author: LANSING, Judge.

text:
    STATE of Minnesota, Respondent, v. Scott MOGLER, Appellant.
    No. A05-1037.
    Court of Appeals of Minnesota.
    July 25, 2006.

      Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, St. Paul, MN; and Charles C. Glasrud, Special Assistant Pope County Attorney, Morris, MN, for respondent.
    Robert J. Fowler, Fowler Law Firm, L.L.C., Little Canada, MN, for appellant and for amicus Minnesota Fraternal Order of Police.
    Considered and decided by LANSING, Presiding Judge; WILLIS, Judge; and HUSPENI, Judge.

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

   OPINION

LANSING, Judge.

Scott Mogler challenges the constitutionality of the phrase “position of authority,” as used in Minn.Stat. § 609.344, subd. 1(e) (2002), and defined in Minn. Stat. § 609.341, subd. 10 (2002). He also appeals the district court’s evidentiary rulings, venue determination, jury instructions, and imposition of the guidelines sentence; challenges the sufficiency of the evidence to support his conviction of third-degree criminal sexual conduct; and alleges prosecutorial misconduct. Because the definition of “position of authority” that is incorporated into Minn.Stat. § 609.344, subd. 1(e), is not unconstitutionally vague, the evidence supports the conviction, the prosecutor’s comments were not misconduct, and the district court did not err or abuse its discretion, we affirm the conviction and sentence.

FACTS

In the summer of 2004, Scott Mogler was a police officer employed by the city of Starbuck to perform community policing. In this capacity, which involves establishing a presence in the city and establishing a rapport with community residents, Mo-gler met seventeen-year-old RL and became acquainted with her and a number of her friends through a series of brief conversations around town, usually in the evening. During these encounters Mogler was driving a squad car and in uniform.

Mogler let RL ride in his squad car, and they exchanged cell-phone numbers and phone calls. On July 4, 2004, Mogler and RL arranged to meet at the beach. Mo-gler drove to the beach in his squad car. He was on duty and wearing his uniform, including a badge and service weapon. After meeting at the beach, Mogler drove RL in the squad car to the city-council building, which also serves as the police station. Mogler and RL had sexual intercourse in a conference room at the police station. A few days later Mogler and RL agreed to meet again. Mogler drove his squad car to the prearranged meeting place. He was on duty and in full uniform. Mogler and RL had sexual intercourse in RL’s car.

RL testified that, before the first incident of sexual intercourse, she had joked around with Mogler and told him she was older than her true age. Mogler, who was thirty-one in the summer of 2004, told RL that he knew she was only seventeen because he had conducted a background check on her.

RL’s father learned of the incidents and, on July 7, 2004, notified the Pope County Sheriffs office. Her father said that he believed one of the incidents occurred in Mogler’s squad car. The sheriff notified Starbuck’s police chief, Hal Henning. In deference to a request from RL’s family, Henning agreed to delay the investigation for a day or two, but to preserve any potential evidence in Mogler’s squad car, he arranged to trade vehicles with Mogler. Henning testified that, when he informed Mogler of the trade, Mogler became “very nervous” and asked to discuss something with Henning. Mogler inquired whether he was in trouble with the sheriffs office. Henning said he was not aware of any problems, and Mogler then said that he had “f-d up” and that his career was over. When asked what he had done, Mogler said he had “messed around” with a girl while on duty. He told Henning that he had thought she was nineteen years old but then acknowledged that he knew she was only seventeen.

Following this conversation, Henning advised a deputy to contact RL. RL confirmed the sexual nature of their relationship, and the deputy then arrested Mogler. Henning and the deputy accompanied Mo-gler to his home to allow him to change out of his uniform. While at his house, Mogler awakened his wife and told her that he was going to jail because he had been “messing around with an underage girl.”

The state charged Mogler with two counts of third-degree criminal sexual conduct under Minn.Stat. § 609.344, subd. 1(e) (2002). Mogler moved to dismiss the charges, to suppress the statements he made to his wife and Henning, and to change venue because of pretrial publicity.

The district court denied the motions and, following a trial, a jury convicted Mo-gler of both counts. In May 2005 the district court sentenced Mogler to eighteen months in prison on the first count and twenty-three months on the second count, to be served concurrently. The court stayed execution of the sentences, ordered Mogler to serve six months in jail, placed him on probation for a period of up to five years, and imposed a $3,000 fine.

In this appeal from conviction and sentencing, Mogler raises eight issues. The Minnesota Fraternal Order of Police, the local chapter of a national organization of police officers, has submitted an amicus brief in support of Mogler’s appeal, addressing the interpretation of “position of authority.”

ISSUES

I. Is “position of authority,” as used in Minn.Stat. § 609.344, subd. 1(e) (2002), and defined in Minn.Stat. § 609.341, subd. 10 (2002), unconstitutionally vague?

II. Did the district court err by denying a motion to suppress statements made by the defendant to his public employer and statements made to his wife in the presence of two officers while in custody?

III. Did the district court err by denying a motion for change of venue based on pretrial publicity?

IV. Did the district court abuse its discretion by limiting the defendant’s cross-examination of the minor?

V. Did the county attorney engage in prosecutorial misconduct during closing arguments?

VI. Did the district court abuse its discretion by excluding part of the definition of “position of authority” in Minn. Stat. § 609.341, subd. 10, from the jury instructions?

VII. Is the evidence sufficient to support the jury’s finding that an on-duty police officer was in a position of authority over a minor with whom he had a sexual relationship?

VIII. Did the district court abuse its discretion by failing to account for mitigating factors at sentencing?

ANALYSIS

I

Minnesota statutes are presumed constitutional. State v. Barker, 705 N.W.2d 768, 771 (Minn.2005). A party challenging the constitutionality of a statute must demonstrate beyond a reasonable doubt that the statute violates a constitutional provision. Id. Due process requires that a penal statute define a criminal offense with sufficient definiteness so “ordinary people can understand what conduct is prohibited” and the statute “does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983); State v. Krawsky, 426 N.W.2d 875, 878 (Minn.1988). The doctrine is based on fairness and is not designed to “convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.” Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584 (1972). When First Amendment freedoms are not involved, vagueness challenges must be examined in light of the defendant’s actual conduct. United States v. Powell, 423 U.S. 87, 92, 96 S.Ct. 316, 319, 46 L.Ed.2d 228 (1975); State v. Christie, 506 N.W.2d 293, 301 (Minn.1993). The defendant must show that the statute lacks specificity as to his own behavior and not some hypothetical situation. Christie, 506 N.W.2d at 301.

The third-degree criminal-sexual-conduct statute prohibits sexual penetration involving a minor who is at least sixteen years old but younger than eighteen and a person who is more than forty-eight months older than the minor and is in a position of authority over the minor. Minn.Stat. § 609.344, subd. 1(e) (2002).

“Position of authority” includes but is not limited to any person who is a parent or acting in the place of a parent and charged with any of a parent’s rights, duties or responsibilities to a child, or a person who is charged with any duty or responsibility for the health, welfare, or supervision of a child, either independently or through another, no matter how brief, at the time of the act. For the purposes of subdivision 11 [of section 609.341], “position of authority” includes a psychotherapist.

Id. § 609.341, subd. 10 (2002). Consent and mistake of age are not defenses to third-degree criminal sexual conduct. Id. § 609.344, subd. 1(e).

Mogler arg-ues that the definition of “position of authority” is so broad that the state could consider anyone to be in a position of authority, or, alternatively, that the definition does not clearly provide fair warning that it includes a police officer. We disagree.

The statute defining “position of authority” lists three examples of persons in a position of authority: a parent; a person charged with the responsibilities of the parent; and a person charged with any duty or responsibility for the health, welfare, or supervision of the child. Id. § 609.341, subd. 10. The plain meaning of the words in the phrase “position of authority” provides additional guidance on the types of people encompassed in the statutory definition. “Position” indicates either a person’s social standing or employment while “authority” refers to the “power to enforce laws, exact obedience, command, determine, or judge.” American Heritage Dictionary 121, 1369 (4th ed. 2000). The statutory definition of “position of authority” includes a person who is charged with any duty or responsibility for the health, welfare, or supervision of a child. An ordinary person would reasonably understand that an on-duty police officer has a duty or responsibility for the welfare of a seventeen-year-old child that would place the officer in a position of authority over the child.

Mogler attaches significance to the last sentence of the definition of “position of authority,” which states, “For the purposes of subdivision 11 [of section 609.341], ‘position of authority’ includes a psychotherapist.” He argues that the specific reference to a psychotherapist, by inference, excludes police officers from the definition. This argument is unpersuasive for two reasons. First, Minn.Stat. § 609.341, subd. 11 (2002), defines sexual contact as used in sections 609.343 and 609.345, which relate to second- and fourth-degree criminal sexual conduct. It does not apply to Mogler’s charge of third-degree criminal sexual conduct under MinmStat. § 609.344. Second, the statutory definition of “position of authority” is prefaced with an express statement that it “includes but is not limited to” the specific examples listed. See State v. Larson, 520 N.W.2d 456, 461 (MinmApp. 1994) (stating that position-of-authority definition “does not contain an exclusive list of persons in position of authority”), review denied (Minn. Oct. 14,1994).

The coordinate elements of Minn.Stat. § 609.344, subd 1(e), narrow the scope of the statute and provide warning of the conduct it proscribes. Section 609.344 limits the scope of the statute by restricting it to specific age groups. The statute applies only when the minor is sixteen or seventeen years old and the offender is more than forty-eight months older and is in a position of authority. The statute also requires that the person be in a position of authority “over” the minor. Mogler argues that the jury’s request that the district court further clarify this standard establishes vagueness. We disagree. “Over” is a common preposition that connotes relativity. See American Heritage Dictionary 1252 (defining “over” as “[i]n or at a position above or higher than” and “[i]n a position to rule or control”). Minn. Stat. § 609.344, subd. 1(e), plainly requires that the offender be in a position of authority relative to the position of the minor.

Mogler’s final arguments on the issue of vagueness relate to a statutory change and to his contention that police do not function in a position of authority at all times. In 1998 the Minnesota legislature eliminated from section 609.344, subdivision 1(e), the requirement that the state prove that a person in a position of authority used the authority in committing the offense. 1998 Minn. Laws ch. 367, § 9, at 707. Mogler contends that the elimination of this requirement resulted in ambiguity in the definition of “position of authority.” But the amendment did not affect the meaning of “position of authority.” A person who was in a position of authority before the amendment remains in a position of authority under the amended statute. Mo-gler’s true ground of objection appears to be directed at legislative policy, not constitutional due process.

Although Mogler argues that Minn.Stat. § 609.341, subd. 10, cannot be read to create a rule that a police officer is always in a position of authority, he acknowledges that an officer could be in a position of authority over a minor if the minor is in custody or is suspected of a crime. This concession undercuts his constitutional argument and suggests that his central assertion is not the vagueness of the statute but the insufficiency of the evidence. We acknowledge that hypothetical situations may exist in which application of section 609.344, subdivision 1(e), would present a closer question; on these facts, however, we do not reach the issue of whether a police officer is always in a position of authority. Mogler has not argued that his conduct is protected by the First Amendment and consequently his vagueness challenge is limited to whether it lacks sufficient specificity as to his own behavior, not to a hypothetical situation. See Christie, 506 N.W.2d at 301 (stating that vagueness challenge that does not implicate First Amendment is reviewed in light of applicable facts).

In its amicus brief the Minnesota Fraternal Order of Police raises three arguments addressing the meaning of “position of authority.” The organization first suggests that the public-duty doctrine, which states that police officers owe a duty to the public rather than an individual, limits the definition of position of authority. This argument is not supported by the eases cited as authority because they relate to civil liability for police officers, not criminal liability for a police officer’s direct act.

The organization next suggests that a determination that a police officer is always in a position of authority will establish dangerous precedent because it will infringe on the ability of younger police officers to have sexual relationships with another young person who would be able to legally consent except for the prohibition in Minn.Stat. § 609.344, subd. 1(e). Without accepting or rejecting the validity of this expressed concern, we emphasize that our rejection of Mogler’s vagueness challenge is based on the facts of this case, not on the principle that an officer is always in a position of authority. Mogler was on duty and in uniform when he interacted with RL, and his job involved interacting with community residents. To the extent that the organization’s argument is directed at the statute itself, that challenge is properly addressed to the legislature, not the judiciary. Minnesota is a “code state,” and the responsibility of defining what constitutes a crime is the exclusive province of the legislature. State v. Soto, 378 N.W.2d 625, 627 (Minn.1985).

Finally, the organization points to Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), and suggests that Mogler was denied his constitutional right to engage in conduct protected by the Fourteenth Amendment. Lawrence is readily distinguished because it involved two consenting adults, not an adult and a minor. Id. at 564, 123 S.Ct. at 2476. Further, although Minn.Stat. § 609.344, subd. (l)(e), may treat Mogler differently from persons in other occupations, he is not being treated differently from similarly situated persons. The statute distinguishes between persons based on whether a person is in a position of authority, and the state has a rational basis for making this distinction.

Because the term “position of authority” in Minn.Stat. § 609.344, subd. 1(e), is neither so broad that an ordinary person could not understand what conduct it proscribes nor so narrow that it cannot include a police officer, we hold that the statute is not unconstitutionally vague.

II

In a pretrial hearing at which a defendant seeks to suppress a confession on the basis that his statements were involuntary, the state must prove by a fan-preponderance of the evidence that the statements were voluntary. State v. Thaggard, 527 N.W.2d 804, 807 (Minn.1995). We review the district court’s factual findings under a clear-error standard. State v. Buchanan, 431 N.W.2d 542, 552 (Minn.1988). Based on these findings, we determine independently whether the confession was voluntary. Thaggard, 527 N.W.2d at 807.

Mogler argues that his statements to Henning are protected by Garrity v. New Jersey, which held that, in subsequent criminal proceedings, the Fourteenth Amendment prohibits using statements obtained under threat of removal from public employment. Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 620, 17 L.Ed.2d 562 (1967). Garrity, however, is inapplicable to Mogler’s case because the record does not suggest that Mogler spoke to Henning based on a belief that his employment was at risk. See United States v. Najarian, 915 F.Supp.1460, 1478 (D.Minn.1996) (stating that defendant must subjectively believe he was compelled to give statement upon threat of losing job and that belief must be objectively reasonable at time statement was made). Mogler initiated his conversation with Henning, and, at the time he made the statements, he was not in custody and was unaware that an investigation was already pending. Henning did not threaten Mogler’s employment security and asked only for clarification of Mogler’s voluntary statements.

Mogler’s statement to his wife at their home is also admissible. Mogler, accompanied by Henning and another deputy, awakened his wife and told her that he had “messed around” with a minor. Although he was in custody, the statements were not elicited by the officers, and the district court did not err by allowing Henning to testify to the statement. See Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966) (holding that statements given voluntarily and without compelling influences are admissible); State v. Camacho, 561 N.W.2d 160, 169 (Minn.1997) (“Coercive police activity is a necessary predicate to a finding that a confession is involuntary.”).

Ill

The district court’s denial of a motion to change venue based on pretrial publicity will result in a new trial only if the defendant shows that the publicity had an effect on “the minds of the specific jurors involved in the case.” State v. Berkovitz, 705 N.W.2d 399, 408 (Minn.2005) (quotation omitted). District courts have wide discretion in deciding motions for change of venue. State v. Chambers, 589 N.W.2d 466, 473 (Minn.1999). We will not reverse a conviction absent an abuse of this discretion and a showing that denying the motion prejudiced the defendant. Id.; State v. Warren, 592 N.W.2d 440, 447-48 (Minn.1999).

The district court did not abuse its discretion by denying Mogler’s motion to change venue. To support his claim of prejudicial pretrial publicity, Mogler provided the district court with copies of three local newspaper articles, referred to one additional article, and stated .that two television news stations had mentioned the case. The articles do not, however, demonstrate a level of publicity indicating that the mind of any juror was affected by the publicity. Although Mogler contends on appeal that several jurors acknowledged that they had heard about the case before the trial began, Mogler did not provide voir dire transcripts to permit an assessment of whether the publicity affected the impartiality of specific jurors. See Minn. R. Civ.App. P. 110.02, subd. 1 (stating that appellant has duty to order relevant transcripts for appeal).

IV

Relevant evidence is generally admissible unless specifically excluded by applicable law. Minn. R. Evid. 402. 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 without the evidence. Id. 401. Evidence that is not relevant is inadmissible, and relevant evidence may be excluded if its probative value is substantially outweighed by a danger of unfairly prejudicing a party, confusing the issues, or misleading the jury. Id. 402-03. Evidentiary rulings rest within the discretion of the district court and will not be reversed absent an abuse of discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn.2003).

The district court sustained the state’s objections to Mogler’s cross-examination questions to RL on whether she felt comfortable with how her relationship with Mogler was progressing, whether Mogler coerced her to have sex, whether she believed he was in a position of authority over her, whether she believed Mogler was acting as a parent when she was with him, and whether she was in control of her decision-making when she and Mogler had sex in her vehicle.

The district court did not abuse its discretion by sustaining the state’s objections. Because consent and use of authority are not relevant for purposes of Minn.Stat. § 609.344, subd. 1(e), the objections to questions relating to those issues were properly sustained. Questions that seek to solicit answers to ultimate fact issues are also impermissible; the district court properly sustained objections to questions on RL’s belief about whether Mogler acted as a parent or her belief about his “position of authority.” See State v. MacLennan, 702 N.W.2d 219, 234 (Minn.2005) (stating that witness cannot testify to ultimate fact if determination should be left to trier of fact). The question of whether RL felt in control of her decision-making was asked on recross-examination and was beyond the scope of the state’s redirect, which focused only on Mogler’s age and the number of times RL rode in Mogler’s squad car. See Minn. R. Evid. 611(b) (limiting cross-examination to matters addressed in direct examination); State v. Dille, 258 N.W.2d 565, 569 (Minn.1977) (stating that court has broad discretion to determine scope of cross-examination).

Furthermore, Mogler has not demonstrated prejudice from the exclusion of these questions. The court allowed defense counsel to ask RL whether Mogler ever threatened her with arrest or suggested that she was suspected of a crime. The court also allowed testimony that RL contacted Mogler after their first sexual encounter with the intent of having sex again, and that she did not feel she received special treatment from Mogler. Mogler was therefore able to question RL on facts relevant to whether he was in a position of authority over RL. The district court did not abuse its discretion by sustaining the state’s objections.

y

In reviewing a claim of prose-cutorial misconduct, we first examine the challenged conduct to determine whether any error occurred. State v. Ford, 539 N.W.2d 214, 228 (Minn.1995). If error is established, we then consider whether any misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial. State v. Pendleton, 706 N.W.2d 500, 509 (Minn.2005). We review improper prosecutorial statements under a harmless-error standard. Id.

Mogler asserts that the county attorney committed prosecutorial misconduct in closing argument by saying that a police officer is always in a position of authority. We first note that Mogler did not object to the statements that he now contests. Although Mogler made a pretrial motion to preclude the state from arguing that a police officer is always in a position of authority, and the court denied it, he did not renew his objection during the closing argument to provide the court an opportunity to cure any erroneous statements. When a party has failed to object, we may review the claim depending on the gravity of the error. See State v. Powers, 654 N.W.2d 667, 678 (Minn.2003) (holding that defendant forfeits right to have issue considered on appeal when he fails to object to misconduct at trial). We will not grant a new trial if the misconduct is harmless beyond a reasonable doubt and the verdict is “surely unattributable to the error.” State v. Bradford, 618 N.W.2d 782, 798, 800 (Minn.2000) (quotation omitted).

The prosecutor’s statements do not constitute prosecutorial misconduct. Taken as a whole, the prosecutor’s closing argument indicates that he advocated the state’s view that Mogler, as a police officer, was in a position of authority, not that settled law establishes that a police officer is always in a position of authority. See State v. Walsh, 495 N.W.2d 602, 607 (Minn.1993) (emphasizing that closing arguments should be reviewed “as a whole, rather than just selective phrases or remarks that may be taken out of context or given undue prominence”). The prosecutor properly based his arguments on facts specific to the case and the role of police officers in general. See State v. Young, 710 N.W.2d 272, 281 (Minn.2006) (stating that closing argument must be based on evidence or reasonable inferences from the evidence, but need not be colorless).

VI

District courts have considerable latitude in selecting the language for jury instructions. State v. Baird, 654 N.W.2d 105, 113 (Minn.2002). Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn.1988). We review the selection of jury instructions for an abuse of discretion and focus on whether the refusal to give a requested instruction resulted in error. State v. Kuhnau, 622 N.W.2d 552, 555 (Minn.2001); State v. Cole, 542 N.W.2d 43, 50 (Minn.1996).

The district court instructed the jury by reading Minn.Stat. § 609.344, subd. 1(e), and then stating each element of third-degree criminal sexual conduct. The instructions included the definition of “position of authority” in Minn.Stat. § 609.341, subd. 10, but, over Mogler’s objection, excluded the sentence, “For the purposes of subdivision 11 [of section 609.341], ‘position of authority’ includes a psychotherapist.” We discern no error in omitting the requested instruction. Subdivision 11 applies only to second- and fourth-degree criminal sexual conduct, not to Mogler’s charge of third-degree criminal sexual conduct. Consequently, the provision was not relevant to Mogler’s charge, and the district court did not abuse its discretion by declining to include it in the instruction.

VII

In considering a claim of insufficient evidence, we carefully examine the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to support the jury’s verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). Mogler argues that, even if Minn.Stat. § 609.344, subd. 1(e), is not unconstitutionally vague, the evidence is insufficient to support the jury’s finding that Mogler was in a position of authority over RL.

A review of the recoi-d establishes that the evidence is sufficient to support the jury’s verdict. Mogler met RL through his employment as a police officer assigned to perfoxm community policing. Mogler developed his relationship with RL by letting her ride in his squad car. Mo-gler was on duty and in uniform during both incidents of sexual intercourse. The first incident took place in a conference room at the police station. Although RL testified that she acted voluntarily in her relationship with Mogler, consent is not a defense to third-degree criminal sexual conduct. Minn.Stat. § 609.344, subd. 1(e). The jui-y could reasonably conclude that, for purposes of the third-degree criminal sexual-conduct prohibition, Mogler was in a position of authority over RL.

VIII

The district court must order the presumptive sentence provided in the sentencing guidelines unless the case involves “substantial and compelling circumstances” to warrant a downward departure. State v. Kindem, 313 N.W.2d 6, 7 (Minn.1981). The court cannot depart from the sentencing guidelines unless aggravating or mitigating factors are present. State v. Spain, 590 N.W.2d 85, 88 (Minn.1999). Only in a rare case will an appellate court reverse a district court’s imposition of the presumptive sentence. Kindem, 313 N.W.2d at 7.

The district court did not abuse its discretion in sentencing Mogler. The court imposed the presumptive sentences of eighteen and twenty-three months on the two counts. Mogler correctly notes that the court-imposed fine exceeded the presentencing investigation’s recommendation for a $1,200 fine. But the report also recommended up to fifteen years’ probation, and, although the court imposed a higher fine, the court ordered only five years of probation. Further, the sentence is not unduly harsh because the fine is within the prescribed statutory range, and the court was required to impose jail time as a condition of probation. See Minn. Stat. § 609.344, subds. 2-3 (2002) (authorizing fine up to $30,000 for third-degree criminal sexual conduct and requiring time in jail or workhouse if sentence is stayed).

DECISION

“Position of authority,” as defined by Minn.Stat. § 609.341, subd. 10 (2002), and incorporated into Minn.Stat. § 609.344, subd. 1(e), is not unconstitutionally vague. The evidence is sufficient to support the jury’s determination that Mogler was in a position of authority; the district court did not abuse its discretion in making its evi-dentiary rulings, denying Mogler’s motion for change of venue, choosing the jury-instructions, or sentencing Mogler; and Mogler’s claim of prosecutorial misconduct is unsupported by the record.

Affirmed.


source: Caselaw Access Project

author: ROSS, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Jeffrey ULMER, Appellant.
    No. A05-1148.
    Court of Appeals of Minnesota.
    Aug. 8, 2006.

      Mike Hatch, Attorney General, St. Paul, MN; and Raymond F. Schmitz, Olmsted County Attorney, Jeffrey D. Hill, Assistant County Attorney, Rochester, MN, for respondent.
    Zachary C. Bauer, Assistant Public Defender, Third Judicial District, Rochester, MN, for appellant.
    Considered and decided by WRIGHT, Presiding Judge; SHUMAKER, Judge; and ROSS, Judge.
   OPINION

ROSS, Judge.

This case involves disturbing behavior— an adult stranger’s peering over a urinal partition to watch a seven-year-old boy urinate. In this appeal from a conviction of interference with privacy, appellant Jeffrey Ulmer argues that the district court erred by ruling that his conduct violated Minnesota’s Interference with Privacy statute. Because we conclude that a person has an expectation of privacy when using a partitioned urinal in a public restroom and that the space above the partition constitutes an aperture within the meaning of the statute, we affirm Ulmer’s conviction for interference with privacy.

FACTS

On December 22, 2003, two Wal-Mart employees received a complaint that a man later identified as Jeffrey Ulmer was watching an unattended seven-year-old boy in the vicinity of the men’s public restroom. One of the employees watched Ulmer follow the boy into the restroom, and then to the urinals. Ulmer and the boy each stood facing a urinal, separated by a partition. The boy began to urinate, and Ulmer leaned over the partition and watched. Ulmer’s hands were in his pockets, and the employees did not see him use the urinal for urination.

One employee notified a police officer, who stopped and questioned Ulmer in the parking lot. The state later charged Ul-mer with gross-misdemeanor interference with privacy, in violation of Minn.Stat. § 609.746, subd. 1(c), (e)(2) (2002).

Ulmer filed a motion to dismiss the complaint for lack of probable cause. He argued that his conduct does not violate the Interference with Privacy statute because the boy did not have an expectation of privacy in the public restroom and because he did not view the boy through a window or aperture as prohibited by the statute. The district court denied his motion. Ul-mer waived his right to a jury trial and agreed with the state to submit the case to the district court on stipulated facts. The state amended the charge to misdemeanor interference with privacy, and the district court found Ulmer guilty. The district court stayed the imposition of a sentence for one year and placed Ulmer on probation.

ISSUE

Did the district court err by failing to dismiss the complaint for lack of probable cause?

ANALYSIS

Ulmer challenges the district court’s denial of his motion to dismiss for lack of probable cause. Ulmer does not dispute the facts as found by the district court and argues only that his conduct does not fall within the scope of Minnesota’s Interference with Privacy statute. Whether a statute has been properly applied is a question of law to be reviewed de novo. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996).

Ulmer challenges the district court’s application of the statutory prohibition against interference with privacy. Under Minnesota law,

A person is guilty of a misdemeanor who
(1) surreptitiously gazes, stares, or peeps in the window or other aperture of a sleeping room in a hotel, as defined in section 327.70 subdivision 3, a tanning booth, or other place where a reasonable person would have an expectation of privacy and has exposed or is likely to expose their intimate parts, as defined in section 609.341, subdivision 5, or the clothing covering the immediate area of the intimate parts; and
(2) does so with intent to intrude upon or interfere with the privacy of the occupant

Minn.Stat. § 609.746, subd. 1(c) (2002).

Ulmer contends that a person does not have a reasonable expectation of privacy in a public restroom. We reject this argument as baseless. Ulmer maintains that section 609.746 is intended to “protect a person within a house or place of dwelling” and that a person does not enjoy the type of privacy protected by the statute while in a public restroom. But Ulmer contradicts his argument, conceding that a person in a public restroom using a toilet fully enclosed by partitions and a door would have an expectation of privacy.

Relying on State v. Bryant, 287 Minn. 205, 177 N.W.2d 800 (1970), the state contends that a reasonable person using a public restroom can “expect that degree of privacy that the design [of the restroom] affords.” In Bryant, the Minnesota Supreme Court held that police surveillance of an enclosed toilet stall violated the user’s Fourth Amendment right to privacy. 287 Minn, at 209, 177 N.W.2d at 803. But the court also opined that had the door of the toilet enclosure been removed, “anyone using the facilities would have no expectation of privacy.” Id. at 211, 177 N.W.2d at 804. On this, Ulmer attempts to distinguish Bryant. We are not persuaded. Bryant’s speculation about the relationship between removing stall doors and an objective expectation of privacy is dicta. Additionally, understanding how these public facilities are commonly used resolves the suggestion posed by Bryant’s hypothetical; a doorless toilet stall would not tend to offer privacy during use, while a partitioned urinal stall would.

The design of the restroom here affords a user more than a modicum of privacy by virtue of the partitions that separate the urinals. When a person steps up to a urinal, the partitions and the user’s body create a space in which the user would quite obviously expect to be free from even incidental observation, let alone from the exploring eyes of predatory restroom stalkers. In that space shielded from the public’s view by partitions and the user’s body, we conclude that a reasonable person has an expectation of privacy. Put differently, only an unreasonable person would consider that space open to public viewing.

We next address Ulmer’s arguments that the area above the partition is not an “aperture” and that the space shielded from view by the partitions and the victim’s body is not a “place” within the meaning of the statute. The statute prohibits surreptitious gazing, staring, or peeping in a “window or other aperture of a sleeping room in a hotel ..., a tanning booth, or other place where a reasonable person would have an expectation of privacy and has exposed or is likely to expose their intimate parts.” Minn.Stat. § 609.746, subd. 1(c) (emphasis added). Ulmer contends that an “aperture” is “an opening or open space: Hole” and that a “place” is a confined or bounded area. He argues that the area above the partitioned urinal is too large to be an aperture and that a three-sided area is not bounded and cannot constitute a place. In State v. Morris, we addressed the similar arguments of a man caught using a hidden camera to videotape up the skirts of female department-store patrons. Id. 644 N.W.2d 114, 117 (Minn.App.2002), review denied (Minn. July 16, 2002). We held that the area under a skirt is a “place” within the meaning of section 609.746 because it has a defined spatial location that is associated with a person’s intimate parts. Here, a space is created by the partitions and the user’s body, and that space is similarly associated with a person’s intimate parts. It also follows from our conclusion regarding a reasonable person’s expectation of privacy in the space shielded from view by partitions and the person’s body that that space is a “place” within the meaning of the statute. We find no merit in Ulmer’s contentions otherwise.

We also are unpersuaded by Ul-mer’s argument that the area above the partition is too large to constitute an aperture within the meaning of the statute. Nothing in the statute or caselaw limits the size of an “aperture.” And like a “window,” which can also be either large or small, an “aperture” is simply a space through which an offender obtains a view into that place where a reasonable person has an expectation of privacy. See Minn. Stat. § 609.746, subd. 1(c)(1). Here, the space above the partitioned urinal through which Ulmer’s craning and intrusive viewing encroached into the boy’s privacy is an aperture within the meaning of the section 609.746.

DECISION

. Because a reasonable person when using a public restroom has an expectation of privacy in that place shielded from public view by partitions and his body, and because the space above each partitioned urinal in a public restroom constitutes an aperture under section 609.746, we conclude that the district court did not err by denying Ulmer’s motion to dismiss for lack of probable cause.

Affirmed.


author: HUDSON, Judge.

text:
    STATE of Minnesota, Respondent, v. Brian David RITTER, Appellant.
    No. A05-770.
    Court of Appeals of Minnesota.
    Aug. 8, 2006.

      Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, St. Paul, MN; and Conrad Freeberg, Morrison County Attorney, Little Falls, MN, for respondent.
    John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by HUDSON, Presiding Judge; KALITOWSKI, Judge; and PARKER, Judge.

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

   OPINION

HUDSON, Judge.

In this appeal from conviction of and sentence for fifth-degree controlled substance offense, appellant argues that the district court abused its discretion by preventing appellant from asking in voir dire whether prospective jurors would give more credence to law enforcement witnesses simply because they were law enforcement personnel. Appellant also argues that the district court erred in denying his request for a sentencing hearing at which he could argue for a downward departure. Because we conclude that the district court’s refusal to allow questioning as to pro-law-enforcement bias during voir dire impermissibly deprived appellant of his right to an impartial jury, we do not reach the sentencing issue, and we reverse and remand for a new trial.

FACTS

On the evening of June 18, 2004, appellant Brian Ritter was arrested for the theft of a motor vehicle. During the booking process Ritter asked to use the bathroom; an officer directed him to an empty cell which contained a toilet. Shortly after Ritter left the cell, officers discovered contraband in the cell, including a metal pipe and plastic wrap which had residue on them. The residue was later determined to be cocaine. Ritter was charged with fifth-degree possession of a controlled substance. Ritter pleaded not guilty and exercised his right to a jury trial.

During an en bloc voir dire of the venire, the district court questioned some prospective jurors about their contacts with law enforcement and whether such contacts would prevent them from being fair and impartial. Six prospective jurors had some connection with law enforcement personnel. One prospective juror, whose spouse was in law enforcement, was stricken for cause when she stated that she would give more credence to a law enforcement officer’s testimony than to a person from the general public. Four of the other five prospective jurors who knew someone in law enforcement said that their associations with law enforcement would not prevent them from being fair and impartial. One prospective juror who had a law enforcement connection was not directly asked this question.

After the defense attorney asked one of the six prospective jurors who had a law enforcement connection specifically whether she could be impartial, the following occurred:

[DEFENSE ATTORNEY]: Okay. Is there anyone here who believes that they would give more credence or more belief—
THE COURT: [ ] — will the lawyers come to the bench, will you?
(The following proceedings were had at the bench by the Court and counsel out of the hearing of the jurors:)
THE COURT: That’s actually an objectionable question to ask and there’s cases based on it. You can’t be asking whether, in particular, defense lawyers say, as an officer, do you think the officer will be more credible or believable. You can’t ask that.
[DEFENSE ATTORNEY]: Well, I believe it’s up to the State to object to the question, rather than—
THE COURT: I know it is but I can object to — the Court in fact— [DEFENSE ATTORNEY]: Well— [PROSECUTOR]: As I understand it, would it be permissible, “are you more likely to believe a police officer than not,” getting to credence and—
THE COURT: I don’t think he can ask any of that. Actually it’s always asked, but I’m starting to tighten up on that. Plus, if I cover the subject matter, don’t—
[DEFENSE ATTORNEY]: Is the Court instructing me not to ask that question?
THE COURT: Yeah, if one witness is more believable. I mean, the State’s— well, do you believe the defendant more than the cops. I mean, their credibility, it will speak for itself on the stand. You guys will cross-examine. That’s it. [PROSECUTOR]: (Nods head.)
THE COURT: Whether they’re going to believe a cop or not, it’s going to be through their testimony and cross-examining. It’s an objectionable question to ask and I’m just telling you not to ask it. Okay?
[DEFENSE ATTORNEY]: Okay.

The defense attorney promptly recorded his objection and later confirmed that it was preserved for appeal. Two of the jurors who knew law enforcement personnel were later excused through the exercise of peremptory challenges. All of the state’s witnesses were law enforcement personnel. During trial, Ritter testified on his own behalf stating that the contraband in the cell was not his. The jury found appellant guilty.

When the jury was excused, the district court proceeded immediately with sentencing. Appellant requested a pre-sentence investigation and a later sentencing date so that he might seek a downward disposi-tional departure, if appropriate. Based on the pre-trial worksheet, the district court denied appellant’s request and immediately sentenced appellant to the presumptive sentence of 24 months. This appeal from the judgment of conviction follows.

ISSUE

Did the district court deprive appellant of his constitutional right to an impartial jury when it prohibited him from asking prospective jurors during voir dire whether they were inclined to give more credence to the testimony of law enforcement personnel than to the testimony of lay witnesses?

ANALYSIS

Appellant argues that the district court violated his constitutional right to an impartial jury when it prohibited him from asking prospective jurors during voir dire whether they were inclined to give more credence to the testimony of law enforcement personnel than to the testimony of lay witnesses.

The right to a trial by an impartial jury is a basic guarantee of both the United States and the Minnesota Constitutions. U.S. Const, amend. VI; Minn. Const, art. 1, § 6. This right to an impartial jury “includes the ability to conduct ‘an adequate voir dire to identify unqualified jurors.’ ” State v. Greer, 635 N.W.2d 82, 87 (Minn.2001) (quoting Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 2230,119 L.Ed.2d 492 (1992)). A voir dire examination assists the parties in selecting an impartial jury by giving the parties an opportunity to discover “bases for challenge for cause” and to gain “knowledge to enable an informed exercise of peremptory challenges.” Minn. R.Crim. P. 26.02, subd. 4(1). Under the rules, a prospective juror may be challenged for cause on “[t]he existence of a state of mind on the part of the juror, in reference to the case or to either party, which satisfies the court that the juror cannot try the case impartially and without prejudice to the substantial rights of the party challenging.” Minn. R.Crim. P. 26.02, subd. 5(1). “Before exercising challenges, either party may make a reasonable inquiry of a prospective juror or jurors in reference to their qualifications to sit as jurors in the case.” Minn. R.Crim. P. 26.02, subd. 4(1) (emphasis added). The rules of criminal procedure provide the trial court with discretion to limit improper questions during voir dire. Minn. R.Crim. P. 26.02. A district court’s decisions relating to the conduct of voir dire “will not be overturned absent an abuse of discretion.” Greer, 635 N.W.2d at 87. But “it is an abuse of discretion for the [district] court to frustrate the purposes of voir dire by preventing discovery of bases for challenge or inhibiting a defendant’s ability to make an informed exercise of peremptory challenges.” Id.

In State v. Logan, 535 N.W.2d 320, 324 (Minn.1995), the Minnesota Supreme Court found reversible error where the district court denied the defendant’s motion to strike for cause a juror who stated during voir dire that he was inclined to give greater credence to police officer testimony than to lay witness testimony. Significantly, the prospective juror did not state unequivocally that he or she would follow the trial court’s instructions and fairly evaluate the evidence. Id. at 323-24. On that record, the supreme court held a bias in favor of the police to be a sufficient basis for striking a juror for cause under Minn. R.Crim. P. 26.02, subd. 5. Id.

Here, the district court determined that appellant could not ask a general question regarding whether prospective jurors “would give more credence or more belief’ to the testimony of a law enforcement officer simply because he or she was an officer. While acknowledging that the question is “always asked,” the district court stated that “I’m starting to tighten up on that.” It is unclear whether any of the seated jurors held a bias in favor of law enforcement because the district court prohibited appellant from asking the very question that revealed the juror’s bias in Logan. See id. at 322-23. Thus, the district court restricted appellant’s ability to determine whether any prospective jurors — other than the six who were personally acquainted with law enforcement personnel — were biased in favor of law enforcement personnel, which in turn prevented appellant from discovering a significant basis for challenge. Under Minn. R.Crim. P. 26.02, subd. 4, the district court has discretion to limit unreasonable inquiry into a juror’s qualifications. But when the state’s case rests solely on the testimony of law enforcement personnel, an inquiry into a prospective juror’s bias toward law enforcement which could impinge on that juror’s ability to be impartial is not an unreasonable inquiry.

In support of our holding, we note that the question “Would you tend to believe the testimony of a policeman, because he is a policeman, more than that of another witness?” is one of several questions recommended to defense counsel in 8 Henry W. McCarr & Jack S. Nordby, Minnesota Practice, § 27.4(B) (2001). In addition, there is a wealth of Minnesota case law regarding the issue of inquiry into a prospective juror’s bias toward law enforcement. See, e.g., Greer, 635 N.W.2d at 88-89 (noting that “counsel had an opportunity to and, in fact, did inquire extensively as to the state of mind of each of ... six prospective jurors on the issue of whether they would find [law enforcement] officers more credible than other witnesses”). The fact that such questioning has traditionally been allowed further supports our conclusion that this line of inquiry serves the basic purpose of voir dire — to elicit information which would be a basis for a challenge for cause or which would provide knowledge to enable an informed exercise of peremptory challenges.

Finally, neither the district court nor the state cited any authority indicating that a general question intended to discover such bias in prospective jurors is improper or unreasonable. Thus, we conclude that the district court abused its discretion by not allowing appellant to inquire into the potential pro-law enforcement biases of prospective jurors.

This leaves the question of whether appellant is automatically entitled to a new trial or whether the error is subject to harmless-error analysis. Logan, 535 N.W.2d at 324. “A defendant is not automatically entitled to a new trial when his constitutional rights are violated.” State v. King, 622 N.W.2d 800, 809 (Minn.2001). Generally, in an appeal based on juror bias, an appellant must show that actual prejudice occurred. See State v. Stufflebean, 329 N.W.2d 314, 317 (Minn.1983) (requiring a showing of actual prejudice); but see Logan, 535 N.W.2d at 324 (noting that improper juror selection criteria or the seating of a biased juror undermines the process and is not amenable to harmless-error review). The state argues that appellant was not prejudiced because the court took other measures to ensure that the jurors were impartial, such as explaining the importance of being fair and impartial and informing the jurors on the defendant’s presumption of innocence and the state’s burden of proof.

General voir dire questions and jury instructions on impartiality, following the court’s instructions, and the presumption of innocence might overcome some deficiencies in voir dire questions. See State v. Owens, 373 N.W.2d 313, 315 (Minn.1985) (allowing such instructions to overcome certain limitations where the limitations did not prevent the defendant from discovering bases for a challenge). But when, as here, the only witnesses were the appellant and four law enforcement personnel, a limitation on discovery of possible bias toward law enforcement goes to the very heart of the jurors’ ability to impartially weigh the evidence presented. See Logan, 535 N.W.2d at 325 (stating that “a defendant cannot receive a fair trial at the hands of jurors who [are] inclined to give unqualified credence to law enforcement officer[s] simply because [they are] officer[s]”) (quotation omitted). This case is distinguished from Logan because in Logan, the record showed actual prejudice and was thus not amenable to harmless-error review. See Logan, 535 N.W.2d at 324. Here, it is impossible to determine whether actual prejudice occurred. It is unknown whether a prospective juror was biased toward testimony of law enforcement personnel because the defense attorney was expressly prohibited from asking that question. We acknowledge that there may be circumstances when the district court’s questioning of prospective jurors regarding potential pro-law enforcement bias is sufficient to ensure the jury’s impartiality. We merely conclude today that when the only witnesses against the defendant are law enforcement personnel, a defendant is presumptively severely prejudiced by not being allowed to inquire specifically into the jurors’ potential pro-law enforcement bias. Accordingly, the district court abused its discretion when it prohibited appellant from inquiring about the jurors’ possible pro-law enforcement biases during voir dire, and appellant is therefore entitled to a new trial.

Because we are reversing and remanding for a new trial, we do not reach appellant’s second issue regarding the district court’s denial of his request for a sentencing hearing. We do note, however, that upon request, the district court is required to provide a defendant with both a sentencing hearing and adequate time to prepare for such a hearing. Minn.Stat. § 244.10, subd. 1 (2002).

DECISION

Because the district court deprived appellant of his constitutional right to an impartial jury when it prohibited him from asking prospective jurors during voir dire whether they were inclined to give more credence to the testimony of law enforcement personnel than to the testimony of lay witnesses, we reverse and remand for a new trial.

Reversed and remanded.

      . The district court stated “That's actually an objectionable question to ask and there’s cases based on it.” In its brief, the state candidly notes that "[i]t is unclear what cases the [district] court was referring to.”


author: PETERSON, Judge.

text:
    Susan LEE, Appellant, v. FRESENIUS MEDICAL CARE, INC., Respondent.
    No. A05-1887.
    Court of Appeals of Minnesota.
    Aug. 8, 2006.

      Don L. Bye, Duluth, MN, for appellant.
    Sandro M. Garofalo, Marko Mrkonich, Littler Mendolson, P.C., Minneapolis, MN, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge; PETERSON, Judge; and MINGE, Judge.
   OPINION

PETERSON, Judge.

This appeal is from a summary judgment that appellant Susan Lee is not entitled to be paid for unused vacation time that she had earned at the time she was discharged because Lee’s employment eon-tract included a provision that an employee who is terminated for misconduct is not eligible for payment of earned but unused vacation time, and Lee was discharged for misconduct. We reverse and remand.

FACTS

Appellant Susan Lee began working at the Miller-Dwan dialysis center in Duluth in 1991 and became an employee of respondent Fresenius Medical Care, Inc. in August 2000 when Miller-Dwan sold its dialysis center to Fresenius. On August 31, 2000, Lee signed an acknowledgement stating that she received a copy of the Fresenius employee handbook. The handbook states the company policy that an employee who leaves employment is eligible to be paid for earned but unused vacation time, if the employee gives proper notice. The handbook also states, “In addition, if your employment is terminated for misconduct, you will not be eligible for ... payment of earned but unused [paid time off] unless required by state law.”

In 2002, Fresenius terminated Lee’s employment. Fresenius paid Lee her accumulated wages, but it did not pay her for earned but unused vacation time. Lee brought an action in conciliation court seeking compensation for 181.86 hours of vacation time that she claimed she had earned but had not used when Fresenius terminated her employment. The conciliation court awarded Lee vacation pay, and Fresenius removed the case to the district court. Fresenius moved for summary judgment, and the district court determined that under her employment contract, Lee was not entitled to be paid for her earned but unused vacation time. Based on this determination, the district court granted the motion for summary judgment. This appeal followed.

ISSUE

Is Lee entitled to be paid for vacation time that she had earned and had not used at the time she was discharged?

ANALYSIS

On appeal from a summary judgment, we determine whether there are any genuine issues of material fact and whether the district court erred in its application of law. Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 672 (Minn.2001). We view the evidence “in the light most favorable to the party against whom summary judgment was granted and any doubts about the existence of a material fact are resolved in that party’s favor.” Id. Application of a statute to the undisputed facts of a case involves a question of law, and the district court’s decision is not binding on this court. O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.1996).

In Minnesota, an employer who discharges an employee is required by statute to pay the discharged employee any wages that the employee has earned. The statute provides:

When any employer employing labor within this state discharges an employee, the wages or commissions actually earned and unpaid at the time of the discharge are immediately due and payable upon demand of the employee. If the employee’s earned wages and commissions are not paid within 24 hours after demand, whether the employment was by the day, hour, week, month, or piece or by commissions, the employer is in default. The discharged employee may charge and collect the amount of the employee’s average daily earnings at the rate agreed upon in the contract of employment, for each day up to 15 days, that the employer is in default, until full payment or other settlement, satisfactory to the discharged employee, is made.

Minn.Stat. § 181.13(a) (2004).

The statute does not define “wages.” But this court applied the statute in an action seeking compensation for accrued vacation time brought by employees whose employer closed its Minnesota operations and terminated their employment. Brown v. Tonka Corp., 519 N.W.2d 474, 475 (Minn.App.1994). In Brown, this court recognized that an employer’s liability for employees’ vacation pay is wholly contractual and determined that having received the benefit of the discharged employees’ work product, the employer was obligated to pay the employees for the accrued vacation time that they had accumulated while working for the employer. Id. at 477. Based on this court’s reasoning in Brown, we conclude that when used in Minn.Stat. § 181.13(a), the term “wages” includes compensation for accrued vacation time accumulated under the terms of an employment contract and that under Minn.Stat. § 181.13(a), compensation for accrued vacation time actually earned and unpaid at the time an employee is discharged must be paid in the same manner as other wages and commissions.

The district court determined that when an employer discharges an employee, the employer is obligated under Minn. Stat. § 181.13(a) to pay the employee for accrued vacation time. But the district court determined further that Fresenius was not obligated to pay Lee for accrued vacation time because an employer’s liability for an employee’s vacation pay is wholly contractual, and under the policy stated in the Fresenius employee handbook, an employee who is terminated for misconduct is not eligible for payment of earned but unused vacation time. The district court determined that the policy stated in the employee handbook was a part of the employment contract between Fresenius and Lee, and, therefore, because Lee was discharged for misconduct, she was not entitled to be paid for her unused vacation time under the terms of her contract.

Although it is generally true that an employer’s liability for an employee’s vacation pay is wholly contractual, the district court’s conclusion that Lee was not entitled to be paid for her unused vacation time under the terms of her contract fails to recognize the principle that “[a] party cannot provide by contract what is prohibited by statute.” Winnetka Partners Ltd. P’ship v. County of Hennepin, 538 N.W.2d 912, 914 (Minn.1995). In Winnetka Partners, the owner of an apartment complex, in exchange for tax-increment financing, entered into a minimum-assessment agreement with a local housing and redevelopment authority (HRA). Id. at 913. The agreement set the minimum market value of the apartment complex at $6,000,000 and provided that this amount would increase by a specified annual percentage rate. Id. The county assessor certified this value, as required by state statute. Id. Several years later, the owner and the HRA entered into an addendum to the original minimum-assessment agreement, which reduced the minimum market value of the property and stated in paragraph 2 that “ ‘[tjhis agreement shall be effective as of January 1, 1991 for taxes payable calendar year 1992 and thereafter.’ ” Id. (alteration in original). The county assessor signed a certification statement for the addendum on June 1, 1993, which stated, “ ‘[n]otwithstanding the language contained in paragraph 2 of the Addendum to Assessment Agreement, this Addendum shall be effective as of the date this Certificate is signed by the County Assessor for the purposes of determining the subject property’s fair market value and corresponding real estate taxes.’ ” Id. (alteration in original).

Before the assessor signed the addendum certification, the property owner filed a petition in tax court, seeking a reduction in the January 2, 1992 assessment for the property. Id. After the assessor signed the addendum certification, the property owner filed a petition in district court, seeking an alternative writ of mandamus to compel the assessor to certify the addendum for years before 1993. Id. at 913— 14. The county filed a request to quash the writ, and the district court transferred the mandamus action to the tax court to be combined with the tax petition that the property owner previously filed. Id. at 914. The tax court issued an order quashing the alternative writ of mandamus and granting the assessor and the county summary judgment. Id.

The property owner appealed, and the supreme court affirmed. Id. at 914-15. The supreme court noted that for the years retroactively included in the addendum, the property owner had a minimum-assessment agreement in effect. Id. at 914. The supreme court then quoted a statute that governed assessment agreements, which stated:

“The owner of the property may seek, through the exercise of administrative and legal remedies, a reduction in market value for property tax purposes, but no city assessor, county assessor, county auditor, board of review, board of equalization, commissioner of revenue, or court of this state shall grant a reduction of the market value beloiu the minimum market value contained in the assessment agreement during the term of the agreement filed of record.... ”

Id. (quoting Minn.Stat. § 469.177, subd. 8 (1992)). The supreme court concluded that if the provision in the addendum stating that it was to be effective as of January 1, 1991, for taxes payable in calendar year 1992 and thereafter were given effect, the addendum would violate Minn.Stat. § 469.177, subd. 8, and, therefore, the ret-roactivity provision of the addendum could be given no legal effect. Id. at 914-15.

Applying the supreme court’s reasoning in Winnetka Partners to the facts of this case, we conclude that the provision in Lee’s contract that an employee who is terminated for misconduct is not eligible for payment of earned but unused vacation time can be given no legal effect. Under Minn.Stat. § 181.13(a), when an employer discharges an employee, any compensation for accrued vacation time that the employee has earned but has not been paid at the time of the discharge is immediately due and payable upon demand of the employee. The statute requires the employer to pay the employee for the accrued vacation time. However, under Lee’s contract, if she is discharged for misconduct, Freseni-us is not required to pay her for earned but unused vacation time. Minn.Stat. § 181.13(a) does not contain an exception for an employee who is discharged for misconduct, and the effect of the contract provision is to allow what the statute prohibits. Therefore, the contract provision violates Minn.Stat. § 181.13(a) and can be given no legal effect.

DECISION

The provision in Lee’s contract that makes an employee who is terminated for misconduct ineligible for payment for earned but unused vacation time allows Fresenius to avoid paying a discharged employee for accrued vacation time that is earned and unpaid at the time of the discharge. Therefore, the contract provision allows what Minn.Stat. § 181.13(a) prohibits, and the district court erred in giving the provision legal effect.

Reversed and remanded.

      . The handbook refers to vacation as "Paid Time Off,” but Fresenius states in its brief that it uses the terms “vacation” and "paid time off” interchangeably.

      . The district court found that Lee did not dispute that she was terminated for misconduct. Lee argues on appeal that the reason why she was terminated is disputed. Under our analysis, it is not necessary to determine whether Lee was terminated for misconduct.

      . Lee argues that she is entitled to a trial to determine whether the provisions in the employee handbook make her ineligible for payment for earned but unused vacation. But it is not necessary to conduct a trial for the purpose of interpreting the provisions in the employee handbook because if the handbook does not make Lee ineligible for payment for earned but unused vacation, she is entitled to payment, and if a provision in the handbook makes her ineligible for payment, the provision has no legal effect, and Lee is entitled to payment in spite of the provision.


author: DIETZEN, Judge.

text:
    CARGILL INCORPORATED, Appellant, v. JORGENSON FARMS, Respondent.
    No. A05-2287.
    Court of Appeals of Minnesota.
    Aug. 8, 2006.

      Bruce Jones, Man A. Thoen, Faegre & Benson, LLP, Minneapolis, MN, for appellant.
    Dustan J. Cross, Ryan R. Dreyer, Gisla-son & Hunter, LLP, New Ulm, MN, for respondent.
    Considered and decided by STONEBURNER, Presiding Judge; TOUSSAINT, Chief Judge; and DIETZEN, Judge.
   OPINION

DIETZEN, Judge.

Appellant Cargill Incorporated appeals from summary judgment dismissing its breach-of-contract claim against respondent Jorgenson Farms, arguing that it was denied the opportunity to conduct necessary discovery, that genuine issues of material fact regarding the formation of a contract between the parties preclude summary judgment, and that the district court erred by denying its motion to compel arbitration and by granting respondent’s motion for attorney fees under Minn.Stat. § 549.211 (2004). We affirm.

FACTS

Appellant Cargill Incorporated is an international provider of food, agricultural products, and risk-management products and services. Respondent Jorgenson Farms is in the business of raising soybeans and corn for market.

Cargill commenced this action against Jorgenson Farms alleging, inter alia, that Jorgenson Farms breached its agreement to sell Cargill 80,000 bushels of corn for delivery in December 2003. Jorgenson Farms denied the existence of the contract and moved for summary judgment. Jor-genson Farms’s summary-judgment motion was supported by the affidavits of Ben Presthus, a Cargill employee during the relevant period, and James Jorgenson, co-owner of Jorgenson Farms.

Presthus stated that he was the exclusive Cargill contact with Jorgenson Farms and had the authority to enter into contracts with it. His normal practice was to maintain a diary in which he kept notes of every contract entered into on Cargill’s behalf and then to personally contact Car-gill’s accounting department for entry of those contracts into Cargill’s client-records system. Thereafter, Cargill would send out written confirmation of the contract to the client for execution and return to Car-gill. Presthus followed this procedure with Jorgenson Farms throughout the course of their dealings. Presthus confirmed that on July 17, 2003, he negotiated two contracts with Jorgenson Farms for 100,000 and 135,000 bushels of corn respectively, which Jorgenson Farms performed.

Presthus specifically denied that Jorgen-son Farms entered into a contract with Cargill for the delivery of 80,000 bushels of corn. He stated:

At no time did Jorgenson Farms ever enter, or intend to enter, into contract MILO-AH 27985 in or about July of 2003, either verbally or in writing or otherwise. In fact, I specifically told my supervisor, Mr. Brad Morrison, that the purported contract never existed, and I have no entry in my daily journal that such contract was created. My daily records only show the 100,000 and 135,-000 bushel contract that was performed by Jorgenson Farms.

Presthus concluded that the confirmation of a contract for 80,000 bushels of corn, Contract #27985, was a clerical error. Presthus stated that those present at a meeting he attended with Brad Morrison of Cargill and James Jorgenson of Jorgen-son Farms to discuss the disputed contract agreed that Contract #27985 “was never entered into, and that Mr. Morrison would begin the process of deleting the contract from Cargill’s accounting system.” Pres-thus attended a second meeting in January 2004, at which he “reiterated to Mr. Morrison that Jorgenson Farms in no way, verbally or in writing or otherwise, approved the ostensible contract for 80,000 bushels of corn.”

In his affidavit, James Jorgenson stated that he is a farmer and that he has entered into and performed numerous contracts for the sale of corn and soybeans to Cargill. He stated that he “did not enter into a contract for the sale of 80,000 bushels of corn to Cargill on or about July 17, 2003, either verbally, in writing or otherwise.” He also stated that when he was notified of the existence of the contract, he “was partially stunned, because [he] did not enter into the contract.” He acknowledged that he received a packet of information in October 2003, which included Contract #27985; but he noted that he did not notice the packet until sometime later because October is “harvest time for us and I was busy in the fields.” In December 2003, he met with two Cargill employees, Presthus and Morrison, to discuss the “purported contract.” He stated that everyone agreed that the contract never existed. He also stated that the “underlying contract was never delivered to [him] by Cargill.” James Jorgenson also 'attended a January 2004 meeting with the same individuals, at which it was confirmed by all present that no agreement was made for the sale of 80,000 bushels of corn to Cargill, but that Morrison “informed me that his superiors at Cargill would not allow for the deletion of the invalid contract.”

Cargill submitted the affidavits of Kurt Peterson and Brad Morrison in opposition to the motion for summary judgment. Peterson stated that he is the farm service group manager for Cargill and that he attended a meeting at Jorgenson Farms with Morrison in April 2004 to discuss the disputed 80,000-bushel corn contract. At the meeting, James Jorgenson admitted that he received an e-mail from Cargill in October 2003, notifying him of put options allowing the future sale of corn at a specific price, including the 80,000-bushel corn contract. James Jorgenson also admitted that Jorgenson Farms did not respond to the put options. Attached to his affidavit was a copy of Morrison’s notes of meetings with Jorgenson Farms, the dates of which are not consistent with the meeting dates identified in Presthus’s affidavit.

Brad Morrison, who was employed by Cargill during the relevant time period, stated that he attended a meeting regarding the disputed contract, at which the Jorgensons referred to the contract by its number, even though they claimed to have never seen the contract. He denied agreeing at the meeting that the contract did not exist or that he would begin the process of deleting it from Cargill’s accounting system. Because the disputed contract was not a “run-of-the-mill” contract, he disputed Presthus’s statement that the contract was created by clerical error.

In September 2004, Cargill sent a letter to the National Grain and Feed Association (NGFA), requesting arbitration of the disputed 80,000-bushel corn contract. When notified of the request by the NGFA, Jorgenson Farms replied, denying the existence of the contract that contained an agreement to arbitrate.

In January 2005, Cargill served Jorgen-son Farms with its summons and complaint seeking to compel arbitration or, in the alternative, seeking damages. But Cargill delayed filing its summons and complaint with the district court. In March 2005, Jorgenson Farms responded by letter denying the existence of the contract and indicating that it would apply for sanctions if Cargill pursued the lawsuit. In July 2005, after Cargill filed its summons and complaint with a motion to compel arbitration, Jorgenson Farms in turn served a motion for summary judgment and a motion for sanctions under Minn. Stat. § 549.211 (2004) and Minn. R. Civ. P. 11.03.

In August 2005, the district court held a hearing on all outstanding motions. During oral argument, Cargill requested that it be allowed additional time to conduct discovery before the district court ruled on respondent’s motion for summary judgment. The district court denied Cargill’s request and filed an order (1) granting Jorgenson’s motion for summary judgment, (2) denying Cargill’s motion to compel arbitration, and (3) granting Jorgen-son’s motion for sanctions in the amount of $5,000. This appeal follows from the entry of judgment.

ISSUES

I. Did the district court abuse its discretion by denying Cargill’s request for a continuance to conduct further discovery?

II. Did the district court err by determining that there was no genuine issue of material fact as to the existence of a contract for 80,000 bushels of corn?

III. Did the district court err by denying Cargill’s motion to compel arbitration?

IV. Did the district court abuse its discretion by sanctioning appellant under Minn.Stat. § 549.211?

ANALYSIS

I.

Cargill contends that the district court abused its discretion by denying Cargill’s request for a continuance to conduct discovery before ruling on Jorgenson Farms’s summary-judgment motion. The decision to grant or deny a continuance is within the district court’s sound discretion and will not be reversed absent an abuse of discretion. State v. Sanders, 598 N.W.2d 650, 654 (Minn.1999).

There is a “presumption in favor of granting continuances to allow sufficient time for discovery!?]” Rice v. Perl, 320 N.W.2d 407, 412 (Minn.1982). But

[sjhould it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present, by affidavit, facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

Minn. R. Civ. P. 56.06. When determining whether to grant a continuance, the court considers first, whether the moving party has been “diligent in obtaining or seeking discovery” and, second, whether the moving party seeks further discovery with “the good faith belief that material facts will be uncovered, or ... [is] merely engaging in a ‘fishing expedition^]’ ” Rice, 320 N.W.2d at 412.

Here, Cargill had approximately seven months to conduct discovery from the time it first served its complaint on Jorgenson Farms on January 18, 2005, until the motion hearing on August 26, 2005. See, e.g., Dunham v. Roer, 708 N.W.2d 552, 572 (Minn.App.2006) (holding that district court did not abuse its discretion by denying continuance when appellant had ten months to complete discovery on claims that were not overly complicated), review denied (Minn. Mar. 28, 2006); cf. Perl, 320 N.W.2d at 413 (holding that plaintiff was diligent in seeking discovery when defendants moved for summary judgment roughly two weeks after filing of complaint, whereupon plaintiff moved for a continuance).

During this time, Cargill failed to serve any interrogatories, requests for production of documents or admissions, or notices of depositions of parties or witnessés. Cargill had been on notice that Jorgenson Farms claimed that there was no contract to sell 80,000 bushels of corn and, therefore, no agreement to arbitrate since at least October 2004, when Jorgenson Farms sent a letter to the NFGA.

Cargill argues that it did not pursue any discovery because it desired to first resolve its arbitration request. But Cargill chose to not pursue discovery when it knew that respondent vigorously challenged the existence of the contract that contained an agreement to arbitrate. And Cargill's motion to compel arbitration ultimately depended on whether there was a valid contract. Consequently, we agree with the district court that Cargill was not diligent in seeking discovery.

II.

Cargill contends that genuine issues of material fact regarding formation of the contract preclude summary judgment. A motion for summary judgment must be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). On appeal from summary judgment, this court determines whether there are any genuine issues of material fact and whether the district court erred in applying the law. N. States Power Co. v. Minn. Metro. Council, 684 N.W.2d 485, 491 (Minn.2004). A material fact is one that will affect the outcome of the case. Zappa v. Fahey, 310 Minn. 555, 556, 245 N.W.2d 258, 259-60 (1976). We view the evidence in the light most favorable to the party against whom summary judgment was granted. Hickman v. SAFECO Ins. Co. of Am., 695 N.W.2d 365, 369 (Minn.2005). We also draw all inferences from circumstantial evidence against the party seeking summary judgment. Forsblad v. Jepson, 292 Minn. 458, 459-60, 195 N.W.2d 429, 430 (1972).

The party opposing summary judgment may not rely on “unverified and conclusory allegations, or postulated evidence that might be developed at trial, or metaphysical doubt about the facts” to establish a genuine issue of material fact. Dyrdal v. Golden Nuggets, Inc., 689 N.W.2d 779, 783 (Minn.2004). Summary judgment is appropriate as a matter of law when the record is devoid of proof on an essential element of the plaintiffs claim. Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn.1995). To survive summary judgment, a party need not show substantial evidence; it needs only to produce sufficient evidence to permit reasonable persons to draw different conclusions. Schroeder v. St. Louis County, 708 N.W.2d 497, 507 (Minn.2006).

To prevail on a breach-of-contract claim, a plaintiff must show that a contract has been formed. Indus. Rubber Applicators, Inc. v. Eaton Metal Prods. Co., 285 Minn. 511, 513, 171 N.W.2d 728, 731 (1969), overruled on other grounds by Standslast v. Reid, 304 Minn. 358, 231 N.W.2d 98 (1975). Whether a contract exists is generally a question of fact. Gresser v. Hotzler, 604 N.W.2d 379, 382 (Minn.App.2000). But if taking the record as a whole, a rational trier of fact could not find for the nonmoving party, summary judgment is appropriate. Id.

The Uniform Commercial Code provides that “[a] contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.” Minn.Stat. § 336.2-204(1) (2004). An “agreement” “means the bargain of the parties in fact, as found in their language or inferred from other circumstances, including course of performance, course of dealings, or usage of trade.... ” Minn.Stat. § 336.1-201(3) (2004). “A

‘course of dealing’ is a sequence of conduct concerning previous transactions between the parties to a particular transaction that is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct.” MinmStat. § 336.1-303(b) (2004).

Jorgenson Farms argues that the evidence is insufficient as a matter of law to show the formation of a contract. Based on the evidence before the district court, the only witnesses having direct knowledge of the existence of a contract were Ben Presthus and James Jorgenson. Both witnesses deny the existence of the disputed contract for the sale of 80,000 bushels of corn. But Cargill argues that circumstantial evidence creates genuine issues of material fact that such a contract was formed. To support the argument, Cargill relies on its internal operating procedures, including (1) the written confirmation of the contract by its representative, Cory Bratland, signed, dated, and mailed in July 2003; (2) the October 2003 put-option addendum to the written confirmation of the contract Cargill sent to Jorgenson Farms; and (3) internal communications among Cargill employees regarding the put options, including an email from Bratland to Presthus listing, among other things, put options for the purported 80,000 bushels of corn.

Cargill argues that because Jorgenson Farms did not respond to the written confirmation of the contract that Cargill signed and mailed in July 2003, it acquiesced to the formation of the contract. But the confirmation indicates, on its face, that it must be signed and returned to Cargill and provides a signature line. It also states: “Please sign and date the original and attached copy of this contract. The original must be returned to Buyer at the above-referenced address, and the copy should be retained for Seller’s records.” Jorgenson did not sign or' return the contract; thus, under the express terms of the document, no contract was formed.

The crux of Cargill’s argument is that Jorgenson’s silence is sufficient evidence of the formation of a contract to avoid summary judgment. But “[o]rdi-narily, mere silence does not amount to an acceptance.” Gryc v. Lewis, 410 N.W.2d 888, 892 (Minn.App.1987). Only “when the relationship between the parties is such that an offeror is justified in expecting a reply or the offeree is under a duty to respond, silence will be deemed an acceptance.” Id. Here, both parties denied the existence of an oral agreement, and Cargill has offered no evidence that, given its course of dealing with Jorgenson Farms, silence on the part of Jorgenson Farms was tantamount to acquiescence to the contract.

Cargill also argues that Jorgenson Farm’s failure to respond to the October 2003 put-option addendum to the purported contract is sufficient evidence of the formation of a contract to avoid summary judgment. But again, Cargill has shown no acceptance, written or oral, on Jorgenson Farm’s part. Cargill also points to an internal e-mail from Cargill employee Cory Bratland, listing the put options for the disputed 80,000 bushel contract, as sufficient evidence of a contract. But a communication between Cargill’s co-employees is not evidence of a contract with Jorgenson Farms. See, e.g., . Hy-Vee Food Stores, Inc. v. Minn. Dep’t. of Health, 705 N.W.2d 181, 185 (Minn.2005) (“the formation of a sales contract requires the mutual assent of the parties engaging in the transaction.”) (emphasis added).

Cargill challenges the credibility of Presthus on the basis that he may be a “close relative of the Jorgensons” and that he now works for Pro Pig, a Cargill competitor, and is therefore motivated to obtain Jorgenson Farms as a customer for his new employer. But to forestall summary judgment, the nonmoving party must do more than rely on “unverified or conclu-sionary allegations” in the pleadings or postulate evidence which might be produced at trial. Lubbers, 539 N.W.2d at 401. Here, Cargill produced no evidence that Presthus is related to the Jorgensons, that Pro Pig is in fact a competitor of Cargill, that Pro Pig has any business relationship with Jorgenson Farms, or that such dealings would affect the credibility of Presthus’s testimony. Cargill’s claim rests only on speculation and is therefore insufficient to forestall summary judgment.

As a separate affirmative defense, Jorgenson Farms raised the statute of frauds. The statute of frauds is satisfied by a contract “[bjetween merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within ten days after it is received.” Minn.Stat. § 336.2-201(2) (2004). But the district court concluded that no contract was formed between the parties and, therefore, did not reach the issue of whether an “oral contract” was nonetheless enforceable. Consequently, we decline to reach the statute-of-frauds issue.

III.

Cargill next contends that the district court erred by denying its motion to compel arbitration. This court reviews de novo the district court’s denial of a motion to compel arbitration. Johnson v. Piper Jaffray, Inc., 530 N.W.2d 790, 795 (Minn.1995). When considering a motion to compel arbitration, we must determine only (1) whether a valid arbitration agreement exists, and (2) whether the dispute falls within the scope of the arbitration agreement. Amdahl v. Green Giant Co., 497 N.W.2d 319, 322 (Minn.App.1993). Because we conclude that the district court did not err by concluding that the parties did not form a contract for the sale of 80,000 bushels of corn, we also conclude that the district court did not err by denying Cargill’s motion to compel arbitration.

IV.

Cargill contends that the district court abused its discretion by ordering sanctions of $5,000 in attorney fees under Minn.Stat. § 549.211 (2004). We will reverse an award of attorney fees only if the award constitutes an abuse of the district court’s broad discretion. Mut. Serv. Cas. Ins. Co. v. Midway Massage, Inc., 695 N.W.2d 138, 143 (Minn.App.2005), review denied (Minn. June 14, 2005).

Minn.Stat. § 549.211, subd. 2(1) (2004), provides that when an attorney presents a pleading to the court, the attorney certifies that, after a reasonable investigation, the pleading, inter alia, “is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation[J”

Cargill argues that the district court abused its discretion by imposing sanctions without making a finding that Cargill or its counsel maintained its breach-of-contract claim in “bad faith.” But the current version of section 549.211 does not require an explicit finding of “bad faith.” Compare Minn.Stat. § 549.211 (2004), with Minn. Stat. § 549.21, subd. 2 (1996) (allowing the court in its discretion to award sanctions if the party “acted in bad faith”), repealed by 1997 Minn. Laws ch. 213, art. 2, § 6. Rather, Minn.Stat. § 549.211, subd. 2(1), allows the district court, in its discretion, to award reasonable attorney fees when a party fails to conduct a reasonable investigation to ensure that the pleadings are not being presented for an improper purpose. Thus, it was not necessary for the district court to make an explicit finding of “bad faith” to determine that Cargill had violated the provisions of section 549.211, subdivision 2.

Cargill was on notice since October 2004 that Jorgenson Farms asserted that no contract to sell 80,000 bushels of corn was formed. The only direct evidence regarding the disputed agreement was provided by Presthus and Morrison, each of whom denied that an oral agreement to sell 80,-000 bushels of corn was ever made. After notice that Jorgenson Farms contended that Cargill’s claim was frivolous, Cargill failed to either conduct the discovery or dismiss its claim. The district court determined that sanctions were warranted against Cargill because of Cargill’s “willingness to continue [its] claim against Jor-genson without adequately addressing those assertion[s] made by Mr. Presthus (which they had advance notice of).” In essence, the district court found that Car-gill had violated the provisions of Minn. Stat. § 549.211, subd. 2(1). See id. at subd. 3 (a court may impose an appropriate sanction if subdivision 2 is violated) On this record, the district court did not abuse its discretion by sanctioning Cargill without making an express finding of “bad faith.”

DECISION

The district court did not abuse its discretion by denying Cargill’s request for a continuance to conduct further discovery. Cargill failed to establish that genuine issues of material fact preclude summary judgment on its breach-of-contract claim. Because there is no genuine fact issue as to the existence of a contract to sell 80,000 bushels of corn, the district court did not err by denying Cargill’s motion to compel arbitration. Nor did the district court abuse its discretion by sanctioning Cargill under Minn.Stat. § 549.211, subd. 2(1), without making an express finding of “bad faith.” Accordingly, we affirm the district court’s grant of Jorgenson Farms’s motion for summary judgment and the award of attorney fees.

Affirmed.