author: KLAPHAKE, Judge

text:
    S O DESIGNS USA, INC., a Delaware corporation, et al., Respondents, v. ROLLERBLADE, INC., a Delaware corporation, et al., Appellants, Robert O. Naegele, Jr., Defendant.
    No. C5-00-984.
    Court of Appeals of Minnesota.
    Dec. 12, 2000.
    Review Denied Feb. 21, 2001.

      Craig D. Greenberg, Huffman, Usem, Saboe, Crawford & Greenberg, P.A., Minneapolis, MN, for respondents.
    Jerry W. Snider, Charles F. Webber, Deborah A. Ellingboe, Faegre <& Benson LLP, Minneapolis, MN, for appellants.
    Considered and decided by KLAPHAKE, Presiding Judge, HARTEN, Judge, and ANDERSON, Judge.
   OPINION

KLAPHAKE, Judge

Appellants Rollerblade, Inc., Nórdica, S.p.A. and Benetton Group S.p.A. challenge the summary judgment entered against them on four counts of breach of contract alleged in their complaint. Because there are no genuine issues of material fact and the district court did not err in its application of the law, we affirm.

FACTS

Scott Olson is the inventor or co-inventor of the in-line skate. Around 1980, Olson began marketing a product under the Rollerblade trade name through a company called North American Sports Training Corporation (NAST). At some point in the 1980⅛, Robert Naegele, Jr., provided financing to NAST through a corporation he owned called Second Stage, Inc. In 1985, Olson, as seller, entered into a stock purchase agreement (1985 agreement) to sell the shares of NAST to Second Stage.

By terms of the 1985 agreement, Olson agreed to sell all his shares in NAST to Second Stage, but as part of the deal he received back 263 of his shares in NAST. The contract further stated:

To the extent [Olson] may have any possessory or equitable ownership interest or rights to the tradename or trademark “Rollerblades” or any intellectual property right or other interest in Rol-lerblades or the Subject Products, [Olson] hereby irrevocably assigns and transfers, and grants a perpetual, worldwide, exclusive license to [Second Stage] with respect to, any and all such interests or rights.

The 1985 agreement also gave Olson the right to certain royalties on sales of Rollerblade brand products, with different rates for different regions of the world. Royalties were to be paid on “Net Collected Funds,” defined as the funds “actually received by [Second Stage] computed on a cash basis as a result of its sale of the Subject Products” less certain deductions. The royalty period ran from October 1, 1987, to September 30, 1997. In the case of sales in Europe, which are at issue here, Olson was to receive a royalty of one-half percent of “Net Collected Funds from sales of the Subject Products in Europe,” up to $4 million, and two percent over $4 million. The 1985 agreement permitted reduction of these royalties by up to one-half if necessary to procure additional financing. The agreement also contained a non-assignment clause, prohibiting assignment of rights or obligations under the contract without the written consent of the other parties.

Shortly after entering into the 1985 agreement, Second Stage became Rollerblade, Inc., a Minnesota corporation. Olson’s royalties were reduced by one-half by virtue of the contract clause permitting the reduction to obtain financing. Naegele had triggered the reduction by insisting upon a royalty reduction before investing further. This inspired litigation in 1988, which was settled by the 1991 Stock Purchase and Settlement Agreement (1991 agreement).

The 1991 agreement purports to be between Olson and Naegele as individuals, although the recitations to the contract state that its purpose is to settle the litigation between Olson and Rollerblade. While Naegele signed the document as an individual, he asserted that he had “full power and authority to enter into this Agreement, to purchase the Shares and to obtain the settlement of the Action and of the Claims hereunder.” Olson agreed to sell his remaining stock to Naegele and to permanently reduce the royalty percentage. Section 4 of the 1985 agreement, which deals with royalty rights and the grant of the license, was incorporated into the 1991 agreement. Contemporaneously with the signing, Naegele agreed to deliver releases from both the Minnesota and Delaware Rollerblade firms and Second Stage. The releases acknowledged Olson’s right to continue receiving royalties, and included an opinion of counsel that Olson was entitled to continue receiving royalties as set forth in the 1985 agreement. The 1991 agreement also included a non-assignment clause, and a provision for the payment of attorney fees, costs and disbursements to the prevailing party in any action to enforce the agreement. Paragraph 10(b) includes the following integration clause: “[t]his Agreement and the exhibits [the releases] hereto contain the entire agreement of the parties hereto * *

In 1993, in order to increase otherwise sluggish sales in Europe, Rollerblade entered into a license agreement with Nórdi-ca to both market and manufacture Rollerblade products in Europe. Nórdica agreed to pay a royalty of between three and four percent of European sales to Rollerblade. Rollerblade retained the right to manufacture and sell Rollerblade products in the European market. This licensing agreement was made without the knowledge or consent of Olson. Rollerblade paid Olson his royalty only on the sales that Rollerblade made in Europe and not on sales made by Nórdica or on the royalties paid by Nórdica to Rollerblade.

In 1996, Rollerblade entered into a license agreement with a subsidiary of Benetton, giving Benetton the right to manufacture and sell certain clothing items with the Rollerblade trademark. This licensing agreement was also made without the knowledge or consent of Olson. Rollerblade received royalties from Benetton, but again paid no royalties to Olson on sales by Benetton or on the royalties it received from Benetton.

In 1997, Olson discovered that sales of Rollerblade products, accessories and clothing were much greater than Rollerblade had disclosed, based on Rollerblade’s licensing agreements with Nórdica and Benetton. He sued Rollerblade, Nórdica and Benetton for unpaid royalties.

On cross motions for summary judgment, the district court granted judgment to Olson for his four breach of contract counts, and on a stipulated damages count. In order to facilitate this appeal, the parties stipulated to damages. The stipulation provides for a damages formula to be applied if this court affirms the district court’s “liability and damages determination.”

Summary judgment was granted in favor of Olson on the following counts: count one alleges that Rollerblade breached the 1985 and 1991 agreements by failing to make royalty payments for sales made under the Nordica/Rollerblade license agreement for the years 1993-97; count two alleges that Rollerblade failed to make royalty payments on Black Hole products, a Rollerblade accessory brand, during 1994-97; count nine alleges that Rollerblade and Benetton owe royalties for the sale of Rollerblade brand or related brand clothing; and count ten alleges that Rollerblade, Nórdica, and Benetton failed to make final royalty payments on sales of subject products that occurred prior to the September 30, 1997, conclusion of the royalty period, but payment for which was received after September 30. Appellants also challenge the award of damages and attorney fees.

ISSUES

1. Did the district court err in granting summary judgment against Rollerblade on the issue of royalty payments made under the 1991 agreement?

2. Did the district court err in granting summary judgment against Rollerblade under the non-assignment clause of the 1991 agreement for sales of Black Hole products?

3. Did the district court err in granting summary judgment against Rollerblade and Benetton under the non-assignment clause of the 1991 agreement for sales of Rollerblade and related-brand clothing?

4. Did the district court err in granting summary judgment against Rollerblade, Nórdica and Benetton on the issue of final royalty payments for sales made during the royalty period but not collected until after the end of the royalty period?

5. Did the district court err in its calculation of damages?

ANALYSIS

“On an appeal from summary judgment, we must examine two questions, whether there are any genuine issues of material fact and whether the lower courts erred in their application of the law.” Cummings v. Koehnen, 568 N.W.2d 418, 420 (Minn.1997) (citation omitted). “A reviewing court must view evidence in the light most favorable to the party against whom summary judgment was granted.” Vetter v. Security Continental Ins. Co., 567 N.W.2d 516, 520 (Minn.1997) (citation omitted).

Where there are no genuine issues of material fact, the appellate court reviews the district court decision de novo to ascertain whether it erred in its application of the law. Art Goebel, Inc. v. North Suburban Agencies, 567 N.W.2d 511, 515 (Minn.1997). The purpose of construction of an otherwise unambiguous contract is to “give effect to the intention of the parties as expressed in the language they used in drafting the whole contract.” Id.

Language in a contract should be given its “plain and ordinary meaning.” Turner v. Alpha Phi Sorority House, 276 N.W.2d 63, 67 (Minn.1979) (citations omitted). Contract terms should be “read in the context of the entire contract.” Kauffman Stewart v. Weinbrenner Shoe Co., 589 N.W.2d 499, 502 (Minn.App.1999) (citations omitted). If the wording of the contract is clear and unambiguous, the reviewing court cannot go beyond the language of the contract in interpreting it. Id.

I. Construction of the 1991 Agreement

Central to the issues in this case is the interpretation of the 1991 agreement. Rollerblade has argued on several grounds that it is not a party to the contract or that various terms of the contract do not apply to it, and, by extension, to Nórdica and Benetton. We are not persuaded by these arguments.

The 1991 agreement, which incorporates the royalty provisions of the 1985 agreement, is unambiguous. The essence of this agreement is that Olson agreed to sell his stock, continue to license Rollerblade to manufacture and sell Rollerblade products, and acquiesce in a permanent royalty reduction in exchange for Rollerblade’s agreement to continue paying him royalties. The basic elements of contract law, offer, acceptance and an exchange of consideration, were thus satisfied. See Cederstrand v. Lutheran Bhd., 263 Minn. 520, 521-22, 117 N.W.2d 213, 220-21 (1962).

Rollerblade now argues that Olson had no intellectual property to transfer and that the apparent grant of a license is nothing but verbal wordplay. Even if Olson’s license or assignment was valueless, or the trade name not as valuable when transferred, it does not change this basic fact: the parties bargained for and received the rights and duties plainly set forth in this contract. Thus, Rollerblade’s claim is insufficient to void an otherwise valid contract. See A.A. Metcalf Moving & Storage Co. v. North St. Paul Sch., 587 N.W.2d 311, 318 (Minn.App.1998) (“A party’s unilateral mistake in entering into a contract is not a basis for rescission unless there is an ambiguity, fraud or misrepresentation or where the contract may be rescinded without prejudice to the other party.”). Further, the parties’ performance on this contract over a 10-year period dispels any argument that the subject of the contract is ambiguous. See Johnson v. Quaal, 250 Minn. 154, 157, 83 N.W.2d 796, 798-99 (1957) (ambiguity in contract terms can be cured by subsequent conduct of the parties).

We also agree that Rollerblade is a party to the 1991 agreement. Although the primary document is signed by Naegele as an individual, the entire contract consists of all the settlement documents, including the releases. A written contract must set forth all essential terms of an agreement in order to be enforceable, including the identities of the parties to the contract. Poser v. Abel, 510 N.W.2d 224, 227 (Minn.App.1994), review denied (Minn. Jan. 4, 1994). However, a contract may consist of many documents, if they are executed at the same time and pertain to the same subject matter. Id. The 1991 agreement specifically acknowledges that the releases are essential to the agreement. Viewing the documents as a whole, the parties to the 1991 agreement clearly intended that Rollerblade be bound by the contract.

Nor are we persuaded by Rollerblade’s argument that it did not violate the non-assignment clause because it gave Nórdica a license rather than an assignment. An assignment is simply the “transfer of rights or property.” Black’s Law Dictionary 115 (Bryan A. Garner ed., 7th ed.1999). A license provides a party permission to “commit some act that would otherwise be unlawful,” or, to fit the current situation, the grant of a right to manufacture and sell items that would otherwise be unlawful. Id. A license, then, is included within the general principle of assignment. It is possible to assign less than all rights in a transferable interest. See, e.g., Larx Co. v. Nicol, 224 Minn. 1, 21, 28 N.W.2d 705, 716 (1947) (respondent did not violate non-assignment clause by assigning only revenue stream and royalties and retaining copyright or trademark rights, assignment of which would have violated agreement).

Rollerblade assigned to Nórdica its right, or at least a portion of that right, to the exclusive use of the Rollerblade tradename. The 1991 agreement clearly prohibits assignment without the written permission of Olson.

Finally, Rollerblade argues that the agreement limits royalty payments to sales that Rollerblade made through its own efforts, based on the contract’s definition of “Net Collected Funds” as (“its sales of the Subject Products”) (emphasis added). Rollerblade had the exclusive right to manufacture and sell using the tradename Rollerblade, which it assigned to Nórdica. When an assignment is made, the assignee assumes the duties under the contract; the assignor remains liable if “performance is substantially different [by the assignee] than performance by the original party.” Epland v. Meade Ins. Agency, 564 N.W.2d 203, 207 (Minn.1997) (citations omitted). The assignor cannot be divested of the duty to perform without the express consent of the other party to the contract. Id. Therefore, either Nórdica or, upon Nordica’s failure to pay, Rollerblade, had the duty to continue to pay Olson royalties.

The district court’s construction of the contract is not clearly erroneous; Rollerblade is a party to the contract and, as assignor, remains responsible for payments of royalties on sales made by Nórdi-ca.

II. Royalties on Related Products

Rollerblade argues that the district court erred in awarding royalties to Olson based on sales of Black Hole products. The district court found that Black Hole products were included within the definition of “Subject Products,” and thus triggered a right to royalties.

The 1985 agreement defined “Subject Products” to include “the in-line roller street skate known as ‘Rollerblades’ and all replacement parts therefore and components thereof (collectively referred to herein as ‘Rollerblades’).” The Black Hole products are replacement parts for Roller-blades and other in-line skates. Rollerblade suggests that “replacement parts” refers only to Rollerblade brand replacement parts, and not those sold under the logo Black Hole, which the corporation acquired in 1994.

As there is no ambiguity in this definition, it is improper for us to go beyond the plain language in construing this definition. See Kauffman Stewart, 589 N.W.2d at 502. The definition includes all replacement parts. If the parties had intended to exclude replacement parts manufactured under different trade names, they could easily have done so. Certainly the value of the replacement parts is enhanced by associating it with a well-known brand.

The district court properly awarded royalties on Black Hole products because they are included in the contract’s definition of “Subject Products.”

III.Clothing Sales by Benetton

Rollerblade and Benetton maintain that the district court erred in awarding royalties based on clothing sales made by Benetton under the license Rollerblade gave to Benetton in 1996. The district court found that the clothing was included within the definition of “Subject Products,” which triggered liability for royalties, and that Benetton was hable as an assignee.

The definition of “Subject Products” includes

all clothing or apparel bearing the name ‘Rollerblades’ or bearing any logo or symbol used by the Company to identify its Roherblades-related products; as such products may be modified or enhanced.

We see no ambiguity in this contract clause. See Kauffman Stewart, 589 N.W.2d at 502 (where contract unambiguous, court must apply contract language in interpreting it). Further, Rollerblade, as assignor, and Benetton, as assignee, are responsible for the royalty payments under the contract. Epland, 564 N.W.2d at 207.

IV.Final Royalties

Rollerblade, Nórdica and Benetton all challenge the district court’s award of royalties for sales made during the royalty period of October 1, 1987, to September 30, 1997, for which receivables remained unpaid after the end of the royalty period.

The basic royalty provision of the contract is contained in the 1985 agreement at Article 4.3. This clause, which was incorporated by reference into the 1991 agreement, states:

[Rollerblade] hereby agrees to pay to [Olson] royalties on the sale of Subject Products as set forth in this Section 4.3 within 75 days of the end of each calendar quarter during the Royalty Period commencing with the calendar quarter first ending within the Royalty Period and continuing for each calendar quarter thereafter during the Royalty Period.

The appellants believe that the definition of “Net Collected Funds” supports their position that only funds collected during the royalty period are subject to royalty payments. However, this requires reading more into that definition than its plain meaning. “Net Collected Funds” is defined as

the amount of funds actually received by the Company computed on a cash basis as a result of its sale of the Subject Products [less certain deductions].

There is no time limit in this definition that would contradict the basic royalty provision requiring payment for all sales made within the royalty period. We conclude that the district court did not err in its interpretation of the plain language of the contract. See Turner, 276 NW.2d at 67.

V.Damages

Rollerblade, Nórdica, and Benetton also challenge the district court’s award of damages, claiming that the district court relied on an incorrect measure of damages. The parties to this case derived and stipulated to the damage figure used by the court, as follows:

[Appellants] will be bound by the damages figures set forth in paragraph one of this stipulation with respect to each count on which the Court of Appeals affirms or does not disturb the District Court’s liability and damages determination.

A stipulation of this nature is no more than a binding contract that parties are free to enter into and courts are expected to hon- or. See Pollock-Halvarson v. McGuire, 576 N.W.2d 451, 455 (Minn.App.1998), review denied (Minn. May 28, 1998) (parties have an unfettered right to contract and courts will not invalidate a lawful agreement, even if unwise or improvident). Because this court is affirming the decision of the district court, this condition has been met and' the damages award shall stand as stipulated.

Appellants have also asked that the award of attorney fees be struck if they prevail in their appeal. In light of our decision, we decline to disturb the district court’s award of attorney fees.

DECISION

The district court did not err in its interpretation of the language of the contract. Rollerblade, as assignor, remained liable for performance on the contract, and Nórdica and Benetton, as assignees, assumed the duties under the contract. The district court did not err in determining damages, where the parties had stipulated to the damage award and the condition precedent for the award, that this court affirm the district court, had been met. The district court’s award of attorney fees will not be disturbed, because the respondent, Olson, is the prevailing party.

Affirmed.

      . There is a dispute between Olson and his brother concerning which of them invented the in-line skate. This issue is not the subject of this suit.

      . In 1991, Nórdica became a 50 percent shareholder in Rollerblade, and Rollerblade became a Delaware corporation. In 1997, Naegele sold his remaining 50 percent stake to Nórdica and a minority shareholder.

      . Nórdica and Benetton Sportsystem, S.p.A. have since merged into Benetton Group, S.p.A.


source: Caselaw Access Project

author: CRIPPEN, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. David Shafer ANDERSON, Appellant.
    No. C5-00-855.
    Court of Appeals of Minnesota.
    Dec. 19, 2000.

      Mike Hatch, Attorney General, St. Paul, and Thomas N. Kelly, Wright County Attorney, Anne L. Mohaupt, Assistant Wright County Attorney, Buffalo, for respondent.
    David G. Roston, Segal, Roston & Ber-ris, P.L.L.P., Minneapolis, for appellant.
    Considered and decided by WILLIS, Presiding Judge, CRIPPEN, Judge, and PETERSON, Judge.
   OPINION

CRIPPEN, Judge.

Appellant disputes the trial court’s refusal to suppress evidence obtained when an officer stopped appellant for passing by a barricade marked “road closed local traffic only.” Because the evidence shows that the officer had no reason to suspect that appellant’s conduct was not wholly lawful, we reverse.

FACTS

A Wright County officer stopped appellant Anderson for driving around a barricade marked “road closed local traffic only.” Although the road was under construction, it was passable, and there were other roads that led into the area. The officer stationed at the barricade was engaged in stopping every car to verify whether the driver was an area resident.

The record contains some evidence that the officer stopped numerous cars but is devoid of any evidence regarding the duration and frequency of the stops or any suggestion that the officer knew appellant or any other drivers were using the road for purposes other than local-traffic use.

ISSUE

Did the trial court err in denying appellant’s motion to suppress the evidence?

ANALYSIS

In reviewing pretrial suppression orders, this court independently reviews the facts and determines as a matter of law whether the trial court erred in its decision. State v. Harris, 590 N.W.2d 90, 98 (Minn.1999).

In order to conduct a stop for limited investigatory purposes, an officer “must have reasonable articulable suspicion of criminal activity.” State v. Munson, 594 N.W.2d 128, 136 (Minn.1999) (citing Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968)). “All that is required is that the stop be not the product of mere whim, caprice, or idle curiosity.” Marben v. State, Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minn.1980) (quotation omitted). Ordinarily, an officer’s observation of a traffic-law violation will provide an objective basis to support a stop. State v. George, 557 N.W.2d 575, 578 (Minn.1997).

The state insists that, under these circumstances, the officer had reason to believe that appellant might have been violating the law because Minn.Stat. § 160.27, subd. 5(14) (1998), provides that it is a misdemeanor to drive around a barricade erected to close a road to public traffic. But the state does not deny, based on the record here, that the officer had no reason to believe that appellant was acting unlawfully.

Under these circumstances, the officer’s belief that a traffic offense was occurring was not based on a reasonable, articulable suspicion. Cf. United States v. Sokolow, 490 U.S. 1, 9-10, 109 S.Ct. 1581, 1586-87, 104 L.Ed.2d 1 (1989) (finding that a series of wholly lawful acts, when taken together, can warrant further investigation). In Britton, the Minnesota Supreme Court evaluated the constitutionality of stopping someone solely for driving a car with a broken window. State v. Britton, 604 N.W.2d 84, 88-89 (Minn.2000). The court found that the record contained no evidence of an assessment, based either on training or experience, that appellant’s broken window indicated that the car was stolen; thus, the court concluded that evidence obtained as a result of the stop should have been excluded. Id. at 89.

Here, the record contains no evidence of circumstances sufficient to warrant the investigative stop of appellant. Because the stop was based on enforcing traffic movement restrictions in a specific geographic area, it was not wholly whimsical. But the officer stopped appellant without any reason to believe that a violation of law was occurring. The information available to the officer was consistent with a conclusion that appellant was acting lawfully. In fact, there is no evidence in the record to indicate that any citizens had violated or were violating the local-traffic-only restriction. Appellant claims that he was within the broad parameters of the definition of local traffic and he was never charged with the misdemeanor offense.

The United States Supreme Court noted the illegality of stops such as the one involved in this case when it evaluated warrantless stops to enforce the National Prohibition Act:

It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search.

Carroll v. United States, 267 U.S. 132, 153-54, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925). We conclude that the impact of this decision is not diminished by the fact that the stop of appellant, in a limited geographic area where violations might occur, was less than wholly whimsical. The officer could not reasonably state a basis to stop a driver without articulation of more specific cause to believe that the driver was not acting lawfully.

Appellant contends that the stops, which involved numerous cars, constituted an unlawful checkpoint. This argument merely restates appellant’s concerns about the stop; a series of stops not individually justified based on appellant’s or anyone else’s conduct could only be part of a checkpoint. The state concedes that a checkpoint would not be justified under these circumstances. See Ascher v. Commissioner of Pub. Safety, 519 N.W.2d 183, 186 (Minn.1994) (articulating the burden for departure from the general requirement of individualized suspicion).

DECISION

The record does not contain sufficient evidence to justify the stop of appellant. The motion to suppress the evidence should have been granted and the trial court erred in denying it. Because the state does not suggest that prosecution of the case is viable after this suppression, we reverse.

Reversed.


text:
    CITY OF HIBBING, Respondent, v. Shari A. BARATTO, Appellant.
    No. C6-00-833.
    Court of Appeals of Minnesota.
    Dec. 19, 2000.

      Andy Borland, Sellman Law Office, Hib-bing, for respondent.
    Richard E. Prebich, Hibbing, for appellant.
    Considered and decided by CRIPPEN, Presiding Judge, KALITOWSKI, Judge, and FOLEY, Judge.

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

   OPINION

CRIPPEN, Judge.

Appellant challenges the trial court’s determination that it lacked subject-matter jurisdiction over her claim that the City of Hibbing arbitrarily denied her request for a variance to build a garage. Because we find the court’s jurisdiction determined by an applicable statute, we reverse and remand for further proceedings.

FACTS

Appellant started to build a garage because she believed her original informal contact with the city was sufficient to comply with the zoning ordinances. In fact, she had not sought or received a variance. When she did apply for a variance, after she built the garage, the city denied her request. When the city later sought a district court order to mandate removal of the garage, appellant counterclaimed to request review of the city’s variance decision. Appellant sought “equitable” remedies from the trial court that would compel issuance of a variance.

ISSUE

Did the trial court lack subject-matter jurisdiction to review the city’s variance denial?

ANALYSIS

Subject-matter jurisdiction is a question of law, which this court reviews de novo. Handicraft Block Ltd. P’ship v. City of Minneapolis, 611 N.W.2d 16, 19 (Minn.2000).

The trial court determined that Shaw v. Board of Regents, 594 N.W.2d 187 (Minn.App.1999), revieiv denied (Minn. July 28, 1999), governs this case. Shaw holds that quasi-judicial employment decisions of the University of Minnesota are reviewable only by writ of certiorari to this court because no statute otherwise provides for review of those administrative decisions. Id. at 190-91. But Shaw is not determinative in this case because Minn. Stat. § 462.361, subd. 1 (1998), specifically provides for district court review of a city-council’s zoning decision. Under these circumstances, certiorari is not needed.

Respondent is similarly mistaken in arguing that this case is governed by Minn.Stat. § 606.01 (1998), which now provides that all certiorari review is to occur in the Court of Appeals. This statute governs writs of certiorari, but certiorari is an extraordinary writ that is appropriate only when no other review is authorized by law. White Bear Rod & Gun Club v. City of Hugo, 388 N.W.2d 739, 741 (Minn.1986). Likewise, Heideman, which determined that amendments to section 606.01 impliedly repealed other certiorari statutes, does not apply here, where a different review procedure is set by statute. See Heideman v. Metropolitan Airports Comm’n, 555 N.W.2d 322, 324 (Minn.App.1996).

Deference to the authorizing statute is consistent with other appellate decisions. The Minnesota Supreme Court has recently pointed out that Minn.Stat. § 462.361 provides for district court review of quasi-judicial zoning decisions, in contrast to statutes governing appeals from decisions of county boards. Interstate Power Co., Inc. v. Nobles County Bd. of Comm’rs, 617 N.W.2d 566, 574 & n. 5 (Minn.2000) (noting as well that district court review of quasi-judicial zoning actions is in accord with the “general rule” adopted by the Supreme Court in Honn v. City of Coon Rapids, 313 N.W.2d 409, 416 (Minn.1981)). Deference to the statute is also in accord with this court’s holding in Toby’s of Alexandria, Inc. v. County of Douglas, 545 N.W.2d 54, 56 (Minn.App.1996), review denied (Minn. May 21, 1996). In Toby’s, we ruled that the district court had subject-matter jurisdiction to review the denial of a conditional-use permit because a county ordinance properly authorized review, consistent with the enabling statute. Id. Significantly, we noted a preference for following the established route of judicial review and cited Minn.Stat. § 462.361 as an example. Id.

DECISION

The trial court erred in finding that it lacked subject-matter jurisdiction over appellant’s claim that the City of Hibbing arbitrarily denied her request for a variance.

Reversed and remanded.

      . The subdivision provides:
      Any person aggrieved by an ordinance, rule, regulation, decision or order of a governing body or board of adjustments and appeals acting pursuant to sections 462.351 to 462.364 may have such ordinance, rule, regulation, decision or order, reviewed by an appropriate remedy in the district court, subject to the provisions of this section.
      Minn.Stat. § 462.361, subd. 1 (1998). The sections referred to in this subdivision govern municipal planning; they apply to the City of Hibbing and its zoning controls.

      . We also recognized the impact of section 462.361 in Molnar v. County of Carver Bd. of Comm’rs, 568 N.W.2d 177, 180 (Minn.App.1997). In that case, like the Minnesota Supreme Court in Interstate, we contrasted section 462.361 with the statute governing counties, which does not provide for a right of review in district court. Id.

      .Neither party nor the trial court has addressed what remedy would be appropriate in the district court. Appellant's complaint seeks "equitable” relief that is evidently a request for a mandatory injunction or a writ of mandamus. See, e.g., Curry v. Young, 285 Minn. 387, 393-96, 173 N.W.2d 410, 413-14 (1969) (finding that either mandamus or a mandatory injunction would be proper to review a city council's arbitrary denial of a variance). Appellant has made no application for declaratory relief. See Mowry v. Young, 565 N.W.2d 717, 719-20 (Minn.App.1997) (refusing to allow a declaratory-judgment action to review a .quasi-judicial, final action), review denied (Minn. Sept. 18, 1997); cf. White Bear Rod & Gun Club v. City of Hugo, 388 N.W.2d 739, 744 (suggesting but not deciding that a declaratory-judgment action could be brought in the trial court to review the city council's denial of an amendment to a special-use permit).


author: AMUNDSON, Judge.

text:
    STATE of Minnesota, Respondent, v. Thomas Wayne CALMES, Appellant.
    No. CX-00-1273.
    Court of Appeals of Minnesota.
    Dec. 19, 2000.
    Review Granted Feb. 21, 2001.

      Mike Hatch, Attorney General, St. Paul, and Michelle E. Moren, Roseau County Attorney, Roseau, for respondent.
    John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, Minneapolis, for appellant.
    Considered and decided by SCHUMACHER, Presiding Judge, AMUNDSON, Judge, and HALBROOKS, Judge.
   OPINION

AMUNDSON, Judge.

Almost three years after appellant began serving his prison sentence for second-degree criminal sexual conduct and first-degree burglary, the district court imposed the five-year conditional release provision mandated by statute. Appellant challenges this release provision, arguing that he had a crystalized expectation of finality in his sentence because (1) the district court had already amended his sentence to include the conditional release provision, only to vacate it because it had been imposed in appellant’s absence; and (2) he had already completed his prison term when the conditional release term was added to his sentence. Appellant argues that this imposition of a conditional release term three years after sentencing violates both his right to due process and protections against double jeopardy.

FACTS

On February 13,1997, appellant Thomas Wayne Calmes pleaded guilty to second-degree criminal sexual conduct and first-degree burglary pursuant to a plea agreement requiring him to serve a 57 month prison term. Calmes was sentenced on March 17, 1997, to 57 months for the burglary charge and 48 months for the criminal sexual conduct charge. Both sentences were executed and ordered to run concurrently. No conditional release term was imposed at the sentencing hearing.

After Calmes began serving his sentence, the Department of Corrections (DOC) contacted the sentencing court advising the court that the conditional release provision of Minn.Stat. § 609.346, subd. 5(a) (1996), could be applied tb Calmes’s sentence. In April 1997, the sentencing court replied to the DOC stating that it had intended to impose a five-year conditional release term as part of Calmes’s sentence. The district court asked the DOC to contact him if it was necessary to do anything further to correct Calmes’s sentence to include the conditional release term. ■ The DOC then corrected the sentence.

Calmes then filed a motion to correct his sentence requesting that the conditional release term be removed from his sentence because it was added in his absence. The state did not oppose the motion and on July 30,1997, the district court vacated the conditional release term.

On May 2, 2000, the district court, without a hearing, issued an amended sentencing order. The record is not entirely clear whether this was done because of prompting from the DOC, but the record' does not contain any motion by the state for such a modification. The amended sentencing order imposed the five-year conditional release term. This appeal followed.

ISSUE

Does the imposition of a five-year conditional release term three years after defendant was originally sentenced, and almost three years after the court vacated a similar term, violate due process rights and protection from double jeopardy?

ANALYSIS

Can a defendant’s sentence be subsequently amended, without a hearing, to include a conditional release term mandated by Minn.Stat. § 609.346, subd. 5(a) (1996)? The statute provides, in relevant part:

when a court sentences a person to prison for violation of section 609.342, 609.343, 609.344, or 609.345, the court shall provide that after the person has completed the sentence imposed, the commissioner of corrections shall place the person on conditional release. If the person was convicted for a violation of [one of the above listed statutes], the person shall be placed on conditional release for five years, minus the time the person served on supervised release.

Calmes was convicted of violating Minn. Stat. § 609.343 (1996). That statute mandates a conditional release term be included for any person sentenced to prison for violating Minn.Stat. § 609.343. State v. Humes, 581 N.W.2d 317, 319 (Minn.1998).

Because the conditional release term is mandatory, a district court has jurisdiction to amend a defendant’s sentence to include a conditional release term. Id. at 320 (failure to include the mandatory conditional release term in defendant’s sentence is simply an error of law, and not a waiver of the conditional release term required by law); see also State v. Garcia, 582 N.W.2d 879, 881 (Minn.1998) (district court had jurisdiction to amend defendant’s sentence to include a conditional release term as required by MinmStat. § 609.346, subd. 5).

Because it is clear that the district court had jurisdiction to amend Calmes’s sentence, the only remaining issue is whether the amendment to his sentence, under these facts, violated his rights under the Double Jeopardy and Due Process Clauses of the United States and Minnesota Constitutions. These clauses operate to protect a defendant from (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Humes, 581 N.W.2d at 320 (citations omitted). The Due Process Clauses of the United States and Minnesota Constitutions guarantee that standards of fundamental fairness are observed in sentencing proceedings. Id. (citing Romano v. Oklahoma, 512 U.S. 1, 12-13, 114 S.Ct. 2004, 2012, 129 L.Ed.2d 1 (1994)).

The belated imposition of the conditional release term to Calmes’s sentence does not violate Calmes’s double jeopardy rights. A sentence imposed on a defendant who has been convicted of violating Minn.Stat. § 609.343 (1996), and who is sentenced to prison, that fails to contain a conditional release term pursuant to Minn.Stat. § 609.346, subd. 5, is simply unauthorized. Garcia, 582 N.W.2d at 880. When a district court corrects an unauthorized sentence, double jeopardy guarantees are not generally violated because the qualities of constitutional finality that accompany an acquittal are not similarly present in a sentence. Humes, 581 N.W.2d at 320; see also United States v. DiFrancesco, 449 U.S. 117, 137, 101 S.Ct. 426, 437, 66 L.Ed.2d 328 (1980) (“The Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be.”); but see United States v. Jones, 722 F.2d 632, 638 (11th Cir.1983) (where a trial court resentenced a defendant after realizing that, through no fault of defendant, it misunderstood certain factual matters, court held defendant’s legitimate expectations with respect to the duration of his sentence were frustrated, and his rights under the double jeopardy clause were violated because the initial sentence, while erroneous, was authorized by law).

Calmes argues that his due process rights were violated by the amendment of his sentence. Due process concerns are triggered

when a sentence is enhanced after the defendant has served so much of his sentence that his expectations as to its finality have crystalized and it would be fundamentally unfair to defeat them.

United States v. Lundien, 769 F.2d 981, 987 (4th Cir.1985) (affirming trial court’s increase of sentence from ten years to twenty years after defendant served five days), see also Breest v. Helgemoe, 579 F.2d 95, 101 (1st Cir.1978), cert. denied, 439 U.S. 933, 99 S.Ct. 327, 58 L.Ed.2d 329 (1978) (affirming lower court’s enhancement of defendant’s sentence increasing minimum sentence from eighteen to forty years after defendant served fourteen days, but noting that after a substantial period of time, it may be fundamentally unfair for a court to alter even an illegal sentence in a manner that frustrates a defendant’s expectations).

In both Humes and Garcia, the Minnesota Supreme Court concluded that imposition of the conditional release term some time after a defendant began serving his sentence did not violate the defendant’s expectation in the finality of his sentence. Calmes argues that the facts of this case are distinguishable from those cases. In Humes, the defendant, convicted of four counts of second-degree criminal sexual assault, was arrested on a probation violation, and the district court executed his sentence without imposing a conditional release term. Humes, 581 N.W.2d at 318. Five months after Humes’s sentence was executed, the district court, without a hearing, instructed the administrator of the correctional facility housing Humes to amend Humes’s sentence to include the conditional release term. Id. Humes made a motion to vacate the term on the grounds that his sentence was amended outside of his presence and that the court lacked jurisdiction. Id. The district court held a hearing and formally amended Humes’s sentence at that time to include the conditional release term. Id. at 318-19. The supreme court affirmed the addition of the conditional release term to Humes’s sentence. Id. at 321.

Likewise, the defendant in Garcia pleaded guilty to the charge of attempted first-degree sexual assault in exchange for a sentence of 81 months. Garcia, 582 N.W.2d at 880. Garcia was sentenced on September 14, 1995; a conditional release term was not set forth in the plea petition, nor was it addressed at any of the hearings. Id. at 880-81. Following a request for clarification by the DOC, a hearing was held, and the conditional release term was added to Garcia’s sentence on May 7,1997. Id. Again, the supreme court affirmed the addition of the conditional release term subsequent to the original imposition of sentence. Id. at 882.

Calmes argues that Humes and Garcia are distinguishable from his case because the time-lapse between the original sentence and the imposition of the conditional release term is greater here. The defendant’s sentence in Humes was amended eight months after he began serving his prison sentence. In Garcia, the defendant’s sentence was amended 18 months after he began serving his prison sentence. Here, Calmes’s sentence was amended three years after he began serving his prison sentence, and two years after the court vacated an order imposing the conditional release term.

Though the gap between the original sentence and modification is greater in this case than in Humes and Garcia, Calmes’s due process rights were not violated. Most courts that have expressed concern about violating a defendant’s expectation in the finality of the sentence were troubled when a defendant’s sentence was amended enhancing the amount of incarceration time. Here, the addition of a conditional release term does not call forth the same concerns as the extension of incarceration.

Furthermore, the rules of criminal procedure provide that “[t]he court at any time may correct a sentence not authorized by law.” Minn.R.Crim.P. 27.03, subd. 9 (emphasis added). Calmes’s sentence was unauthorized and therefore subject to correction at any time. And while a defendant may not be charged with knowledge of the rules of criminal procedure, he is charged with knowledge of the statute that he pleaded guilty to violating. DiFrancesco, 449 U.S. at 136, 101 S.Ct. at 437. At his sentencing hearing, the court specifically informed Calmes that he was entering a plea of guilty to “the crime of criminal sexual conduct in the second degree, in violation of Minnesota Statute 609.343, subd. 1(d).” Minn.Stat. § 609.343 (1996) specifically references Minn.Stat. § 609.346, mandating that the district court impose a conditional release term for offenders such as Calmes.

The fact that the district court previously vacated its earlier addition of the condition release term does not create an expectation that Calmes claim had crystalized to a point where the modification violated his right to due process. While we find no violation of Calmes’s due process rights here, we do recognize that there may be an occasion where imposition of the conditional release term may occur at a time so remote from the imposition of the sentence that a defendant may have legitimately developed this crystalized expectation in the finality of sentence. But even this possibility does not necessitate a hearing on the matter each time a conditional release term is added to a defendant’s sentence. It is unnecessary to hold a full-blown hearing each time a sentence is modified only to conform to statutory mandate, especially in light of the fact that our supreme court has declared that imposition of conditional release terms in cases such as this is mandatory and nonwaivable. Garcia, 582 N.W.2d at 881. Therefore, no legitimate claim may be raised in opposition to such a modification except possibly, that the imposition of the conditional release term violates a defendant’s due process rights. Any defendant with such claim may properly move the court to modify a sentence and remove the conditional release term. The defendant is still afforded an opportunity to be heard and therefore, it is unnecessary to impose a requirement that each time a district court overlooks imposition of the conditional release term that a hearing on the matter must be held.

DECISION

The district court’s modification of appellant’s sentence did not violate his rights to due process and protections from double jeopardy.

Affirmed.

      . Minn.Stat. § 609.346 was repealed effective August 1, 1998, 1998 Minn.Laws ch. 367, art. 6, § 16, and replaced with ■ Minn.Stat. § 609.109, subd. 7 (1998). 1998 Minn.Laws ch. 367, art. 6, §§ 2, 6, and 15.

      . Minn.Stat. § 609.343 was amended effective August 1, 1998 Minn.Laws ch. 367, art. 3, § 8, for crimes committed on or after that date.


text:
    SPECIAL SCHOOL DISTRICT NO. 1, Relator, v. E.N., Respondent, Commissioner of the Department of Children, Families & Learning, Respondent.
    No. CX-00-1029.
    Court of Appeals of Minnesota.
    Dec. 19, 2000.

      Karen Ann Janisch, Rider, Bennett, Egan & Arundel, Minneapolis, for relator.
    Katherine L. MacKinnon, St. Louis Park, for respondent E.N.
    Mike Hatch, Attorney General, Martha J. Casserly, Assistant Attorney General, and Steven B. Liss, Assistant Attorney General, St. Paul, for respondent Commissioner of Department of Children, Families, and Learning.
    Considered and decided by SCHUMACHER, Presiding Judge, AMUNDSON, Judge, and MULALLY, Judge.

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

   OPINION

AMUNDSON, Judge.

This case originated when a dispute arose between the school district and the parents of a child eligible for special education services over whether the child should be placed in a school-based or home-based educational program. The matter was reviewed by two different administrative hearing officers each of whom ultimately decided, albeit with some differences, that the child should be placed in a school-based program. The parents appealed that decision to this court, which issued an opinion on December 21, 1999. As a result, the school district declined to reimburse the parents for expenses incurred in providing home-based educational services to the child during the time the appeal to this court was pending.

In this appeal the school district challenges the commissioner’s ruling that the school district is obligated to reimburse the parents for the in-home educational services provided during the pendency of the prior appeal finding that reimbursement was statutorily mandated pursuant to the Individuals with Disabilities Education Act.

FACTS

During the spring of 1998, the parents of E.N., a child with a disability, and relator Special School District No. 1 (school district), began reviewing E.N.’s individualized education program (IEP). The parents sought to alter the IEP by increasing the number of hours of a particular in-home educational service from 30 to 70 hours per week. The school district rejected this request and proposed moving the student into a school-based program. The parents requested a due process hearing pursuant to 20 U.S.C. § 1415(f) (1994). Following the hearing, the level-one hearing officer ordered the school district’s proposal implemented with several modifications.

The parents appealed the decision to the level-two hearing officer, contending that E.N.’s educational program should consist of an 84 hour per week home-based program. The school district cross-appealed challenging two of the level-one hearing officer’s modifications to its proposed IEP. The level-two hearing officer heard both appeals and reversed the level-one hearing officer’s changes to the school district’s proposed IEP, instead ordering that the school district’s proposed IEP be implemented as set forth by the school district.

The parents then appealed the decision of the level-two hearing officer to this court, arguing that the level-two hearing officer lacked jurisdiction to hear the school district’s cross-appeal. This court affirmed. E.N. v. Special Sch. Dist. No. 1,603 N.W.2d 344 (Minn.App.1999).

During the pendency of the appeal to this court, the school district sought to implement the decision of the level-two hearing officer. The parties failed to agree on E.N.’s IEP. The school district ceased payment for the 30 hours of home-based educational services it had been making pursuant to the 1998 IEP that had been in force. The parents continued providing E.N. with home-based educational services and repeatedly sought reimbursement from the school district. The school district refused reimbursement and informed the parents that it would file a truancy report with the county if they did not begin the process of moving E.N. into the school-based program or officially withdraw E.N. from school. The parents then applied to home school E.N.

On November 22, 1999, the parents filed a complaint with respondent Commissioner of the Department of Children, Families, and Learning (commissioner). The commissioner found that the school district violated the Individuals with Disabilities Act. The commissioner ordered the school district to reimburse the parents of E.N. for expenses incurred providing home-based educational services to E.N. during the pendency of their appeal of the level-two hearing officer’s decision to this court. This appeal by writ of certiorari followed.

ISSUES

I. Was the commissioner’s determination that federal law required the home-based IEP “stay put” until the court of appeals decision was rendered, arbitrary or capricious?

II. Did the parents of the student implicitly agree to the level-one IEP when they filed a limited appeal with this court?

III. Did the parents of the student relinquish their right to reimbursement for educational services when they removed the student from the public school system?

IV. Does this court have jurisdiction to review the decision of the commissioner?

ANALYSIS

The decision of an administrative agency will not be reversed unless it “reflects an error of law, the determinations are arbitrary and capricious, or the findings are unsupported by the evidence.” Glazier v. Independent Sch. Dist. No. 876, 558 N.W.2d 763, 766 (Minn.App.1997) (quotation omitted). Statutory construction is a matter fully reviewable by an appellate court as it involves questions of law. Hibbing Educ. Ass’n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985). But where the statutory language is technical in nature, and the agency’s interpretation is longstanding, that interpretation is entitled to some deference. Glazier, 558 N.W.2d at 766 (quotation omitted).

I. The “Stay Put” Requirement

The Individuals with Disabilities Education Act (IDEA) ensures that children with disabilities receive a “free appropriate public education which emphasizes special education and related services designed to meet their unique needs.” 20 U.S.C. § 1400(c) (1994). The IDEA also contains several procedural safeguards “to insure the full participation of the parents and proper resolution of substantive disagreements.” Burlington Sch. Comm. v. Massachusetts Dep’t of Educ., 471 U.S. 359, 368, 105 S.Ct. 1996, 2002, 85 L.Ed.2d 385 (1985). One of those safeguards is its “stay put” provision. The IDEA’S “stay put” provision provides that

during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then-current educational placement of such child.

20 U.S.C. § 1415(e)(3)(A) (1994) (emphasis added). The child’s “current educational placement” is the IEP “actually functioning when the ‘stay put’ is invoked.” Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78, 83 (3d Cir.1996) (quotation omitted).

The school district contends that the commissioner’s decision is erroneous because the judicial proceeding in question did not fall within the purview of the IDEA’S “stay put” provision. Specifically, the school district argues that because there was no continuing judicial proceeding in which E.N.’s need to attend a school-based program or his need to begin transition to that program was in dispute, the “stay put” requirement did not require a continuation of, or reimbursement for, the home-based program. The school district contends that the pending judicial proceeding addressed only the timeliness of the their cross-appeal and the jurisdiction of the level-two hearing officer to consider and reverse the limited changes to the school district’s proposed IEP ordered by the level-one hearing officer. As support for its argument, the school district cites discussion of the corresponding federal regulation, which states:

Assistance to States for the Education of Children with Disabilities, 64 Fed.Reg. 12406, 12615 (March 12, 1999) (to be codified at 34 C.F.R. pt. 300); see also Tennessee Dep’t of Mental Health and Mental Retardation v. Paul B., 88 F.3d 1466, 1474 (6th Cir.1996) (“the ‘stay put’ rule is not designed to prolong ‘the current educational placement’ unless there is a genuine appealable issue that ‘the current educational placement’ is the appropriate placement under the Act and should not be changed.”). Thus, the school district contends that the subject of the appeal before this court concerned not the dispute between the parent and the agency- — -that is, the implementation of the change in services — but rather the scope of those changes.

The school district’s argument, however, is without merit. First, the plain meaning of the statute favors the commissioner’s finding that the school district was obligated to provide services in conformance with the 1998 home-based IEP while the matter was on appeal to this court. When construing statutes, we give terms their plain and ordinary meaning. Glazier, 558 N.W.2d at 766. The IDEA states clearly that during the pendency of any proceeding under the act, the child should remain in the existing educational placement. This rule, clear and unambiguous, is easily understandable given the statute’s objective of protecting the rights of children with disabilities.

In addition to the plain meaning of the statute, the policy concerns behind the “stay put” provision support the interpretation employed by the commissioner. The “stay put” provision evidences a policy choice by Congress to allow “handicapped children, regardless of whether their case is meritorious or not, ⅜ * * to remain in their current educational placement until the dispute with regard to their placement is ultimately resolved.” Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 (3d Cir.1996); see also Raelee S., 96 F.3d at 83 (the purpose of the IDEA “stay put” requirement is to maintain the status quo and protect the child and the child’s parents during the pendency of the review process). The discussion of the regulation relied on by the school district also states:

The provisions maintaining the child’s current educational placement pending proceedings regarding a complaint is a right afforded to parents to protect children with disabilities from being subjected to a new program that parents believe to be inappropriate.

Assistance to States for the Education of Children with Disabilities, 64 Fed.Reg. at 12615.

While the appeal to this court specifically challenges the child’s placement, the decision did have specific and significant impact on important details of the educational services provided to E.N. The amount of time the parents were given to move E.N. from the home-based program to the school-based program, as well as the number of hours a specific therapy would be provided as part of the school-based program were disputed. Not minor matters, these were significant details left pending. As a result, E.N.’s transition from the home-based program to the school-based program lacked the requisite certainty and finality the regulation contemplates. Application of the “stay put” provision to the school district was not arbitrary, capricious, nor erroneous as a matter of law.

II. Agreement

The school district also argues that the commissioner erred when it found the IDEA’S “stay put” provision controlling because it contends that the parents implicitly consented to the new IEP when they filed their limited appeal to this court. The school district contends that because the outcome of the parent’s appeal could have been either affirmance of the level-two IEP or reinstatement of the level-one IEP, both of which mandated E.N.’s participation in a school-based program, that the parents implicitly “agreed” to the new school-based IEP.

The school district relies on the language of 34 C.F.R. § 300.514(a) (2000), which states that the “stay put” provision applies unless the agency and the parents “agree otherwise.” Here, the parents challenged the level-two decision to reduce the number of hours of therapy in the school setting, as well as the decision to reduce the time allotted for the transition from the home-based program to the school-based program. The parents’ appeal was brought after the school district advised them that it was going to implement the level-two order.

Even if the parent’s appeal can be construed as an implicit agreement to move E.N. into a school-based program, the transition, as well as important details of that program, were disputed. It is evident the parties were awaiting the prior decision of this court to resolve how the transition would occur. Specifically, whether it would occur in accordance with the level-two hearing officer’s decision or the level-one hearing officer’s decision. Except for the ultimate placement, there was no agreement. The very important formula of how it would happen necessarily awaited this court’s prior resolution of that dispute. Compliance with the “stay put” provision was, therefore, required.

III. Reimbursement

The school district contends that the commissioner lacked jurisdiction to order it to reimburse the parents for the expenses incurred in providing a home-based education to E.N. during the pen-dency of the appeal. But reviewing the actions of the school district and determining whether the school district violated the “stay put” provisions of the IDEA is a task specifically delegated to the commissioner pursuant to 34 C.F.R. § 300.661(a)(3) (2000), which states that the state educational agency must:

Review all relevant information and make an independent determination as to whether the public agency is violating a requirement of Part B of the Act [IDEA] or of this part [34 C.F.R. § 300],

The “stay put” law and its corresponding regulation are within the embrace of this mandate. The commissioner clearly had the authority to determine whether the school district violated the IDEA’S “stay put” provision. If the state agency has determined that appropriate services where denied, it must address

[h]ow to remediate the denial of those services, including, as appropriate, the awarding of monetary reimbursement or other corrective action appropriate to the needs of the child.

Assistance to States for the Education of Children with Disabilities, 34 C.F.R. § 300.660(b)(1) (2000). The school district contends that there was no finding by the commissioner that the school district failed to provide the student with a “free appropriate public education.” But is this the only “service” contemplated by the regulation? The regulation, read as a whole, contemplates remedies for numerous violations of the IDEA’S provisions, including providing services under the “stay put” requirement. The commissioner did not abuse her discretion in ordering the school district to reimburse the parents for services it should have provided in compliance with the IDEA “stay put” provision.

IV. Home School Decision

The school district’s' final argument is that even if the commissioner correctly determined that the “stay put” provision required it to fund the home-based program during the pendency of the appeal, once the parents elected to home school their child, the school district’s obligation ceased.

The school district notified the parents on November 10, 1999, that it would not abide by the 1998 home-based IEP and subsequently notified the parents on two occasions that it would file a truancy petition. The commissioner found this left the parents with three choices: (1) enroll the student in the school-based program and relinquish their right to continued placement under the 1998 home-based IEP; (2) keep schooling E.N. at home and risk the school district filing a truancy petition; or (3) remove E.N. from the public education system altogether and exclusively school him at home. The commissioner correctly observes that the parents, caught between Charybdis and Scylla, were forced to choose to home school E.N. The school district cannot now take advantage of the dilemma it created. The parents were effectively taking advantage of their right to continued education of E.N. in a home-based program (the child’s “stay put” placement). If the school district had not threatened to file a truancy petition the parents would not have been forced to choose to home school E.N.

V. Jurisdiction

E.N. argues that this court lacks jurisdiction to review the decision of the commissioner because the petition for writ of certiorari was not served in accordance with Minn.R.Civ.P. 4.03(a). Minn.R.Civ.P. 4.03(a) provides that service of summons

[u]pon an individual [shall be made] by delivering a copy to the individual personally or by leaving a copy at the individual’s usual place of abode with some person of suitable age and discretion then residing therein.
* * ⅜
If the individual is an infant under the age of 14 years, by serving also the individual’s father or mother, and if neither is within the state, then a resident guardian if the infant has one known to the plaintiff, and if the infant has none, then the person having control of such defendant, or with whom the infant resides, or by whom the infant is employed.

Here, the process server’s affidavit states that service was made upon the “Parents of E.N.” by substitute service upon the nanny, K .D. But even if service upon the mother or father is required then such service can be accomplished by substitute service on the nanny because such person is within the meaning of the rule. Minn.R.Civ.P. 4.03(a); see also Lebens v. Harbeck, 308 Minn. 433, 434, 243 N.W.2d 128, 129 (1976) (substitute service is a form of personal service).

DECISION

The IDEA clearly required the school district to provide home-based educational services to the child while an appeal before this court was pending. Accordingly, the commissioner’s decision was not erroneous as a matter of law.

Affirmed.

      . The Individuals with Disabilities Education Act requires that the district provide E.N. with a free appropriate public education (FAPE). Implementation of the FAPE is accomplished pursuant to 20 U.S.C.A. § 1414(d)(2)(A) (2000), which requires:
      At the beginning of each school year, each local educational agency * * * shall have in effect, for each child with a disability in its jurisdiction, an individualized education program.

      . The regulation provides:
      during the pendency of any administrative or judicial proceeding * * * unless the State or local agency and the parents of the child agree otherwise, the child involved in
      It is important to note that these provisions would only apply where there is a dispute between the parent and the public agency that is the subject of administrative or judicial proceedings. If there is no such dispute that is the subject of a proceeding then the placement may be changed and this section does not apply. the complaint must remain in his or her current educational placement.
      Assistance to States for the Education of Children with Disabilities, 34 C.F.R. § 300.514(a) (2000).


author: KAPSNER, Justice.

text:
    2000 ND 202
    STATE of North Dakota, Plaintiff and Appellee, v. Brian J. ERICKSTAD, Defendant and Appellant. State of North Dakota, Plaintiff and Appellee, v. Robert R. Lawrence, Defendant and Appellant.
    Nos. 20000050-20000053.
    Supreme Court of North Dakota.
    Dec. 7, 2000.

      Bruce A. Romanick, Assistant State’s Attorney, Bismarck, ND, for plaintiff and appellee.
    Paul Henry Myerchin, Bormann Law Office, Bismarck, ND, for defendant and appellant Brian J. Erickstad. Appearance by Clark J. Bormann.
    Robert Wade Martin (submitted on briefs), Bismarck, ND, for defendant and appellant Robert R. Lawrence.
   KAPSNER, Justice.

[¶ 1] Brian J. Erickstad and Robert Lawrence appealed from judgments of conviction of murder, conspiracy to commit murder, and theft of property. We affirm, concluding the trial court did not err in refusing a change of venue, the defendants failed to show obvious error in the jury instructions, and the trial court did not err in admitting evidence of the value of a stolen pickup.

I

[¶ 2] On September 18, 1998, the bodies of Gordon and Barbara Erickstad were found in a wooded area near Selfridge, North Dakota. Both had sustained multiple stab wounds. Earlier that day, police had searched the Erickstads’ Bismarck home and found blood throughout the house and knives in the kitchen sink. The Erickstads’ vehicles, a 1998 Chevrolet pickup and 1990 Cadillac, were missing. The 1990 Cadillac was later found abandoned in a field in Cass County.

[¶ 3] The police investigation focused upon the Erickstads’ son, Brian, and his friend, Robert Lawrence. On September 20, 1998, Erickstad and Lawrence were apprehended in Texas in the 1998 Chevrolet pickup. They were extradited to North Dakota, where each was charged with two counts of murder, one count of conspiracy to commit murder, one count of class B felony theft of property, and two counts of class C felony theft of property.

[¶ 4] Lawrence filed a motion for a change of venue on June 21, 1999, citing the extensive publicity in the Bismarck area regarding the murders. Erickstad joined the motion. The trial court denied the motion for change of venue in a written order dated July 30,1999.

[¶ 5] A jury trial was held October 11-18, 1999. The jury found Erickstad and Lawrence guilty on all counts. Judgments of conviction were entered, and Erickstad and Lawrence appealed. Their appeals have been consolidated by stipulation.

II

[¶ 6] The defendants argue the trial court erred in denying their pretrial motion for a change of venue based upon the publicity of the case in the Bismarck area. Rule 21(a), N.D.R.Crim.P., governs change of venue for prejudice:

The court upon motion of the defendant shall transfer the proceeding as to that defendant to another county or municipality whether or not that county or municipality is specified in the defendant’s motion if the court is satisfied that there exists in the county or municipality in which the prosecution is pending so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial.

[¶ 7] A motion for change of venue is addressed to the sound discretion of the trial court, and we will not reverse the trial court’s decision absent a showing of abuse of discretion prejudicial to the defendant. State v. Ellis, 2000 ND 177, ¶ 10, 617 N.W.2d 472; State v. Smaage, 547 N.W.2d 916, 918 (N.D.1996); State v. Breding, 526 N.W.2d 465, 468 (N.D.1995); State v. Norman, 507 N.W.2d 522, 526 (N.D.1993). A defendant seeking a change of venue under N.D.R.Crim.P. 21(a) bears the burden of demonstrating a reasonable likelihood of prejudice so pervasive that a fair and impartial jury could not be found. Ellis, at ¶ 11; Smaage, 547 N.W.2d at 918; State v. Austin, 520 N.W.2d 564, 566 (N.D.1994); N.D.R.Crim.P. 21(a), Explanatory Note. The ultimate question for the trial court to decide is whether it is impossible to select a fair and impartial jury, and relief should be granted only in exceptional cases. Ellis, at ¶ 11; Smaage, 547 N.W.2d at 919; Austin, 520 N.W.2d at 566; N.D.R.Crim.P. 21(a), Explanatory Note.

[¶ 8] The defendants argue that the sheer number of news stories about this case, and the many factual details which were reported, establish that “[d]amage to the presumption of innocence is a foregone conclusion under such circumstances.” The defendants’ argument demonstrates a misunderstanding of the burden they bear in seeking a change of venue. In considering whether pretrial publicity warrants a change of venue, it is the prejudicial nature of the publicity, not its quantity, which is paramount:

Publicity per se is not necessarily prejudicial or damaging to a criminal defendant.... Before a change of venue because of pretrial publicity is proper, it must be shown that the publicity was in fact prejudicial to the defendant. It is therefore not the quantity of media coverage which controls a change of venue motion, but rather the likelihood that any degree of adversity toward the defendant which was caused by that publicity will prevent him from receiving a fair trial.

Austin, 520 N.W.2d at 567 (quoting Houle v. North Dakota District Court, 293 N.W.2d 872, 874 (N.D.1980)).

[¶ 9] Mere quantity of media coverage is not the focus; rather, the defendants must show there was improperly prejudicial publicity which would have caused such bias against them that it would have been impossible to select a fair and impartial jury. There is no showing in the record that the media coverage disseminated inadmissible, illegally obtained, or otherwise prejudicial information, or that the coverage was sensationalized, inflammatory, or biased. See Breding, 526 N.W.2d at 468; Austin, 520 N.W.2d at 567; State v. Purdy, 491 N.W.2d 402, 407 (N.D.1992). Nor did the defendants submit qualified public opinion surveys, other opinion testimony, or any other evidence demonstrating community bias caused by the media coverage. Austin, 520 N.W.2d at 567.

[¶ 10] The defendants’ motion for change of venue was made in June 1999. The trial court denied the motion in July 1999, and trial was held in October 1999. The defendants did not renew their motion at the time of trial. Voir dire proceeded and a jury was selected with little difficulty. Although in exceptional cases prejudice to the defendant caused by pretrial publicity may be so obvious that a change of venue should be ordered immediately, a change of venue is generally inappropriate before voir dire. Ellis, 2000 ND 177, ¶¶ 10, 14, 617 N.W.2d 472; Breding, 526 N.W.2d at 468; Norman, 507 N.W.2d at 526; N.D.R.Crim.P. 21(a), Explanatory Note. A defendant believing an impartial jury cannot be selected, based upon comments by potential jurors during voir dire, must renew a motion for change of venue at that time. Ellis, at ¶ 14. The defendants have not drawn our attention to any evidence from the voir dire which demonstrates it was difficult or impossible to seat a jury in this case, and they did not renew their motion for change of venue at that time.

[¶ 11] We will reverse a trial court’s decision denying a motion to change venue only when the prejudice to the defendant is so palpable and clear from the record that it was arbitrary, unreasonable, and capricious to conclude that a fair and impartial jury could be impaneled. Austin, 520 N.W.2d at 568. All other cases fall within the broad spectrum of the trial court’s discretion. Id. The defendants have failed to establish the pretrial publicity in this case created bias and prejudice in the community making it impossible to select a fair and impartial jury. We therefore conclude the trial court did not abuse its discretion when it denied the motions for change of venue.

Ill

[¶ 12] The defendants argue the trial court erred in instructing the jury on the law of voluntary intoxication.

[¶ 13] Prior to trial, the parties each filed written requests for jury instructions. Erickstad’s counsel requested that the court give the pattern jury instruction entitled “Effect of Intoxication on Culpability,” N.D.J.I. — Criminal 2042. The trial court accordingly gave the following in-struetion:

EFFECT OF INTOXICATION ON CULPABILITY
The culpability required as an essential element of the crimes with which the defendants are charged is that the defendants acted intentionally or knowingly or under circumstances manifesting extreme indifference to the value of human life.
If the evidence shows that a defendant was intoxicated at the time of committing the alleged offense, you may consider that fact in deciding whether he did so with the required culpability.

[¶ 14] A few days prior to the end of trial, the State made a written request for several additional instructions, including N.D.J.I.- — Criminal 2043. The court gave the following instruction, based upon N.D.J.I. — Criminal 2043:

EFFECT OF VOLUNTARY INTOXICATION
The fact that the defendant was voluntarily intoxicated at the time he committed the alleged offense does not relieve him of criminal responsibility for the crime.

[¶ 15] The defendants argue this instruction misstates the law because it says voluntary intoxication “does not relieve [a defendant] of criminal responsibility,” but the statute on which the instruction is based says “[i]ntoxication is not a defense to a criminal charge.” See N.D.C.C. § 12.1-04-02(1). The defendants also argue on appeal that giving both of the instructions on intoxication may have misled the jury, because one says voluntary intoxication does not relieve criminal responsibility, while the other says the jury may consider intoxication in determining whether a defendant acted with the requisite culpability. The defendants have provided on appeal a suggested instruction which, they allege, would have cleared up any confusion caused by giving the two instructions.

A

[¶ 16] Jury instructions must correctly and adequately inform the jury of the applicable law, and must not mislead or confuse the jury. State v. Carlson, 1997 ND 7, ¶ 16, 559 N.W.2d 802; State v. Barnes, 551 N.W.2d 279, 281 (N.D.1996). This Court reviews the instructions as a whole to determine whether they adequately and correctly inform the jury of the applicable law, even though part of the instructions standing alone may be insufficient or erroneous. State v. Schumaier, 1999 ND 239, ¶ 9, 603 N.W.2d 882.

[¶ 17] Although the trial court is initially responsible for correctly instructing the jury on the law of the case, both the prosecution and defense have the responsibility to request and object to specific instructions. State v. Mathre, 1999 ND 224, ¶ 6, 603 N.W.2d 173; City of Bismarck v. Towne, 1999 ND 49, ¶ 6 n. 2, 590 N.W.2d 893. In order to preserve the issue for appellate review under N.D.R.Crim.P. 30(e), a party must specifically object to a jury instruction at trial, and must distinctly state the ground for objection. See, e.g., Mathre, at ¶ 5; State v. Olander, 1998 ND 50, ¶¶ 10-11, 575 N.W.2d 658; State v. Gates, 325 N.W.2d 166, 167 (N.D.1982). Under the similar federal rule, the United States Supreme Court has held a party generally may not assign error to a jury instruction if he fails to timely object, or fails to state distinctly the matter to which he objects and the grounds of the objection. Jones v. United States, 527 U.S. 373, 387, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). The purpose of the rule is to enable a trial court to correct any mistakes in the instructions, thereby avoiding the burden of an unnecessary retrial. Id. at 387-88,119 S.Ct. 2090.

[¶ 18] Similarly, if a defendant desires a more comprehensive instruction on any point of law than what the trial court has indicated it will give, the defendant must request specific written instructions, and if the defendant fails to do so he cannot predicate error upon omissions in the charge given. Barnes, 551 N.W.2d at 281; State v. Olson, 356 N.W.2d 110, 114 (N.D.1984). When a defendant fails to properly object to a proposed instruction, or fails to specifically request an instruction or object to omission of an instruction, the issue is not adequately preserved for appellate review and our inquiry is limited under N.D.R.Crim.P. 52(b) to whether the jury instructions constitute obvious error affecting substantial rights. Mathre, 1999 ND 224, ¶ 5, 603 N.W.2d 173; Olander, 1998 ND 50, ¶ 11, 575 N.W.2d 658; Barnes, 551 N.W.2d at 281-82.

[¶ 19] The defendants did not specifically object to the voluntary intoxication instructions, either at the time the State requested the instruction or during the charging conference. During a conference the last day of trial, the attorneys and the court discussed the State’s numerous additional requested instructions. The defendants’ attorneys did not specifically object to the voluntary intoxication instruction requested by the State. They merely raised a general objection to all of the new instructions, stating they were “preserving the right to argue about those issues later,” and were objecting to “those changes.” At the subsequent charging conference, the defendants did not raise any objection to the intoxication instructions.

[¶ 20] The defendants never argued to the trial court that the State’s requested instruction misstated the law of voluntary intoxication. Nor did the defendants argue to the trial court that the two intoxication instructions, given together, might confuse the jury. The defendants did not request any additional instructions, such as the one they propose on appeal, to clarify the law on this point. Under these circumstances, the defendants have failed to preserve the issues for appeal, and our review is limited to determining whether the instructions as given constitute obvious error under N.D.R.Crim.P. 52(b).

B

[¶ 21] Rule 52(b), N.D.R.Crim.P., allows this Court to correct obvious errors or defects affecting substantial rights even if they were not brought to the attention of the trial court. We exercise our power to notice obvious error cautiously, and only in exceptional circumstances where the defendant has suffered serious injustice. State v. Entzi, 2000 ND 148, ¶ 12, 615 N.W.2d 145; State v. Burke, 2000 ND 25, ¶ 16, 606 N.W.2d 108; State v. Strutz, 2000 ND 22, ¶ 10, 606 N.W.2d 886. We have very rarely found obvious error under N.D.R.Crim.P. 52(b). Mathre, 1999 ND 224, ¶ 5, 603 N.W.2d 173; Olander, 1998 ND 50, ¶ 12, 575 N.W.2d 658. In applying obvious error analysis under the corresponding federal rule, the United States Supreme Court has noted: “It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.” Jones, 527 U.S. at 389, 119 S.Ct. 2090 (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977)).

[¶ 22] In analyzing whether obvious error has occurred, we examine the entire record and the probable effect of the alleged error in light of all the evidence. Burke, 2000 ND 25, ¶ 16, 606 N.W.2d 108; Strutz, 2000 ND 22, ¶ 20, 606 N.W.2d 886; State v. Burger, 1999 ND 30, ¶ 13, 590 N.W.2d 197. In order to affect “substantial rights,” an error must have been prejudicial, or affected the outcome of the proceeding. Strutz, at ¶ 20; Olan- der, 1998 ND 50, ¶ 15, 575 N.W.2d 658. The burden is upon the defendant to show the alleged error was prejudicial. State v. Jensen, 2000 ND 28, ¶ 18, 606 N.W.2d 507; Burger, at ¶ 18. An alleged error does not constitute obvious error “unless there is a clear deviation from an applicable legal rule under current law Olander, at ¶ 14. Even if the defendant meets his burden of establishing obvious error affecting substantial rights, the determination whether to correct the error lies within the discretion of the appellate court, and the court should exercise that discretion only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. at ¶ 16; Jones, 527 U.S. at 389, 119 S.Ct. 2090; United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

[¶ 23] We address the defendants’ arguments within the context of these standards guiding obvious error analysis. The defendants first assert N.D.J.I.— Criminal 2043, as given by the trial court, misstates the law because it states that intoxication does not relieve a defendant of “criminal responsibility,’’rather than stating intoxication is “not a defense.” See N.D.C.C. § 12.1-04-02(1). We do not believe this instruction constitutes “a clear deviation from an applicable legal rule under current law.” See Olander, 1998 ND 50, ¶ 14, 575 N.W.2d 658. The pattern instruction merely expresses, in layman’s terms, the gist of the statute: A defendant who is intoxicated is not entitled to acquittal, but may be held responsible for his crime. We conclude it was not obvious error to give the instruction based upon N.D.J.I. — Criminal 2043.

[¶ 24] The defendants also assert the two instructions given by the trial court may have misled or confused the jury, because one instruction directed that intoxication does not relieve the defendant of criminal responsibility, while the other directed that intoxication could be considered when determining whether the defendant acted with the required culpability. To place the defendants’ argument into context, we must review the offenses with which they were charged. Section 12.1-16-01(1), N.D.C.C., provides in pertinent part:

A person is guilty of murder, a class AA felony, if the person:
a. Intentionally or knowingly causes the death of another human being; [or]
b. Causes the death of another human being under circumstances manifesting extreme indifference to the value of human life;....

The defendants were charged alternatively with murder under both subsections (a) and (b).

[¶ 25] The jury was instructed, and the defendants do not dispute on appeal, that the required culpability for murder under subsection (b) is “willfully.” Section 12.1-02-02(2), N.D.C.C., provides:

If a statute or regulation thereunder defining a crime does not specify any culpability and does not provide explicitly that a person may be guilty without culpability, the culpability that is required is willfully.

As a result, murder under subsection (b) is a crime of general intent, see State v. Cummins, 347 N.W.2d 571, 572 (N.D.1984), whereas murder under subsection (a), requiring proof the defendant intentionally or knowingly caused the death of another person, may require specific intent.

Section 12.1-04-02(1), N.D.C.C., provides:

Intoxication is not a defense to a criminal charge. Intoxication does not, in itself, constitute mental disease or defect within the meaning of section 12.1-04-04. Evidence of intoxication is admissible whenever it is relevant to negate or to establish an element of the offense charged.

This Court has held the law of intoxication applies differently to specific intent crimes than to general intent crimes. Although voluntary intoxication is not exculpatory in itself, where an offense requires proof of a specific intent, intoxication may be considered in determining whether such intent existed. Barms, 551 N.W.2d at 281; State v. Tipler, 316 N.W.2d 97, 101 (N.D.1982). Voluntary intoxication is irrelevant to a crime of general intent, and does not relieve the defendant of criminal responsibility. See Barnes, 551 N.W.2d at 281; Cummins, 347 N.W.2d at 572. Thus, in this case, which alleged both specific intent and general intent crimes, it was not error to charge generally that intoxication does not relieve a defendant of criminal responsibility, and to also separately charge that intoxication may be relevant in determining whether the defendants formed the requisite specific intent for “intentional or knowing” murder under N.D.C.C. § 12.1-16-01(l)(a).

[¶ 26] The defendants argue that the instructions as given may have confused the jury. Specifically, they allege that, because the jury was instructed intoxication does not relieve a defendant of criminal responsibility, the jury may have mistakenly believed that evidence of intoxication was irrelevant to the determination whether the defendants had formed the specific intent of “intentionally or knowingly” causing the deaths of Gordon and Barbara Erickstad.

[¶ 27] Arguably the trial court could have and should have more fully and carefully instructed the jury on the relevance of intoxication to the alternate forms of murder charged. However, even if we assume, without deciding, that the instructions were potentially confusing, the defendants have failed to demonstrate prejudice affecting their substantial rights. The defendants argue only that the jury may have been confused and erroneously applied the law in finding them guilty of “intentional or knowing” murder under N.D.C.C. § 12.1 — 06—01(l)(a). In this case, however, the defendants were alternatively charged with the general intent crime of “extreme indifference to the value of human life” murder under N.D.C.C. § 12.1-16-01(l)(b). The jury was given a verdict form in which it was required to find guilt or innocence on each count for subsection (a) and (b) murder separately. Thus, for each murder victim, the jury found separately that each defendant had intentionally or knowingly caused the death, and that each had willfully caused the death under circumstances manifesting extreme indifference to the value of human life. Therefore, even if we were to find error affecting the guilty verdicts on the “intentional or knowing” murder charges under subsection (a), those errors could not have affected the separate verdicts finding the defendants guilty of “extreme indifference” murder under subsection (b). These counts were pleaded alternatively, and the defendants could only be convicted of and punished for one count of murder for each victim. Murder under either subsection is a class AA felony, and carries the same range of penalties. Under these circumstances, any possible confusion in the jury instructions could not affect the ultimate result in the case. See State v. Tjaden, 69 N.W.2d 272, 281 (N.D.1955).

[¶ 28] When asked at oral argument how the defendants had been prejudiced by the alleged error in the jury instructions, the defendants’ counsel suggested the verdicts of guilty on “intentional or knowing” murder may have influenced the trial court during sentencing. Counsel did not direct our attention to anything in the record to support this assertion, and our review of the transcripts of the sentencing hearings does not reveal that the trial court considered the different forms of murder under N.D.C.C. § 12.1-16-01(1) in determining the defendants’ sentences.

[¶ 29] We have examined the entire record and considered the probable effect of the alleged errors in light of all the evidence. Under the circumstances presented, the defendants have failed to show that the alleged errors were prejudicial and accordingly there is no obvious error under N.D.R.Crim.P. 52(b).

IV

[¶ 30] Erickstad and Lawrence allege the trial court erred in allowing evidence of the value of the 1998 Chevrolet pickup. They were charged with class B felony theft of property for their theft of the pickup. Section 12.1-23-05(1), N.D.C.C., provides that theft is a class B felony if the value of the property stolen exceeds $10,-000. The statute further provides:

For purposes of grading, the amount involved in a theft under this chapter shall be the highest value by any reasonable standard, regardless of the actor’s knowledge of such value, of the property or services which were stolen by the actor, or which the actor believed that the actor was stealing, or which the actor could reasonably have anticipated to have been the property or services involved.

N.D.C.C. § 12.1-23-05(6); see also State v. Ebach, 1999 ND 5, ¶ 13, 589 N.W.2d 566.

[¶ 31] A police officer testified, over the defendants’ objection, that he checked the value of the 1998 Chevrolet pickup on the Kelley Blue Book internet website, which showed an estimated value of $26,995. The defendants argue on appeal that evidence from the Blue Book is inadmissible hearsay. The State contends the evidence is admissible under N.D.R.Ev. 803(17), which states the following are not excluded by the hearsay rule:

Market Reports, Commercial Publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

[¶ 32] Numerous cases from other jurisdictions, interpreting rules identical or similar to N.D.R.Ev. 803(17), have held that recognized used car price guides fit within this exception to the hearsay rule. See, e.g., United States v. Johnson, 515 F.2d 730, 732 n. 4 (7th Cir.1975); In re Roberts, 210 B.R. 325, 330 (Bankr.N.D.Iowa 1997); In re Byington, 197 B.R. 130, 138 (Bankf.D.Kan.1996); O’Brien v. Rush, 744 P.2d 306, 309 (Utah Ct.App.1987). The Kelley Blue Book has been specifically recognized as a reliable reference for valuation of vehicles. See, e.g., Hall v. City of Santa Barbara, 833 F.2d 1270, 1274 n. 5 (9th Cir.1986) (recognizing the Kelley Blue Book as “the standard reference for prices” of vehicles and mobile homes); In re Mama’s Original Foods, Inc., 234 B.R. 500, 504 (Bankr. C.D.Cal.1999) (Kelley Blue Book “establishes the market value for automobiles” and a sale at the Kelley Blue Book price “is presumptively at the market price”); In re Gates, 214 B.R. 467, 471 n. 6 (Bankr. D.Md.1997) (Kelley Blue Book is recognized “as credible evidence of valuation”); Burk v. Sunn, 68 Haw. 80, 705 P.2d 17, 25-26 (1985) (recognizing Hawaii Department of Social Services and Housing administrative rule providing that, for purposes of AFDC eligibility, the fair market value of an automobile may be determined by considering the Kelley Blue Book retail value).

[¶ 33] We recognize that, in this case, the police officer checked the value of the pickup on the Kelley Blue Book internet website, not in the print edition. The defendants have offered no cogent reason why evidence derived from the website, rather than the print edition, should be excluded under N.D.R.Ev. 803(17). Information obtained from internet websites may be admissible under N.D.R.Ev. 803(17). See Elliott Associates, L.P. v. Banco de la Nacion, 194 F.R.D. 116, 121 (S.D.N.Y.2000) (construing Fed. R.Evid. 803(17)). The Kelley Blue Book internet website has been specifically relied upon in at least one federal court decision. See Irby-Greene v. M.O.R., Inc., 79 F.Supp.2d 630, 636 n. 22 (E.D.Va.2000).

[¶ 34] The trial court has broad discretion over evidentiary matters, and we will not overturn a trial court’s decision to admit or exclude evidence unless the court abuses that discretion. State v.. Jensen, 2000 ND 28, ¶ 10, 606 N.W.2d 507; State v. Gagnon, 1999 ND 13, ¶ 9, 589 N.W.2d 560. A trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law. State v. Farrell, 2000 ND 26, ¶ 8, 606 N.W.2d 524. We conclude the trial court did not abuse its discretion in allowing evidence of the value of the stolen pickup based upon the Kelley Blue Book value.

V

[¶ 35] We have considered the remaining issues raised by the defendants and find them to be without merit. The judgments of conviction are affirmed.

[¶ 36] VANDE WALLE, C.J., and SANDSTROM, NEUMANN, and MARING, JJ., concur.

      . This instruction is now found at N.D.J.I.— Criminal K.-3.08.

      . This instruction is now found at N.D.J.I.— Criminal K-3.10.

      . The defendants were represented by differ-enl counsel at trial than on appeal.