source: Caselaw Access Project

author: PAGE, Justice. MEYER, Justice

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Edison Joseph MAHKUK, Appellant, and Edison Joseph Mahkuk, petitioner, Appellant, v. State of Minnesota, Respondent.
    Nos. A05-1520, A06-2087.
    Supreme Court of Minnesota.
    Aug. 9, 2007.

      John M. Stuart, State Public Defender, Steven P. Russett, Assistant State Public Defender, Office of the State Public Defender, Minneapolis, MN, for Appellant.
    Lori Swanson, Attorney General, St. Paul, MN, Michael O. Freeman, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

PAGE, Justice.

Appellant Edison Joseph Mahkuk appeals his conviction for aiding and abetting the November 26, 2004, shooting deaths of Del Anthony Benjamin and Joseph George Burns. A Hennepin County jury found Mahkuk guilty of one count of first-degree premeditated murder and one count of first-degree premeditated murder for the benefit of a gang for both the death of Benjamin and the death of Burns. See Minn.Stat. §§ 609.185(a)(1); 609.229, subd. 2 (2006). The district court merged the two counts with respect to each victim, entered judgments of conviction for first-degree premeditated murder for the benefit of a gang for each victim, and sentenced Mahkuk to two consecutive terms of life in prison. Mahkuk appealed his conviction but subsequently had his direct appeal stayed pending the resolution of his petition for postconviction relief. The post-conviction court denied the petition.

In this consolidated appeal, Mahkuk raises seven issues, six relating to his direct appeal and one relating to the denial of his petition for postconviction relief. With respect to his direct appeal, Mahkuk argues that: (1) the trial court’s jury instruction regarding aiding and abetting first-degree murder was an abuse of discretion; (2) the trial court violated his constitutional rights when it excluded members of his family from the courtroom for part of the trial; (3) the trial court abused its discretion by admitting gang expert testimony; (4) the trial court abused its discretion in ruling that the state could elicit testimony regarding Mah-kuk’s previous arrest; (5) the trial court abused its discretion by declining to compel the state to accept Mahkuk’s stipulation that he was a member of a criminal gang; and (6) the trial court abused its discretion in declining to declare a mistrial after a witness referenced inadmissible evidence. With respect to the denial of his petition for postconviction relief, Mahkuk asserts that the newly available testimony of his alleged accomplice entitles him to postconviction relief in the form of a new trial and that, in denying him that relief, the postconviction court abused its discretion. We conclude that the trial court abused its discretion in the instruction it gave the jury regarding aiding and abetting first-degree murder and, on that basis, we hold that Mahkuk is entitled to a new trial.

The events leading to the shooting deaths of Benjamin and Burns began at around 6:30 or 7:00 p.m. on November 26, 2004, when Mahkuk, Vincent Williams, Mike McFarlane, and Marcel Rainey went to the Little Earth Housing Complex (Little Earth) in Minneapolis to drop off McFarlane’s girlfriend. From that point until 4:00 the next morning, there is no evidence in the record regarding Mahkuk’s whereabouts or activities.

At approximately 4:00 a.m., a group of individuals including Burns, Benjamin, Douglas Jackson Ellis, Anthony Jackson, and Brino Gamboa, who had been drinking at various places throughout the night, was walking through the courtyard area of the Little Earth complex. Burns and Benjamin stopped and began talking to Jena White. White, who had also been drinking, was standing on a balcony overlooking the courtyard. Shortly thereafter, another group of individuals approached. There is conflicting testimony about who was in this second group, but a number of witnesses identified Mahkuk as being one of the people in the group. The testimony from these witnesses did not, however, provide a clear picture of what role, if any, Mah-kuk played in the events that resulted in the shootings.

On direct examination, White testified that she was talking to the victims from her balcony when she decided to let them into the building. According to White, she went to open the door to the building and was halfway down the hall when she heard two gunshots. White testified that she then ran back onto the balcony and saw “the Indian boys shooting them.” White clarified that the “boys” she was referring to were McFarlane, Williams, and Mah-kuk. Although White testified on direct examination that she saw all three of the individuals shooting at the victims, on cross-examination, she confirmed that immediately after the shooting she told police that she did not know who shot Burns but that she knew that “there was two of them shooting towards him.” She further confirmed that when the police asked her which two, she told them, “I just seen Vinny and Mike shooting towards Joey.”

Anthony Jackson also placed Mahkuk at the scene. Jackson testified that Mahkuk and McFarlane were with Williams and that Mahkuk had a revolver and McFar-lane had an automatic pistol. In a previous statement, Jackson did not identify Mahkuk and Williams as the two assailants with McFarlane; instead, he indicated that one of the other two individuals was either Williams or Rainey. Jackson testified that he was unsure about the identity of the second person because Williams and Rai-ney look alike. On cross-examination, Jackson testified that he spoke with Jena White after the shooting and she told him the three assailants were McFarlane, Doug Funny, and Mahkuk, and that White later told him that Funny was not in the group, rather it was Williams.

Brino Gamboa testified that while he was standing in the courtyard, McFarlane, Mahkuk, and Williams approached. Gam-boa testified that McFarlane had a gun but Mahkuk did not.

Larry Marshall, who had shared a jail cell with Mahkuk, also testified for the state. Marshall said that Mahkuk told him that when the group arrived at Little Earth they saw the victims and their friends, ran over to the group, and “[McFarlane] had got jumped by one of them and [Rainey] had got jumped by one of them * * * so they just gunned them down.” Marshall further testified that Mahkuk told him that he and his friends were mad at Gamboa for stealing guns and money from them.

McFarlane and Williams were also charged with the murders of Burns and Benjamin. McFarlane, whose trial had not taken place at the time of Mahkuk’s trial, did not testify at Mahkuk’s trial. Subsequently, however, McFarlane took the stand at his own trial and testified in his defense that he went to Little Earth with Rainey and Mahkuk. McFarlane testified that Burns approached Rainey and began wrestling with him. According to McFarlane, Rainey then pulled a gun and began shooting. McFarlane testified that he had no knowledge that Rainey was going to shoot someone. McFarlane also testified that Williams was not present during the shooting. McFarlane gave essentially the same testimony at Williams’ trial, which also took place after Mahkuk’s. Both McFarlane and Williams were acquitted.

I.

We first address Mahkuk’s claim that the trial court erred in instructing the jury on aiding and abetting first-degree murder. During Mahkuk’s trial, the court twice instructed the jury on aiding and abetting, first in its preliminary instructions to the jury given before the state opened its case and then in its final instructions given after both parties rested. Over defense counsel’s objection, the court declined to use only the standard CRIM-JIG for aiding and abetting and instead gave an instruction that, in part, tracks the standard CRIMJIG for aiding and abetting, but includes the following additional language:

In determining whether the defendant intentionally aided and abetted in the commission of the crimes charged, you may consider the following factors:
The defendant’s companionship and association with the other participants in the crime before, during, and after its commission;
The defendant’s conduct before, during, and after the crime;
Whether the defendant knew that a crime was going to be committed by the other participants;
Whether the defendant took reasonable steps to prevent the crime from being committed;
Whether the defendant intended his presence or acts to encourage or further the completion of the crime by the other participants;
And any other common sense factor that leads you to conclude that the defendant was a knowing participant in the commission of the crime.
Mere presence at the scene of a crime, without more, is not enough for you to impose liability under the aiding and abetting law. Such a person is merely a witness. However, a person’s presence does constitute aiding and abetting if it is done intentionally and if it also aids or encourages the commission of the crime to any degree.

Mahkuk asserts that the court’s aiding and abetting instructions “improperly highlighted evidence supporting the state’s theory of the case and were confusing, misleading, and inaccurate.” Mahkuk also asserts that by including knowledge and intent in the list of factors the jury need only consider, the court relieved the state of its burden to prove his knowledge and intent beyond a reasonable doubt. Further, Mahkuk asserts that the last paragraph of the instruction misstated the law. Mahkuk argues that the erroneous instruction significantly influenced the jury’s verdict thus warranting a new trial. The state asserts that the court’s instructions fairly and correctly stated Minnesota law.

Trial courts have considerable latitude in choosing jury instructions. State v. Baird, 654 N.W.2d 105, 113 (Minn.2002). We will not reverse a trial court’s decision on jury instructions unless the trial court abused its discretion. State v. Persitz, 518 N.W.2d 843, 848 (Minn.1994). “An instruction is error if it materially misstates the law.” State v. Moore, 699 N.W.2d 733, 736 (Minn.2005). “Erroneous jury instructions merit a new trial ‘if it cannot be said beyond a reasonable doubt that the error had no significant impact on the verdict.’ ” State v. Valtierra, 718 N.W.2d 425, 433 (Minn.2006) (quoting State v. Olson, 482 N.W.2d 212, 216 (Minn.1992)). A jury instruction that eliminates a required element of the crime is error that is not harmless beyond a reasonable doubt. State v. Hall, 722 N.W.2d 472, 479 (Minn.2006).

Minnesota Statutes § 609.05 (2006) reads as follows:

Subdivision 1. Aiding, abetting; liability. A person is criminally hable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.
Subd. 2. Expansive liability. A person liable under subdivision 1 is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by the person as a probable consequence of committing or attempting to commit the crime intended.

Thus, to prove that Mahkuk aided and abetted the shooting and killing of the two victims, the state was required to prove more than Mahkuk’s intentional presence at the scene of the crime. The state had to prove, beyond a reasonable doubt, that Mahkuk knew that his alleged accomplices were going to commit a crime and that Mahkuk intended his presence or actions to further the commission of that crime. See State v. Gates, 615 N.W.2d 331, 337 (Minn.2000) (explaining that “[t]o impose liability for aiding and abetting, the state must show that the defendant played a knowing role in the commission of the crime” (emphasis added)).

The trial court’s instruction to the jury on accomplice liability generally tracked section 609.05, subdivisions 1 and 2, and the standard CRIMJIG on accomplice liability. In addition, however, the court went on to instruct that, in determining whether the defendant aided and abetted the murders, the jury could consider “[wjhether the defendant knew that a crime was going to be committed by the other participants” and “[w]hether the defendant intended his presence or acts to encourage or further the completion of the crime by the other participants.” Although, as a general matter we believe it is wiser for trial courts to avoid giving instructions on particular kinds of evidence, in this case it was not improper for the trial court to provide the jury with a list of factors to consider because the list was balanced and neutrally phrased. See, e.g., State v. Olson, 482 N.W.2d 212, 216 (Minn.1992). But the problem with the instruction here is that, whether the defendant knew that a crime was going to be committed and whether the defendant intended his presence to encourage or further the completion of the crime are not mere factors for the jury to consider, they are facts the jury had to find beyond a reasonable doubt. Thus, to find Mahkuk guilty, the jury could not simply “consider” whether Mahkuk knew a crime was going to be committed and whether he intended his presence to encourage or further the murder of Burns and Benjamin, the jury had to find that the state proved those facts beyond a reasonable doubt. Therefore, in instructing the jury that it need only consider Mahkuk’s knowledge and intent, the court erred.

The court compounded that error when it instructed the jury that the defendant’s presence “constitute^] aiding and abetting if it is done intentionally and if it also aids or encourages the commission of the crime to any degree.” This instruction allowed the jury to find Mahkuk guilty if it found that Mahkuk was intentionally present at the scene of the crime without also finding that it was Mahkuk’s intent that his presence aid or encourage the commission of the crime. Thus, the instruction relieved the state of its burden to prove that Mah-kuk intended his presence to further the commission of the crime and was therefore erroneous. In addition, the two instructions were also likely confusing to the jury because they were in conflict with that part of the instruction that contained the standard CRIMJIG on aiding and abetting. Although the first part of the court’s instruction stated that the jury could consider whether Mahkuk’s presence at the scene of the crime was intentional and whether his presence intentionally aided or encouraged the criminal act, the second part of the court’s instruction allowed the jury to find guilt if it found that Mahkuk’s presence was intentional regardless of whether he intended his presence to further the commission of a crime. We believe that the inconsistency in the court’s instruction potentially confused the jury.

Our conclusion that the trial court erred in instructing the jury on aiding and abetting does not lead automatically to a new trial. An erroneous jury instruction does not require a new trial if the error was harmless beyond a reasonable doubt. State v. Kuhnau, 622 N.W.2d 552, 558-59 (Minn.2001). A jury instruction given in error is harmless only “if it can be said that, beyond a reasonable doubt, the error had no significant impact on the verdict rendered.” Hall, 722 N.W.2d at 477.

In Hall, we noted that “[w]e have consistently held that when an erroneous jury instruction eliminates a required element of the crime this type of error is not harmless beyond a reasonable doubt.” Id. at 479. Here, the court’s instructions relieved the state of its burden of proving that Mahkuk aided and abetted the killing of Burns and Benjamin by instructing the jury that it need only consider, not find beyond a reasonable doubt, whether Mah-kuk had knowledge that a crime was going to be committed and whether Mahkuk intended for his presence to encourage or further the completion of that crime. The court’s instructions left the jury with the impression that Mahkuk’s intentional presence was sufficient to find guilt without also requiring the jury to find that he intended his presence to encourage or further the commission of the crime. For those reasons, we cannot say that the errors were harmless beyond a reasonable doubt.

Therefore, we reverse Mahkuk’s convictions and remand for a new trial.

II.

Because we hold that Mahkuk is entitled to a new trial as a result of the erroneous jury instructions, we need not reach the remaining issues raised in his appeal, but do so to provide guidance for any retrial. We first address Mahkuk’s assertion that the trial court’s partial closure of the courtroom violated his constitutional right to a public trial. At some point after Jena White completed her testimony, the state raised the issue of witness intimidation. Specifically, the state indicated that it was “concerned because there [had] been allegations by the witnesses of intimidation by the Native Mob gang members.” Of particular concern to the state was the presence of Mahkuk’s brother, an allegedly high-ranking member of the Native Mob, and another relative in the courtroom. In support of its request for a partial closure, the state argued that White was intimidated and offered as evidentiary support her demeanor while testifying and comments she made after testifying. The state made the following argument to the court:

It was very clear to me by Ms. White’s behavior on the stand, her sort of refusal to testify about some things she had testified about at the Grand Jury, although she ultimately did testify about those, some of her behaviors, and certainly from talking to her afterwards, that she felt intimidated by them being in the courtroom.

As part of its request, the state offered to have an officer familiar with the Native Mob sit in the courtroom to identify members of the Native Mob to be excluded.

Defense counsel objected to the state’s request, noting that the state had not produced any police reports or other evidence demonstrating witness intimidation. Defense counsel also noted that the state had provided no “concrete [evidence] as to who got intimidated and when that happened.” With respect to White’s testimony, defense counsel argued that there was no evidence that White had been influenced by intimidation. Finally, defense counsel noted that Mahkuk’s family had a right to be in the courtroom and that there was no evidence that anyone in Mahkuk’s family had done anything to intimidate witnesses.

The trial court granted the state’s request and allowed a plainclothes officer to be present in the courtroom for the purpose of identifying members of the gangs involved in the case who were to be excluded. The court limited its closure ruling to the testimony of lay witnesses who resided in the affected community and who were likely to know and be intimidated by the gang members. The court offered the following explanation for its ruling:

The reason I am making this ruling is because the whole subject of this case is the alleged conflict between these two gangs. And based on the testimony I heard yesterday as well as [the prosecutor’s] representations about the intimidation that’s been going on outside of the charged matters, I think intimidation is a factor and therefore will permit officers to observe the proceedings for the purpose of identifying for the Court and the participants people that are known gang members.

Subsequent to the court’s ruling, and again over defense counsel’s objection, the trial court permitted officers to exclude Mah-kuk’s brother and a cousin from the courtroom. In making the objection, defense counsel argued: “There has been nothing presented to the Court that substantiates anything other than rumor and innuendo, and nothing that has anything to do with my client nor his family.”

We review questions of constitutional law de novo. State v. Shattuck, 704 N.W.2d 131, 135 (Minn.2005) (internal quotation marks omitted). The Sixth Amendment to the U.S. Constitution and Article I, section 6, of the Minnesota Constitution provide that “the accused shall enjoy the right to a * * * public trial.” U.S. Const, amend. VI; Minn. Const, art. I, § 6. The U.S. Supreme Court has explained that

“ ‘[t]he requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.’ ”

Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). The Court has explained, however, that a defendant’s right to a public trial is not absolute and may give way when: (1) “the party seeking to close the hearing * * * advance[s] an overriding interest that is likely to be prejudiced”; (2) the closure is no broader than necessary to protect that interest; (3) the court has considered reasonable alternatives to closing the hearing; and (4) the court “make[s] findings adequate to support the closure.” Id. at 48, 104 S.Ct. 2210; see also State v. Fageroos, 531 N.W.2d 199, 201 (Minn.1995) (adopting the Waller standard). Although some federal circuit courts of appeals apply a lesser “substantial reason” test to review the constitutionality of partial closures, see, e.g., Garcia v. Bertsch, 470 F.3d 748, 752-53 (8th Cir.2006), we have not applied different tests to complete versus partial closures. See Fageroos, 531 N.W.2d at 201-OS (applying the Waller standard to a case in which the court closed the courtroom during the testimony of two witnesses).

Based on our review of the record, we conclude that the Waller standard for closing the courtroom has not been met. The problem is that, while Mahkuk acknowledges, as he must, that “[p]rotecting witnesses from intimidation or retaliation is an overriding state interest,” there is no evidence from any witness asserting that a witness had been intimidated or threatened. Nor is there any evidence indicating who specifically was intimidating or threatening witnesses or what the nature of the intimidation and threats was. Further, with the exception of White, there is no indication as to which specific witnesses had been intimidated or threatened. The only thing in the record regarding intimidation and threats made against witnesses consists of the prosecutor’s assertions that White expressed to her that she was intimidated and the prosecutor’s assertions that Native Mob members had engaged in conduct that was intended to intimidate the witnesses. The prosecutor’s assertions, however, are not evidence. Although the record does indicate that the trial court based its decision, at least in part, on the court’s observation of White’s testimony, there is no indication in the record as to what it was about White’s testimony that supported the closure. Interestingly, with respect to White, the only person identified as having been intimidated and threatened, her testimony was completed before the trial court’s closure order went into effect.

The state also asserts that the court relied on testimony from one of the state’s gang experts who testified about “crimes committed by the gangs [involved in this case] and the tensions between them.” But the trial court did not make specific findings as to what it was about that testimony that supported the closure decision. Moreover, closure of a trial based on generalized gang expert testimony would allow closure in virtually every trial involving allegations of gang involvement. Determining whether the closure was no broader than necessary and whether there were reasonable alternatives to closure is also made more difficult, if not impossible, by the lack of specific findings by the trial court with respect to specifically who was intimidating and threatening witnesses, which witnesses other than White were being intimidated or threatened, and what the nature of the intimidation and threats was. We therefore conclude that the trial court failed to make findings adequate to support its closure decision. We are not saying that closure may not have been warranted. We are simply saying that, absent evidence in the record and adequate findings by the trial court, we cannot say that the closure decision by the trial court was proper.

III.

Mahkuk also asserts that the trial court erred in allowing Officer Setzer, the state’s gang expert, to testify on the following topics: (1) Mahkuk’s membership in the Native Mob; (2) the rivalry between the Native Mob and the Project Boyz gang; and (3) the specific reason why the victims may have been targeted. The state asserts that Officer Setzer’s testimony was helpful to the jury and that the trial court’s limitations on Officer Setzer’s testimony complied with our previous decisions regarding the admission of gang expert testimony.

We review the trial court’s evi-dentiary rulings for an abuse of discretion, and will not reverse a trial court’s findings unless those findings are clearly erroneous. State v. Starkey, 516 N.W.2d 918, 925 (Minn.1994). “ ‘Reversal is warranted only when the error substantially influences the jury’s decision.’ ” State v. Chomnarith, 654 N.W.2d 660, 665 (Minn.2003) (original citation omitted). Under Minn. R. Evid. 702, expert testimony is admissible if it will assist the jury in evaluating evidence or resolving factual issues. Minnesota Rule of Evidence 704 permits opinion testimony on the ultimate issues for trial. However, Minn. R. Evid. 403 provides that otherwise admissible evidence, such as expert testimony, should be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

We have addressed the use of gang expert testimony in five recent cases: State v. Martinez, 725 N.W.2d 733 (Minn.2007); State v. Jackson, 714 N.W.2d 681 (Minn.2006); State v. Blanche, 696 N.W.2d 351 (Minn.2005); State v. DeShay, 669 N.W.2d 878 (Minn.2003); and State v. Lopez-Rios, 669 N.W.2d 603 (Minn.2003). To be admissible, gang expert testimony “must add precision or depth to the jury’s ability to reach conclusions about matters that are not within its experience.” DeSh-ay, 669 N.W.2d at 888. When feasible, it is best to use firsthand knowledge to establish the for-the-benefit-of-a-gang element. Id: at 886. Similarly, we have advised against the use of expert testimony to prove the gang membership of the defendant by expert opinion. Lopez-Rios, 669 N.W.2d at 612-13.

In this case, as in the five above-cited cases, the state used the gang expert testimony to meet its burden on the elements required to prove that the crime was committed for the benefit of a gang under Minn.Stat. § 609.229. Based on our careful review of Officer Setzer’s testimony, we are satisfied that his testimony did not exceed the permissible scope of gang expert testimony as set out in our case law.

IV.

Next we address Mahkuk’s claim that the trial court abused its discretion in ruling that the state could elicit testimony regarding his previous arrest for illegal possession of a firearm. The court held a Rasmussen hearing during which the state introduced evidence through Officer John LaLuzerne, who had arrested Mah-kuk in August 2004. During the course of the arrest, Mahkuk made a number of voluntary statements indicating that he was a member of the Native Mob, that the Native Mob was taking over, and that if he had had enough ammunition he would have “mowed down” the arresting officers. Over defense counsel’s objection, the court ruled that the officer could testify at trial about the statements Mahkuk made at the time of his arrest, with the exception of Mahkuk’s threats against the police. Specifically, the court ruled that Officer La-Luzerne’s testimony regarding Mahkuk’s admission that he was a member of the Native Mob and that the Native Mob was taking over was relevant to the issues in the case, but that Mahkuk’s threat to the officers was inadmissible. Although the court did not specifically address the prejudicial effect of Mahkuk’s statements, the fact that the court excluded Mahkuk’s threat to the officers demonstrates that the court engaged in the balancing required under Minn. R. Evid. 403.

The court also ruled that Officer LaLu-zerne could testify that Mahkuk’s previous arrest was for illegal possession of a firearm. The court found that the evidence regarding Mahkuk’s previous arrest was relevant to proving the third part of section 609.229’s definition of a “criminal gang” — that the gang “includes members who individually or collectively engage in or have engaged in a pattern of criminal activity.”

Mahkuk subsequently stipulated to the fact that the Native Mob is a criminal gang. As a result, the evidence indicating that the arrest was for gun possession was not admitted at trial. Nonetheless, Mah-kuk asserts that, by ruling that evidence of his previous arrest was admissible, the court denied him a fair trial because he was compelled to stipulate that the Native Mob is a criminal gang to prevent the jury from learning of the arrest. Mahkuk further asserts that the probative value of the evidence was outweighed by its potential for unfair prejudice. .

Under Minn. R. Evid. 401, evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” A court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Minn. R. Evid. 403. Unfair prejudice results from “evidence [that] persuade[s] by illegitimate means, giving one party an unfair advantage.” State v. Schulz, 691 N.W.2d 474, 478 (Minn.2005). If the evidence is admitted in error, there must be “actual prejudice to the defendant’s case in order to reverse the district court and provide relief.” Id. at 477.

In proving that the Native Mob met the definition of a “criminal gang” under section 609.229, the state had to prove that its members individually or collectively engaged in a pattern of criminal activity. Accordingly, the trial court’s determination that Mahkuk’s previous arrest for illegal possession of a firearm was relevant to whether the Native Mob is a criminal gang and was not an abuse of discretion. Furthermore, Mahkuk has failed to demonstrate how admission of his previous arrest would have amounted to “persuasion by illegitimate means.” For those reasons, we see no error with the trial court’s ruling.

V.

Mahkuk also asserts that the trial court abused its discretion by declining to compel the state to accept his proposed stipulation that he was a member of a criminal gang. During the trial, Mahkuk’s attorney-indicated to the court and the prosecutor that Mahkuk might be willing to stipulate to his membership in the Native Mob; however, the prosecutor stated that she was not inclined to accept Mahkuk’s stipulation. The court responded by stating that it would not require the state to accept Mahkuk’s stipulation. During trial, the state offered admissions made by Mah-kuk and photographs of Mahkuk with members of the Native Mob to prove Mah-kuk’s gang membership. According to Mahkuk, that evidence “had great potential for unfair prejudice because it ⅜ * * implied he knew of and had been complicit in other unrelated criminal activity committed by the gang.” Given the potential for prejudice, Mahkuk asserts that the court abused its discretion when it did not accept his stipulation and allowed the state to offer evidence demonstrating his membership in the Native Mob.

As a general rule, a criminal defendant’s judicial admission or offer to stipulate does not necessarily take away the state’s right to offer evidence on a point. State v. Davidson, 351 N.W.2d 8, 10 (Minn.1984). There is, however, an exception to this rule in those cases in which the evidence is unduly prejudicial and “without relevance beyond the defendant’s judicial admission.” Id. In those cases, the prejudicial evidence “should not be received.” Id. In Davidson, the defendant was charged with felony possession of a handgun and the trial court refused to accept Davidson’s stipulation that he had a previous felony conviction, which if accepted would have removed the element that he was a felon from the jury. Id. In evaluating whether Davidson’s case warranted application of the exception to the general rule, and thus whether the trial court’s refusal to accept the stipulation was error, we explained that when the potential for unfair prejudice is high: “the correct approach under the Rules of Evidence in a ease such as [Davidson’s is] to compare the potential of the evidence for unfair prejudice with the relevance of the evidence to issues other than the issue to which the stipulation relates.” Id. at 11-12.

The state’s evidence — Mahkuk’s admissions and the photographs of Mahkuk with other members of the Native Mob — although having the potential to be unduly prejudicial, was relevant to prove Mah-kuk’s membership in the Native Mob; therefore, because Mahkuk was willing to stipulate to his membership, the issue is whether the state’s evidence was relevant to prove any other material fact. Section 609.229, subdivision 2, requires the state to prove that the defendant committed the crime “for the benefit of, at the direction of, in association with, or motivated by involvement with a criminal gang, with the intent to promote, further, or assist in criminal conduct by gang members.” Thus, if the state’s evidence implied, as Mahkuk asserts, that Mahkuk was “complicit in other unrelated criminal activity committed by the gang,” that evidence could be relevant to proving that Mahkuk aided ánd abetted the murder of Burns and Benjamin because he acted with “intent to promote, further, or assist in criminal conduct by gang members.”

As such, Mahkuk’s stipulation that he was a member of the Native Mob was not sufficient to exclude all the state’s evidence as irrelevant and thus the trial court did not abuse its discretion in declining to accept it. Even if the state’s evidence of Mahkuk’s membership in the Native Mob was not relevant to any other issue, Mah-kuk would still have to demonstrate that he was prejudiced by the admission of the state’s evidence, which he cannot do given his statements to Officer LaLuzerne and the numerous lay witnesses who testified to his membership in the Native Mob. Accordingly, we conclude that the trial court did not abuse its discretion on this issue.

VI.

The final argument Mahkuk raises in his direct appeal is that the trial court abused its discretion in declining to declare a mistrial after Officer Setzer testified that Mahkuk had talked to him about the Native Mob’s possession of firearms. Before Officer Setzer’s testimony, the trial court specifically limited the scope of his testimony by prohibiting him from testifying about the Native Mob’s possession of guns. The court made the following statement, “It’s unnecessary, I believe, in Officer Set-zer talking about the defendant’s statements about other crimes committed by other members of the gang or his own, to be specific other than to say that he had such knowledge.” Defense counsel clarified the court’s limitation by asking whether that precluded Officer Setzer from mentioning guns, to which the court replied yes. After soliciting Officer Setzer’s opinion that Mahkuk was a member of the Native Mob, the state asked Officer Setzer if Mahkuk told him what “they had been doing.” Officer Setzer replied, “He talked about a variety of gang activity, but he talked about possession of firearms.”

Defense counsel objected to Officer Set-zer’s reference to firearms and the trial court sustained the objection. Defense counsel subsequently moved for a mistrial. The court ruled that the reference was not so prejudicial as to warrant a mistrial and gave the following curative instruction to the jury before closing arguments: “[Tjhere were times during the trial where I sustained objections to evidence, and in those instances, if I did sustain an objection, you should disregard the question and the answer. It’s not considered evidence in the trial.” Mahkuk asserts on appeal that Officer Setzer’s reference to firearms denied him a fair trial and that the state “must shoulder full responsibility for Setzer’s improper testimony.”

“This court reviews a trial court’s denial of a motion for a mistrial for abuse of discretion.” State v. Manthey, 711 N.W.2d 498, 506 (Minn.2006). “[A] mistrial should not be granted unless there is a reasonable probability that the outcome of the trial would be different” if the event that prompted the motion had not occurred. State v. Spann, 574 N.W.2d 47, 53 (Minn.1998).

Given the fact that Officer Set-zer’s comment was brief (two words in nearly 1,000 pages of transcript), that the court sustained defense counsel’s objection, and that the court gave a curative instruction that did not draw attention to the inadmissible statement, we conclude that the outcome of the trial would not have been different if Officer Setzer had not made the reference to firearms. Accordingly, the trial court did not abuse its discretion in declining to declare a mistrial.

That said, we find Officer Setzer’s reference to firearms during his testimony extremely troubling. Based on the record, we cannot determine whether his violation of the trial court’s order was intentional or not; nonetheless, it was misconduct attributable to the prosecutor. See State v. Huffstutler, 269 Minn. 153, 156, 130 N.W.2d 347, 348 (1964) (“The fact that the prejudicial information was volunteered by the witness does not render it less harmful to [the] defendant. The prejudicial testimony came from the state’s witness, a public official, and the prosecution is entirely responsible for its presence in the record.”); see also State v. Underwood, 281 N.W.2d 337, 342 (1979) (stating that the state has a duty to prepare its witness). Because we reverse on other grounds, we need not decide whether the misconduct was intentional. We caution, however, that if we were to conclude that violation of the trial court’s order was intentional, the appropriate remedy might well be reversal even having concluded that the misconduct was not prejudicial. See, e.g., State v. Salitros, 499 N.W.2d 815, 820 (Minn.1993) (exercising our “supervisory power over the trial courts and in the interests of justice” to reverse a conviction when the prosecutor committed misconduct).

Because we conclude that Mahkuk is entitled to a new trial, we need not determine whether the newly available testimony of his alleged accomplice entitled him to postconviction relief.

Reversed and remanded for a new trial.

CONCURRENCE

MEYER, Justice

(concurring).

Although I concur with the decision of the majority that the district court’s erroneous jury instruction requires the reversal of Mahkuk’s convictions and a remand for a new trial, I write separately to address the standard that the district court should apply when there is a partial closure of a criminal trial.

The right to a public trial exists to ensure that the “judge and prosecutor carry out their duties responsibly,” to encourage “witnessfes] to come forward,” and to discourage perjury. Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). The Supreme Court has recognized that while the right to a public trial is an important constitutional right, there are some instances when that right gives way to the need to close the trial to the public. Id. at 48, 104 S.Ct. 2210. Under the rule articulated by the Supreme Court, a trial may be closed when: (1) “the party seeking to close the hearing ⅝ ⅜ * advanced] an overriding interest that is likely to be prejudiced”; (2) the closure is no broader than necessary to protect that interest; (3) the court has considered reasonable alternatives to closing the hearing; and (4) the court “make[s] findings adequate to support the closure.” Id.

Waller addressed a complete closure of a trial — one in which the public was excluded entirely. Id. at 42, 104 S.Ct. 2210. In contrast, a partial closure is one that “ ‘results in the exclusion of certain members of the public while other members of the public are permitted to remain in the courtroom.’ ” State v. Garcia, 561 N.W.2d 599, 605 (N.D.1997) (quoting State v. Sams, 802 S.W.2d 635, 639-40 (Tenn.Ct.Crim.App.1990)). Where there is only a partial closure of the trial, many courts have adopted a “substantial reason” standard to determine whether the Sixth Amendment rights of the defendant have been violated. See, e.g., Garcia v. Bertsch, 470 F.3d 748, 752-53 (8th Cir.2006) (noting that the Second, Eighth, Ninth, Tenth, and Eleventh Circuits all apply the “substantial reason” test to partial closures). Under the “substantial reason” test, the state must establish a “substantial reason” why it is likely to be prejudiced if the trial is not closed instead of showing that it has an “overriding interest” in closing the hearing. After the state establishes that it has a “substantial reason” for the closure, there must still be a showing that: (1) the closure is no broader than necessary to protect that interest; (2) the court has considered reasonable alternatives to closing the hearing; and (3) the court has made findings adequate to support the closure. See Woods v. Kuhlmann, 977 F.2d 74, 76-77 (2d Cir.1992); United States v. Sherlock, 962 F.2d 1349, 1358-59 (9th Cir.1992).

This partial closure rule has been adopted because the defendant’s right to a public trial is less likely to be violated during a partial closure because “a partial closure does not ‘implicate the same secrecy and fairness concerns that a total closure does.’ ” United States v. Farmer, 32 F.3d 369, 371 (8th Cir.1994) (quoting Woods, 977 F.2d at 76). A public trial is important because the courts depend upon “ ‘the presence of interested spectators [to] keep [the defendant’s] triers keenly alive to a sense of their responsibility and to the importance of their functions.’ ” Waller, 467 U.S. at 46, 104 S.Ct. 2210 (quoting Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 380, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979)). A partial closure, where only certain members of the public are excluded from a trial, still allows for: interested spectators to observe the judicial system, the improvement of quality of testimony, the inducing of unknown witnesses to come forward with relevant testimony, insuring that the trial judge and prosecutor perform their duties responsibly, and discouraging perjury.

The majority suggests that State v. Fageroos, 531 N.W.2d 199 (Minn.1995), mandates that we apply the standard articulated in Waller to both complete and partial closures of trials. I do not believe that Fageroos has conclusively addressed the issue.

Although Fageroos applied the Waller standard to a partially closed trial, the focus of Fageroos was on whether the trial court’s findings were sufficient to support the need for closure. 531 N.W.2d at 202. The Fageroos court did not specifically address the question of whether different standards should apply when there is a partial closure of the trial rather than a complete closure. Because this issue was not addressed in Fageroos, the question of what standard should be applied to partial closures of trials has not been decided by this court, and I would adopt the substantial reason test instead of the Waller overriding interest standard.

I concur in the decision of the majority because even under the “substantial reason” standard, I would conclude that the standard for closing the courtroom in this case has not been met. There is no testimony or evidence from any witness indicating that he or she has been intimidated or'threatened. Nor is there evidence indicating who was intimidating or threatening witnesses or the nature of those threats. In fact, other than her demeanor while testifying, there is no testimony from White indicating that she felt intimidated or threatened. Instead, the record simply contains statements from the prosecution indicating that White felt intimidated. That is not evidence. Without specific findings about who was being intimidated and the nature of the intimidation, it is impossible to determine whether partial closure was proper. Therefore, I agree with the majority that we cannot conclude that the closure decision by the trial court was proper, absent evidence in the record and adequate findings by the trial court.

      . The standard CRIMJIG for liability for crimes of another reads as follows:
      The defendant is guilty of a crime committed by another person when the defendant has intentionally aided the other person in committing it, or has intentionally advised, hired, counseled, conspired with, or otherwise procured the other person to commit it.

      The defendant is guilty of a crime, however, only if the other person commits a crime. The defendant is not liable criminally for aiding, advising, hiring, counseling, conspiring, or otherwise procuring the commission of a crime, unless some crime (including an attempt) is actually committed.
      10 Minn. Dist. Judges Ass'n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 4.01 (5th ed.2006).

      . This portion of the court's instruction tracks the standard CRIMJIG for aiding and abetting:
      In all four counts of the Indictment, the defendant is charged with what we call "aiding and abetting” in the commission of the crimes. In Minnesota, a defendant can be held liable for a crime even though another person or persons actually commits the criminal acts, provided the defendant intentionally aids, advises, hires, counsels, conspires with, or otherwise procures someone else to commit the crime. This is called "aiding an[d] abetting”.
      In order to aid and abet another in the commission of a crime, it is necessary that the defendant voluntarily associate with the criminal venture in some way, and voluntary [sic] participate in it as he would in something that he wishes to bring about. In other words, he must voluntarily seek, by some act or omission of his, to make the criminal venture succeed.

      . To prove the for-the-benefit-of-a-gang offense, the state must establish that the gang being benefited meets the statutory definition of a criminal gang and that the defendant committed the crime “for the benefit of, at the direction of, in association with, or motivated by involvement with a criminal gang, with the intent to promote, further, or assist in criminal conduct by gang members.” Minn.Stat. § 609.229, subds. 1, 2.
      Section 609.229 defines a “criminal gang” as any ongoing organization, association, or group of three or more persons * * * that: (1) has, as one of its primary activities, the commission of one or more of the offenses listed in section 609.11, subdivision 9 [including murder, assault, burglary, kidnapping, manslaughter, robbery, and drive-by shooting]; (2) has a common name or common identifying sign or symbol; and (3) includes members who individually or collectively engage in or have engaged in a pattern of criminal activity.
      Minn.Stat. § 609.229, subd. 1.


author: DIETZEN, Judge.

text:
    STATE of Minnesota, Respondent, v. Samuel Patrick MORIN, Appellant (A06-602), Jason David Porteous, Appellant (A06-604), James Luc Robert Drummond, Appellant (A06-605), Jessica Joy Johnson, Appellant (A06-606).
    Nos. A06-602, A06-604, A06-605, A06-606.
    Court of Appeals of Minnesota.
    June 26, 2007.
    Review Denied Sept. 18, 2007.

      Lori Swanson, Attorney General, St. Paul, MN, and Alan R. Felix, Bemidji City Attorney, Jeanine R. Brand, Assistant City Attorney, Bemidji, MN, for respondent.
    Matthew E. Johnson, Special Assistant State Public Defender, Minneapolis, MN, for appellants.
    Considered and decided by STONEBURNER, Presiding Judge; DIETZEN, Judge; and WORKE, Judge.
   OPINION

DIETZEN, Judge.

In this consolidated appeal, four appellants challenge their convictions of consumption of alcohol by a minor, and one appellant challenges an additional conviction of possession of marijuana, arguing that the district court erred in denying their joint motion to suppress. Additionally, one appellant challenges a conviction of obstruction of legal process on the ground that the evidence was insufficient to support a conviction. Because the district court properly applied the law and did not abuse its discretion in denying the motion to suppress, we affirm the convictions of consumption of alcohol and possession of marijuana. But the evidence is not sufficient to support the conviction of obstruction of legal process, and, therefore, we reverse that conviction.

FACTS

Appellants are students at Bemidji State University. The three male appellants— Samuel Morin, Jason Porteous, and James Drummond — are renters of a house located off campus. Appellant Jessica Johnson lives on the University campus, dated appellant Porteous at the time of the incident, and was sometimes a guest at the house.

On an evening in September 2005, appellants had a party. At about 2:00 in the morning, Bemidji police responded to a report of a fight in the vicinity of appellants’ house. ■ Upon arriving, the officer observed people gathered in front of appellants’ house and across the street. The police officer activated his squad car lights, got out of his car, and made eye contact with Johnson, who acted “startled.” Johnson then ran away from the officer in the direction of the back of the house. The officer, uncertain of Johnson’s involvement in any altercation, chased Johnson, yelling “stop” and “police” several times. When the officer approached the back entrance of the house, he observed the door swinging shut and Johnson fleeing up the stairs located just inside the doorway.

The officer opened the back door and pursued Johnson up the stairs, and when he knocked on a bedroom door he encountered Drummond and a female companion. The officer asked the female if she was the person he chased up the stairs, but she denied any involvement. Drummond argued with the officer regarding his right to be in the residence, refused to answer questions or produce identification, and attempted to shut the door in the officer’s face. Drummond was then arrested and searched; drug paraphernalia and a small amount of marijuana were recovered. Drummond was later charged with possession of marijuana and obstructing legal process.

The officer proceeded to the other bedroom and located Johnson and Porteous. Johnson first denied being the individual the officer pursued but later admitted, “I don’t know why I ran.” Johnson, Porteous, and Drummond were escorted downstairs where Morin was located, and all were tested for consumption of alcohol. Each was later charged with consumption of alcohol by a minor. Johnson was also charged with obstructing legal process.

Appellants moved to suppress the evidence obtained by the police as the result of a warrantless search of their residence. Following a hearing, the district court denied the motion. The parties stipulated to a Lothenbach proceeding, and the district court found appellants guilty of the crimes charged. The district court imposed ten-day sentences for each appellant, which were stayed pending appeal. This appeal follows.

ISSUES

1. Did the district court err by denying appellants’ motion to suppress the evidence?

2. Was there sufficient evidence to convict Johnson of obstruction of legal process under Minn.Stat. § 609.50, subd. 1(2) (2004)?

ANALYSIS

I.

Appellants argue that the district court erred in denying their joint motion to suppress the evidence. On appeal from a ruling on a motion to suppress evidence, this court independently reviews the facts and determines, as a matter of law, whether the district court erred in suppressing— or not suppressing — the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn.1999).

The United States and Minnesota Constitutions protect persons against unreasonable searches and seizures in their “persons, houses, papers, and effects.” U.S. Const, amend. IV; Minn. Const, art. 1,10. Thus, as a general rule, a warrant is required before law enforcement may enter a person’s home. State v. Lohnes, 344 N.W.2d 605, 610 (Minn.1984). Accordingly, a warrantless search of a person’s home is presumptively unreasonable. Payton v. New York, 0445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980); State v. Lemieux, 726 N.W.2d 783, 787 (Minn.2007). Absent consent, the presumption of unreasonableness can be rebutted only if the warrantless search is supported by probable cause and “exigent circumstances.” Coolidge v. New Hampshire, 403 U.S. 443, 474-75, 91 S.Ct. 2022, 2042, 29 L.Ed.2d 564 (1971); In re Welfare of D.A.G., 484 N.W.2d 787, 789 (Minn.1992). Exigent circumstances exist in cases of hot pursuit, danger to human life, imminent destruction of evidence, and possible flight of the suspect. Lohnes, 344 N.W.2d at 610. If warrantless entry is made without probable cause and exigent circumstances, its fruit must be suppressed. State v. Paul, 548 N.W.2d 260, 264 (Minn.1996).

Police in hot pursuit of a fleeing suspect do not need a warrant before entering a dwelling that the fleeing suspect has entered. State v. Koziol, 338 N.W.2d 47, 48 (Minn.1983). Or, to put it differently, a person may not defeat a warrantless arrest that has been set in motion in public by entering into a dwelling. Id. “Hot pursuit” means some sort of a chase, but “it need not be an extended hue and cry in and about the public streets.” United States v. Santana, 427 U.S. 38, 43, 96 S.Ct. 2406, 2410, 49 L.Ed.2d 300 (1976) (quotation omitted).

Appellants do not challenge the district court’s finding that the officer had probable cause to arrest Johnson because she was fleeing a police officer. But appellants do argue that the alleged offense was not sufficiently serious to satisfy the exigent-circumstances exception to a warrant-less search. Appellants rely heavily on the case of Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). In Welsh, the United States Supreme Court concluded that a nighttime entry into a home to arrest an individual for driving under the influence of alcohol was prohibited under the Fourth Amendment. The Welsh Court concluded that before law enforcement may invade the sanctity of the home it must demonstrate exigent circumstances and that “an important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made.” 466 U.S. at 753, 104 S.Ct. at 2099. In Welsh, the State of Wisconsin classified the offense as a non-criminal, civil-forfeiture offense for which no imprisonment was possible. The Court reasoned that the penalty established by the state is the best indicator of the seriousness of the offense that can be objectively applied by law enforcement. The Court concluded that the warrantless entry could not be justified for a non-criminal traffic offense. Id. at 754,104 S.Ct. at 2100.

In State v. Paul, the Minnesota Supreme Court examined the holding of Welsh v. Wisconsin. In Paul, the court upheld a conviction of driving under the influence of alcohol, holding, inter alia, that a police officer in hot pursuit of a person suspected of driving under the influence who has set the arrest in motion may make a warrantless entry into a suspect’s home to effectuate the arrest. 548 N.W.2d at 265. The Paul court held that Welsh was factually distinguishable in two significant ways. First, unlike Welsh, the officer in Paul was in “hot pursuit” of the defendant. Id. at 266; see also Santana, 427 U.S. at 43, 96 S.Ct. at 2410 (holding that a suspect could not defeat an arrest set in motion in a public place by escaping into a private place).

Here, Johnson sought to thwart the investigation by running from the scene and hiding in the house. Like Paul, the officer in this case had set the arrest of Johnson in motion and was in “hot pursuit.” Specifically, the officer yelled “police” and ordered Johnson to “stop” several times. The efforts by the officer to stop and question Johnson, based on his reasonable, articulable suspicion that she had material information about the fight, escalated into a criminal offense when she attempted to flee the scene and evade the officer. See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968) (stating that to justify an investigatory (Terry) stop, the police must “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion”). Thus, the police had set in motion the arrest of Johnson, and she could not defeat that police action by entering the dwelling.

Second, the Paul court distinguished Welsh on the ground that the offense in Paul was serious, which it classified as a criminal offense for which imprisonment is possible. Paul, 548 N.W.2d at 267. In contrast, Welsh involved a civil-forfeiture offense for which no imprisonment was possible. Here, the offense of “fleeing on foot” under Minn.Stat. § 609.487, subd. 6 (Supp.2005), is classified as a criminal offense for which imprisonment is possible. See Minn.Stat. § 609.02, subd. 3 (2006) (defining “misdemeanor” as a crime for which a sentence of not more than 90 days or a fine of not more than $1,000, or both, may be imposed). Accord Minn.Stat. § 629.34, subd. 1(c)(1), (d) (2006) (stating that a police officer may forcibly enter a home to make an arrest without a warrant when a public offense has been committed in the officer’s presence). While the offense is classified as a misdemeanor, we conclude that it is non-minor and serious because the conduct seeks to evade the proper investigation of a crime.

Therefore, because an officer in “hot pursuit” is permitted to enter a suspect’s home without a warrant to make an arrest when the suspect has committed a crime in the officer’s presence, and a suspect may not thwart an arrest in progress by retreating into her home, the district court properly applied the law in denying appellants’ motions to suppress.

II.

Johnson argues that the evidence was not sufficient to convict her of obstructing legal process. Specifically, Johnson argues that the statute under which she was charged requires proof that she engaged in physical conduct directed at the officer. On the other hand, respondent argues that fleeing a police officer is sufficient to support a conviction of obstruction of legal process.

In considering a challenge to the sufficiency of the evidence, this court’s review is limited to determining whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to find the defendant guilty beyond a reasonable doubt. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). But Johnson’s argument raises a question of statutory construction, which is a legal determination subject to de novo review. State v. Colvin, 645 N.W.2d 449, 452 (Minn.2002). We construe a statute according to its “plain language.” Id. (citing Minn.Stat. § 645.16 (2000)). Penal statutes must be construed strictly, with any reasonable doubt resolved in favor of the defendant. State v. Olson, 325 N.W.2d 13, 19 (Minn.1982).

It is necessary to first determine what evidence is required for a conviction of obstruction of legal process. The statute under which Johnson was charged provides that whoever intentionally “obstructs, resists, or interferes with a peace officer while the officer is engaged in the performance of official duties” commits obstruction of legal process. Minn.Stat. § 609.50, subd. 1(2) (2004). The statute previously defined the prohibited conduct as that which “obstructs, hinders, or prevents” the officer while engaged in the performance of official duties. Minn.Stat. § 609.50 (1986). The supreme court rejected an overbreadth challenge to that language, construing it narrowly as “directed solely at physical acts.” State v. Krawsky, 426 N.W.2d 875, 877 (Minn.1988). The court held that the statute was “directed at a particular kind of physical act, namely, physically obstructing or interfering with an officer.” Id. The Kraw-sky court rejected the broad claim that the statute applied to all oral conduct, but construed the statute narrowly to apply to “fighting words” or other words that by themselves have the effect of physically obstructing or interfering with a police officer in the performance of his duties. Id.

But Krawsky did not directly address whether the conduct proscribed in the statute must be directed at the officer to support a conviction. We turn then to the language of the statute, which proscribes intentional conduct that “obstructs, resists, or interferes” with a police officer. Initially, we observe that there is a wide variety of activity not directed at police, that could have the effect of “obstructing],” “resisting],” or “interfering]” with a police officer. For example, conduct such as hiding from, evading, or avoiding a police officer could potentially fit within a broad reading of the phrase “obstructs, resists, or interferes.” But the statute cannot be read so broadly as to include any act that merely reduces the ability of a police officer to successfully apprehend a suspect. See State v. Tomlin, 622 N.W.2d 546, 549 (Minn.2001) (holding that defendant’s lies to police, although they may have interrupted or prolonged the investigation, did not physically obstruct the officers and, therefore, did not constitute obstruction of legal process); see also Dunham v. Roer, 708 N.W.2d 552, 568 (Minn.App.2006) (stating that due process requires a criminal statute define an offense with sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited and that arbitrary and discriminatory enforcement is not encouraged), review denied (Minn. Mar. 28, 2006). We have held that oral acts that were directed at third parties rather than directly at police, were not covered by the obstruction-of-legal-process statute. State v. Patch, 594 N.W.2d 537, 539-40 (Minn.App.1999).

In Patch, the defendant was charged under the obstruction statute for warning a person with outstanding arrest warrants that police were pursuing her, helping her look for an escape route, serving as a lookout, and offering her a ride as a means of fleeing police. Id. at 538. This court noted that the defendant’s oral conduct was “directed not at police but at a person police were pursuing” and that defendant’s “physical acts had [no] direct effect on the police effort to apprehend [the suspect], and none was committed in the presence of police.” Id. at 538-39. We concluded that defendant’s conduct was outside the scope of the statute and reversed the conviction. Thus, our holding in Patch supports the conclusion that the statute applies only to conduct directed at police officers engaged in the performance of official duties.

Thus, we construe the statute narrowly to proscribe conduct directed at the police officer that “obstructs, resists, or interferes” with the police officer in the performance of official duties under the statute. Our holding is supported by the direction taken by the supreme court in Krawsky and our decision in Patch. We observe that fleeing a police officer is not constitutionally protected conduct and is the subject of a separate criminal offense. See generally State v. Ingram, 570 N.W.2d 173 (Minn.App.1997) (holding that flight from police is an intervening circumstance that purges any illegal police conduct of its taint for Fourth Amendment purposes), review denied (Minn. Dec. 22, 1997); see Minn.Stat. § 609.487, subd. 6. Fleeing a police officer, although a physical act, is of a significantly different nature from obstructing or resisting a police officer.

Finally, the state argues that the 1989 amendment adding “obstructs” and “resists” to the term “interferes” broadened the reach of the statute so as to include fleeing a police officer. We disagree. “Obstructs” and “resists” are terms that, at least in the context of the duties police officers perform, connote physical activity directed at the officer even more strongly than does the term “interferes.” See generally State v. Wick, 331 N.W.2d 769, 771 (Minn.1983) (equating the verb “resist” with “assaultive conduct”); cf. Bergeson v. U.S. Fidelity & Guar. Co., 414 N.W.2d 724, 727 (Minn.1987) (holding that statute prohibiting obstruction of employee’s pursuit of workers’ compensation benefits applies to passive as well as active conduct); State v. Skipintheday, 704 N.W.2d 177, 181 (Minn.App.2005) (construing accomplice-after-the-fact statute to apply to conduct that thwarts the “detection, investigation, or prosecution” of a crime), aff'd, 717 N.W.2d 423 (Minn. July 13, 2006).

Here, Johnson engaged in the act of fleeing police officers. She did not direct any physical activity at the responding officers that could have obstructed their investigation and did not say anything to them. Thus, Johnson’s conduct did not violate the obstruction-of-legal-proeess statute.

DECISION

Because the district court properly applied the law and did not abuse its discretion in denying the motion to suppress, we affirm the convictions of consumption of alcohol and possession of marijuana. But we conclude that the evidence is not sufficient to support a conviction that Johnson intentionally committed a physical or oral act directed at the peace officers that obstructed, resisted, or interfered with the officers’ performance of official duties, and, therefore, we reverse that conviction.

Affirmed in part and in reversed in part.

      . Respondent argues Johnson lacks standing to challenge the warrantless entry into the residence of the other three appellants because she had no "reasonable expectation of privacy” in a dwelling that was not her own home. But short-term social guests have a reasonable expectation of privacy in their host’s home. See In re Welfare of B.R.K., 658 N.W.2d 565, 576 (Minn.2003).


author: WILLIS, Judge.

text:
    MINNESOTA ASSOCIATION OF PROFESSIONAL EMPLOYEES, Appellant, v. Patricia ANDERSON, Commissioner of Department of Employee Relations for the State of Minnesota, et al., Respondents.
    No. A06-1826.
    Court of Appeals of Minnesota.
    July 31, 2007.
    Gregg M. Corwin, Katherine L. Miller, Gregg M. Corwin & Associates Law Office, P.C., St. Louis Park, MN, for appellant.
    Lori Swanson, Attorney General, Gary R. Cunningham, Assistant Attorney General, St. Paul, MN, for respondents.

      Considered and decided by TOUSSAINT, Chief Judge; WILLIS, Judge; and PARKER, Judge.

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

   OPINION

WILLIS, Judge.

Appellant challenges the district court’s dismissal of its declaratory-judgment action for the complaint’s failure to state a claim on which relief can be granted. Appellant argues that the district court erred when it concluded that Minnesota law imposes no duty on respondents to ensure equitable compensation for executive-branch employees. Because we agree with the district court’s interpretation of the law, we affirm.

FACTS

Appellant Minnesota Association of Professional Employees (MAPE) is an employee organization and is the exclusive representative of executive-branch employees of the State of Minnesota. Respondent Commissioner of the Department of Employee Relations (DOER) is appointed by the governor under MinmStat. § 43A.03, subd. 2 (2006). The commissioner is the “chief personnel and labor relations manager of the civil service in the executive branch.” Minn.Stat. § 43A.04, subd. 1(a) (2006).

In the early 1980s, the state legislature amended chapter 43A, the statute regulating DOER, and added Minn.Stat. § 43A.01, subd. 3 (2006), which provides:

It is the policy of this state to attempt to establish equitable compensation relationships between female-dominated, male-dominated, and balanced classes of employees in the executive branch. Compensation relationships are equitable within the meaning of this subdivision when the primary consideration in negotiating, establishing, recommending, and approving total compensation is comparability of the value of the work in relationship to other positions in the executive branch.

In an effort to achieve the goal described by the statute, the Hay Corporation was certified to assign to each job class in, inter alia, the executive branch, “Hay points” to be considered in assigning pay grades. Hay points are calculated by evaluating the significance of the position as compared with other positions within the branch.

Chapter 43A requires the commissioner to compile biannually a list of job classes “for which a compensation inequity exists based on comparability of the value of the work” and submit that list, along with an estimate of the appropriation needed to provide “comparability adjustments” to job classes on the list, to the Legislative Coordinating Commission. Minn.Stat. § 43A.05, subd. 5 (2006). The commission reviews and approves, disapproves, or modifies the commissioner’s list and proposed appropriation and submits its action to the full legislature. Id. The legislature then approves, rejects, or modifies the commission’s action and makes an appropriation. Id., subd. 6.

On April 7, 2006, MAPE filed suit against the commissioner and the State of Minnesota (collectively, “respondents”), alleging that respondents are violating Minn. Stat. § 43A.01 “because (a) [respondents] are not compensating job classes in accordance with the established Hay Points and (b) [respondents] are compensating positions with the same number of Hay Points at differing rates of pay.” MAPE asked the district court for “a declaratory judgment affirming that [respondents] have a legal duty to equitably compensate [its] members in accordance with [Minn.Stat. § 43A.01] by compensating job classes in accordance with the established Hay Points.”

The district court granted respondents’ motion to dismiss MAPE’s complaint on the ground that it failed to state a claim on which relief can be granted, and MAPE appeals.

ISSUE

Does Minn.Stat. § 43A.01, subd. 3 (2006), impose a duty on the Commissioner of the Minnesota Department of Employee Relations to ensure that executive-branch employees are compensated equitably according to the “Hay points” system?

ANALYSIS

When reviewing a district court’s dismissal of a complaint for failure to state a claim on which relief can be granted, we consider whether the complaint sets forth a legally sufficient claim for relief. Barton v. Moore, 558 N.W.2d 746, 749 (Minn.1997). We accept as true the facts alleged in the complaint and construe all reasonable inferences in favor of the nonmoving party. Marquette Nat’l Bank of Minneapolis v. Norris, 270 N.W.2d 290, 292 (Minn.1978). We review the district court’s interpretation and construction of statutes de novo. Lewis-Miller v. Ross, 710 N.W.2d 565, 568 (Minn.2006).

The district court explained that its grant of respondents’ motion to dismiss was based “in large part” on the first sentence of Minn.Stat. § 43A.01, subd. 3 (2006), which provides that “[i]t is the policy of this state to attempt to establish equitable compensation relationships.” (Emphasis added.) The district court noted that section 43A.01, subdivision 3, “contains no language suggesting a mandate or duty,” that “equitable” does not mean “equal,” and that the commissioner’s proposals regarding compensation adjustments are subject to two tiers of legislative review. The district court, therefore, determined that the commissioner’s only duty regarding equitable-compensation relationships is to compile and submit to the Legislative Coordinating Commission a list of employment classes for which a compensation inequity exists and an estimate of the appropriation necessary to adjust the inequity. The district court concluded that the commissioner “has been delegated the authority in this matter to exercise his discretion with regard to the policies’ implementation” but that “the policies’ enforcement has been set aside for the legislature.”

The goal of statutory interpretation is to effectuate the intention of the legislature. Educ. Minn.-Chisholm v. Indep. Sch. Dist. No. 695, 662 N.W.2d 139, 143 (Minn.2003). If the meaning of a statute is unambiguous, we interpret the statute’s text according to its plain language. Molloy v. Meier, 679 N.W.2d 711, 723 (Minn.2004). Only when a statute is ambiguous do we use other canons of construction or extrinsic evidence to discern the legislature’s intent. See Gomon v. Northland Family Physicians, Ltd., 645 N.W.2d 413, 416 (Minn.2002).

MAPE argues that the district court improperly concluded that chapter 43A allows respondents discretion in implementing the state’s equitable-compensation policy and asserts that the statute instead “imposes a legal duty on Respondents to equitably compensate employees in the executive branch.” MAPE argues further that the Hay-points system represents equitable-compensation relationships, and, therefore, by not strictly adhering to the system, respondents are breaching their duty to compensate MAPE’s members equitably.

MAPE asserts that its members’ “[p]ay ⅛ not equitable because the actual compensation levels are not based on the comparability of the value of the work.” But the plain language of the statute provides that pay is equitable when the value of the work is “the primary consideration” in determining compensation; it need not be the sole basis for compensation determinations. See Minn.Stat. § 43A.01, subd. 3.

We also reject MAPE’s argument that the district court “abused its discretion” when it determined that “equitable” does not mean “equal.” MAPE relies on a dictionary definition of “equitable” to argue that the words are interchangeable. But MAPE’s assertion that “equitable” means “equal” contradicts the plain language of section 43A.01, subdivision. 3, which provides that pay is “equitable” for purposes of section 43A.01 “when the primary consideration in negotiating, establishing, recommending, and approving total compensation is comparability of the value of the work in relationship to other positions in the executive branch.” When the plain language of a statute is unambiguous, we do not look elsewhere for guidance on construction. Gomon, 645 N.W.2d at 416.

And the plain language of chapter 43A supports the district court’s conclusion that the statute simply does not impose a duty on respondents to compensate employees equitably. The statute assures that the state will “attempt” to compensate employees equitably, and it imposes a duty on the commissioner to submit to the Legislative Coordinating Commission a list of job classes for which compensation inequity exists and an estimate of the appropriation necessary for adjusting any inequity, but it imposes no other duty. See Minn. Stat. §§ 43A.01, subd. 3, 43A.05, subd. 5 (2006). And, as respondents note, there is no mention of Hay points in any Minnesota statute.

MAPE identifies several factors that courts have used to determine legislative intent and argues that it should have been given an opportunity to introduce evidence to “show legislative intent to deny the Respondents discretion” in implementing the equitable-compensation policy. But evidence of legislative intent other than the plain language of the statute should be considered only if a statute’s language is ambiguous. Molloy, 679 N.W.2d at 723. Here, there is no ambiguity.

MAPE further argues that the district court’s interpretation of the equitable-compensation provisions of chapter 43A insulates the commissioner from liability under the statute and prevents MAPE’s members from securing “judicial intervention to enforce their rights under the statute and obtain a meaningful remedy for their injuries,” which “could not have been intended by the legislature.” But the statute must impose a liability in order for the district court’s interpretation of the statute to insulate the commissioner from that liability. Because the plain language of the statute imposes no duty. — other than the commissioner’s duty under section 43A.05, subdivision 5, to submit a list and a proposed appropriation to the Legislative Coordinating Commission — the commissioner’s failure to ensure “equal” compensation for jobs with the same Hay-points value does not create a liability under the statute from which the commissioner could be insulated. And because the statute does not guarantee MAPE’s members a “right” to equal compensation or even equitable compensation but merely provides that the state will “attempt to establish equitable compensation relationships,” the district court’s interpretation also does not prevent MAPE’s members from “enforc[ing] their rights under the statute and obtain[ing] a meaningful remedy for their injuries.” See MinmStat. § 43A.01, subd. 3 (emphasis added); see also Gomon, 645 N.W.2d at 416 (noting that “when the language of the statute is clear, the court must not engage in any further construction” to discern legislative intent).

MAPE further argues that the district court incorrectly “ruled” that denying respondents’ motion to dismiss would violate the separation-of-powers doctrine. MAPE presumably is referring to a reference in the final sentence of the district court’s memorandum. The district court did not base its analysis on a theory of separation of powers — the memorandum is almost entirely a discussion of statutory interpretation. Therefore, any reference by the district court to separation of powers was dictum and does not warrant reversal.

DECISION

Because Minn.Stat. § 43A.01, subd. 3 (2006), imposes no duty on the commissioner to ensure that executive-branch employees are compensated equitably according to the “Hay points” system, the district court did not err by dismissing MAPE’s declaratory-judgment action.

Affirmed.

      . The Legislative Coordinating Commission coordinates the legislative activities of the senate and house of representatives. Minn. Stat. § 3.303, subd. 1 (2006). Its membership, which is provided for by statute, is composed of legislators. Id., subd. 2.

      . MAPE argues also that the district court improperly addressed whether equitable-compensation relationships under Minn.Stat. § 43A.01, subd. 3, are subject to collective bargaining. MAPE asserts that the district court ought not have reached this issue because it exceeded the scope of the complaint. It provides no authority for its assertion that this discussion constituted error. And because the district court’s reference to collective bargaining was not necessitated by the complaint and did not affect its decision, we conclude that the collective-bargaining discussion also was dictum.


author: WRIGHT, Judge.

text:
    STATE of Minnesota, Respondent, v. Scott Ronald PERLEBERG, Appellant.
    No. A06-718.
    Court of Appeals of Minnesota.
    Aug. 7, 2007.

      John M. Stuart, State Public Defender, Steven P. Russett, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul, MN; and Patrick Flanagan, Mower County Attorney, Mower County Courthouse, Austin, MN, for respondent.
    Considered and decided by MINGE, Presiding Judge; WRIGHT, Judge; and WORKE, Judge.
   OPINION

WRIGHT, Judge.

Appellant challenges the district court’s imposition of three consecutive sentences of 144 months’ imprisonment for six counts of first-degree criminal sexual conduct, arguing that the aggregate length of incarceration unduly exaggerates the criminality of his conduct. We affirm.

FACTS

After engaging in criminal sexual conduct with his daughter over several years, appellant Scott Perleberg was charged with and convicted of six counts of first-degree criminal sexual conduct. Before the sentencing hearing, Perleberg underwent a psychosexual evaluation, and the evaluator concluded that Perleberg may be amenable to treatment. Perleberg moved for a downward durational departure from the presumptive guidelines sentences based on his amenability to treatment, his cooperation with law enforcement, and the absence of a prior criminal record.

The district court sentenced Perleberg to concurrent mandatory minimum prison terms of 144 months executed, for three counts of engaging in sexual contact with a person less than 13 years of age by a person who is more than 36 months older, Minn.Stat. § 609.342, subd. 1(a) (2000 & 2002). Likewise, for two counts of engaging in multiple acts of sexual abuse over an extended period of time with a person under 16 years of age by a person who has a significant relationship, Minn.Stat. § 609.342, subd. l(h)(iii) (2002 & 2004), the district court sentenced Perleberg to concurrent mandatory minimum prison terms of 144 months executed, the concurrent terms to be served consecutively to the 144-month concurrent sentences for the three counts of engaging in sexual contact with a person who is less than 13 years of age. And for one count of engaging in sexual penetration with a person who is at least 13 years of age but less than 16 years of age by a person who is more than 48 months older and is in a position of authority, Minn.Stat. § 609.342, subd. 1(b) (2004), which Perleberg committed on December 25, 2004, the district court sentenced Perleberg to 144 months executed, to be served consecutively to the other sentences. The aggregate length of Perle-berg’s term of imprisonment is 432 months followed by five years of conditional release.

In its order, the district court explained its rationale for the sentences imposed. The district court acknowledged that, although the multiple instances of criminal sexual conduct may be charged separately, the same conduct could have been charged as a single count. But because the victim reported that the sexual assaults occurred on at least 250 occasions, permissive consecutive sentencing is justified for the three types of criminal sexual conduct offenses charged. This appeal followed.

ISSUE

Did the imposition of three consecutive 144-month sentences for six counts of first-degree criminal sexual conduct arising from at least 250 sexual assaults unduly exaggerate the criminality of the conduct?

ANALYSIS

Perleberg seeks a reduction of his sentence to concurrent terms totaling 158 months’ imprisonment, arguing that the district court’s imposition of consecutive sentences resulting in an aggregate sentence of 432 months’ imprisonment unfairly exaggerates the criminality of his conduct. A district court’s decision to impose consecutive sentences generally falls within its broad discretion. State v. Munger, 597 N.W.2d 570, 573 (Minn.App.1999), review denied (Minn. Aug. 25, 1999). We will not interfere with this decision unless the sentence is “disproportionate to the offense or unfairly exaggerates the criminality of the defendant’s conduct.” State v. McLaughlin, 725 N.W.2d 703, 715 (Minn.2007) (quotation omitted). Our review is guided by sentences imposed on other similarly situated offenders, id., acknowledging that a district court has “a unique perspective on all stages of a case, including sentencing, and ... is in the best position to evaluate the offender’s conduct and weigh sentencing options,” State v. Hough, 585 N.W.2d 393, 397 (Minn.1998).

First-degree criminal sexual conduct has a legislatively mandated presumptive minimum sentence of 144 months’ imprisonment. Minn.Stat. § 609.342, subd. 2(b) (2000, 2002, & 2004). Consecutive sentences are permissive for multiple offenses, even when the offenses involve a single victim. Minn. Sent. Guidelines II. F.2 (2000, 2001, 2002, 2003, & 2004); see Minn. Sent. Guidelines cmt. II.F.04 (stating that consecutive sentencing is permissive even when offenses involve “a single victim involving a single course of conduct”). Under these circumstances, consecutive sentencing is not a departure from the sentencing guidelines. Minn. Sent. Guidelines II.F.2.

Perleberg first challenges the length of his sentence by attacking the prosecutor’s charging decision. Perleberg argues that this decision, which resulted in his conviction of six counts of first-degree criminal sexual conduct, rather than a single count, led to the circumstances that resulted in a sentence that exaggerates the criminality of his conduct. We observe that “a prosecutor has broad discretion in the exercise of the charging function and ordinarily, under the separation-of-powers doctrine, a court should not interfere with the prosecutor’s exercise of that discretion” absent special circumstances, which do not exist here. State v. Foss, 556 N.W.2d 540, 540 (Minn.1996). Perleberg’s argument is premised on the false assumption that the district court was unaware of its authority to impose six concurrent sentences if, in its judgment, the facts so warranted. But the district court was well aware of its authority to impose a sentence between the maximum authorized length of imprisonment for the offenses charged and shorter permissible sentences that reflect an appropriate punishment for the severity of the criminal conduct. Indeed, the district court sentenced Perleberg to three consecutive 144-month sentences, rather than six, thereby diminishing the impact of the prosecutor’s charging decision. Thus, this aspect of Perleberg’s challenge is unavailing.

In support of the argument that his sentence is disproportionately severe when compared to sentences imposed in similar cases, Perleberg cites sentencing statistics from the 2004 Sentencing Practices and Data Reports. These statistics, however, do not provide details about the nature of the offenses or whether the cases were resolved by a negotiated plea agreement or by trial. Perleberg’s reliance on such statistics, therefore, is unpersuasive. We are mindful, however, of the dearth of published Minnesota cases addressing the sentences imposed based on comparable facts.

Perleberg’s disproportionality argument also relies on the absence of multiple victims. But consecutive sentences are permissible when multiple offenses are committed against a single victim. Minn. Sent. Guidelines cmt. II.F.04. Perleberg correctly observes that the comments to the sentencing guidelines urge careful consideration of whether the purposes of sentencing would be served best by concurrent, rather than consecutive, sentences. Minn. Sent. Guidelines cmt. II.F.01. And the record demonstrates that the district court imposed permissive, consecutive sentences after carefully considering the nature of the offenses and the mitigating circumstances.

The district court considered that Perle-berg was sexually abused as a child and the psychosexual evaluator’s conclusion that Perleberg may be amenable to treatment. In weighing its sentencing alternatives, the district court observed: “[L]ook-ing at the other half of this ... we have a young lady and a family whose lives have been, if not ruined, then inalterably changed.” Although Perleberg’s offenses were against the same victim, she is his daughter and they were aptly characterized by the district court as “sexual predatory acts.” The sexual abuse for which Perleberg was convicted occurred in many forms, over several years, on at least 250 occasions, including Christmas day, and often in the family home or during regularly scheduled errands.

Based on the nature of the conduct and the dates of the offenses, the district court carefully crafted the sentence by rationally distinguishing between offenses that it determined were appropriate for concurrent sentences and those that were appropriate for consecutive sentences. On these facts, Perleberg’s sentence, totaling 432 months’ imprisonment, does not unduly exaggerate the criminality of Perleberg’s criminal conduct. The record as a whole reflects the district court’s proper exercise of its discretion.

DECISION

When imposing the contested sentences, the district court balanced the nature of the first-degree criminal sexual conduct offenses and the mitigating factors. Because the aggregate term of imprisonment of 432 months does not unduly exaggerate the criminality of appellant’s conduct, the district court did not abuse its discretion by imposing a combination of concurrent and consecutive presumptive minimum sentences of 144 months.

Affirmed.


author: KALITOWSKI, Judge.

text:
    In the Matter of the Maltreatment and Disqualification of Margie ELEVEN.
    No. A06-1799.
    Court of Appeals of Minnesota.
    Aug. 7, 2007.

      Matthew P. Franzese, Traverse County Attorney, Alexandria, MN, for relator Margie Eleven.
    Lori Swanson, Attorney General, Jonathan Geffen, Amber Hawkins, Assistant Attorneys General, St. Paul, MN, for respondent Commissioner of Human Services.
    Considered and decided by MINGE, Presiding Judge; KALITOWSKI, Judge; and KLAPHAKE, Judge.
   OPINION

KALITOWSKI, Judge.

Relator Margie Eleven challenges a decision by the Minnesota Department of Human Services disqualifying her from being in any position which allowed direct contact with persons served by programs requiring a license under MinmStat. §§ 245C.14, subd. 1(a)(3), 245C.15, subd. 4 (2004), based on her treatment of the vulnerable adults under her care. She argues that the department misinterpreted Minn. Stat. §. 626.5572, subd. 2(b)(2) (2004), by considering the objective, rather than subjective, effects her conduct had on the vulnerable adults.

FACTS

Relator Margie Eleven worked as a human services technician in a group home housing for developmentally disabled adult men. The men:

[Fjunction mentally at about the level of a normal eighteen-month-old child. They cannot communicate verbally. They do not use words to communicate, either oral or written. With very few exceptions related to their daily routine, the clients do not understand words spoken to them. They have some signs and behaviors to indicate some needs. [One man] cannot dress himself and wears an incontinence brief. [The other men] can dress themselves, with prompts. Due to their inability to provide self-care, the clients are assisted with most of their activities of daily living, including bathing, shaving, and meals.

The record indicates, and relator does not dispute, that she repeatedly referred both to and about the men as “a — holes” and that she attempted to teach one of the men to say “f-ck you.”

Following a department investigation and hearing, an administrative law judge (ALJ) recommended relator’s disqualification from any position which allowed direct contact with persons served by programs requiring a department of human services license under Minn.Stat. §§ 245C.14, subd. 1(a)(3), 245C.15, subd. 4 (2004), based on her treatment of the vulnerable adults under her care. The Commissioner of Human Services affirmed the ALJ’s decision.

ISSUE

Does the Minnesota Vulnerable Adults Act, Minn.Stat. §§ 626.557, subd. 1, 626.5572, subd. 2(b)(2) (2004), mandate reporting of a caregiver’s conduct that “is not an accident or therapeutic conduct ... which produces or could reasonably be expected to produce physical pain or injury or emotional distress” in a reasonable person?

ANALYSIS

Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). “When construing a statute, our goal is to ascertain and effectuate the intention of the legislature.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 278 (Minn.2000). The rules of statutory construction require that a statute’s words and phrases are to be given their plain and ordinary meaning. Minn.Stat. § 645.16 (2004). When reviewing a statute, this court assumes that the legislature does not intend absurd or unreasonable results. Schroedl, 616 N.W.2d at 278.

“When interpreting a statute, we first look to see whether the statute’s language, on its face, is clear or ambiguous. A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.” Id. at 277 (quotation and citation omitted). When the language of the statute is ambiguous, the intent of the legislature controls. Minn.Stat. § 645.16. “A statute should be interpreted, whenever possible, to give effect to all of its provisions; ‘no word, phrase, or sentence should be deemed superfluous, void, or insignificant.’ ” Schroedl, 616 N.W.2d at 277 (quoting Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999)). And this court is “to read and construe a statute as a whole and must interpret each section in light of the surrounding sections to avoid conflicting interpretations.” Id.

Although this court retains the authority to review de novo administrative interpretations of statutes, an agency’s interpretation of a statute that it administers is entitled to deference. In re Denial of Eller Media Co.’s Applications for Outdoor Adver. Device Permits, 664 N.W.2d 1, 7 (Minn.2003); In re Univ. of Minn., 566 N.W.2d 98,103 (Minn.App.1997).

Here, relator challenges the department’s interpretation of a provision of the Minnesota Vulnerable Adults Act. The primary purpose of the Vulnerable Adults Act is to protect vulnerable adults. Minn. Stat. § 626.557, subd. 1 (2004). The act is a remedial statute designed to protect a specific class of individuals, and we interpret the statute in favor of that class. See Smith v. Employers’ Overload Co., 314 N.W.2d 220, 221-22 (Minn.1981).

The provision of the Minnesota Vulnerable Adults Act that relator challenges is the definition of abuse as maltreatment defined in Minn.Stat. § 626.5572, subd. 2(b)(2) (2004):

Conduct which is not an accident or therapeutic conduct ... which produces or could reasonably be expected to produce physical pain or injury or emotional distress including, but not limited to, the following: ...
(2) use of repeated or malicious oral, written, or gestured language toward a vulnerable adult or the treatment of a vulnerable adult which would be considered by a reasonable person to be disparaging, derogatory, humiliating, harassing, or threatening.

The ALJ concluded, and the commissioner agreed, that:

Appellant’s conduct of attempting to have a vulnerable adult say “f[-]ck you” is abuse ... because it is conduct involving language toward a vulnerable adult which would be considered by a reasonable person to be disparaging, derogatory, and humiliating.
Appellant’s repeated instances of directly calling a vulnerable adult “a[ — ]hole” is abuse ... because it is repeated oral language toward a vulnerable adult which would be considered by a reasonable person to be disparaging, derogatory, and humiliating.

Relator argues that the department must not only find that her statements were repeated or malicious and that the conduct would be considered by a reasonable person to be offensive, but also that her conduct did or reasonably could cause emotional distress in these four vulnerable adults. Rather than an objective standard, relator interprets the statute to apply a subjective standard of the likelihood of causing “physical pain or injury or emotional distress.” Relator reasons that because the vulnerable adults did not understand what relator was saying, the department could not make a finding that they experienced or could reasonably be expected to experience emotional distress as a result of her statements.

We first address whether the statutory language is ambiguous. Schroedl, 616 N.W.2d at 277. The statute does not prescribe a standard to apply when making the initial determination of whether “[c]on-duct ... which produces or could reasonably be expected to produce physical pain ... or emotional distress” is maltreatment. Minn.Stat. § 626.5572, subd. 2(b). If the conduct does not meet this threshold qualification of the definition of maltreatment, the specific examples of conduct provided, and any standard contained within those subdivisions, are irrelevant. Here, relator suggests that the statute is properly interpreted to apply a subjective standard to the threshold determination because the legislature specifically omitted “reasonable person” language in that provision. Respondent argues that the statute is properly interpreted to apply a reasonable person standard because to do otherwise would lead to absurd results. Because the statute includes a standard with subdivision 2(b)(2) but not within the gate-keeping “conduct” provision, we conclude that the statutory language is subject to more than one reasonable interpretation and is accordingly ambiguous. Therefore, we must examine the legislative intent in adopting the act.

Relator’s interpretation of the statute is contrary to the policy of the Vulnerable Adults Act. The act has the stated purpose “to protect adults who, because of physical or mental disability or dependency on institutional services, are particularly vulnerable to maltreatment [and] to assist in providing safe environments for vulnerable adults.” Minn.Stat. § 626.557, subd. 1. As relator admits, application of her interpretation of the statute would mean that the more vulnerable the adult, the worse his caretaker could permissibly treat him. Under relator’s interpretation, this provision of the act results in decreasing protection for increasingly vulnerable adults. Relator’s interpretation is an affront to the purpose of the act and leads to absurd results, which we presume the legislature did not intend. Schroedl, 616 N.W.2d at 278 (stating that “courts should construe a statute to avoid absurd results and unjust consequences”). Given the deference owed to the department’s interpretation, the interpretation’s support of the stated purpose of the statute, the statute’s remedial nature, and the potentially absurd results that relator’s interpretation could present, we conclude that the department did not err in its interpretation of the statute.

DECISION

We conclude that the legislature intended that MinmStat. §§ 626.557, subd. 1, 626.5572, subd. 2(b)(2), the Minnesota Vulnerable Adults Act, mandates reporting of a caregiver’s conduct that “is not an accident or therapeutic conduct ... which produces or could reasonably be expected to produce physical pain or injury or emotional distress” in a reasonable person.

Affirmed.