text:
    AUTO-OWNERS INSURANCE COMPANY, Appellant, v. Ione FORSTROM, et al., Defendants, Mark Anthony Heath, et al., Respondents, Pablo Ojeda-Napoles, et al., Respondents, Heather Tuckee, as parent and natural guardian of Tanner Ray Heath, Respondent, Myron Weege, Jr., as parent and natural guardian of Myron Weege, III, and Brianna Weege, Respondent.
    No. C8-03-296.
    Supreme Court of Minnesota.
    Aug. 5, 2004.

      R. Stephen Tillitt, Sara N. Wilson, Gisla-son & Hunter, L.L.P., Minnetonka, MN, for Appellant.
    Daniel J. Heuel, O’Brien & Wolf, L.L.P., Rochester, MN, for Respondents Pablo Ojeda-Napoles and Maria Ojeda-Napoles.
    J.D. Haas, Minneapolis, MN, for Respondents Brianna Weege and Myron Weege.
    Richard C. Scattergood, Rider Bennett, L.L.P., Minneapolis, MN, for Respondents Mark Heath and Alisha Dennis.
    William J. Schmitz, Sieben, Gross, Von Holtum & Carey, Ltd., Minneapolis, MN, for Respondent Tanner Heath.
   OPINION

PAGE, Justice.

In this case, Auto-Owners Insurance Company (Auto-Owners) asks us to determine whether extrinsic evidence of ownership of a motor vehicle'may be introduced to rebut the presumption that the person named in the vehicle’s certificate of title is the vehicle’s true owner. Because we find no basis to permit the introduction of extrinsic evidence, we reject Auto-Owners’ claim and affirm the court of appeals.

The facts of this case are not in dispute. On May 13, 2000, Mark Heath was operating a 1988 Chevrolet Beretta owned by Alisha Dennis with her permission. At or near the intersection of County Road 44 and U.S. Highway 63, Dennis’s vehicle ran a stop sign and collided with Pablo Ojeda-Napoles’ vehicle. In April 2001, the Oje-da-Napoles commenced a personal injury lawsuit against Heath and Dennis. Metropolitan Life Insurance Company insured Dennis’s vehicle and, in response to the lawsuit, Metropolitan Life deposited the liability limits of Dennis’s policy with the district court.

At the time of the accident, Heath resided with his grandmother, lone Forstrom, and had no automobile insurance policy in his own name. Forstrom’s Auto-Owners policy provided coverage for relatives living with her who did not own an automobile as long as the automobile the relative was driving at the time a claim for coverage arose was not available for her or the relatives’ regular use. In deposition testimony, Heath stated that he “had” a 1991 Cutlass at the time of the accident, but that he did not own it because the vehicle was “in [his] parents’ name.” The Cutlass, although in Heath’s possession, was inoperable due to a broken head gasket and was uninsured. According to Heath, he was in the process of purchasing the Cutlass from his parents and was making payments to them.

On February 13, 2002, Auto-Owners brought a declaratory judgment action seeking a determination that the Auto-Owners policy issued to Forstrom did not provide excess liability coverage for Heath’s involvement in the motor vehicle accident with the vehicle owned and operated by Pablo Ojeda-Napoles. Auto-Owners took the position that coverage was excluded because Heath owned the Cutlass and Forstrom’s policy excluded coverage for relatives living with the insured who owned an automobile. On March 12, 2002, the Ojeda-Napoles moved for summary judgment, asserting that because the Cutlass was temporarily inoperable it was not required to be registered pursuant to Minnesota Statutes chapter 168 and therefore was not a “motor vehicle” within the meaning of Minn.Stat. § 65B.43, subd. 2 (2002), of the No-Fault Act. Based on that assertion, the Ojeda-Napoles argued that Heath was covered by the policy issued to his grandmother. On June 18, 2002, the district court denied the motion for summary judgment, finding that the Cutlass was a motor vehicle under the No-Fault Act and therefore the exclusion in Forstrom’s policy applied.

The Ojeda-Napoles sought reconsideration of the court’s order based on this court’s decision in American National General Insurance v. Solum, 641 N.W.2d 891 (Minn.2002), which was filed in April 2002. The district court reheard the arguments, vacated its earlier order, and granted summary judgment to the Ojeda-Na-poles. The court found that Heath did not own the Cutlass on the date of the accident because he was not the registered owner of the vehicle. In making that finding, the district court, relying on Solum, refused to consider extrinsic evidence rebutting the presumption of ownership.

On appeal, the court of appeals affirmed in part, reversed in part, and remanded. Auto-Owners Ins. Co. v. Forstrom, 669 N.W.2d 617, 622 (Minn.App.2003). With respect to ownership of the Cutlass, the court of appeals, based on its reading of Solum, affirmed the district court’s grant of summary judgment. Forstrom, 669 N.W.2d at 620-21. The court of appeals interpreted Solum as a case “specifically and clearly not[ing] that there are only two situations where it is permissible to introduce extrinsic evidence to rebut the presumption of ownership: ‘[F]or purposes of vicarious liability under the Motor Vehicle Act and liability under the No Fault Act.’ ” Forstrom, 669 N.W.2d at 620 (alteration in original) (quoting Solum, 641 N.W.2d at 898).

This case presents two questions for our review: (1) whether, on the facts presented, our decision in Solum should be read to preclude the use of extrinsic evidence to rebut the presumption of ownership of the Cutlass; and (2) whether the Cutlass, though disabled, was a motor vehicle within the meaning of Minn.Stat. § 65B.43, subd. 2 (2002). Because we conclude that the use of extrinsic evidence to rebut the presumption of ownership of the Cutlass is precluded, we affirm.

Review of a summary judgment award consists of determining whether there are any genuine issues of material fact and whether the district court erred in applying the law to the facts. Jorgensen v. Knutson, 662 N.W.2d 893, 897 (Minn.2003). When a district court grants summary judgment after applying the law to undisputed facts, the legal conclusion is reviewed de novo. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998). Statutory construction and the interpretation of the language of insurance contracts are legal issues also subject to de novo review. Vue v. State Farm Ins. Cos., 582 N.W.2d 264, 265 (Minn.1998).

In Solum, this court engaged in a painstaking analysis of four of our earlier decisions addressing the admissibility at trial of extrinsic evidence rebutting the presumption of ownership of a motor vehicle established under the Motor Vehicle Certificate of Title Act, Minn.Stat. § 168A.10 (2002) (Motor Vehicle Act). Those cases were Vue, Bank North v. Soule, 420 N.W.2d 598 (Minn.1988), Arneson v. Integrity Mutual Insurance Co., 344 N.W.2d 617 (Minn.1984), and Welle v. Prozinski, 258 N.W.2d 912 (Minn.1977). Solum, 641 N.W.2d at 896-99. In reconciling those cases, we stated:

[T]he Motor Vehicle Act was intended to provide a single filing system of vehicle registration on which all parties could rely for determining who was the owner of a motor vehicle, similar to the Torrens system for the registration of title to real estate. Thus, the presumption of ownership established, by the certificate of title, that 30 years ago was generally rebuttable, became for the most part conclusive. The ability to rebut ownership of the vehicle was “greatly circumscribed," available only to prove the identity of the true owner in cases where the seller-transferor failed to comply with the transfer requirements of the Act and sought to avoid liability under the Safety Responsibility Act or determine rights and responsibilities relating to uninsured motorist coverage. In these limited instances we have held that the party challenging title was not precluded from presenting extrinsic evidence to establish that ownership was in fact vested in another.

Id. at 899 (citations omitted) (emphasis added).

Auto-Owners argues that this language from Solum does not create a bright-line rule as to when extrinsic evidence can be used to determine a motor vehicle’s ownership and that Solum should simply “be viewed as a unique and fact specific decision that rejected an attack on the integrity of the [Motor Vehicle Act].” Based on those arguments, Auto-Owners contends that the court of appeals “erred as a matter of law in narrowly interpreting the Solum case and overlooked the case law upon which Solum is based that allows for the submission of extrinsic evidence in the present case.” Acknowledging that this case does not fall within the two exceptions identified in Solum, Auto-Owners argues that, because this case is factually similar to Ameson and Vue, both of which allowed the introduction of extrinsic evidence, there is a basis for permitting the use of extrinsic evidence in this case. We disagree.

The primary similarity Auto-Owners identifies is the fact that Ameson and Vue involve tort or tort-like claims. While it is true that the claim underlying this declaratory judgment action involves a tort or tort-like claim, critical factual differences exist. First, Ameson and Vue both involved claims requiring a determination of rights and responsibilities under the uninsured motorist provisions of the No-Fault Act. Arneson, 344 N.W.2d at 619; Vue, 582 N.W.2d at 264-65. Therefore, both clearly fit within the uninsured motorist coverage exception carved out in our earlier cases as discussed in Solum. In that respect, the fact that the underlying claim involves a tort or tort-like claim is meaningless because the claim does not involve such a determination. More importantly, the vehicle in question in ■ both Ameson and Vue was the vehicle involved in the accident giving rise to the claim. Arneson, 344 N.W.2d at 618; Vue, 582 N.W.2d at 265. Here, the vehicle in question is neither the vehicle involved in the accident giving rise to the claim nor the vehicle covered by the insurance policy from which coverage is being sought.

Auto-Owners also claims that this case is similar to the cases analyzed in Solum that involved noncompliance with the transfer provisions of the Motor Vehicle Act. While this case does involve noncompliance with the Motor Vehicle Act, noncompliance alone will not carry the day. As the language from Solum indicates, extrinsic evidence has been permitted in cases involving noncompliance and either an effort to determine rights and responsibilities relating to uninsured motorist coverage or a seller’s attempt to avoid liability under the Safety Responsibility Act. Here, as noted above, the underlying claim does not require a determination of rights and responsibilities relating to uninsured motorist coverage. Further, this is not a case in which the seller is attempting to avoid liability under the Safety Responsibility Act. In fact, the person listed on the Cutlass’s certificate of title, Heath’s father, has no interest in this litigation and the Ojeda-Napoles cannot bring a vicarious liability tort claim against Heath’s father because he did not own or have any other connection to the vehicle that was involved in the accident.

Given these dissimilarities, we conclude that the fact that the underlying claim here, like the claims in Ameson and Vue, involves a tort or tort-like claim and the fact that this case involves noncompliance with the transfer provisions of the Motor Vehicle Act do not provide a basis for permitting the use of extrinsic evidence on the facts presented. We therefore conclude that the district court and the court of appeals were correct when they precluded the introduction of extrinsic evidence to rebut the presumption that Heath’s father, the individual in whose name the Cutlass was registered at the time of the accident, was its owner.

Affirmed.

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

      . The parties have variously used Auto-Owners and Owners in the caption. The district court complaint and the court of appeals’ opinion reference Auto-Owners, while the briefs to this court reference Owners. For purposes of clarity, we will use the caption from the initial district court complaint.

      . Pablo and his wife, Maria Ojeda-Napoles, are both parties to the declaratory judgment action. In this opinion, they will be referred to collectively as "the Ojeda-Napoles.”

      . The relevant policy language provides:
      SECTION IV — INDIVIDUAL NAMED INSURED

      1. LIABILITY COVERAGE — BODILY INJURY AND PROPERTY DAMAGE
      a. The Liability Coverage provided for your automobile also applies to an automobile not:
      (1) owned by or furnished or available for regular use to you or anyone living with you.

      b. We extend this coverage only:
      (1) to you;
      (2) to relatives who do not own an automobile.
      A "[Relative” is defined in the policy as "a person who resides with you and is related to you by blood, marriage or adoption.” An “[a]utomobile” is defined in the policy as "a private passenger automobile, a truck, truck tractor, trailer, farm implement or other land motor vehicle.”
      (Emphasis omitted.)

      . In making this finding, the court did not reverse its earlier finding that the Cutlass, though disabled, was a motor vehicle within the meaning of Minn.Stat. § 65B.43, subd. 2.

      . The court remanded with respect to the ownership of a second motor vehicle not at issue here.

      . We note that Auto-Owners presents no policy basis supporting the creation of additional exceptions to the rule set out in Solum.

      . Having concluded that the district court properly excluded extrinsic evidence rebutting the presumption of ownership of the Cutlass, we have no need to decide whether the Cutlass qualified as a motor vehicle under the No-Fault Act.


source: Caselaw Access Project

author: Alan C. Page Associate Justice

license: Public Domain

text:
    NORTHERN STATES POWER COMPANY, d/b/a Xcel Energy, Respondent, v. MINNESOTA METROPOLITAN COUNCIL, Appellant, Minnesota Department of Transportation, et al., Appellants.
    No. C4-03-67.
    Supreme Court of Minnesota.
    Aug. 5, 2004.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the motion of respondent Northern States Power Co., d/b/a/ Xcel Energy, to strike portions of the briefs of appellants and amici curiae and to strike affidavits from the appendix of appellant Minnesota Metropolitan Council is denied.

BY THE COURT:

Alan C. Page Associate Justice

BLATZ, C.J., GILBERT, J., and HANSON, J., took no part in the consideration or decision of this case.

CHRISTOPHERSON, J., appointed pursuant to Minn. Const, art. VI, § 2, and Minn.Stat. § 2.724, subds. 1, 2 (2002).


author: ANDERSON, RUSSELL A., Justice. HANSON, Justice, PAGE, Justice, MEYER, Justice,

text:
    STATE of Minnesota, Respondent, v. Tyrone James WHITE, Appellant.
    No. A03-502.
    Supreme Court of Minnesota.
    Aug. 6, 2004.

      Bradford Colbert, # 166790 — (651) 290-8651, St. Paul, MN, for Appellant.
    Mike A. Hatch, Minnesota Attorney General, John B. Galus, #33327, (651) 282-5505, Assistant Attorney General, St. Paul, MN, Alan L. Mitchell, (218) 726-2323, St. Louis County Attorney, Duluth, MN, for Respondent.
   OPINION

ANDERSON, RUSSELL A., Justice.

Appellant Tyrone James White was convicted and sentenced in St. Louis County District Court for the first-degree felony murder of Milton Williams, in violation of Minn.Stat. § 609.185(a)(3) (2002), and the attempted first-degree premeditated murder of Tami Carlson, in violation of Minn. Stat. §§ 609.17, subd. 2 and 609.185(a)(1) (2002). The district court imposed a sentence of life imprisonment for the murder and a consecutive sentence of 180 months confinement for the attempted murder.

In this direct appeal, White claims that (1) the district court erred by denying his Batson objection to the state’s peremptory challenge of a prospective juror; (2) Minnesota’s accomplice liability statute, Minn.Stat. § 609.05 (2002), is unconstitutional; (3) the district court erred in its instruction to the jury regarding accomplice liability; and (4) the evidence was insufficient to support the convictions. We affirm.

On April 24, 2001, White, Vidale Whit-son, Benjamin King and Charlesetta Jackson drove from Minneapolis to the Duluth apartment of Tami Carlson. White, who was a friend of Carlson, had called Carlson earlier in the day and confirmed that Williams, a known drug dealer, was at Carlson’s apartment. According to Carlson, a month earlier White had told Carlson that he was angry with Williams because Williams had sold fake drugs to White. Before arriving in Duluth, White and Whitson discussed their intent to rob Williams whom they knew to carry a gun and large amounts of cash and drugs. White informed Whitson that he had committed robberies with Williams in the past and that Whitson might have to use a gun. White explained that he would start an argument with Williams, which would be a signal to begin the robbery. White and Whitson brought a .22 pistol with them; Whitson explained to White that a .22 pistol should not be able to be heard in a house.

Once White, Whitson, King and Jackson arrived at Carlson’s apartment, White told Jackson to stay in the ear, with the motor running, and White, Whitson and King were admitted by Carlson into her apartment. White, Carlson and Williams were in the kitchen when White and Williams began arguing. On signal from White, Whitson and King entered the kitchen and Whitson walked up to Williams and shot him several times in the thigh and calf with the .22 pistol brought from Minneapolis. Williams charged at Whitson and Whitson shot Williams in the top of his head, killing him. Carlson pleaded with White for her life, stating “I don’t want to die, please don’t kill me.” According to Carlson, White did not reply to her pleading, but gave her “the coldest stare” and turned away. As Carlson was on her knees crying and praying, Whitson shot her in the face, the bullet entering her left cheek, and breaking her jaw and neck and severing arteries.

After taking money and drugs from Williams’ pockets, White, Whitson and King fled the apartment. Carlson managed to call 911 and, with the help of her neighbor, summoned help. When police arrived and asked Carlson who had done this, she replied, “Tyrone White.”

Carlson’s neighbor, who heard the gunshots and came to Carlson’s aid, saw the assailants flee and wrote down the license number of their vehicle. Police officers later stopped the vehicle and recovered from it 48.1 grams of crack cocaine and cash totaling $2,915. The .22 pistol, which had been thrown from the fleeing vehicle, was later recovered and a BCA firearms examiner matched the bullet cartridges found at Carlson’s apartment with the pistol. A DNA test matched Williams’ blood with blood found on King’s hands and pants.

A St. Louis County grand jury returned an indictment charging White with first-degree premeditated murder and first-degree felony murder of Williams, and attempted first-degree premeditated murder of Carlson. During selection of the petit jury, White objected under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the state’s peremptory challenge of a prospective juror who, if seated, would have been the ninth juror. We refer to her. as Juror S. A Native American woman married to an African American man, Juror S revealed that her husband’s aunt, whom she repeatedly referred to and claimed as her “aunt,” was on the trial witness list. Juror S’s daughter had been prosecuted for a felony drug-related offense by the St. Louis County Attorney’s office and had been sentenced for the offense by the judge presiding over White’s trial. Juror S expressed concern that there were so many minority persons in the criminal justice system.

The State exercised a peremptory challenge to Juror S and White objected to the challenge under Batson v. Kentucky, claiming that there had been a “pattern” by the state of challenging all prospective jurors with any connection to African Americans. Before hearing the State’s response to White’s objection, the district court stated that “the proper test” was “whether or not there has been a prima facie showing made by the person raising the objection that race has somehow factored into the preemptory challenge.” The State denied that it had engaged in a “pattern” of challenging prospective jurors with connections to African Americans, noting that a juror already examined and seated on the jury was also a Native American woman married to an African American man. Eventually, this juror served as the foreperson of the jury.

When the State offered to list the race-neutral reasons for its peremptory challenge to Juror S, the district court indicated that it was not going to require that, and stated that it was “going to find that prima facie showing has not been made.” The court then made two observations that serve as the basis for White’s assertion in this appeal that the court applied the “wrong test” when it denied White’s objection. The court observed that “I ultimately determined that I didn’t see a pattern, which is what the rule requires. There probably are three or four other articula-ble reasons that [Juror S] could be removed from the jury on a peremptory basis that have nothing to do with race, so I will deny the Batson challenge on that basis * ⅜

At the end of the trial, without objection from either party, the district court instructed the jury on liability for crimes of another, using the language from the Minnesota Jury Instruction 4.01. See 10 Minn. Dist. Judges Ass’n, Minnesota Practice—Jury Instruction Guides, Criminal, CRIMJIG 4.01 (4th ed. 1999) (“Liability for Crimes of Another”). The jury found White guilty of first-degree premeditated murder, of felony murder and attempted first-degree premeditated murder. The court entered conviction for first-degree felony murder of Williams and the court entered conviction for attempted first-degree premeditated murder of Carlson and imposed consecutive sentences, described above. This direct appeal followed.

I.

We turn first to White’s claim that the district court erred by denying his Batson objection to the state’s peremptory challenge of Juror S. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits purposeful race discrimination in the selection of a jury and neither party may exercise peremptory challenges to strike jurors because of their race. Georgia v. McCollum, 505 U.S. 42, 59, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992); Batson, 476 U.S. at 89, 106 S.Ct. 1712. To determine whether a peremptory challenge discriminates on the basis of race, the Supreme Court established a three-step process in Batson, which the Court later summarized in Purkett v. Elem as follows:

[Ojnce the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful discrimination.

514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (citation omitted). This three-step Batson process is included in our Rules of Criminal Procedure. See Minn. R.Crim. P. 26.02, subd. 6a(3).

Under step one of the Batson process, the defendant must establish a prima facie case of racial discrimination by showing (1) that one or more members of a racial group have been peremptorily excluded from the jury; and (2) that circumstances of the case raise an inference that the exclusion was based on race. State v. Taylor, 650 N.W.2d 190, 201 (Minn.2002) (citing Batson, 476 U.S. at 96, 106 S.Ct. 1712). The use of a peremptory challenge to remove a member of a racial minority does not necessarily establish a prima facie case of discrimination. State v. Reiners, 664 N.W.2d 826, 831 (Minn.2003). Under step one of the Batson process, if the district court determines that a prima facie showing has not been made by the party objecting to the challenge, the objection is overruled and the prospective juror is dismissed. Minn. R.Crim. P. 26.02, subd. 6a(3)(a).

Federal circuit courts are not in agreement as to the standard of review of a district court’s determination, under step one of Batson, that a prima facie case of discrimination has not been established. One circuit court compared step one of the Batson analysis to a review of probable cause and suggested that de novo review is appropriate. See Mahaffey v. Page, 162 F.3d 481, 484 (7th Cir.1999) (“[FJactual scenarios will recur in this context, and de novo review would allow for a measure of consistency in the treatment of similar factual settings, rather than permitting different trial judges to reach inconsistent conclusions about the prima facie case on the same or similar facts.”). See also United States v. Jordan, 223 F.3d 676, 686 (7th Cir.2000). By contrast, another circuit court has concluded that “the issue should be reviewed as a finding of fact, entitling the trial judge’s ruling to great deference on review and subjecting it to reversal only in the face of clear error.” See U.S. v. Moore, 895 F.2d 484, 485 (8th Cir.1990). The Moore court explained its reason for giving such great deference to the district court:

[Tjhere are other ‘relevant circumstances’ that will not be evident from a reading of the record. Defense counsel, the prosecutor, and the trial judge ordinarily will have access, at the least, to basic information about the venire. Information such as a juror’s age, residence, and employment — and its similarity or dissimilarity to the defendant’s vital statistics — will not appear on the record but will be important to those responsible for the composition of the jury. In addition, those present are able to evaluate general demeanor; to observe attention span, alertness, and interest; and to assess reactions indicating hostility or sympathy towards or fear of the parties. Information of this sort cannot be discerned from a transcript. Yet such things may be vitally important when counsel employ their best judgment in exercising their peremptory challenges. The trial judge, with his experience in voir dire, is in by far the best position to make the Batson prima facie case determination. And, because of his unique awareness of the totality of the circumstances surrounding the voir dire, that determination must be treated as a finding of fact entitled to great deference on review.

Id. at 485-86 (footnotes omitted).

In our previous review of a district court’s determination that a prima facie showing had not been made, we said “[w]hether there is racial discrimination in the exercise of a peremptory challenge is a factual determination to be made by the district court, and that determination will not be reversed absent clear proof that the state’s reason for the challenge was pre-textual.” State v. Henderson, 620 N.W.2d 688, 703-04 (Minn.2001) (emphasis added). Now, we clarify our statement in Henderson, noting that whether a peremptory challenge is a pretext for discrimination is for decision by the district court only when step three of the Batson process is reached. At step one of the Bat-son process, the district court need only determine whether the objecting party has established a prima facie showing of discrimination. The step one determination focuses on (1) whether one or more members of a racial group have been peremptorily, challenged and (2) whether the circumstances of the case raise an inference that the challenge was based on race. Taylor, 650 N.W.2d at 201. We are mindful of the unique position of a district court to determine, based on all relevant factors, whether the circumstances of the case raise an inference that the challenge was based upon race. See Batson, 476 U.S. at 97, 106 S.Ct. 1712 (“We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutors use of peremptory challenges creates a prima facie case of discrimination against black jurors.”). We have consistently given deference to the district court’s rulings on Batson issues, realizing that the record may not accurately reflect all relevant circumstances that may properly be considered. See Reiners, 664 N.W.2d at 830 (“the existence of racial discrimination in the exercise of a peremptory challenge is a factual determination that is to be made by the district court and should be given great deference on review”); Taylor, 650 N.W.2d at 200-01 (“[w]hether there is racial discrimination in the exercise of a peremptory challenge is a factual determination to be made by the district court and is entitled to great deference on review”); State v. James, 520 N.W.2d 399, 403 (Minn.1994) (“[w]hether racial discrimination has been proved is an essentially factual determination which typically will turn largely on an evaluation by the trial court of credibility”) (quotations omitted). Accordingly, upon review of a district court’s determination under step one of the Batson process that a prima facie showing of discrimination has not been established, we will reverse only in the face of clear error. See Henderson, 620 N.W.2d at 703-04.

We have carefully reviewed the record, particularly the alleged circumstances that White asserted raised an inference that the State’s peremptory challenge of Juror S was based upon race. White asserted that the State had engaged in a “pattern” of challenging prospective jurors with any connection to African Americans. In fact, a Native American woman married to an African American man had already been accepted as a juror and eventually, she would serve as the foreperson of the jury. We conclude that when the district court said that it “did not see a pattern,” the court was simply responding to White’s assertion that the State had engaged in a “pattern” of challenges which established a prima facie showing of discrimination under step one of Batson. The court did not, as White asserts, apply the “wrong test” when it found no such “pattern.” In fact, before making its ruling denying White’s objection, the court acknowledged that “the proper test” was “whether or not there has been a prima facie showing made by the person raising the objection that race has somehow factored into the preemptory challenge.” White also argues that because Juror S is a Native American married to an African American, he established, by inference, a prima facie showing of discrimination, thus satisfying the first step of the Batson process. His argument, however, fails. Merely because a member of a racial group has been peremptorily excluded from the jury does not necessarily establish a prima facie showing of discrimination; step one of the Batson process also requires that the circumstances of the case raise an inference that the challenge was based upon race. See Taylor, 650 N.W.2d at 201.

We conclude that it was not clearly erroneous for a district court to overrule an objection to a peremptory challenge when the objection was based upon an alleged “pattern” of excluding jurors, which “pattern” had not been established. We hold that the district court’s decision to overrule White’s objection to the state’s peremptory challenge to Juror S on grounds that White had failed to establish a prima facie showing of discrimination under Bat-son and Minn. Rule Crim. P. 26.02, subd. 6a(3)(a), was not clearly erroneous.

II.

We turn to White’s remaining claims, which are closely related to one another. White argues, for the first time on appeal, that Minnesota’s accomplice liability statute, MinmStat. § 609.05, and the jury instructions based on the statute, im-permissibly and unconstitutionally alleviated the state’s burden of proving the elements of the charged crimes. Specifically, White 'argues that he neither intended the murder of Williams nor premeditated the attempted murder of Carlson. The State asserts that White waived these issues by failing to raise them at trial. A defendant’s failure to propose specific jury instructions or to object to instructions before they are given to the jury generally constitutes a waiver of the right to appeal. State v. LaForge, 347 N.W.2d 247, 251 (Minn.1984). See also Minn. R.Crim. P. 26.03, subd. 18(3). Nevertheless, a failure to object will not cause an appeal to fail if the instructions contain plain error affecting substantial rights or an error of fundamental law. State v. Cross, 577 N.W.2d 721, 726 (Minn.1998) (citing State v. Malaski, 330 N.W.2d 447, 451 (Minn.1983)). See also Minn. R.Crim. P. 26.03, subd. 18(3).

We have rejected similar challenges to accomplice liability in a number of cases. See, e.g., State v. Souvannarath, 545 N.W.2d 30, 33-34 (Minn.1996) (holding that where jury instructions in first-degree murder require the jury to find that defendant acted with intent to aid, advise, hire, counsel, or conspire with or otherwise procure the other to commit murder, instructions did not relieve the state of any part of its burden of proof and, therefore, did not violate defendant’s due process rights); State v. Pierce, 364 N.W.2d 801, 809-10 (Minn.1985) (holding that jury instruction pursuant to statute on accomplice liability was not erroneous as allowing jury to return a verdict on something less than beyond a reasonable doubt). Minnesota’s accomplice liability statute does not, as White asserts, permit a conviction without the requisite mental state. See State v. Gruber, 264 N.W.2d 812, 819-20 (Minn. 1978) (holding evidence insufficient to sustain conviction for aiding in the commission of heat-of-passion manslaughter). Constitutional shortcomings, if any, that may lie within the statute clearly were not raised at the district court level and are not evident in this case.

White also argues that it was error not to state in the accomplice jury instruction that the “other crime” committed in furtherance of the intended crime, be “reasonably foreseeable” by the accomplice, as required by the accomplice liability statute, Minn.Stat. § 609.05, subd. 2 (“reasonably foreseeable by the person as a probable consequence of committing or attempting to - commit the crime intended.”). A jury instruction is in error if it materially misstates the law. State v. Pendleton, 567 N.W.2d 265, 268 (Minn.1997). Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn.1988) (citing State v. Jones, 347 N.W.2d 796, 801 (Minn.1984)). The district court’s instructions in this case, read as a whole, did not serve to confuse or mislead the jury and did not materially misstate the law.

III.

Finally, we consider White’s claim that the evidence is insufficient to support his convictions. On appeal, we conduct “ ‘a rigorous review of the record to determine whether the evidence, direct and circumstantial, viewed most favorably to support a finding of guilt, was sufficient to permit the [fact-finder] to reach its conclusion.’ ” DeMars v. State, 352 N.W.2d 13, 16 (Minn.1984) (quoting State v. Mytych, 292 Minn. 248, 194 N.W.2d 276, 279 (1972)). In reviewing a claim of evidentiary insufficiency, we view the evidence in a light most favorable to the verdict and assume the fact-finder disbelieved any testimony conflicting with that verdict. State v. Thomas, 590 N.W.2d 755, 757 (Minn.1999). The verdict will not be overturned if, giving due regard to the presumption of innocence and to the prosecution’s burden of proving guilt beyond a reasonable doubt, the jury could reasonably have found the defendant guilty of the charged offense. Id. at 757-58.

Here, there is no dispute that White intended to commit a robbery. White believed that Williams might resist and White and Whitson brought along a gun. White had committed robberies with Williams in the past and told Whitson that he “may have to use a gun.” On signal from White, Whitson entered Carlson’s kitchen and immediately began shooting Williams. After killing Williams, Carlson pleaded with White to spare her life but White, after “the coldest stare,” looked away and Whitson shot Carlson in the face. The evidence was sufficient to support the convictions.

Affirmed.

HANSON, Justice,

(specially concurring).

Although I agree with the majority’s conclusion that it was not error for the district court to overrule White’s objection to the state’s peremptory challenge of Juror S, I write separately to state a different rationale for that conclusion.

It should be noted that the jury selection in White’s trial preceded the filing of our decision in State v. Reiners, 664 N.W.2d 826 (2003). As a result, the district court did not have the benefit of our direction in that case that each step of the Batson analysis be clearly demarcated and explained. Id. at 832. I would conclude that the district court in this case likewise merged the three steps, discussing pretext issues appropriate to step three during the analysis of a prima facie case under step one. I would reiterate that, for purposes of appellate review, it is important that the district court analyze each step of the Bat-son process separately and on the record.

I believe that the majority opinion allows the district court to set too high the threshold for establishing a prima facie case in step one. As one court has observed:

The prima facie standard is not a high one; the defendant is not required to prove by a preponderance of the evidence that discrimination occurred. Rather, the defendant must present evidence sufficient to raise an inference that discrimination occurred.

Valdez v. People, 966 P.2d 587, 590 (Colo.1998).

It is true that the mere fact that the potential juror stricken is a member of a minority racial group does not establish a prima facie showing of discrimination and that other circumstances must also support an inference that the challenge was based on race. But I would conclude that the state’s peremptory challenge of a Native American prospective juror, when combined with the circumstances that the prospective juror was married to an African American, the defendant is an African American, and one of the victims may be a Caucasian woman, establishes a prima fa-cie case of discrimination as a matter of law.

The majority points out that the grounds stated by White for his Batson objection were without merit. White argued that the state had established a “pattern” of challenging prospective jurors with any connection to an African American. I agree that the record does not support that argument. But the district court was not free to limit its analysis to the grounds stated by White. Stated conversely, White did not waive his Batson objection by stating inappropriate grounds. This is because the district court bears the ultimate responsibility for assuring the absence of racial discrimination in the selection of jurors and the court must raise the Batson objection sua sponte whenever the circumstances of a peremptory challenge suggest the possibility of discrimination. State v. McRae, 494 N.W.2d 252, 257 (Minn.1992) (“[T]he trial court has the duty to decide if there has been purposeful discrimination.”). Minn. R.Crim. P. 26.02, subd. 6a (3)(c) (“If the objection was initially raised by the court, it shall determine, after such hearing as it deems appropriate, whether the peremptory challenge was exercised in a purposeful discriminatory manner on the basis of race or gender.” (Emphasis added.)). See also Brogden v. State, 102 Md.App. 423, 649 A.2d 1196, 1200 (1994) (“A trial judge need not sit idly by when he * * * observes what he perceives to be racial discrimination in the exercise of peremptory challenges.”).

Having concluded that White presented a prima facie case of discrimination, I would proceed to consider whether the district court’s denial of his objection should be treated as a ruling on pretext. In State v. Henderson, 620 N.W.2d 688, 704 (2001), we said:

In finding that the state’s questions were not subterfuge and did not reflect any racial motive, the district court’s conclusion could be viewed effectively as a ruling on pretext rather than on whether Henderson made out his prima facie case. Where a district court resolves the issue of pretext first instead of addressing whether a prima facie case was made, ‘the issue whether the defendant established a prima facie case of the discriminatory use of a peremptory strike is moot.’

(quoting from State v. Gaitan, 536 N.W.2d 11, 15 (Minn.1995)). In Henderson, we concluded that the court did not err in overruling the Batson objection because, in part, “there is no clear proof that the prosecutor’s stated reason for the challenge was pretextual.” Id. at 704.

As I read the thought process of the district court in this case, I conclude that the court merged the three steps of Bat-son and ultimately resolved the objection on the basis of the third step, finding that there were several race-neutral reasons for the state’s challenge of Juror S that were not pretextual. The court’s concluding comment was that there were “three or four other articulable reasons that [Juror S] could be removed from the jury on a peremptory basis that have nothing to do with race, so I will deny the Batson challenge on that basis.”

The record supports the district court’s conclusion because Juror S’s aunt was on the witness list, her daughter had been prosecuted by the St. Louis County Attorney’s Office for a felony, and the presiding judge was the same judge who had sentenced her daughter. Although it would have been preferable for the district court to consider the race-neutral reasons for the peremptory challenge in step three of the Batson analysis, and to make specific findings that those reasons were not pre-textual, I would conclude that the district court’s comments satisfy step three of the Batson analysis and support the denial of the Batson objection.

PAGE, Justice,

(concurring specially).

I join in the special concurrence of Justice Hanson.

MEYER, Justice,

(concurring specially).

I join in the special concurrence of Justice Hanson.

      . In accord with Minn. R. of Crim. P. 26.02, subd. 4(3)(c)(8), prospective jurors in this first-degree murder case were called and examined individually, outside of the presence of the rest of the jury panel. Peremptory challenges were exercised after the examination of each prospective juror.

      . The district court stated:
      The defendant is guilty of a crime committed by another person when the defendant has intentionally aided the other person in committing it or has intentionally advised, hired, conspired with or otherwise procured the other person to commit it. [I]f the defendant intentionally aided another person in committing a crime or intentionally advised, hired, counseled, conspired with or otherwise procured the other person to commit it, the defendant is also guilty of any other crime the other person commits while trying to commit the intended crime, if that other crime was reasonably foreseeable as a probable consequence of trying to commit the intended crime.

      . Minnesota Statutes § 609.035, subd. 1 (2002) requires that the court sentence White for only one of the offenses against Williams, those offenses arising out of the same behavioral incident.

      . Rule 26.02, subd. 6a(3), states:
      The trial court shall use a three-step process for evaluating a claim that any party has engaged in purposeful racial or gender discrimination in the exercise of its peremptory challenges:
      (a) First, the party making the objection must make a prima facie showing that the responding party has exercised its peremptory challenges on the basis of race or gender. If the objection was raised by the court on its own initiative then the court must initially determine, after such hearing as it deems appropriate, that there is a prima facie showing that the responding party has exercised its peremptory challenges on the basis of race or gender. If no prima facie showing is found, the objection shall be overruled.
      (b) Second, if the court determines that a prima facie showing has been made, the responding party must articulate a race-neutral or gender-neutral explanation, as applicable, for exercising the peremptory challenge(s) in question. If no race-neutral or gender-neutral explanation is articulated, the objection shall be sustained.
      (c)Third, if the court determines that a race-neutral or gender-neutral explanation has been articulated, the objecting party must prove that the proffered explanation is pretextual. If the objection was initially raised by the court, it shall determine, after such hearing as it deems appropriate, whether the peremptory challenge was exercised in a purposeful discriminatory manner on the basis of race or gender. If purposeful discrimination is proved the objection shall be sustained. If no purposeful discrimination is proved the objection shall be overruled.

      . After ruling that a prima facie showing had not been made by White, the district court stated that there were "probably three or four other articulable reasons that [Juror S] could be removed from the jury on a peremptory basis that have nothing to do with race, so I will deny the Batson challenge on that basis * * * " me †⅛ district court's remarks to reflect only a consideration of whether, under step one of Batson, the circumstances of the case raised an inference that the challenge to Juror S was based upon race. In our view, the record simply does not support the conclusion of the special concurrence that the district court merged the three steps of Batson. If the three steps of Batson had been merged as the special concurrence suggests, the district court would have fallen one step short. The district court’s observation that there were "three or four” race-neutral reasons articulated for the challenge would have been a step two Batson determination made only after a step one determination that a prima facie showing had been made, and the court would have been required to go on to step three of Batson and determine if the step two reasons were merely a pretext for discrimination. Instead, the district court stopped at step one of Batson, determining that a prima facie showing of discrimination had not been made, and that determination was not clearly erroneous.

      . On appeal, White contends that the circumstances of the case raise an inference that the exclusion was based on race because
      [tjhere were very few people of color on the jury panel; two Native Americans and one African American. By striking [Juror S], the State eliminated one-third of the eligible minorities from the jury pool where the defendant was a person of color; this alone 'raises[s] an inference' of racial discrimination.
      This argument is not supported by the record. According to the district court's juror profile, White’s jury panel included four Native Americans, one African American and one person of "two or more races.” During voir dire, three Native American jurors were questioned and two of them placed on the jury. The only prospective juror of two or more races was excused from jury service on grounds of hardship. Jury selection was completed before the fourth Native American juror, or the African American juror were called for examination.

      . Minnesota Statutes § 609.05, subds. 1 and 2 provide:
      Subdivision 1. A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.
      Subd. 2. A person liable under subdivision 1 is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by the person as a probable consequence of committing or attempting to commit the crime intended.
      Minn.Stat. § 609.05, subds. 1, 2 (2002).

      . In fact, this is the first of the almost twenty Batson cases that have come to us where the district court purported to decide the Batson objection at step one. In all the other cases the district court either skipped step one or decided that a prima facie case had been shown. See, e.g., State v. Taylor, 650 N.W.2d 190, 201 (Minn.2002); State v. Martin, 614 N.W.2d 214, 222 (Minn.2000); State v. DeVerney, 592 N.W.2d 837, 843 (Minn.1999).

      . Further, I disagree with the majority's conclusion that the clearly erroneous standard of review applies. Because step one of the Bat-son analysis tests the legal sufficiency of the evidence to support an inference of discrimination, that step involves questions of law, not fact. Accordingly, the appropriate standard of review for step one is de novo and the clearly erroneous standard should only be applied to the fact determinations made in step three. See, e.g., Valdez v. People, 966 P.2d at 590-91. Valdez looked for guidance to the standard of review used in Title VII cases to determine whether a prima facie case of discrimination has been presented. Id. at 591. These cases generally apply a de novo standard.

      . The record is not entirely clear on the race of Tami Carlson because there was no testimony on the subject. A search warrant issued for her premises describes her as Caucasian or Native American.

      . The only case where this court has even intimated that step one of the Batson objection may not have been satisfied is a case that had no racial overtones. State v. Stewart, 514 N.W.2d 559, 563 (1994) ("There were no racial overtones to the case since both the defendant and the victim are white, * * *.").


author: WRIGHT, Judge.

text:
    Bontu Bullo GADA, petitioner, Respondent, v. Nuro Badaso DEDEFO, Appellant.
    No. A03-1441.
    Court of Appeals of Minnesota.
    Aug. 3, 2004.
    Ryan T. Murphy, Grant D. Fairbairn, Fredrikson & Byron, P.A., Minneapolis, MN, for respondent.
    Nuro B. Dedefo, Columbia Heights, MN, pro se appellant.
    Considered and decided by KALITOWSKI, Presiding Judge; RANDALL, Judge; and WRIGHT, Judge.
   OPINION

WRIGHT, Judge.

Appellant-father challenges the district court’s decision to grant respondent-mother an order for protection, arguing that (1) the district court abused its discretion in declining to grant a continuance; and (2) the district court’s decision to grant the order for protection is not supported by sufficient evidence. Appellant also contends that the district court erred by awarding temporary custody to respondent without making findings as to the best interests of the child. We affirm in part and remand in part.

FACTS

On August 8, 2003, appellant-father Nuro Badaso Dedefo and respondent-mother Bontu Gada were involved in an altercation. The nature of the altercation is disputed. Gada maintains that Dedefo kicked her in the back, twisted her left arm, and pushed her. Dedefo denies engaging in physical violence with Gada and contends that Gada attempted to hit him with a trophy. On August 20, after telling Dedefo that she was taking their infant to the clinic, Gada left their home with the child and moved in with a friend.

Shortly thereafter, Gada petitioned for an order for protection based on the events of August 8. On August 23, Dedefo was served with the petition, which stated: “NOTICE TO RESPONDENT.... Be prepared for a hearing on the scheduled date.... You should bring any available documents, such as police reports, hospital and doctor records, pictures, witnesses, or other items.” Dedefo arrived at the hearing on August 29 without an attorney. But elders from the Oromo community, of which Dedefo is a member, accompanied him to the hearing with the intention to mediate the dispute and convince Gada to dismiss the petition. The elders approached Gada when she arrived for the hearing and directed her to dismiss the petition.

When Gada declined to do so, Dedefo, a licensed attorney, sought a continuance to retain counsel and secure the appearance of witnesses. The district court denied the motion for a continuance and proceeded with an evidentiary hearing. Dedefo, Gada, the parties’ two older children, and Dedefo’s mother testified about the events of August 8.

Custody of the two older children was not in dispute. But each party sought sole legal and physical custody of the infant.

Finding that Dedefo committed domestic abuse on August 8, the district court issued an order for protection. The district court then awarded temporary sole legal and physical custody of the two older children to Dedefo and awarded temporary sole legal and physical custody of the infant to Gada. Dedefo was awarded parenting time with the infant every other weekend. This appeal followed.

ISSUES

I. Did the district court abuse its discretion in denying appellant’s motion for a continuance?

II. Did the district court abuse its discretion in granting the order for protection?

III. Where temporary custody was contested, did the district court err in awarding custody without making findings as to the best interests of the child?

ANALYSIS

I.

The decision to grant or deny a continuance falls within the district court’s broad discretion. Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn.1977). Absent a clear abuse of that discretion, we will not disturb the district court’s ruling. Id.

Dedefo argues that the district court abused its discretion when it denied his motion for a continuance in order to secure an attorney and the appearance of witnesses. Six days prior to the hearing, Dedefo, a licensed attorney, was served with the petition notifying him of the hearing date and directing him to be prepared to proceed with witnesses and documentary evidence. Dedefo attributed his lack of preparation to his intention to convince Gada to dismiss the petition. And the record demonstrates that, immediately before the commencement of the hearing, community elders in attendance engaged in an unsuccessful attempt to pressure Gada to dismiss the petition. Dedefo has not identified a single witness who was unavailable. Indeed, all of the witnesses to the events on August 8 testified.

In reaching its decision, the district court reasoned that Dedefo was aware of his right to counsel and chose not to secure an attorney for the hearing. The district court also found that a continuance would subject Gada to further harassment by Dedefo and the community elders. In light of these considerations and the facts in the record, it is evident that the district court weighed the parties’ interests and exercised its discretion in a reasonable manner. Thus, we conclude that the district court’s denial of the motion for continuance provides no basis for reversal.

II.

A district court’s decision to issue an order for protection under the Minnesota Domestic Abuse Act will be reversed on appeal when it lacks sufficient evidentiary support. Bjergum v. Bjergum, 392 N.W.2d 604, 606-07 (Minn.App.1986). We review the district court’s findings of fact for clear error. Minn. R. Civ. P. 52.01. In doing so, we view the evidence in the light most favorable to the decision. Rogers v. Moore, 603 N.W.2d 650, 656 (Minn.1999). We neither reconcile conflicting evidence nor decide issues of witness credibility, which are exclusively the province of the factfinder. Porch v. Gen. Motors Acceptance Corp., 642 N.W.2d 473, 477 (Minn.App.2002); see also Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn.1988) (stating that appellate courts defer to district court credibility determinations). We will not reverse merely because we view the evidence differently. Rogers, 603 N.W.2d at 656. “That the record might support findings other than those made by the [district] court does not show that the ... findings are defective.” Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn.App.2000). Rather, to warrant reversal, the district court’s findings must be clearly erroneous or “manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.” Rogers, 603 N.W.2d at 656 (quoting Northern States Power Co. v. Lyon Ford Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975)).

The Minnesota Domestic Abuse Act authorizes a district court to issue an order for protection to “restrain the abusing party from committing acts of domestic abuse.” Minn.Stat. § 518B.01, subd. 6(a)(1) (2002). “Domestic abuse” includes the infliction of physical harm or fear of imminent physical harm by one family or household member against another. Minn. Stat. § 518B.01, subd. 2(a) (2002). Although several accounts of the altercation between Gada and Dedefo were given, Gada testified that Dedefo’s mother was the only nonparty witness to the physical abuse. Based on the findings, we must assume that the district court found Gada credible. See Sefkow, 427 N.W.2d at 210. Gada testified that Dedefo kicked her in the back and twisted her left arm. This testimony supplies a sufficient evidentiary basis for the district court’s finding that Dedefo inflicted physical harm on a family or household member. See Minn.Stat. § 518B.01, subds. 2(a)(1), 6(a)(1). Accordingly, Dedefo’s challenge fails.

III.

Statutory construction is a question of law, which we review de novo. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn.1990). A basic canon of statutory construction is that words and phrases are construed according to their plain meaning. Minn.Stat. § 645.16 (2002). When a statute’s meaning is plain and unambiguous, we apply that meaning as a manifestation of legislative intent. Id.; White v. White, 676 N.W.2d 682, 683 (Minn.App.2004).

Dedefo argues that the district court erred in awarding temporary custody of the parties’ youngest child to Gada without making the requisite findings as to the best interests of the child. Under the Minnesota Domestic Abuse Act, a district court is empowered to “award temporary custody ... with regard to minor children of the parties on a basis which gives primary consideration to the safety of the victim and the children. Except for cases in which custody is contested, [best interests] findings ... are not required.” Minn.Stat. § 518B.01, subd. 6(a)(4) (2002). Here, custody of the parties’ youngest child was disputed. The plain language of the statute requires findings as to the best interests of the child when custody is contested. Thus, the district court was required to make findings as to the best interests of the youngest child. Id.

Relying on the Minnesota Supreme Court’s decision in Baker v. Baker, 494 N.W.2d 282, 287-88 (Minn.1992), Gada argues that best-interests findings were not required. Gada’s reliance on Baker is misplaced. The Baker court interpreted the 1990 version of Minn.Stat. § 518B.01, subd. 6(a), which did not include the later-enacted exception for cases involving contested custody. Compare Minn.Stat. § 518B.01, subd. 6(a)(4) (2002), with 1992 Minn. Laws ch. 571 art. 6, §§ 3, 4. Gada’s argument that best-interests findings are not required under Minn.Stat. § 518B.01, subd. 6, is contrary to the statute in effect at the time of the temporary-custody decision.

The district court’s order awarding temporary custody of the youngest child to Gada is silent as to the best interests of the child. Therefore, we remand for such findings as required by Minn.Stat. § 518B.01, subd. 6(a)(4) (2002).

DECISION

Because the record supports the district court’s decisions to deny the motion for a continuance and to grant the order for protection,- we affirm those decisions. Because custody of the youngest child was contested and the district court’s order awarding temporary custody of this child did not include findings as to the child’s best interests, we remand to the district court for such findings in accordance with Minn.Stat. § 518B.01, subd. 6(a)(4) (2002).

Affirmed in part, remanded in part.


author: WILLIS, Judge.

text:
    STATE of Minnesota, Appellant, v. Randy Bruce STRANDNESS, Respondent.
    No. A03-1863.
    Court of Appeals of Minnesota.
    Aug. 3, 2004.

      Mike Hatch, Attorney General, and Katrina E. Joseph, Russell J. Platzek, Martin J. Costello, Hughes & Costello, St. Paul, MN, for appellant.
    Kevin W. DeVore, Charles A. Ramsay, Ramsay, DeVore & Olson, P.A., Roseville, MN, for respondent.
    Considered and decided by WILLIS, Presiding Judge; STONEBURNER, Judge; and CRIPPEN, Judge.

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

   OPINION

WILLIS, Judge.

Respondent motorcyclist moved to suppress evidence of his intoxication and to dismiss charges of fourth-degree DWI, arguing that the officer who stopped him had no reasonable, articulable suspicion that respondent was involved in criminal activity because respondent’s right turn against a red traffic light and a sign prohibiting right turns on a red light was “appropriate and within the parameters of the law.” The district court granted respondent’s motion. Because we conclude that the affirmative defense that respondent relies on applies only after a motorcyclist has been charged with failing to obey the instructions of an official traffic-control device and that the officer who stopped respondent had a reasonable, articulable suspicion that respondent was engaged in criminal activity, we reverse and remand.

FACTS

At approximately 11:00 p.m. on September 8, 2003, Officer Andrew Landon of the Richfield Police Department observed respondent Randy Bruce Strandness drive a motorcycle out of a parking lot near the intersection of 62nd Street and Nicollet Avenue South. Strandness proceeded north on Nicollet Avenue and stopped at a red light at the intersection of Nicollet and 60th Street. Traffic in all four directions at the intersection was controlled by traffic lights, and there was a “no right turn on red” sign for traffic northbound on Nicol-let. Strandness stopped at the intersection, waited approximately ten seconds, and then turned right against the red traffic light and proceeded east on 60th Street. Officer Landon stopped Strandness for making a right turn against a red light at an intersection marked “no right turn on red.” Strandness exhibited signs of intoxication and was subsequently arrested for driving under the influence of alcohol and driving with an alcohol concentration of .10 or more, in violation of Minn.Stat. § 169A.20, subds. 1(1), (5) (2002).

Strandness moved at his Rasmussen hearing to suppress all evidence obtained as a result of the traffic stop and to dismiss the charges. Strandness argued that the case was controlled by Minn.Stat. § 169.06, subd. 9, which provides motorcyclists with an affirmative defense to failing to obey the instructions of an official traffic-control device under certain circumstances. He argued further that because all of the conditions described in the statute were met, “a violation did not occur” and that, therefore, Officer Landon had no reasonable, articulable suspicion of criminal activity. The district court concluded that Strandness had waited a “reasonable amount of time” with “due regard to traffic conditions” before turning against the red light and the no-right-turn-on-red sign and that Officer Landon “lacked articulable reason” to stop Strandness. The court also concluded that when Strandness raised the affirmative defense “the burden shifted to the State to disprove the defense” and that the state failed to meet that burden. This appeal follows.

ISSUES

1. Does Minn.Stat. § 169.06, subd. 9, provide an affirmative defense for motorcyclists charged with failing to obey the instructions of an official traffic-control device, or is it an exclusion for motorcyclists from the requirement of Minn.Stat. 169.06, subd. 4, that the driver of any vehicle obey such instructions?

2. Which party has the burden of proof regarding the elements of the affirmative defense described in Minn.Stat. § 169.06, subd. 9?

ANALYSIS

I.

The state argues that because Officer Landon observed Strandness turn right on red at an intersection marked “no right turn on red,” Landon had a reasonable, articulable suspicion that Strandness was involved in criminal activity. Therefore, the state argues, the traffic stop was lawful, and the district court erred by suppressing evidence of the DWI violation and dismissing the charges against Strandness.

On appeal from a pretrial order suppressing evidence, the state must clearly and unequivocally show both that the district court’s order will have a critical impact on the state’s ability to successfully prosecute the defendant and that the order constituted error. State v. Scott, 584 N.W.2d 412, 416 (Minn.1998). “[T]he critical impact of the suppression must be first determined before deciding whether the suppression order was made in error.” Id. “Critical impact is met when the suppression of the evidence significantly reduces the likelihood of a successful prosecution.” In re Welfare of L.E.P., 594 N.W.2d 163, 168 (Minn.1999). Because the district court dismissed all charges against Strandness after the evidence was suppressed, the critical-impact requirement is met.

In reviewing a pre-trial order suppressing evidence when, as here, the facts are not in dispute, we independently review the facts and determine, as a matter of law, whether the district court erred by suppressing the evidence. State v. Othoudt, 482 N.W.2d 218, 221 (Minn.1992). “The correct approach in a case where the facts are not significantly in dispute is to simply analyze the testimony of the officers and determine if ... the officers were justified ... in doing what they did.” State v. Storvick, 428 N.W.2d 55, 58 n. 1 (Minn.1988).

The Fourth Amendment to the United States Constitution governs investigative stops. State v. George, 557 N.W.2d 575, 578 (Minn.1997). An investigatory traffic stop is lawful if the police officer has a reasonable, articulable suspicion that the person stopped is engaged in criminal activity. State v. Munson, 594 N.W.2d 128, 136 (Minn.1999) (citing Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889 (1968)). The officer must have objective support for his suspicion. State v. Johnson, 444 N.W.2d 824, 825-26 (Minn.1989). “Ordinarily, if an officer observes a violation of a traffic law, however insignificant, the officer has an objective basis for stopping the vehicle.” George, 557 N.W.2d at 578. If an officer makes a lawful stop, any evidence that comes to his attention, even if the evidence is of a crime different from the crime for which the initial stop was made, is admissible at trial. State v. Vivier, 453 N.W.2d 713, 717 (Minn.App.1990).

Officer Landon testified that (1) the sign prohibiting right turns on a red light for northbound traffic at the intersection of Nicollet Avenue and 60th Street was in place and clearly visible on the night in question, (2) he observed Strandness stop at the red light for northbound traffic, wait approximately ten seconds, and then turn right while the light was still red, and (3) the reason he stopped Strandness was that Strandness had turned right on red against the no-right-turn-on-red sign. Under Minnesota law, “the driver of any vehicle shall obey the instructions of any official traffic-control device.” Minn. Stat. § 169.06, subd. 4. A motorcycle is a “vehicle,” which is defined by statute as “every device in, upon, or by which any person or property is or may be transported or drawn upon a highway.” Minn.Stat. § 169.01, subd. 2 (2002). “Official traffic control device” means “all signs, signals, markings, and devices ... placed or erected by authority of a public body or official having jurisdiction, for the purpose of regulating, warning, or guiding traffic.” Minn.Stat. § 169.01, subd. 41 (2002). Thus, because Landon observed Strandness violate a traffic law, he had a reasonable, articulable suspicion that Strandness was engaged in criminal activity, and the stop was lawful.

Strandness argues on appeal, as he did at the Rasmussen hearing, that because the conditions described in Minn.Stat. § 169.06, subd. 9, existed, there was no traffic violation, and Officer Landon, therefore, had no reasonable, articulable suspicion of criminal activity. Therefore, Strandness contends, the stop was unlawful, and the district court did not err by suppressing the resulting evidence of the DWI violations and dismissing the charges. Strandness further argues that Officer Landon was required to “assess whether subdivision 9 excused [Strandness’s] turn on red” before stopping him. We disagree.

Statutory interpretation is subject to de novo review. Homart Dev. Co. v. County of Hennepin, 538 N.W.2d 907, 911 (Minn.1995). Minn.Stat. § 169.06, subd. 9, provides:

(a) A person operating a motorcycle who violates subdivision 4 by entering or crossing an intersection controlled by a traffic-control signal against a red light has an affirmative defense to that charge if the person establishes all of the following conditions:
(1) the motorcycle has been brought to a complete stop;
(2) the traffic-control signal continues to show a red light for an unreasonable time;
(3) the traffic-control signal is apparently malfunctioning or, if programmed or engineered to change to a green light only after detecting the approach of a motor vehicle, the signal has apparently failed to detect the arrival of the motorcycle; and
(4)no motor vehicle or person is approaching on the street or highway to be crossed or entered or is so far away from the intersection that it does not constitute an immediate hazard.

Strandness interprets section 169.06, subdivision 9, as excluding motorcyclists stopped at a red light from the requirement of subdivision 4 that the driver of any vehicle obey the instructions of any official traffic-control devices, including a sign prohibiting right turns against a red light. But it is apparent from the plain language of subdivision 9 that it is not an exclusion but rather an affirmative defense available under the conditions described in the statute to a motorcyclist who is charged with violating section 169.06, subdivision 4. Because it is an affirmative defense, subdivision 9 applies only after a motorcyclist has been charged with a violation of subdivision 4 and chooses to contest the charge. See Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255, 122 S.Ct. 1389, 1404, 152 L.Ed.2d 403 (2002) (stating that “[a]n affirmative defense applies only after prosecution has begun”). The statute does not require, as Strandness argues, that an officer determine before making a stop whether the conditions described in subdivision 9 exist, thereby excusing a motorcyclist from what would otherwise be a traffic violation. Because subdivision 9 applies only after a motorcyclist has been charged with a violation of subdivision 4, the district court erred by concluding that Officer Landon “lacked articulable reason” to stop Strandness and suppressing the evidence that came to Officer Landon’s attention as a result of the stop.

ii.

The district court ruled that when Strandness raised the affirmative defense described in section 169.06, subdivision 9, the burden shifted to the state to disprove the defense. This was an error of law. Subdivision 9 assigns the burden of proving the affirmative defense to the person charged with violating subdivision 4. While the burden of disproving the existence of any element of the crime charged may not be shifted to the defendant, the burden of proving an affirmative defense may remain with the defendant when the defense does not negate an element of the offense. State v. Kramer, 668 N.W.2d 32, 36-37 (Minn.App.2003) (citations omitted), review denied (Minn. Nov. 18, 2003). Here, the conditions to be proved in establishing the affirmative defense described in Minn.Stat. § 169.06, subd. 9, do not negate any element of a violation of Minn.Stat. § 169.06, subd. 4. Therefore, the burden of proof regarding the affirmative defense did not shift to the state merely because Strandness raised the existence of the defense.

DECISION

The district court erred (1) by concluding that the conditions described in Minn. Stat. § 169.06, subd. 9, were met and that, therefore, Officer Landon had no reasonable, articulable suspicion that Strandness was engaged in criminal activity to justify the traffic stop; (2) by concluding that the state had the burden of disproving the affirmative defense described in Minn.Stat. § 169.06, subd. 9, when Strandness raised it; and (3) by suppressing the evidence of Strandness’s intoxication that came to Officer Landon’s attention as a result of the traffic stop. We therefore reverse the district court’s order, reinstate the charges against Strandness, and remand for further proceedings not inconsistent with this opinion.

Reversed and remanded.


author: TOUSSAINT, Chief Judge.

text:
    In re the Marriage of Connie Aileen CEPEK, n/k/a Connie Aileen Van Valkenburg, petitioner, Appellant, v. Scott Anthony CEPEK, Respondent.
    No. A04-197.
    Court of Appeals of Minnesota.
    Aug. 3, 2004.

      John T. Burns, Jr., Burns Law Offices, Burnsville, MN, for appellant.
    Terry H. Rueb, Burnsville, MN, for respondent.
    Considered at Special Term and decided by TOUSSAINT, Chief Judge; ANDERSON, Judge; and MINGE, Judge.
   SPECIAL TERM OPINION

TOUSSAINT, Chief Judge.

This appeal arises from a motion brought by respondent Scott Anthony Ce-pek to modify custody of the parties two minor children and to find appellant Connie Aileen Van Valkenburg in contempt for failure to facilitate visitation and for interference with respondents visitation. In a July 2, 2002, order, the district court appointed Dr. James Gilbertson, Ph.D., as custody evaluator for the minor children of the parties. The order directed that Dr. Gilbertson be made a party to the proceeding and authorized him to bring motions, serve discovery, and in all other respects have the same authority as any party under the rules of general practice. The order directed Dr. Gilbertson to conduct an independent investigation and to submit a report addressing several issues. The order states that Dr. Gilbertson shall be discharged 30 days after the date of the entry of the final order unless a party requests a hearing and issues a subpoena to Dr. Gilbertson. In the resulting report, Dr. Gilbertson recommended joint physical and legal custody, with increased access to the children for respondent.

The district court later waived the 30-day period to request a hearing because the parties were attempting to reach a settlement. An evidentiary hearing was held after the efforts to settle failed. After the hearing, the district court issued an order awarding the parties joint legal custody and expanding respondents parenting time. The order denies respondents motion to find appellant in contempt, but the order awards respondent attorney fees in the amount of $15,000. Judgment was entered on October 9, 2003. This appeal was filed and served on respondents counsel after the district court disposed of appellants motion for amended findings by order dated January 13, 2004.

On April 9, respondent filed a motion to dismiss the appeal on the ground of appellants failure to timely serve the notice of appeal on Dr. Gilbertson. Appellant opposed the motion. Respondent filed a reply-

DECISION

Unless a different time is provided by statute, an appeal may be taken from a judgment within 60 days after its entry and from an appealable order within 60 days after any party serves written notice of its filing. Minn. R. Civ.App. P. 104.01, subd. 1. Certain types of proper and timely post-decision motions, including a motion to amend or make findings of fact under Minn. R. Civ. P. 52.02, extend the appeal time. Minn. R. Civ.App. P. 104.01, subd. 2. If a proper and timely post-decision motion is filed, the time for appeal of the order or judgment that is the subject of the motion runs for all parties from the date of service by any party of notice of filing of the order disposing of the last such motion outstanding. Id.

Appellants motion for amended findings extended the time to appeal the underlying October 9 order and judgment. Respondent served a notice of filing of the January 13 order disposing of the motion by mail and facsimile transmission on January 14, 2004. The appeal period thus expired on Monday, March 15, 2004, which was 60 days after respondents notice of filing was served by facsimile transmission on January 14. See Minn. R. Civ.App. P. 126.01 (incorporating Minn. R. Civ. P. 6.01, which provides that if last day of prescribed period falls on Saturday, Sunday, or legal holiday, period is extended until end of next business day); Huntsman v. Huntsman, 633 N.W.2d 852, 854 n. 1 (Minn.2001) (noting that respondents service of notice of filing of order disposing of post-decision motion by facsimile transmission triggered 60-day appeal period).

An appeal is taken by filing a notice of appeal with the clerk of the appellate courts and serving the notice on the adverse party or parties within the appeal period. Minn. R. Civ.App. P. 103.01, subd. 1. Timely service of the notice of appeal on the adverse parties is a jurisdictional requirement. Hansing v. McGroarty, 433 N.W.2d 441, 442 (Minn.App.1988), review denied (Minn. Jan. 25, 1989). Although appellant timely filed the notice of appeal with the clerk of the appellate courts and served the notice on respondents counsel, appellant did not serve the notice of appeal on Dr. Gilbertson within the appeal period.

The district courts July 2, 2003, order made Dr. Gilbertson a party to the custody proceeding. Although Dr. Gil-bertson was a party to the proceeding, appellants failure to timely serve the notice of appeal on Dr. Gilbertson is not a jurisdictional defect unless Dr. Gilbertson is an “adverse” party. An “adverse” party is any party who would be prejudiced by a reversal or modification of an order, award, or judgment. Larson v. LeMere, 220 Minn. 25, 27-28, 18 N.W.2d 696, 698 (1945).

Respondent argues that in view of the rights and powers granted to Dr. Gilbert-son, the district courts intent was to make Dr. Gilbertson a de facto guardian ad li-tem. Respondent contends that Dr. Gil-bertson acted as an advocate for the children by recommending certain steps to enhance the children’s relationship with respondent, including modification of custody from sole to joint and substantially increased parenting time for respondent. Because appellant challenges the award of joint legal custody and the expansion of respondents parenting time, respondent argues that Dr. Gilbertson is an adverse party on whom timely service of the notice of appeal was required.

The roles of a court-appointed custody evaluator and a guardian ad litem are distinct. In contested custody proceedings, and in other custody proceedings if a parent or the childs custodian requests, the court may seek the recommendation of professional personnel whether or not they are employed on a regular basis by the court. Minn.Stat. 518.166 (2002). In such proceedings, the court may order an investigation and report concerning custodial arrangements for the child. Minn.Stat. 518.167, subd. 1 (2002).

In a family court child-custody proceeding, appointment of a guardian ad litem for the minor child is permissive, unless the court has reason to believe that the minor child is a victim of domestic child abuse or neglect. Minn.Stat. 518.165, subds. 1, 2 (2002). A guardian ad litem in a family court proceeding is not automatically a party. But a guardian ad litem for the minor children may be designated a party to the proceedings in the order of appointment. Minn. R. Gen. Pract. 302.04(b).

Except when an emergency exists that warrants the courts direct selection of a guardian ad litem, when the court determines that the appointment of a guardian ad litem is appropriate in a particular case, the court shall request that the guardian ad litem program coordinator recommend a guardian for appointment. Minn. R. Gen. Pract. 904.01. Unless the court determines that the recommended guardian is not appropriate for appointment, the court shall enter a written order appointing the guardian. Id. A guardian ad litem shall not be appointed or serve except upon written order of the court. Minn. R. Gen. Pract. 904.01. A guardian ad litem may not be ordered to conduct a custody or visitation evaluation unless the court makes specific findings in the appointment order that there is no other person who is regularly responsible for the performance of, or who is available to conduct, custody and visitation evaluations and that the guardian ad litem has been properly trained to conduct those evaluations. Minn. R. Gen. Pract. 908.02.

Because a guardian ad litem for the children must be expressly appointed by court order, and a guardian ad litem may not conduct a custody evaluation unless the appointment order contains the findings required by Minn. R. Gen. Pract. 908.02, a court-appointed custody evaluator who is not designated as a guardian ad litem cannot be a “de facto” guardian ad litem. To hold otherwise would undermine Minn. R. Gen. Pract. 901-913, which govern the appointment and duties of a guardian ad litem.

A guardian ad litem is appointed by the court to protect the child’s interests, and it is the guardian who speaks for the child. In re Welfare of J.R., Jr., 655 N.W.2d 1, 5-6 (Minn.2003). Because of the guardian ad litems role as the advocate for the child, the guardian may be an “adverse” party to an appeal from a child-custody determination if the child would be prejudiced by a reversal or modification of the order or judgment from which the appeal is taken. But a custody evaluator, by contrast, does not have the same role as an advocate for the child. Therefore, an expert appointed by the court as a custody evaluator cannot be “prejudiced” by reversal or modification of a custody determination, even if the district court followed the evaluators recommendations.

In juvenile-protection proceedings, timely service of the notice of appeal on all parties is a jurisdictional requirement, regardless of whether the party is “adverse” to the appeal. J.R., Jr., 655 N.W.2d at 3 n. 1. But the rules of civil appellate procedure apply to this appeal because it arises from a family court custody matter, rather than a juvenile-protection proceeding. See Minn. R. Civ.App. P. 101.01 (providing that these rules govern procedure in civil appeals); Minn. R. Juv. Protect. P. 2.01(k) (defining juvenile-protection matters). Under the rules of civil appellate procedure, service of the notice of appeal on a party within the appeal period is only required if the party is an adverse party. Minn. R. Civ.App. P. 103.01, subd. 1. Even if designated as a party, a custody evaluator, lacking the guardian ad litems role as an advocate for the child, cannot be an “adverse” party. Appellants failure to serve the notice of appeal on the custody evaluator in this case is not a jurisdictional defect warranting dismissal.

Motion to dismiss denied.

      . Because neither appellant nor respondent challenged the district court’s decision to make Dr. Gilbertson a party, we do not reach the issue of whether the district court is authorized to make a custody evaluator a party to the proceeding.