W.2d 304, 314 (Minn.2006). Harmless-error analysis determines whether the error reasonably could have impacted the jury’s decision. Id. This inquiry focuses on “the manner in which the evidence was presented, whether it was highly persuasive, whether it was used in closing argument, and whether it was effectively countered by the defendant.” Id. The inquiry should lead to a determination of whether the error was “surely unattributable” to the jury’s verdict. State v. Juarez, 572 N.W.2d 286, 292 (Minn.1997).

Under Minn. Sent. Guidelines II. D.2.b.(5), the presence of two or more of the following factors are aggravating factors that can lead to a finding that a controlled-substance offense was a “major” controlled-substance offense:

(a) the offense involved at least three separate transactions wherein controlled substances were sold, transferred, or possessed with intent to do so; or
(b) the offense involved an attempted or actual sale or transfer of controlled substances in quantities substantially larger than for personal use; or
(e)the offense involved the manufacture of controlled substances for use by other parties; or
(d) the offender knowingly possessed a firearm during the commission of the offense; or
(e) the circumstances of the offense reveal the offender to have occupied a high position in the drug distribution hierarchy; or
(f) the offense involved a high degree of sophistication or planning or occurred over a lengthy period of time or involved a broad geographic area of' disbursement; or
(g) the offender used his or her position or status to facilitate the commission of the offense, including positions of trust, confidence or fiduciary relationships (e.g., pharmacist, physician or other medical professional).

Here, the jury found that factors (a), (b), (d), and (f) were present in appellant’s conspiracy. Only two of those factors are needed to be shown beyond a reasonable doubt under the guidelines, and by appellant’s own admission, factors (b), (d), and (f)are satisfied. Therefore, any error as a result of the admission of McGee’s taped statements was harmless error.

More specifically, the aggravating factors were established by appellant’s guilty pleas and his tape-recorded statement. In his guilty plea, appellant admitted traveling to Texas with McGee and appellant’s 17-year-old stepdaughter; while in Texas he admitted obtaining a semi-automatic pistol and what he thought was a pound of cocaine. He transferred the pistol and cocaine to McGee, and they agreed it would be sold in Minnesota. He admitted making one other trip to Texas with McGee and that the conspiracy spanned the period between January 2003 and March 2004.

Similarly, during appellant’s tape-recorded statement, he admitted going to Texas for one week with McGee and appellant’s 17-year-old stepdaughter; he admitted obtaining and shooting a firearm; he admitted they went to Texas to procure a pound of cocaine worth $12,000; he said McGee obtained the cash and was supposed to sell the cocaine and firearm; and appellant had made one prior trip to Texas with McGee approximately six months pri- or to the March 2004 trip to pick up an unspecified quantity of drugs. Appellant’s statements provide sufficient evidence to find the necessary aggravating factors for an upward sentencing departure under the guidelines.

We observe that the issue of whether a defendant has the right to confront witnesses against him in sentencing trials under Blakely is an issue of first impression in Minnesota. While we normally avoid addressing constitutional issues when unnecessary to dispose of a case, the likelihood that district courts will be confronted with this issue in the future requires this court to provide guidance on the matter. Therefore, we turn to an analysis of whether the admission of hearsay evidence during sentencing-jury proceedings under Minn.Stat. § 244.10, subd. 5 (2006), violates the confrontation clauses of the federal and state constitutions.

We review questions pertaining to the interpretation of the state and federal constitutions de novo. State v. Shattuck, 704 N.W.2d 131, 135 (Minn.2005). The federal and state constitutions guarantee a criminal defendant the right to a trial by jury. U.S. Const. amend. VI; Minn. Const. art. I, § 6. The analysis is the same under both provisions. State v. Henderson, 620 N.W.2d 688, 695 (Minn.2001). In Apprendi v. New Jersey, the United States Supreme Court held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury....” 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000). Applying Apprendi, Blakely v. Washington held that an upward durational departure from the statutory-maximum sentence based on a judge’s findings, rather than those of a jury, is invalid under the Sixth Amendment right to trial by jury. 542 U.S. 296, 303-04, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004).

In Shattuck, the Minnesota Supreme Court applied Blakely and concluded that for felonies other than first-degree murder, the presumptive sentence set forth in the Minnesota Sentencing Guidelines is the maximum sentence a judge may impose without further jury findings. 704 N.W.2d at 141. Thus, an upward durational departure under the repeat-sex-offender statute, based on judicial findings of aggravating factors, was held to violate the defendant’s right to a trial by jury. Id.

The legislature enacted procedures to be applied when the state seeks an upward departure from the sentencing guidelines based on aggravating facts. See Minn.Stat. § 244.10, subds. 4-7 (Supp.2005). In such a proceeding, the state must prove beyond a reasonable doubt to a jury of 12 members the factors in support of the state’s request for an upward departure. Id. at subd. 5. The statute allows a unitary trial and final argument to a jury regarding both evidence in support of the elements of the offense and evidence in support of aggravating factors when the evidence in support of the aggravating factors (1) would be admissible as part of the trial on the elements of the offense; or (2) would not result in unfair prejudice to the defendant. Id. at subd. 5(b). But the district court shall bifurcate the proceedings, or impanel a resentencing jury, to allow for the production of evidence, argument, and deliberations on the existence of factors in support of an aggravated departure after the return of a guilty verdict when the evidence in support of an aggravated departure: (1) includes evidence that is otherwise inadmissible at a trial on the elements of the offense and (2) would result in unfair prejudice to the defendant. Id. at subd. 5(c).

Appellant argues that this court should interpret the United States Supreme Court’s holding in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), to extend to sentencing-jury procedures under MinmStat. § 244.10, subd. 5. The Confrontation Clause of the Sixth Amendment states that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.... ” U.S. Const. amend. VI. In Crawford, the United States Supreme Court reviewed the admissibility of hearsay statements in criminal trials. 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. The trial court admitted hearsay evidence derived from the custodial interrogation of the defendant’s wife, who was a witness to a stabbing but was unavailable to testify because of marital privilege. Id. at 38, 124 S.Ct. at 1356-57. The trial court admitted the wife’s tape-recorded statements as an exception to the hearsay rule. Id. at 40, 124 5.Ct. at 1358. The Supreme Court reversed, holding that interrogations by law-enforcement officers fall squarely within the category of testimonial hearsay. Id. at 68, 124 S.Ct. at 1374. Accordingly, the Sixth Amendment Confrontation Clause analysis turns on whether a particular statement is “testimonial” in nature. The Crawford Court held that testimonial out-of-court statements of witnesses may only be admitted where the declarant is unavailable and the defendant has had a pri- or opportunity to cross-examine. Id.

Thus far, every federal circuit court of appeals that has addressed the issue has ruled that Crawford does not apply to sentencing proceedings, even after Blakely. See, e.g., United States v. Beydoun, 469 F.3d 102, 108 (5th Cir.2006); United States v. Katzopoulos, 437 F.3d 569, 574-76 (6th Cir.2006); United States v. Bustamante, 454 F.3d 1200, 1202-03 (10th Cir.2006); United States v. Cantellano, 430 F.3d 1142, 1146 (11th Cir.2005), cert. denied, 547 U.S. 1034, 126 S.Ct. 1604, 164 L.Ed.2d 325 (2006); see also Benjamin C. McMurray, “Challenging Untested Facts at Sentencing: The Applicability of Crawford at Sentencing After Booker,” 37 McGeorge L.Rev. 589, 590-91 (2006) (noting that the federal circuit courts have rejected the possibility that the Confrontation Clause applies at sentencing). Additionally, a few state courts have ruled that the constitutional right of confrontation does not apply in noncapital sentencing proceedings. See, e.g., Commonwealth v. Nunez, 446 Mass. 54, 841 N.E.2d 1250, 1254 (2006); People v. Lassek, 122 P.3d 1029, 1031-32 (Colo.Ct.App.2005).

In general, the federal circuits have followed prior Supreme Court precedent that the right to confrontation is a “trial right,” that is, during the guilt or innocence phase of prosecution and that the admission of hearsay evidence at sentencing does not violate the Due Process Clause. See Pennsylvania v. Ritchie, 480 U.S. 39, 52, 107 S.Ct. 989, 999, 94 L.Ed.2d 40 (1987) (trial right); Williams v. People of State of New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 1082-83, 93 L.Ed. 1337 (1949) (admission of hearsay). The Ninth Circuit has concluded that because Crawford does not address sentencing proceedings, and Williams has not been expressly overruled, the law on hearsay at sentencing is still what it was before Crawford: “hearsay is admissible at sentencing, so long as it is ‘accompanied by some minimal indicia of reliability.’ ” United States v. Littlesun, 444 F.3d 1196, 1200 (2006) (citations omitted); see also Roper v. Simmons, 543 U.S. 551, 594, 125 S.Ct. 1183, 1209, 161 L.Ed.2d 1 (2005) (stating that “it remains this Court’s prerogative alone to overrule one of its precedents.... That is so even where subsequent decisions or factual developments may appear to have significantly undermined the rationale for [an] earlier holding”); United States v. Duncan, 413 F.3d 680, 683-84 (7th Cir.2005) (stating that it is not the role of an intermediate appellate court to overrule a decision of the Supreme Court or to anticipate such an overruling by the Court).

While the federal circuit courts’ interpretation and application of Crawford does not bind this court, this court gives those decisions “great weight” in reaching its decision. Minn. Twins P’ship v. State, 592 N.W.2d 847, 854 (Minn.1999), cert denied, 528 U.S. 1013, 120 S.Ct. 517, 145 L.Ed.2d 400 (1999). Further, our supreme court has stated that “the [U.S.] Supreme Court should retain the exclusive privilege of overruling its own decisions.” State v. McFee, 721 N.W.2d 607, 609 n. 4 (Minn.2006). Therefore, because the Supreme Court has not overruled Williams v. New York or Pennsylvania v. Ritchie, it is not appropriate for this court to hold that defendants have a constitutional right under Crawford to confront witnesses during sentencing proceedings.

Appellant points out that the right to confront witnesses has been applied in the sentencing phase of a death-penalty case in various state courts. And as the Supreme Court has noted, “[b]ecause the death penalty is unique ‘in both its severity and finality,’ we have recognized an acute need for reliability in capital sentencing proceedings.” Monge v. California, 524 U.S. 721, 732, 118 S.Ct. 2246, 2252, 141 L.Ed.2d 615 (1998) (citations omitted). But even the federal death-penalty act, 18 U.S.C. § 3593(c), permits evidence of aggravating factors in a death-penalty case regardless of whether that evidence would be admissible under the federal rules of evidence. While appellant notes that the Supreme Court has not forbidden application of the Confrontation Clause to sentencing proceedings, the “great weight” of federal precedent points away from the conclusion that the Confrontation Clause, as interpreted by Crawford, applies in post-Blakely sentencing hearings. Thus, we hold that appellant had no constitutional right to confront witnesses at sentencing-jury proceedings under Minn.Stat. § 244.10, subd. 5.

Appellant also argues that the Confrontation Clause of the Minnesota Constitution, article I, § 6, should be read to require a right to confront witnesses. Article I, § 6, of the Minnesota Constitution replicates the Sixth Amendment’s right of the accused to confront all witnesses against them in criminal prosecutions and our supreme court has said the analysis is the same under both constitutions. Henderson, 620 N.W.2d at 695. Our state courts and legislature have not extended the right to confront witnesses to sentencing-jury proceedings, even though Blakely and Crawford are now three years old. And our supreme court’s holding in State v. Adams that the admission of hearsay evidence in sentencing proceedings does not violate due process has not been overruled. 295 N.W.2d 527 (Minn.1980).

Our supreme court recently stated:

It is axiomatic that a state supreme court may interpret its own state constitution to offer greater protection of individual rights than does the federal constitution. Indeed, as the highest court of this state, we are independently responsible for safeguarding the rights of [our] citizens. State courts are, and should be, the first line of defense for individual liberties within the federalist system.

State v. Carter, 596 N.W.2d 654, 657 (Minn.1999) (quotation omitted). But a decision to interpret the Minnesota Constitution differently from the federal constitution should not be made “cavalierly.” Id. Further, it is not the role of this court to make a dramatic change in the interpretation of the Minnesota Constitution when the supreme court has not done so. Minn. State Patrol Troopers Ass’n ex rel. Pince v. State, Dep’t of Pub. Safety, 437 N.W.2d 670, 676 (Minn.App.1989), review denied (Minn. May 24, 1989). The task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court. Tereautt v. Palmer, 413 N.W.2d 283, 286 (Minn.App.1987), review denied (Minn. Dec. 18, 1987). Therefore, we decline the invitation to extend the Minnesota Constitution’s Confrontation Clause to sentencing-jury proceedings. Our analysis is consistent with our role as an error-correcting court and describes what we believe to be the current state of the law. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn.1988) (“The function of the court of appeals is limited to identifying errors and then correcting them.”).

II.

Appellant argues that the admission of hearsay evidence during the sentencing-jury proceeding violated the Minnesota Rules of Evidence. Absent an erroneous interpretation of law, the question of whether to admit evidence is within the district court’s discretion. Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn.1997).

Under Minn. R. Evid. 1101(b)(3), the rules of evidence do not apply at sen-fencing. The supreme court has had an opportunity, but has thus far declined, to change this rule in light of Blakely and Crawford. Therefore, because the rules of evidence do not apply at sentencing proceedings, the district court did not abuse its discretion by allowing the admission of hearsay evidence.

III.

Appellant argues that the district court erred by refusing to give an accomplice-testimony instruction under Minn.Stat. § 634.04 (2004) at the close of the sentencing-jury proceeding. The omission of an accomplice-testimony jury instruction is reviewed under this court’s harmless-error analysis. State v. Lee, 683 N.W.2d 309, 316 (Minn.2004); see also Minn. R.Crim. P. 31.01 (stating that “[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded”).

Once again, the issue of whether the district court must give an accomplice instruction during a sentencing-jury proceeding conducted under Minn.Stat. § 244.10, subd. 5, appears to be one of first impression. But because we concluded above that the admission of hearsay evidence was harmless error in light of appellant’s own guilty pleas and tape-recorded statements, and that same analysis applies here because the hearsay evidence was from appellant’s accomplice, we need not reach the issue of whether the district court was statutorily required to give an accomplice-testimony instruction to the sentencing jury. If it was harmless error for the court to admit the hearsay testimony of appellant’s accomplice Glen McGee, then it was harmless error for the court to omit the accomplice-testimony jury instruction related to that evidence. And the evidence in appellant’s guilty pleas and tape-recorded statements was sufficient to find beyond a reasonable doubt the two aggravating factors necessary for an upward durational departure. We therefore conclude that any potential error by the district court was harmless.

IV.

Appellant argues the district court erred by sentencing him consecutively for his felon in possession of a firearm conviction in violation of Blakely. But consecutive sentencing does not violate Blakely. State v. Rannow, 703 N.W.2d 575, 580-81 (Minn.App.2005); State v. Senske, 692 N.W.2d 743, 746-49 (Minn.App.2005). Therefore, appellant’s sentence did not violate his Sixth Amendment jury-trial right.

DECISION

Because we conclude that a criminal defendant does not have a federal or state constitutional right to confront witnesses against him in sentencing-jury proceedings, the rules of evidence do not apply during sentencing-jury proceedings, any potential error in failing to give an accomplice-testimony instruction to the jury was harmless error, and the district court did not err by imposing consecutive sentences, we affirm.

Affirmed.

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

      . We observe that any out-of-court statements of appellant are not hearsay, but rather party admissions exempt from hearsay rules by Minn. R. Evid. 801(d)(2)(A).

      . While harmless-error analysis first requires an inquiry into the extent of the error, respondent concedes that if the Confrontation Clause applies at sentencing, the district court erred by admitting McGee’s statements and the BCA report. Therefore, the extent of the error is clear, and we may proceed to determining whether the verdict was "surely unattributable" to the error. See State v. Shoen, 578 N.W.2d 708, 715-16 (Minn.1998) (stating harmless-error analysis inherently requires consideration of the nature and extent of error before considering whether conviction was “surely unattributable” to error).

        . State v. Caulfield, 722 N.W.2d 304 (Minn.2006), held that BCA lab reports were "testimonial” under Crawford for Sixth Amendment purposes.

      . We observe that Minn. R. Evid. 1101(b)(3), which states that the rules of evidence do not apply at sentencing proceedings, has not been modified since Blakely and Crawford. That seemingly plain statement of the law compels us to address the constitutional ramifications of admitting hearsay evidence during sentencing-jury proceedings.

      . Dissenting in Blakely, Justice Breyer suggested that under the Blakely majority's interpretation of the Sixth Amendment, district courts' use of pre-sentencing reports containing testimonial hearsay might violate the Confrontation Clause under Crawford. Blakely, 542 U.S. at 346, 124 S.Ct. at 2561 (Breyer, J., dissenting).

      . Following Crawford and Blakely, the Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In Booker, the Court decided that the remedy for impermissible sentencing-guideline procedures was to make the guidelines advisory. Because advisory sentencing guidelines do not implicate the jury trial right, the Confrontation Clause cannot apply. But a different rule may apply for a jurisdiction, such as Minnesota, that has legislatively-imposed sentencing guidelines.

      . We do note that Minn. R.Crim. P. 26.01, subd. 3, which took effect April 1, 2007, is incorporated into Appendix E to Minn. R.Crim. P. 15, and governs waiver of rights at sentencing trials on aggravating factors to support an upward durational departure from the guidelines. The rule, as well as the model waiver form in Appendix E, specifically include waiver of the right to have the prosecution witnesses testify in open court in the defendant's presence and to question those prosecution witnesses. The amended rule 26.01, subd. 3, implies that defendants do have the right to confront prosecution witnesses in sentencing trials conducted under Minn.Stat. § 244.10, subd. 5. But at this point our decision is governed by existing case law interpreting the Confrontation Clause, not what we think was intended in the amendments to the rules of criminal procedure.

      . In State v. Jackson, 726 N.W.2d 454, 461 (Minn.2007), our supreme court indicated that it had previously applied the "harmless-error” standard in State v. Lee, 683 N.W.2d at 316, without a discussion of whether that was the appropriate standard of review. Jackson also applied the harmless-error standard because the parties agreed that was the appropriate standard, and the same result would have been reached under the “plain-error” standard. But the court indicated that the question of the appropriate standard was in doubt. Because Lee has not been expressly overruled, we apply the harmless-error standard.


author: VANDE WALLE, Chief Justice.

text:
    2007 ND 143
    STATE of North Dakota, Plaintiff and Appellee, v. David KUNZE, Defendant and Appellant.
    No. 20060377.
    Supreme Court of North Dakota.
    Aug. 30, 2007.

      Brandi Sasse Russell, Assistant State’s Attorney, Bismarck, for plaintiff and ap-pellee.
    Todd A. Schwarz, Bismarck, ND, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] David Kunze appealed from a criminal judgment entered after a jury found him guilty of the offense of assaulting a correctional officer. Kunze argues his constitutional right to a fair and impartial trial was violated when the district court ordered that he should be physically restrained with handcuffs and a waist restraining belt during his jury trial. We conclude the district court did not abuse its discretion when it ordered that Kunze be restrained in this manner during his jury trial and we affirm.

I

[¶ 2] The State charged Kunze with assaulting a correctional officer after an incident which occurred at the North Dakota State Penitentiary on August 12, 2005. Kunze was an inmate confined in a single-person cell in the administrative segregation unit at the penitentiary. At about 1:00 p.m. that day, four correctional officers conducted a shakedown of Kunze’s cell. During the shakedown, the officers found and confiscated two religious magazines in his possession that belonged to another inmate, which was a violation of penitentiary policy. Kunze became angry and upset. A scuffle occurred, and Officer James Sayler suffered an injury to his hand which drew blood. According to the State, Kunze became verbally abusive, lunged at the officer, and bit his hand. Kunze denied that he assaulted the officer.

[¶ 3] Prior to trial, the State requested that Kunze be physically restrained during his trial. The district court considered the State’s request at a hearing on the morning of Kunze’s jury trial. The State argued restraints were justified for several reasons. The State emphasized the nature of the charge against Kunze, which involved committing a violent act against a correctional officer. The State also pointed to Kunze’s history of assaults and escapes from custody. The State presented the district court with the following information about Kunze’s record:

The record consists of basically back to '64 a number of assaults. He has an escape in '64, number of burglaries, an escape in 1970, possession of a firearm in 1972, another escape after conviction in 1981, many more counts of burglary. Another escape in 1991, '92 escape. He has many escapes and burglaries and counts of theft.
Basically, he does pose a flight risk based on the number of escapes he has. But also the records that I received from the penitentiary as far as the amount of assaults and different nature of — the violent nature he has at the penitentiary, is just a catalog of basically write-ups and violations of threatened staff, assaulted staff. It is — there is just several — several violations of that type of behavior.

The State also informed the court that Kunze had a record of “probably more than 50 violations of threats and assaults to guards and to [sic] just making threats to other individuals in the penitentiary.”

[¶ 4] Furthermore, the State argued restraints were justified because of the manner in which Kunze was handled by law enforcement officers during transport and at the penitentiary. The State called Deputy Brad Banker to testify about his experience transporting Kunze. Deputy Banker stated that he had transported Kunze three times, and all three times Kunze was restrained using leg irons and belly chains. During one of these transports, Kunze was further restrained with shackles to two D-rings on the floor and wall of the transport van. Deputy Banker recounted this was the first time he had transported a defendant that way in his twenty-nine years of employment. When the State asked why Kunze was handled that way, Deputy Banker responded, “Basically, because of the information we’ve received from the penitentiary, his past records on escapes. His assaultive — alleged assaultive behavior towards guards. And they will not move Mr. Kunze or let him out of the penitentiary unless he is shackled that way.”

[¶ 5] According to Deputy Banker, Kunze was always moved with at least three officers, two to hold him and one to act as a “chase person.” He stated Kunze was in administrative segregation at the penitentiary and had no contact with anybody else because of his behavior. Deputy Banker requested that Kunze be restrained with belly chains and leg irons “for safety for the Court, the people and Mr. Kunze.” On cross-examination, Deputy Banker stated that Kunze had not been violent during the three times he transported Kunze. He also testified that Kunze did not cause any problems when he was unshackled in order to change into civilian clothing for his trial.

[¶ 6] In response to the State’s evidence, Kunze argued he should not be restrained because it would tell the jury that the trial was a “foregone conclusion.” Kunze claimed he had every incentive not to get violent in the courtroom because that would result in another charge. Kunze’s counsel stated that the defendant had assured him there would be no problems. Kunze also spoke on his own behalf and claimed .that he never attacked or threatened anybody at the penitentiary.

[¶ 7] After considering the evidence and the parties’ arguments, the district court granted the State’s request to restrain Kunze during his jury trial. The district court had the following exchange with Kunze and Deputy Banker as it announced its ruling:

THE COURT: It is the order of the Court in this matter that the leg restraints I’ll cause to be removed, but the hand restraints and the waist retaining [sic] belt will be continued. Is there any reason why that cannot be facilitated so — ■
THE DEFENDANT KUNZE: Why don’t you leave the leg restraints on so I can write. I got to be able to participate in the trial.
THE COURT: You’ll be able to write. You’ll have a tablet and you’ll have a pen. Any reason that cannot be accomplished?
DEPUTY BANKER: No, we can do that.
THE COURT: And the restraints for the hands of the defendant will be in place, the restraining belt underneath the sweater so to as to minimize the appearance of the same.

The district court did not provide any other reasoning for its decision to restrain Kunze with handcuffs and a waist restraining belt.

[¶ 8] After a brief ten-minute recess, Kunze’s jury trial began. The State presented testimony from the four correctional officers involved in the incident with Kunze. Officer James Sayler testified Kunze became very upset and starting yelling obscenities when the magazines were confiscated. According to Officer Sayler, Kunze started to come at him aggressively, so he began pushing Kunze back into his cell, with his hands on Kunze’s shoulder and chest. At that point, Officer Sayler claimed, Kunze turned his head, grazed Officer Sayler’s hand with his teeth, and kicked Officer Sayler in the leg. Officer Sayler testified Kunze’s bite broke the skin and drew blood on his two middle knuckles.

[¶ 9] The testimony of the three other officers generally supported Officer Say-ler’s version of events. Officer Shawn Fode stated that he saw Kunze’s teeth going toward Officer Sayler’s hand, but that he did not see the actual tearing of the skin. Officer Jason Brazell testified he saw Kunze’s head come down toward Officer Sayler’s hand in a lunging motion. Officer Patrick Ross recounted that he saw Kunze bite the top of Officer Sayler’s hand and kick his leg.

[¶ 10] After the State rested its case, Kunze presented evidence in his defense. He called James Charles Thompson III, who was an inmate in the penitentiary at the time of the incident, to contradict the officers’ testimony. Thompson testified he was in a nearby cell and witnessed part of the scuffle. According to Thompson, Kunze did not have his false teeth in his mouth on either the top or the bottom when he allegedly bit Officer Sayler. He stated the officers began roughing Kunze up while he was still handcuffed to the bars outside his cell. However, he could not see into Kunze’s cell so he had no direct knowledge about whether Kunze bit or kicked Officer Sayler.

[¶ 11] Additionally, Kunze testified on his own behalf. Kunze claimed that he never resisted going back into the cell, and that Officer Sayler shoved him back towards it. When Officer Sayler put his hands near Kunze’s face, Kunze raised his cuffed hands to block him. At that point, Officer Sayler pulled his hands back, and the officers slammed the door. Kunze claimed that he did not have his teeth in at the time of the scuffle, and that the marks on Officer Sayler’s hand could have occurred when Kunze raised his cuffed hands to defend himself.

[¶ 12] After considering the evidence, the jury convicted Kunze of the offense of assaulting a correctional officer.

II

[¶ 13] Kunze argues his constitutional right to a fair and impartial trial was violated when the district court required him to be physically restrained with handcuffs and a waist restraining belt during his jury trial.

[¶ 14] We review a district court’s decision about whether to physically restrain a defendant during court proceedings for an abuse of discretion. See In re R.W.S., 2007 ND 37, ¶ 1, 728 N.W.2d 326; see also Deck v. Missouri, 544 U.S. 622, 629, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005); United States v. Mahasin, 442 F.3d 687, 691 (8th Cir.2006). A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when it misinterprets or misapplies the law. Meier v. Said, 2007 ND 18, ¶ 20, 726 N.W.2d 852.

[¶ 15] This Court recently considered the use of physical restraints in the courtroom in In re R.W.S., 2007 ND 37, 728 N.W.2d 326. Although In re R.W.S. involved a juvenile who was tried before the court, see id. at ¶ 2, rather than a criminal defendant tried before a jury as was Kunze, some of the principles articulated in that case are applicable here. In In re R.W.S., we relied heavily on the United States Supreme Court’s decision in Deck v. Missouri, 544 U.S. 622, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005). See In re R.W.S., at ¶¶ 11-14, 16. In Deck, the United States Supreme Court held that the Federal Constitution generally prohibits the use of visible shackles on a convicted offender during the penalty phase of a capital case, “unless that use is justified by an essential state interest — such as the interest in courtroom security — specific to the defendant on trial.” 544 U.S. at 624, 125 S.Ct. 2007 (internal quotation omitted). In reaching this holding, the Court extensively discussed the use of physical restraints during the guilt phase of a criminal jury trial. See id. at 626-32, 125 S.Ct. 2007.

[¶ 16] Courts have long recognized that criminal defendants should not be physically restrained as a routine matter because of the prejudicial effect of such restraints. See id. at 626-28, 125 S.Ct. 2007 (examining the historical development of the law regarding shackling). There is “inherent prejudice to the accused when he is cast in the jury’s eyes as a dangerous, untrustworthy and pernicious individual from the very start of the trial.” Kennedy v. Cardwell, 487 F.2d 101, 111 (6th Cir.1973). “[T]he sight of a defendant in shackles could instill in the jury a belief that the defendant is a dangerous individual who cannot be controlled, an idea that could be devastating to his defense.” Roche v. Davis, 291 F.3d 473, 482-83 (7th Cir.2002) (internal quotation omitted). In Deck, the United States Supreme Court noted that “[v]isible shackling undermines the presumption of innocence and the related fairness of the factfinding process.” 544 U.S. at 630, 125 S.Ct. 2007.

[¶ 17] The Fifth and Fourteenth Amendments, which guarantee due process of law, “prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial.” Id. at 629, 125 S.Ct. 2007. Thus, while a criminal defendant has a constitutional right to be free of visible restraints during the guilt phase of a jury trial, that right is not absolute. Id. at 628, 633. “[T]he right may be overcome in a particular instance by essential state interests such as physical security, escape prevention, or courtroom decorum.” In re R.W.S., 2007 ND 37, ¶ 11, 728 N.W.2d 326 (quoting Deck, 544 U.S. at 628, 125 S.Ct. 2007).

[¶ 18] Because visible restraints have a prejudicial effect, due process does not permit their use “if the trial court has not taken account of the circumstances of the particular case.” Deck, 544 U.S. at 632, 125 S.Ct. 2007. Therefore, trial courts must make a case-specific determination about restraining the defendant, taking into account special circumstances and particular concerns related to the defendant on trial, such as special security needs or escape risks. In re R.W.S., 2007 ND 37, ¶ 16, 728 N.W.2d 326 (citing Deck, at 633, 125 S.Ct. 2007). Courts should consider the accused’s record and temperament, the desperateness of the accused’s situation, the security situation at the courtroom and courthouse, the accused’s physical condition, and whether there is an adequate means of providing security that is less prejudicial. In re R.W.S., at ¶ 18. In cases where physical restraints have been approved, “there has been evidence of disruptive courtroom behavior, attempts to escape from custody, assaults or attempted assaults while in custody, or a pattern of defiant behavior toward corrections officials and judicial authorities.” Gonzalez v. Pliler, 341 F.3d 897, 900 (9th Cir.2003) (internal quotation omitted).

[¶ 19] When the district court concludes that restraints are necessary, the court must take steps to limit their prejudicial effect. United States v. Zuber, 118 F.3d 101, 103 (2d Cir.1997). The district court “must impose no greater restraints than are necessary.” Hameed v. Mann, 57 F.3d 217, 222 (2d Cir.1995); see also Gonzalez, 341 F.3d at 900 (requiring the district court to “pursue less restrictive alternatives before imposing physical restraints”); United States v. Durham, 287 F.3d 1297, 1304 (11th Cir.2002) (noting that reviewing courts look to see whether the district court considered “less restrictive, less prejudicial methods of restraint”); Kennedy, 487 F.2d at 111 (stating that “it is an abuse of discretion precipitously to employ shackles when less drastic security measures will adequately and reasonably suffice”).

[¶ 20] If there is a dispute as to the record on which the district court will make its determination, the court should be willing to receive evidence. Hameed, 57 F.3d at 222. An evidentiary hearing may be necessary if there is a factual dispute over the need for the restraints or their visibility to the jury. See Durham, 287 F.3d at 1306 n. 8. The Ninth Circuit has stressed the importance of presenting evidence on the record:

[W]hen the imposition of restraints is to be based upon conduct of the defendant that occurred outside the presence of the court, sufficient evidence of that conduct must be presented on the record so that the court may make its own determination of the nature and seriousness of the conduct and whether there is a manifest need for such restraints; the court may not simply rely upon the judgment of law enforcement or court security officers or the unsubstantiated comments of others.

Gonzalez, 341 F.3d at 902 (quoting People v. Mar, 28 Cal.4th 1201, 124 Cal.Rptr.2d 161, 52 P.3d 95, 107 (2002)). The district court is not required to conduct an eviden-tiary hearing in every case. However, “the physical indicia of innocence are so essential to a fair trial that the better practice is to hold a hearing so that factual disputes may be resolved and evidence of the facts surrounding the decision are made a part of the record.” Kennedy, 487 F.2d at 107.

[¶ 21] At a minimum, the district court must articulate its reasons for placing the defendant in physical restraints on the record in order to provide for meaningful appellate review. See United States v. Joseph, 333 F.3d 587, 591 (5th Cir.2003); Durham, 287 F.3d at 1304; United States v. Apodaca, 843 F.2d 421, 431 (10th Cir.1988); Kennedy, 487 F.2d at 107. The district court should also consider on the record whether less restrictive, less prejudicial methods of restraint could be used. See Durham, at 1304, 1308. But explicit findings may not always be necessary, United States v. Stewart, 20 F.3d 911, 915 n. 8 (8th Cir.1994), and a district court’s failure to provide its reasons for restraining a defendant is erroneous but is not reversible error when the reasons are readily apparent from the record. United States v. Fields, 483 F.3d 313, 357 (5th Cir.2007).

[¶ 22] In this case, the district court held a hearing just prior to Kunze’s jury trial to consider the State’s request for restraints. The State verbally provided the court with information about Kunze’s prior history of assaults and escapes, and Deputy Banker testified about the three times he had transported Kunze. At the conclusion of the hearing, the district court ordered that Kunze be restrained with handcuffs and a waist restraining belt, but not leg restraints. Kunze asked if he could instead wear leg restraints so he could write and participate in the trial. The district court responded that he would be able to write. The district court then ordered that the waist restraining belt be placed underneath Kunze’s sweater to minimize its appearance.

[¶ 23] While the district court did not elaborate on the record its reasons for its order, the reasons for restraints or other security measures are readily apparent from the record and the district court attempted to minimize the prejudice of the waist restraining belt by placing it under Kunze’s clothing. Furthermore, at the time of trial In re R.W.S. was not yet decided. Trial was held on September 20, 2006, and In re R.W.S. was decided on March 5, 2007. The district court did not have our analysis in In re R.W.S. or our recitation of pertinent factors to be used when determining whether physical restraints could be used during the guilt phase of trial. Notwithstanding that the In re R.W.S. decision was not available for guidance, the district court’s acknowledgment that Kunze could not be physically restrained as a matter of routine is evidenced by the fact a hearing was held and inquiry was made into whether restraints would be permitted.

[¶ 24] In cases ordering restraints decided by the district court after our decision in In re R.W.S., the district court is to make case-specific findings and explain on the record, and at greater length than in this case, its rationale for the order even in those instances in which the district court believes the reasons are readily apparent on the record. That explanation should include the reason for not accommodating a request for one type of restraint rather than the other when the reason is not obvious on the record.

Ill

[¶ 25] Because the record before us in this case contains sufficient facts and rationale for us to understand the district court’s order and the reasons for it and because those reasons are sufficient to impose the ordered restraints, we affirm the criminal judgment.

[¶ 26] DALE V. SANDSTROM, DANIEL J. CROTHERS, MARY MUEHLEN MARING and CAROL RONNING KAPSNER, JJ„ concur.


author:
MARING, Justice. CROTHERS, Justice,
      SANDSTROM, Justice,

text:
    2007 ND 147
    Bruce LEE, Plaintiff and Appellant, v. Susan LEE, Defendant and Appellee.
    No. 20060321.
    Supreme Court of North Dakota.
    Aug. 30, 2007.

      Loren C. McCray, Bismarck, N.D., for plaintiff and appellant.
    Brenda A. Neubauer, Neubauer & Oster, Bismarck, N.D. for defendant and ap-pellee.
   MARING, Justice.

[¶ 1] Bruce Lee appeals the trial court’s amended judgment, a second amended judgment, corrected second amended judgment, and order on motions modifying his spousal support obligation. We affirm.

I

[¶ 2] Susan Lee and Bruce Lee separated in 2001 after twenty-one years of marriage. In January 2002, the parties signed a stipulation that was incorporated into a divorce judgment. The judgment granted Bruce Lee primary physical custody of the parties’ minor child and ordered him to pay spousal support of $250 per month for twenty-four months from January 15, 2002. Under the judgment, Susan Lee was not required to pay child support “at this time” because of a reduced ability to pay child support due to her taking over the parties’ business and in consideration of a lesser spousal support award. On January 29, 2003, Bruce Lee moved to establish child support, and on February 25, 2003, Susan Lee moved to increase the amount and duration of spousal support. The trial court denied both motions on July 14, 2003, finding the parties’ agreement indicated child support would not be sought until after the final spousal support payment was made. The trial court also found child support and spousal support had become interrelated. On January 9, 2004, Bruce Lee again moved to establish child support, and on January 26, 2004, Susan Lee again moved for an increase in the amount and duration of spousal support. On May 25, 2004, the trial court, with a different judge sitting, again denied both motions, rejecting the “at this time” language. The trial court found the parties intended to waive child support as long as Susan Lee was responsible for the parties’ business and business debt. Additionally, the trial court found there was not a significant change of circumstances to justify a modification of spousal support.

[¶ 3] In Lee v. Lee, 2005 ND 129, ¶ 1, 699 N.W.2d 842, Bruce Lee appealed the trial court’s denial of his motion to establish child support, and Susan Lee cross-appealed the trial court’s denial of her motion to increase the amount and duration of spousal support. This Court first addressed the modification of child support:

The judge who entered the divorce judgment denied Bruce Lee’s first motion to establish child support in July 2003, finding ‘[c]hild support and spousal support have become interrelated.’ Likewise, a different judge, sitting on this motion, found the parties intended to intertwine the issues of spousal support and child support and rejected the words ‘at this time’ as they related to Susan Lee’s child support obligation.

Lee, 2005 ND 129, ¶ 7, 699 N.W.2d 842. This Court concluded:

The parties acknowledged their agreement does not establish child support in accordance with the guidelines. Neither party presented evidence the stipulation meets the criteria for rebutting the presumptive ■ support amount under the guidelines. We remand for determination of the correct child support amount based on the guidelines.

Lee, at ¶ 10. This Court next addressed the modification of spousal support, concluding the trial court’s finding that there were no material changes in circumstances to justify modification of the spousal support obligation was not clearly erroneous. Lee, at ¶¶. 13-14.

However, because the trial court determined child support and spousal support are interrelated under the terms of the stipulation, and because we are remanding for reconsideration of Susan Lee’s child support obligation which may, under the interpretation of this judgment, constitute a change in circumstances for the interrelated spousal support, the trial court may also reconsider Bruce Lee’s spousal support obligation. Id. at ¶ 14.

[¶ 4] On remand, the trial court entered an amended judgment modifying spousal support. The trial court subsequently entered a second amended judgment and corrected second amended judgment to correct the method for calculating the retroactive amount due for spousal support or spousal support arrearage, to correct the year the child support obligation ended, and to clarify spousal support arrearage payment arrangements. Bruce Lee moved to stay enforcement of judgment challenging, in part, the court’s subject matter jurisdiction. The trial court entered an order on motions denying Bruce Lee’s request.

[¶ 5] In its corrected second amended judgment, the trial court ordered Susan Lee to retroactively pay child support of $492 per month from January 1, 2002, through December 31, 2002, and $459 per month from January 1, 2003, through May 1, 2005. The trial court ordered ■ Bruce Lee to retroactively pay spousal support of $700 per month from January 1, 2002, through July 1, 2006. Susan Lee’s child support obligation was subtracted from Bruce Lee’s spousal support obligation. Additionally, $6,000 of spousal support Bruce Lee paid Susan Lee from January 1, 2002, through January 1, 2004, was subtracted from his obligation. This resulted in Bruce Lee owing Susan Lee $13,285.

[¶ 6] Bruce Lee appeals.

II

[¶ 7] Bruce Lee argues the trial court did not have subject matter jurisdiction to order him to pay Susan Lee spousal support beyond his original obligation because his obligation ended before Susan Lee moved for an increase in the duration and amount of spousal support.

[¶ 8] “Issues involving subject matter jurisdiction cannot be waived and can be raised sua sponte at any time.” Trottier v. Bird, 2001 ND 177, ¶ 5, 635 N.W.2d 157. Whether a trial court lacks subject matter jurisdiction to modify an original spousal support order is a question of law fully reviewable by this Court on appeal. Quamme v. Bellino, 2002 ND 159, ¶ 6, 652 N.W.2d 360. Bruce Lee raised subject matter jurisdiction for the first time in his brief to this Court. However, because subject matter jurisdiction can be raised at any time, it is an issue fully reviewable by this Court.

[¶ 9] Under the law of the case doctrine, if this Court has ruled on a legal question and remanded the case to the lower court, “the legal question thus determined becomes the law of the case and will not be differently determined on a subsequent appeal in the same case where the facts remain the same.” Riverwood Commercial Park v. Standard Oil, Co., 2007 ND 36, ¶ 12, 729 N.W.2d 101.

[¶ 10] In Lee, 2005 ND 129, ¶ 8, 699 N.W.2d 842, we noted “parental agreements that prohibit or limit the power of a court to modify future child support are invalid.” Therefore, we remanded for a correct determination of child support. See id. at ¶ 10. This Court then instructed the trial court that it could reconsider Bruce Lee’s spousal support obligation when it reconsidered Susan Lee’s child support obligation because the trial court had previously determined the two obligations to be interrelated. Id. at ¶ 14. This interrelationship was present because the parties, in their stipulation, offset spousal support from child support. See id. at ¶ 2. This Court determined the reconsideration of Susan Lee’s child support obligation could constitute a change in circumstances for Bruce Lee’s spousal support obligation. Id. at ¶ 14. Therefore, the interrelationship and joint reconsideration of spousal support and child support became the law of the case. On remand, the trial court followed this Court’s directions when it reconsidered Bruce Lee’s spousal support obligation together with Susan Lee’s child support obligation. We conclude the trial court had subject matter jurisdiction to modify Bruce Lee’s spousal support obligation based on our Court’s decision in Lee, 2005 ND 129, 699 N.W.2d 842, and the law of the case doctrine.

Ill

[¶ 11] Bruce Lee argues the trial court erred in modifying his spousal support obligation. The standard for modifying spousal support is well-established and was explained in Lee, 2005 ND 129, ¶ 12, 699 N.W.2d 842 (citations omitted):

Spousal support will be modified upon a showing of a material change in circumstances. Material change means something which substantially affects the financial abilities or needs of a party. The party seeking modification bears the burden of showing a material change, and the trial court’s determination regarding a material change is reviewed under the clearly erroneous standard. The trial court looks at whether the change was contemplated at the time of divorce when determining whether spousal support should be modified. When a spousal support award was stipulated by the parties the trial court should modify it with great reluctance.

“A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or this Court, upon* review of all the evidence, is left with a definite and firm conviction a mistake has been made.” Ebach v. Ebach, 2005 ND 123, ¶ 10, 700 N.W.2d 684.

[¶ 12] In the original divorce judgment, Susan Lee was not required to pay child support. This Court, in Lee, 2005 ND 129, ¶ 10, 699 N.W.2d 842, remanded for a determination of the correct child support amount owed by Susan Lee. The trial court reconsidered Susan Lee’s original child support obligation in its second amended judgment. The trial court determined Susan Lee owed $492 per month from January 2002 through December 2002, and $459 per month from January 2003 through May 2005.

[¶ 13] This Court, in Lee, 2005 ND 129, ¶ 14, 699 N.W.2d 842, then allowed the trial court to reconsider Bruce Lee’s spousal support obligation because of the required reconsideration of Susan Lee’s child support obligation. On remand, the trial court found the required calculation of Susan Lee’s child support obligation was a material change in circumstances that required a redetermination of the amount and duration of Bruce Lee’s spousal support obligation.

[¶ 14] We conclude the trial court was not clearly erroneous in finding that requiring Susan Lee to pay child support not contemplated at the time of the original divorce judgment was a material change in circumstances. Bruce Lee argues that even if there was a material change in circumstances, the evidence does not warrant a modification requiring him to pay additional spousal support. However, Bruce Lee provides little argument and no citations to support this position.

[¶ 15] A spousal support award is to be based on consideration of the Ruff-Fischer guidelines. Sack v. Sack, 2006 ND 57, ¶ 11, 711 N.W.2d 157. The Ruff-Fischer guidelines evaluate the propriety and necessity of spousal support, weighing:

[T]he respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their, station in life, the circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity, if any, whether accumulated before or after the marriage, and such other matters as may be material.

Sack, 2006 ND 57, ¶ 11, 711 N.W.2d 157; see Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952); Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966).

[¶ 16] In determining the amount and duration of Bruce Lee’s spousal support obligation, the trial court considered the Ruff-Fischer guidelines and found:

This twenty one year marriage had been of considerable duration, there is not a great age disparity between the parties and at the time of the divorce, both parties were relatively healthy. During the marriage, the parties had raised children, acquired considerable property and investments, and had incurred some debt. The parties had jointly purchased a diner, which was primarily run by Susan. The diner did not turn much of a profit during the marriage, nor has it been very profitable since the divorce. The parties lived comfortably during the marriage, based upon Mr. Lee’s substantial and consistent income from Ot-tertail Power and from rental of real estate.
As a result of the divorce, Susan became the sole owner and operator of the diner and assumed a substantial amount of business debt. Income from the diner became the sole source of her income ....
Bruce had income in 2002 of $82,017; in 2003 of $68,500. Sometime in 2004, Bruce suffered an injury and if he is not able to return to work, he believes that his income may be reduced to perhaps 2/3 of his 2003 income. Since the divorce, Bruce has remarried and has chosen to incur substantial short term debt.
Using Susan’s tax returns for the year 2002, Susan had total income less alimony in the amount of $41,282. Susan’s 2002 income, as shown on her tax returns, includes $9,700.00 from the distribution of the pension plan as a result of the divorce settlement, which was not ordinary or business income and would not have been considered by the parties in arriving at the appropriate level of child support at the time of the divorce in January of 2002. So, for the purpose of calculating the appropriate spousal support and child support which should have been imposed at the time of the divorce, the Court will not include the $9,700 pension distribution in the calculations done after the fact. Susan’s income in 2003 was $26,942; and in 2004 was $27,012.
In 2002, after the parties intertwined the child support and spousal support calculations, they arrived at a net payment from Bruce to Susan in the amount of $250.00 per month. Using the child support calculator available online through the Department of Human Services, the court calculates that, if alimony had been set at $700 per month in 2002, Susan’s child support would have been $492.00 per month, with a net difference of alimony from Bruce to Susan in the amount of $208.00 per month.
Since a net difference of $208.00 in Susan’s favor closely aligns with the parties’ own agreement, the Court will use the $700 per month alimony as the benchmark. Furthermore, applying the Ruff-Fischer guidelines, the amount of $700.00 per month appears to be a very reasonable amount of alimony at the time of the divorce. The Court finds that five years is a reasonable duration for the award of rehabilitative spousal support.

The trial court, in its corrected second amended judgment, found Bruce Lee owed spousal support in the amount of $700 per month from January 2002 through July 2006, less the $250 per month he had paid for twenty-four months. The trial court appropriately conducted an analysis of the Ruff-Fischer guidelines. A review of the record shows that there is evidence to support the trial court’s findings. Employing the Ruff-Fischer guidelines, the trial court concluded Susan Lee was entitled to five years of rehabilitative spousal support. Under Ruff-Fischer, the trial court did not err by concluding Susan Lee was entitled to rehabilitative spousal support.

IV

[¶ 17] Susan Lee requests an award of attorney’s fees and costs on appeal without any basis or support. In Amsbaugh v. Amsbaugh, 2004 ND 11, ¶ 44, 673 N.W.2d 601 (citations omitted), we established the guidelines for awarding attorney’s fees:

This Court has concurrent jurisdiction with the district court to award attorney fees on appeal. The key factors in determining the propriety of an attorney fee award in a divorce action are one party’s needs and the other’s ability to pay. The trial court is in the better position to consider the special factors relevant to an award of attorney’s fees under [N.D.C.C. § 14-05-23] relating to the financial status of the parties and the need for and ability to pay attorney’s fees. These factors are best developed in the fact-finding arena of a trial court.

This Court may award attorney’s fees and costs if it determines an appeal is frivolous. N.D.R.App.P. 38. A review of the record and arguments presented shows Susan Lee has not shown a need for attorney’s fees, nor has she shown the appeal was frivolous. See Amsbaugh, 2004 ND 11, ¶ 45, 673 N.W.2d 601. Susan Lee’s request for attorney’s fees is denied. The costs on appeal are awarded under Rule 39, N.D.R.App.P.

V

[¶ 18] We affirm.

[¶ 19] GERALD W. VANDE WALLE, C.J., and CAROL RONNING KAPSNER, J., concur.

CROTHERS, Justice,

concurring specially.

[¶ 20] I join the majority opinion because this case is being decided according to the law of the case established in the first appeal. See Majority opinion at ¶ 9; Lee v. Lee, 2005 ND 129, ¶ 14, 699 N.W.2d 842. However, I was not a member of the Court when Lee was decided. Had I been, I would have agreed with Justice Sand-strom’s dissent.

[¶ 21] DANIEL J. CROTHERS, J.

SANDSTROM, Justice,

dissenting.

[¶ 22] For reasons largely set out in my separate opinion in Lee v. Lee, 2005 ND 129, ¶¶ 22-27, 699 N.W.2d 842 (Sandstrom, J., concurring and dissenting), I respectfully dissent.

[¶ 23] DALE V. SANDSTROM, J.