author: WRIGHT, Judge.

text:
    STATE of Minnesota, Respondent, v. Jason Michael RHOADES, Appellant.
    No. A04-525.
    Court of Appeals of Minnesota.
    Dec. 7, 2004.

      Mike Hatch, Attorney General, St. Paul, MN; and Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, St. Paul, MN, for respondent.
    John M. Stuart, State Public Defender, Susan Andrews, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by WRIGHT, Presiding Judge; PETERSON, Judge; and STONEBURNER, Judge.
   OPINION

WRIGHT, Judge.

After pleading guilty to six counts of possession of child pornography and being sentenced in accordance with the terms of his plea agreement, appellant now challenges the multiple sentences that were imposed consecutively. Appellant and respondent agree that possession of the numerous pornographic images stored on appellant’s computer was part of a single behavioral incident. Although a different child is depicted in each image, appellant argues that the multiple-victim exception permitting multiple sentences does not apply because (1) the children do not qualify as victims of the offense; and (2) the total sentence of 84 months’ imprisonment exaggerates the criminality of his conduct. Respondent concedes that, because two of the pornographic images for which appellant was convicted and sentenced likely depict the same minor, one of the consecutive sentences imposed should be reversed without disturbing the remaining consecutive sentences. We affirm in part, reverse in part, and remand.

FACTS

In January 2002, St. Paul Police investigated a domestic disturbance at appellant Jason Michael Rhoades’s home. During the investigation, police learned that Rhoades is a registered predatory sex offender who has been convicted twice of second-degree criminal sexual conduct involving a child. Police reports from Rhoades’s prior offenses established that child pornography had been found on Rhoades’s computer. Rhoades’s probation officer notified police in January 2002 that, as a condition of his probation, Rhoades was barred from having access to the Internet and from any contact with a minor. During the course of the January 2002 investigation, police learned that Rhoades spent most of his free time on the Internet. As a result, a probation violation warrant was issued, and Rhoades turned himself in on January 8, 2002.

That day, Rhoades’s cousin arrived at Rhoades’s home with a list of property, including Rhoades’s computer and other electronics, to be removed from Rhoades’s residence. The police subsequently seized the computer from Rhoades’s cousin and submitted the computer to the Minnesota Internet Crimes Against Children Task Force for a forensic examination. The forensic examination disclosed that a large number of files had been deleted from the computer on January 6, 2002. The forensic examiner recovered from the computer approximately 100 files containing child pornography.

Rhoades was charged with ten counts of possession of child pornography, in violation of Minn.Stat. § 617.247, subds. 4(a), (b) (2002). On October 21, 2003, Rhoades signed a plea agreement and pleaded guilty to counts I through VI. Pursuant to the plea agreement, each count was ranked as a level-four offense, and Rhoades agreed to receive a separate sentence on each count, to be served consecutively. The remaining counts would be dismissed at sentencing. With a criminal-history score of five and an offense level of four for count I, Rhoades agreed to a sentence of 27 months’ imprisonment on that count and an additional year and one day for each subsequent count, to be served consecutively. The district court later adopted the recommendation of the presentence investigation report and reduced Rhoades’s criminal-history score to four. This resulted in a sentence of 24 months’ imprisonment for count I. The district court sentenced Rhoades to consecutive sentences, in conformity with the plea agreement, totaling 84 months’ imprisonment. Counts VII through X were dismissed. This appeal followed.

ISSUE

Did the district court err in imposing separate, consecutive sentences, in accordance with the plea agreement, for the six counts of possession of child pornography?

ANALYSIS

Whether the possession of multiple pieces of child pornography involving different minors satisfies the multiple-victim exception to Minn.Stat. § 609.035, subd. 1 (2002), is a question of law, which we review de novo. See State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996) (statutory construction is subject to de novo review). A district court’s decision to impose consecutive sentences will not be disturbed on appeal absent a clear abuse of discretion. Neal v. State, 658 N.W.2d 536, 548 (Minn.2003).

Although a district court ordinarily is precluded from imposing more than one sentence for multiple offenses committed in a single behavioral incident, Minn.Stat. § 609.035, subd. 1, a judicially created exception to this single-behavioral-incident rule permits the imposition of multiple sentences when (1) the offenses involve multiple victims; and (2) the multiple sentencing does not unfairly exaggerate the criminality of the defendant’s conduct. State v. Marquardt, 294 N.W.2d 849, 850-51 (Minn.1980).

In addressing the multiple-victim exception, the Minnesota Supreme Court has stated on more than one occasion that “the legislature did not intend in every case to immunize offenders from the consequences of separate crimes intentionally committed in a single episode against more than one individual.” State ex rel. Stangvik v. Tahash, 281 Minn. 353, 360, 161 N.W.2d 667, 672 (1968); see also State v. Rieck, 286 N.W.2d 724, 727 (Minn.1979) (quoting Stangvik); see State v. Briggs, 256 N.W.2d 305, 306 (Minn.1977) (same). The multiple-victim exception, however, is not a “purely mechanistic test” driven by the prosecution’s exercise of its discretion in charging decisions. See Marquardt, 294 N.W.2d at 851. Rather, whether multiple sentencing unfairly exaggerates the criminality of the conduct is a judicial determination that serves as a check against unfettered prosecutorial discretion.

Both Rhoades and the state agree that the six offenses are part of a single behavioral incident. Rhoades, however, challenges the district court’s application of the multiple-victim exception, which resulted in the imposition of a sentence on each offense of conviction. Thus, we consider whether Rhoades’s offenses involved multiple victims and, if so, whether his sentences unfairly exaggerate the criminality of his conduct.

As an initial matter, Rhoades asserts that children depicted in child pornography are not victims for the purpose of a possession offense. The state counters that possession of child pornography harms the children depicted in the pornographic images. And the complaint describes with specificity the content of each of the counts and makes clear that at least five of the charged offenses involve the depiction of different children. The remaining counts are based on photographic images depicting discrete additional acts against one of the same victims and multiple discrete acts against another victim.

The statute criminalizing possession of child pornography, Minn.Stat. § 617.247 (2002), informs our analysis of whether the offense is a victimless crime. “A person who possesses a pornographic work or a computer disk or a computer ... containing a pornographic work, knowing or with reason to know its content and character, is guilty of a felony.” Minn.Stat. § 617.247, subd. 4. One purpose of the criminal child-pornography statute is “to protect minors from the physical and psychological damage caused by their being used in pornographic work depicting sexual conduct which involves minors.” Minn. Stat. § 617.247, subd. 1. Specifically as to possession of child pornography, the statute states:

It is therefore the intent of the legislature to penalize possession of pornographic work ... in order to 'protect the identity of minors who are victimized by involvement in the pornographic work, and to protect minors from future involvement in pornographic work depicting sexual conduct.

Id. (emphasis added).

The language of section 617.247 plainly establishes the legislature’s intent to punish possession of child pornography as a crime that victimizes, or harms, the minor subject of the pornographic work. Indeed, the harm associated with possession of child pornography is twofold, (1) disclosure of the identity of the minor depicted in pornographic images and (2) perpetuation of the illicit use and exploitation of children. See Neto York v. Ferber, 458 U.S. 747, 759, 102 S.Ct. 3348, 3355-56, 73 L.Ed.2d 1113 (U.S.N.Y.1982). In its codified statement of intent, the legislature makes clear its view that the individual children depicted in the pornography Rhoades possessed are also victimized by the act of possession.

Rhoades also argues that the multiple-victim exception does not apply here because it applies only when the offender directly harms the victim. Because he possessed the child pornography, as opposed to producing it, Rhoades contends that he did not directly harm the subjects of the child pornography.

Rhoades’s claim that the multiple-victim exception contains a direct-harm component is not compelled by the caselaw on which he relies. Indeed, the applicability of the multiple-victim exception does not turn on the existence of direct harm to the victims in any of the cases cited. See State v. Oates, 611 N.W.2d 580, 587 (Minn.App.2000) (affirming separate sentences for multiple assaults on multiple victims because the defendant fired “several shots in a crowded bar, with intent to kill one individual but heedless of the mortal risk posed to countless others”), review denied (Minn. Aug. 22, 2000); see also State v. Wipper, 512 N.W.2d 92, 95 (Minn.1994) (affirming arson and murder convictions but vacating arson sentence because arson did not involve multiple victims). Accordingly, we conclude that Rhoades’s conduct involved multiple victims as contemplated by the multiple-victim exception.

We next consider whether the district court’s decision to impose a separate, consecutive sentence for each count involving a different minor unfairly exaggerates the criminality of his conduct. “Consecutive sentencing of multiple felonies with multiple victims is permissive and within the broad discretion of the [district] court.” State v. Richardson, 670 N.W.2d 267, 284 (Minn.2003); see also Minn. Sent. Guidelines II.F.2 (providing that “[m]ultiple current felony convictions for crimes against persons may be sentenced consecutively to each other”). A district court’s decision regarding permissive, consecutive sentencing will not be disturbed unless the resulting sentence unfairly exaggerates the criminality of the defendant’s conduct. State v. Hough, 585 N,W.2d 393, 397 (Minn.1998).

A reviewing court determines whether consecutive sentencing unfairly exaggerates the criminality of the conduct by examining sentences in similar cases. State v. Lee, 491 N.W.2d 895, 902 (Minn.1992); see also Minn.Stat. 244.11, subd. 2(b) (2002) (authorizing an appellate court to “review the sentence imposed ... to determine whether the sentence is ... unreasonable, ... excessive, [or] unjustifiably disparate”). An appellate court may modify a sentence in the interests of fairness and uniformity. See State v. Norris, 428 N.W.2d 61, 70-71 (Minn.1988) (reducing sentence as unfair); State v. Vazquez, 330 N.W.2d 110, 112 (Minn.1983) (upholding sentence as uniform with other similarly situated offenders). We base our decision on our collective, collegial experience in reviewing a large number of criminal appeals. State v. Miller, 488 N.W.2d 235, 241 (Minn.1992).

On the first count of possession of child pornography, Rhoades’s criminal-history score of four was properly calculated based on his two prior convictions of second-degree criminal sexual conduct involving a minor. On the subsequent counts, Rhoades’s criminal-history score reverted to zero, as required by the sentencing guidelines. See Minn. Sent. Guidelines II.F (“For each offense sentenced consecutive to another offense(s), ... a zero criminal history score ... shall be used....”). Further, Rhoades committed the offenses while on probation and accessed the pornographic images from the Internet, thereby violating conditions of his probation. Based on the facts established here, we conclude that imposition of consecutive sentences totaling 84 months’ imprisonment does not unfairly exaggerate the criminality of Rhoades’s conduct.

Because the state concedes that one of the images for which Rhoades received a consecutive sentence may involve a minor depicted in another image for which a sentence was imposed, the second sentence possibly relating to the same minor must be reversed. Accordingly, we affirm the district court’s application of the multiple-victim exception and its imposition of consecutive sentences for five counts of conviction. We reverse the sentence imposed for one count and remand to the district court with instructions to vacate one of the consecutive sentences of one year and one day.

DECISION

Application of the multiple-victim exception was not erroneous, and imposition of consecutive sentences did not unfairly exaggerate the criminality of the conduct. Therefore, the district court did not err in imposing consecutive sentences for each count of possession of child pornography containing the image of a different victim. Imposition of separate sentences for possessing two pornographic images of the same minor was error.

Affirmed in part, reversed in part, and remanded.

      . At the guilty-plea hearing, appellant admitted that he deleted these files from his computer.

      . This is an unranked offense under the Minnesota Sentencing Guidelines.

      . The state concedes that construing the facts in the light most favorable to Rhoades, "one of the consecutive sentences could be vacated” because it is not clear from the record that the offense involved the depiction of a different child.

      . "Pornographic work” is defined as "(1) an original or reproduction of a picture ... involving a minor; or (2) any visual depiction ... or computer-generated image ... that: (i) uses a minor to depict actual or simulated sexual conduct[.]” Minn.Stat. § 617.246, subd. 1(f) (2002).

      . In a recent opinion, this court concluded that the multiple-victim exception to Minn. Stat. § 609.035 applies to possession of multiple computerized images of child pornography. State v. Bertsch, 689 N.W.2d 276, 294, 2004 WL 2711345, No. A04-177(Minn.App.2004). The reasoning of Bertsch applies with equal force here.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Minnesota, Appellant, v. Ronald E. EIBENSTEINER, Respondent.
    No. A04-792.
    Court of Appeals of Minnesota.
    Dec. 28, 2004.

      Mike Hatch, Attorney General, St. Paul, MN; and Patrick W. Flanagan, Mower County Attorney, Austin, MN; and Earl P. Gray, Special Prosecutor, St. Paul, MN, for appellant.
    John M. Huberty, William J. Mauzy, Amos Cohen, Minneapolis, MN, for respondent.
    Considered and decided by WRIGHT, Presiding Judge; SCHUMACHER, Judge; and HALBROOKS, Judge.
   OPINION

WRIGHT, Judge.

The state appeals from a pretrial order dismissing a grand jury indictment that charged respondent with violating laws prohibiting corporate campaign contributions. The state argues that the district court erred in ruling that the case was not properly venued in Mower County and that the evidence was insufficient to establish probable cause to proceed. We reverse and remand.

FACTS

A Mower County grand jury returned an indictment, charging respondent Ronald Eibensteiner with aiding and abetting two violations of Minn.Stat. § 211B.15, subd. 2 (2002), which prohibits both direct and indirect corporate campaign contributions made to promote or defeat a candidate for political office. The indictment also charged Eibensteiner with two counts of violating Minn.Stat. § 72A.12, subd. 5 (2002), which prohibits soliciting or knowingly receiving political campaign contributions from an insurance company. The grand jury’s findings of fact in support of the charged offenses were summarized in the indictment and alleged that:

Defendant, Harry Bassett, Jr., is the Vice President of government relations of the [A]ssurant [Gjroup. Within the [A]ssurant [Gjroup is the Defendant American Bankers Insurance Company of Florida. Defendant Jerome Atkinson is general counsel for [AJssurant [Gjroup and American Bankers Insurance Company of Florida. The Defendants Harry Bassett, Jr., and Jerome Atkinson, on behalf of the Defendant [Corporation American Bankers, and within the scope of their authority, made two corporate campaign contributions to the Republican Party. The contributions were made on or about September 9, 2002, ($10,000.00) and on or about October 17, 2002 ($5,000.00).
According to the Defendants Bassett and Atkinson, the corporate contributions were made to influence the outcome of the Minnesota State governor’s election. Their purpose was to defeat [independent candidate Tim Penny because Penny had made it known that he was going to retain the Commerce [C]ommissioner, James Bernstein. At the time of these contributions, the Defendants American Bankers, Bassett and Atkinson had an administrative action pending with the Commerce [C]ommis-sioner, Bernstein.
Defendant Ronald E. Eibensteiner was the chair of the Republican Party in the State of Minnesota. According to Defendant Eibensteiner, the first corporate check of $10,000.00 was received by his political committee on or about September 9, 2002, and his committee forwarded the check to the National Republican Committee. The National Committee then sent the money back to the state Republican Party. After this contribution, on September 9, 2002, Defendant Ronald Eibensteiner sent a letter as chair of the Republican Party of Minnesota thanking the Defendant American Bankers Insurance Company and soliciting it for more funds. On October 17, 2002, Defendant American Bankers Insurance Company, through Defendants Harry Bassett and Jerome Atkinson, sent another $5,000.00 corporate contribution check. The money was again sent to the National Republican Party and then sent back to the state Republican Party. The state Republican Party, after receiving the $15,000.00, spent money in Mower County promoting the election of Tim Paw-lenty.
The grand jury received as an exhibit a letter sent by Eibensteiner to Ronald Je-rich, a lobbyist for American Bankers Insurance Company (American Bankers). The letter, dated September 9, 2002, states:
Dear Ron, Hi!
I want to take this opportunity to say thank you for obtaining from American Bankers Insurance Company of Florida a $10,000 contribution to the R.N.S.E.C. (Republican National State Election Committee). I believe that we share the same goal in making the Republican Party the majority in the new Millennium.
As you know, this is a pivotal year for the Republican Party and Minnesota has been targeted as a key state this year. That means the pressure has been put on us to raise enough money to make sure our major candidates, Norm Coleman to replace Paul Wellstone, Tim Pawlenty for Governor, and John Kline to replace Bill Luther (in the new 2nd District), can win.
Our overall budget for this year requires us to raise $7.3 million, a daunting goal. Of that amount, $1.5 million has been earmarked for a media buy to promote Tim Pawlenty for Governor ... the media ads begin running Labor Day weekend.
With the General Election only 58 days away, we are pleased that your contribution will help us accomplish our budget goal. Without the necessary funds to support our candidates, we could end up disappointing President Bush. He needs our support, right here in Minnesota, to make sure we can'make Minnesota a Republican state!
Once again, we appreciate your help and the contribution of $10,000 from American Bankers Insurance; it will go a long way in helping to make the Republican Party the majority President Bush needs right now.
Yours very truly, Ronald E. Eiben-steiner, Chair, Republican Party of Minnesota. Thanks so much!
P.S. Since we’re not sure who to thank at American Bankers Insurance, if you would do that on our behalf, I would appreciate it.

(ellipses, italics, and parentheticals in original; bold text handwritten).

Minnesota Solicitor General Lori Swanson testified before the grand jury. She explained the process that she used to review the official government records of the Federal Election Commission, filed by the Republican National State Election Committee (RNSEC) for calendar year 2002. Swanson verified from the records that American Bankers made two contributions to the RNSEC. A contribution of $10,000 was received on September 12, 2002, and a contribution of $5,000 was received on October 17, 2002. Swanson testified that, from her review of these records, she determined that the RNSEC sent more than $2.1 million to the Republican Party of Minnesota after the RNSEC received the initial contribution from American Bankers. Swanson could not determine from the records that she examined whether the two particular contributions from American Bankers totaling $15,000 were actually returned to the state of Minnesota as part of the $2.1 million received from the RNSEC, but stated that the letter from Eibensteiner to Jerich was evidence that the money was returned to Minnesota.

Minnesota Legislative Auditor James Nobles also testified before the grand jury. As part of an investigation into alleged improprieties regarding American Bankers in early 2003, he conducted a telephone interview of Harry Bassett, Jr. and Jerome Atkinson, executives employed by Assurant Group, the parent company of American Bankers. Nobles testified that Bassett and Atkinson advised him that they intended their political contribution to be used to help elect a new governor in Minnesota who would appoint a new commerce commissioner. Bassett and Atkinson also advised Nobles that they were aware that gubernatorial candidate Tim Penney had promised to reappoint Bernstein as commerce commissioner if Penny won the election. Bassett and Atkinson stated that their intention in making the political contribution was to help defeat Tim Penney.

Nobles also testified about a telephone interview that he had with Eibensteiner. According to Nobles, Eibensteiner stated that he did not know of Jerich’s affiliation with American Bankers, nor had he ever heard of the company until the newspapers reported the controversy on the corporate contributions. Eibensteiner told Nobles that the September 9, 2002, letter to Jerich was a form letter prepared for him by staff and that he simply signed it as he did many form letters, often without reading them. Eibensteiner stated that, as a policy, if a contributor wanted to give a corporate contribution to the Republican Party of Minnesota, state party staff members were instructed to ask for a personal contribution instead. But if the contributor persisted in making a corporate contribution, state party staff would facilitate sending the contribution to the National Republican Party, which could accept corporate funds. Eibensteiner advised Nobles that there was a mechanism at the party’s national office for using corporate contributions in state campaigns.

Joseph St. George II, general manager of a television station in Austin, Minnesota, also testified before the grand jury. He testified that the station ran ads for then gubernatorial candidate Tim Pawlenty on September 12, 17, 19, and in October 2002, that were prepaid either by the Republican Party of Minnesota or the candidate’s election committee. Austin is in Mower County.

On October 1, 2003, the grand jury returned an indictment, charging Eibensteiner with two counts of aiding and abetting-prohibited campaign contributions, in violation of Minn.Stat. § 211B.15, subds. 2, 13 (2002), and two counts of soliciting prohibited campaign contributions by an insurance company, in violation of Minn.Stat. § 72A.12, subd. 5.

Eibensteiner subsequently moved to dismiss the indictment on numerous grounds, including lack of probable cause, and requested a probable cause hearing pursuant to Minn. R.Crim. P. 11.03 and State v. Florence, 306 Minn. 442, 239 N.W.2d 892 (1976), which pertain to dismissal of a complaint for lack of probable cause. For purposes of this appeal, the other relevant grounds for dismissal were that (1) venue of the grand jury in Mower County was improper and, therefore, the grand jury lacked legal authority to return the indictment; and (2) the district court lacked jurisdiction over the charged offense. In his memorandum in support of the motion to dismiss the indictment for improper venue, Eibensteiner argued that “none of the money from the [contributions] ever returned to Minnesota, let alone to Mower County.”

The district court held an “omnibus/probable cause hearing,” during which Eibensteiner introduced the testimony of Charles Spies, election law counsel for the Republican National Committee. Spies testified that the RNSEC accounting system ensures that corporate donations do not reach a state with laws that prohibit political parties, organizations, or committees from receiving corporate contributions. The state elected to forego cross-examination of Spies because, it argued, evidence other than that which the grand jury received was not properly before the district court.

Relying on Spies’s “uncontested testimony” and the documentary evidence presented through Spies, the district court granted Eibensteiner’s motion to dismiss the indictment. In its memorandum accompanying the order, the district court found:

No evidence [was] presented to this Court or to the grand jury evidencing that money from [American Bankers’ two contributions] was returned to the state of Minnesota Republican Committee by the National Committee for use in a state election. The evidence presented does indicate in excess of two million dollars being sent to the State Republican Party by the National Committee, with no identity as to the source of that money as far as political contributions. Without such proof, the Mower County Grand Jury lacked jurisdiction to issue an indictment herein and this Court lacks jurisdiction to continue the prosecution initiated by said indictment. To sustain a jurisdictional challenge herein, the prosecutor must submit evidence tracing the return of the $10,000 and $5,000 contribution[s] to the state of Minnesota for use within a political campaign.

After concluding that it lacked jurisdiction, the district court addressed the issue of venue “as raised by Defendant Eiben-steiner,” finding:

The evidence presented to the grand jury does not establish that the money paid for ads placed on ... [television in ... [Mower County] ... was paid for by funds obtained from the contributions placed by American Bankers.... No link has been presented ... establishing that the 2.1 million dollars forwarded by the National Committee to the State of Minnesota Committee during September or October 2002 came from American Bankers Insurance Company.

In its order dismissing the indictment, the district court concluded that it “laek[ed] subject matter jurisdiction” because the matter “was not properly venued pursuant to M.S. 620A.02 [sic] in a county where a public offense was committed or tr[i]able.”

This appeal followed. After both parties submitted their briefs, the state moved to strike portions of Eibensteiner’s appendix as outside the record on appeal.

ISSUE

Was the evidence before the grand jury sufficient to establish probable cause to believe that respondent committed the charged offenses?

ANALYSIS

The state may appeal as a matter of right a pretrial order dismissing an indictment. Minn. R.Crim. P. 28.04, subd. 1(1); State v. Plummer, 511 N.W.2d 36, 37 (Minn.App.1994). When considering a challenge to an indictment, a reviewing court’s “guiding principle” is “ ‘an indictment returned by a legally constituted and unbiased grand jury, ... if valid on its face, is enough to call for a trial of the charge on the merits.’ ” State v. Robinson, 604 N.W.2d 355, 365 (Minn.2000) (quoting Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 409, 100 L.Ed. 397 (1956)) (affirming trial court’s determination that, based on testimony of witnesses before grand jury, there was sufficient admissible evidence to sustain indictment).

A.

The district court concluded that venue in Mower County was improper and that both the grand jury and the district court lacked subject matter jurisdiction over the charged offenses. Thus, we begin our analysis with an examination of the distinct doctrines of jurisdiction and venue. The district court shall dismiss an indictment “[w]hen the grand jury by which the indictment was found had no legal authority to inquire into the offense charged, by reason of the offense charged not being within the local jurisdiction of the county.” Minn.Stat. § 630.18(4) (2002). A motion challenging the jurisdiction of the grand jury under section 630.18(4) may be brought at any time during the pendency of a proceeding. Minn.Stat. § 630.18 (2002); Minn. R.Crim. P. 17.06, subd. 3 (authorizing motion to dismiss indictment for grand jury’s lack of jurisdiction or for failure to charge an offense at any time during pendency of proceeding).

Although he cites Minn.Stat. § 680.18(4) as authority for dismissal of the indictment, Eibensteiner frames his argument as one of improper venue and asserts that failure to raise his venue challenge before trial would result in waiver. But section 630.18(4) does not pertain to venue. Rather, this provision pertains to the jurisdiction — “the legal authority” — of the grand jury to investigate the offense in the first instance.

Alternatively, Eibensteiner asserts that Minn. R.Crim. P. 17.06, subd. 2(2)(a), (b), (g), permits a challenge for “improper venue and/or lack of jurisdiction.” This rule permits a defendant to challenge an indictment when: “(a) [t]he indictment ... does not substantially comply with the requirements prescribed by law to the prejudice of the substantial rights of the defendant; (b) [t]he court lacks jurisdiction of the offense charged; ... (g) [tjhere exists some other jurisdictional or legal impediment to prosecution or conviction of the defendant for the offense charged ...” Minn. R.Crim. P. 17.06, subd. 2(2)(a), (b), (g). While subparts (a) and (g) might be read to incorporate a defendant’s challenge to venue, subpart (b) addresses only a challenge to the district court’s jurisdiction.

Venue is a distinct issue apart from that of jurisdiction. State v. Smith, 421 N.W.2d 315, 320 (Minn.1988). Jurisdiction refers to the court’s power to hear and decide the dispute. United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002); Smith, 421 N.W.2d at 318. As such, jurisdiction is a threshold issue that must be resolved before reaching the question of venue. Smith, 421 N.W.2d. at 320. Venue cannot determine jurisdiction. Rather, venue addresses the convenience and location of trial, not the power to hear and decide the controversy. Id. Proper venue protects a defendant from “the unfairness and hardship that may occur when an accused is prosecuted in a remote place.” State v. Blooflat, 524 N.W.2d 482, 483-84 (Minn.App.1994).

Contrary to the district court’s conclusion, the courts of Minnesota have subject matter jurisdiction to consider matters relating to alleged violations of Minn.Stat. §§ 211B.15 and 72A.12 (2002). In criminal prosecutions, subject matter jurisdiction ’is governed by Minn.Stat. § 609.025 (2002), which provides:

A person may be convicted and sentenced under the law of this state if the person:
(1) [e]ommits an offense in whole or in part within this state; or
(2) [b]eing without the state, causes, aids or abets another to commit a crime within the state; or
(3) [b]eing without the state, intentionally causes a result within the state prohibited by the criminal laws of this state.

Under this provision, a primary consideration is whether some element of the offense was committed within the territorial boundaries of the state. Smith, 421 N.W.2d at 319-20. The district court may exercise its jurisdiction when the offenses at issue — here, aiding and abetting unlawful campaign contributions and soliciting or receiving unlawful political campaign contributions — are alleged to have been committed within the territorial boundaries of the state. Minn.Stat. § 609.025; Smith, 421 N.W.2d at 320. Accordingly, the district court’s determination that it lacked subject matter jurisdiction was erroneous.

When jurisdiction over the crime exists, a determination of venue, meaning the precise county for trial, is “less significant.” Smith, 421 N.W.2d at 320. Venue lies “in the county where the offense was committed.” Minn.Stat. § 627.01, subd. 1 (2002). As such, venue is proper in “any county where any element of the offense was committed or any county where the property involved in an offense is or has been located or where the services involved in an offense were provided.” Id., subd. 2 (2002); see also State v. Klosterboer, 529 N.W.2d 705, 708 (Minn.App.1995) (interpreting Minn.Stat. § 627.01, subds. 1, 2). This venue determination relating to where a trial may be held, however, is distinct from venue as an element of the offense, which, like all other elements, must be established by probable cause to support an indictment and by proof beyond a reasonable doubt to support a conviction. See State v. Larsen, 442 N.W.2d 840, 842 (Minn.App.1989) (discussing venue as an element of the offense). The venue element of an offense “ ‘is determined by all the reasonable inferences arising from the totality of the surrounding circumstances.’ ” State v. Bahri, 514 N.W.2d 580, 582 (Minn.App.1994) (quoting State v. Carignan, 272 N.W.2d 748, 749 (Minn.1978)), review denied (Minn. Jun. 15, 1994).

The indictment alleges that funds derived from the prohibited corporate campaign contributions were distributed or services paid for by those funds were rendered in Mower County. Thus, if the allegations in the indictment are supported by evidence sufficient to establish probable cause, venue properly lies in that county. Minn.Stat. § 627.01, subds. 1, 2; Klosterboer, 529 N.W.2d at 708.

B.

With these concepts of jurisdiction and venue in mind, we turn to the substance of the state’s argument that the district court erred in (1) considering evidence beyond that presented to the grand jury, and (2) concluding that the evidence was insufficient to return an indictment in this case. Eibensteiner counters that, because there is no evidence demonstrating that the corporate contributions made by American Bankers were returned to Minnesota, neither the Mower County grand jury nor any grand jury empanelled in Minnesota had the legal authority to return the indictment.

“Since colonial times, the grand jury has served two functions: as a ‘shield’ between the government and the accused, and as a ‘sword’ probing into the evidence of a crime.” State v. Richards, 464 N.W.2d 540, 541 (Minn.App.1990), review denied (Minn. Feb. 20, 1991). To facilitate its dual roles, the grand jury has broad-ranging power to procure evidence in a criminal investigation. Id. Upon hearing the evidence presented, the grand jury’s duty is to determine whether there is probable cause to indict the target of the investigation. Id. (citing Minn. R.Crim. P. 18.06, subd. 2). A grand jury may rely on both direct and circumstantial evidence in determining whether there is probable cause to charge a defendant. See State v. Martin, 567 N.W.2d 62, 66 (Minn.App.1997) (affirming district court’s order denying motion to dismiss indictment when indictment rested in part on circumstantial evidence), review denied (Minn. Sept. 18, 1997). Probable cause exists when evidence worthy of the grand jury’s consideration renders a charge reasonably probable. State v. Flicek, 657 N.W.2d 592, 596 (Minn.App.2003). Thus, “[a]n indictment represents the grand jury’s decision that there is probable cause to believe that an offense has been committed and that the defendant committed it.” State v. Carriere, 290 N.W.2d 618, 620 n. 3 (Minn.1980) (citing Minn. R.Crim. P. 18.06, subd. 2).

A defendant may challenge the evidentiary basis for an indictment after the indictment has been returned. State v. Terrell, 288 N.W.2d 529, 530 (Minn.1979) (citing Minn. R.Crim. P. 18.06, subd. 2). Rule 17.06, subdivision 2(l)(a), permits a defendant to move the district court to dismiss an indictment 'on the basis that “[t]he evidence admissible before the grand jury was not sufficient as required by these rules to establish the offense charged[.]” Minn. R.Crim. P. 17.06, subd. 2(l)(a). A motion attacking the sufficiency of the evidence to indict essentially is an argument that there is no probable cause to support an indictment. Flicek, 657 N.W.2d at 597.

Because a presumption of regularity attaches to a grand jury indictment, “a criminal defendant bears a heavy burden when seeking to overturn an indictment.” State v. Lynch, 590 N.W.2d 75, 79 (Minn.1999); see also Plummer, 511 N.W.2d at 38 (stating that an indictment will be invalidated “only in a rare case”). When an indictment is challenged, the district court, giving deference to the grand jury’s factfinding role, must focus its inquiry on whether the evidence before the grand jury, both inculpatory and exculpatory, was sufficient to support the grand jury’s probable cause determination. Plummer, 511 N.W.2d at 38. The “weight of contradicted evidence and credibility of witnesses are [grand] jury questions.” Id. Because a grand jury can believe some witnesses and decline to believe others, when some evidence exists that a crime was committed, a “trial court cannot substitute its judgment for that of the grand jury.” Id. “Thus, it is proper to dismiss the indictment only where there are no issues of fact and defendant’s conduct could not [constitute the offense] as a matter of law.” Id.

Here, citing State v. Grey, 256 N.W.2d 74, 77 (Minn.1977), the district court considered evidence other than that presented to the grand jury, reasoning that to rely solely on the transcripts of the grand jury proceedings would violate Ei-bensteiner’s Sixth Amendment right to be present and confront the witnesses against him at a pretrial suppression hearing. But because Eibensteiner made no motion to suppress evidence, the district court’s reliance on Grey is misplaced.

There is no procedural rule permitting a court to receive and consider extrinsic evidence when ruling on a motion attacking the sufficiency of the evidence to indict. Eibensteiner does not cite, nor has our extensive research found, reported caselaw from Minnesota either addressing or upholding the consideration of extrinsic evidence by a district court in a challenge to an indictment based on the sufficiency of the evidence. Cf. State v. Steinbuch, 514 N.W.2d 793, 798 (Minn.1994) (“Based on all the evidence presented to the grand jury, we conclude that the state met its burden of establishing probable cause.”); Marhoun v. State, 451 N.W.2d 323, 327 (Minn.1990) (“The trial court considered the grand jury transcript and found sufficient evidence to support the indictment.”); Terrell, 283 N.W.2d at 531 (“Our reading of the grand jury transcript satisfies us that the grand jury heard sufficient admissible evidence to justify a finding of probable cause to believe that defendant [committed the offense].”).

The Minnesota Rules of Criminal Procedure provide for an evidentiary hearing to challenge a probable cause determination in a case charged by complaint and authorize the district court to receive and weigh evidence offered in support or opposition of such a motion. Minn. R.Crim. P. 11.03. Eibensteiner brought his motion to dismiss the indictment for lack of probable cause pursuant to Minn. R.Crim. P. 11.03, which explicitly pertains only to cases charged by complaint. Eibensteiner argued that rule 11 permitted the district court to consider extrinsic evidence because, as merely an alternate method of charging a defendant, an indictment is no different than a complaint. We disagree.

An indictment is a charge brought by independent neutral factfin-ders — a grand jury; whereas, a complaint is a charge brought by an adverse party— the state. See State v. Iosue, 220 Minn. 283, 292-93, 19 N.W.2d 735, 739-40 (1945) (discussing history of grand jury system). Thus, when a case is charged by complaint, the district court serves as a neutral magistrate to determine whether it is fair and reasonable to require the defendant to stand trial. State v. Florence, 306 Minn. 442, 457, 239 N.W.2d 892, 902 (Minn.1976). Here, by considering extrinsic evidence and weighing it against the evidence received and weighed by the grand jury, the district court erroneously appropriated the factfinding role of the grand jury, rather than limiting its review to determining whether the evidence before the grand jury provided a sufficient evidentiary basis to establish probable cause. Plummer, 511 N.W.2d at 38.

Eibensteiner argues that State v. Flicek, 657 N.W.2d 592 (Minn.App.2003), expanded the rule in Florence, 306 Minn. at 457, 239 N.W.2d at 902, to permit courts to consider extrinsic evidence when deciding whether to dismiss an indictment for lack of probable cause. Because this argument also fails to distinguish between a case charged by complaint as opposed to one charged by indictment, it is without merit. In Florence, the Minnesota Supreme Court considered the nature and function of a probable cause hearing under the then newly adopted rules of criminal procedure. 306 Minn. at 448-53, 239 N.W.2d at 897-900. Solely addressing a motion to dismiss a complaint, not an indictment, for an insufficient showing of probable cause, id. at 443, 239 N.W.2d at 894, the Florence court delineated the nature of proceedings under rule 11. Id. at 453-461, 239 N.W.2d at 900-04.

In contrast, Flicek concerned a motion to dismiss an indictment for lack of probable cause under rule 17.06. 657 N.W.2d at 596-97. Contrary to Eibensteiner’s argument, Flicek did not expand the holding in Florence to permit district courts to consider extrinsic evidentiary materials in reviewing a grand jury’s probable cause determination. Indeed, in Flicek, neither the district court nor this court considered evidence beyond that presented to the grand jury in order to determine whether there was sufficient evidence to establish probable cause. Id. at 596 (stating that proper focus of inquiry is grand jury’s determination of probable cause). Eibensteiner’s argument, therefore, is unavailing.

In sum, because neither caselaw nor the rules of criminal procedure permit a district court to consider extrinsic evidence in a challenge to the evidentiary basis for an indictment, we conclude that a district court’s review is confined to the record before the grand jury. The district court erred in considering Spies’s testimony and the accompanying documentary evidence.

C.

The indictment charges Eiben-steiner with violating two laws that prohibit corporate political contributions. Section 211B.15, subdivision 2, which prohibits a corporation from contributing funds in support of or in opposition to a campaign for political office, provides in relevant part:

A corporation may not make a contribution or offer or agree to make a contribution, directly or indirectly, of any money ... to a major political party, organization, committee, or individual to promote or defeat the candidacy of an individual for nomination, election, or appointment to a political office. For the purpose of this subdivision, “contribution” includes an expenditure to promote or defeat the election or nomination of a candidate to a political office that is made with the authorization or expressed or implied consent of, or in cooperation or in concert with, or at the request or suggestion of, a candidate or committee established to support or oppose a candidate.

Minn.Stat. § 211B.15, subd. 2 (emphasis added). “An individual who aids, abets, or advises a violation of this section is guilty of a gross misdemeanor.” Minn.Stat. § 211B.15, subd. 13. Section 211B.15 contains its own venue provision: “Violations of this section may be prosecuted in the county where the payment or contribution was made, where services were rendered, or where money was paid or distributed.” Minn.Stat. § 211B.15, subd. 14.

The indictment also charged Ei-bensteiner with violating Minn.Stat. § 72A.12, which specifically prohibits campaign contributions from insurance companies. It provides in relevant part:

No insurance company or association ... doing business in this state, shall, directly or indirectly, pay or use, or offer, consent or agree to pay or use, any money ... for or in aid of any political party, committee or organization, or for or in aid of any corporation, joint stock or other association organized or maintained for political purposes, or for or in aid of any candidate for political office, or for nomination for the office, or for any other political purpose[.] ... Any officer, director, stockholder, attorney or agent of any corporation or association which violates any of the provisions of this section, who participates in, aids, abets, or advises or consents to any violation, and any person who solicits or knowingly receives any money or property in violation of this section, is guilty of a gross misdemeanor.

Minn.Stat. § 72A.12, subd. 5 (emphasis added). Although the term “indirectly” has not been construed by Minnesota courts, in an analogous context, “indirectly” has been defined to include “payment to a third party.” Martin v. Commonwealth, 96 S.W.3d 38, 60-61 (Ky.2003) (construing the term as used in Kentucky’s campaign finance laws).

In the context of the statutory language of the charged offenses, we consider the evidence presented to the grand jury to determine whether it is sufficient to support the probable cause determination as to each count of the indictment relating to Eibensteiner. The Mower County grand jury received evidence that Bassett and Atkinson, executives at a company that owns American Bankers, made two contributions to the Republican Party, a political party. The contributions were in the form of two checks drawn on a corporate account, made payable to the RNSEC, and mailed to an address in St. Paul. Evidence presented to the grand jury established that one check was in the amount of $10,000 and the other was in the amount of $5,000. The grand jury heard testimony that American Bankers made the contributions to defeat gubernatorial candidate Tim Penney.

In addition, the grand jury received as evidence a letter signed by Eibensteiner that thanks the lobbyist for American Bankers for the corporation’s initial contribution of $10,000, outlines the budget goals for the Republican Party of Minnesota, and states, “we are pleased that your contribution will help us accomplish our budget goal.” The grand jury also received evidence that, after the corporate contributions were sent, the Republican Party of Minnesota later received a substantial monetary contribution from the RNSEC, some of which was paid to a television station in Austin, Mower County, to purchase campaign ads promoting the Republican gubernatorial candidate. From this evidence, the grand jury could determine it reasonably probable that Eibensteiner violated sections 211B.15, subdivision 2, and 72A.12, subdivision 5, which prohibit corporate campaign contributions, and that funds derived from those corporate contributions were distributed or services paid for by those funds were rendered in Mower County.

In light of the deference afforded the grand jury’s determination of the weight of contradicted evidence and witness credibility, we conclude that the direct and circumstantial evidence before the grand jury was sufficient to establish probable cause to believe that Eibensteiner committed the charged offenses. In reaching this conclusion, we are mindful that the statutes at issue here prohibit both direct and indirect corporate contributions. In dismissing the indictment, the district court not only erred in considering evidence that the grand jury did not receive, but also erred in determining that the indictment must be supported by evidence of a direct corporate contribution when evidence of an indirect corporate contribution is sufficient to support an indictment for violating sections 211B.15, subdivision 2, and 72A.12, subdivision 5. We are also mindful that the quantum of evidence required to support an indictment is substantially less than that required to support a conviction. Indeed, to charge a defendant with a crime, the evidence before a grand jury need only establish a reasonable probability that the defendant committed the charged offense. Flicek, 657 N.W.2d at 596. Whereas a conviction requires evidence establishing proof beyond a reasonable doubt. See State v. Kasherman, 177 Minn. 200, 201, 224 N.W. 838, 838 (1929) (stating that grand jury-does not try questions of guilt or innocence “but investigates only to determine whether there is probable cause for prosecution”). Accordingly, we reverse the district court’s dismissal of the indictment and remand for further proceedings.

D.

The state moved to strike portions of Eibensteiner’s appendix that it claims are not part of the record on appeal. Ei-bensteiner did not respond to the motion. The record on appeal consists of “[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any.” Minn. R. Civ.App. P. 110.01.

The state contends that four items should be stricken from Eibensteiner’s appendix: a sworn statement of Tim Com-mers, taken April 9, 2003; a sworn statement of Glenn Wilson, taken at the Office of the Legislative Auditor on April 8, 2003; an email from Wilson dated March 7, 2003; and deposition testimony by Jerich. Our review of the record establishes that Com-mers’s sworn statement and Jerich’s deposition testimony were both filed with the district court as part of Eibensteiner’s memorandum in support of a motion unrelated to this appeal. But the record does not include the items relating to Wilson. In accordance with appellate rules of procedure, we grant in part the state’s motion to strike the materials and references related to Wilson’s statement and email and deny the state’s motion with respect to those materials that are part of the record.

DECISION

When determining whether to dismiss the indictment for insufficient evidence pursuant to Minn. R.Crim. P. 17.06, subd. 2(l)(a), the district court erred in considering evidence that was not presented to the grand jury. The evidence was sufficient to support the grand jury’s determination that there is probable cause to believe that Eibensteiner committed the charged offenses. Accordingly, the district court erred in concluding that it lacked jurisdiction and that venue did not properly lie in Mower County.

Reversed and remanded; motion granted in part and denied in part.

      . Nobles clarified that, at the time he spoke to the executives, he was aware of only the $10,000 contribution.

      . Eibensteiner also moved inter alia to sever the claims relating to defendants Bassett and Atkinson and sought discovery from the state. In addition, he asserted that the statutes under which he was charged were unconstitutional. These issues are not before us on appeal.

      . Section 620A.02 is not a provision of Minnesota statutes and appears to be a transcription error. In light of the language of the order, it appears that the district court referred to section 628.02, which states, "The grand jury shall inquire into all public offenses committed or triable in the county, and report them to the court by indictment." Minn.Stat. § 628.02 (2002).

      . Eibensteiner also cites section 630.18(1), (5), but fails to develop those arguments. Consequently, we do not consider them here. State v. Krosch, 642 N.W.2d 713, 719-20 (Minn.2002).

      . "Rule 11.03 specifically permits a motion to dismiss a complaint for lack of probable cause, but [it] does not permit a motion to dismiss an indictment upon this ground.” Minn. R.Crim. P. 11.03 cmt. (emphasis added).

      . This provision is consistent with Minn. R.Crim. P. 24.02, subd. 10, which states: "Violations of Minn.Stat. § 211B.15 (2000) prohibiting corporate contributions to political campaigns may be prosecuted and tried in the county where such payment or contribution is made or services rendered or in any county wherein such money has been paid or distributed.”

      . Minnesota law permits different offenses to be joined in different counts of the same indictment. Minn.Stat. § 609.035, subd. 1 (2002) (providing that all offenses arising out of a single behavioral incident "shall be included in one prosecution which shall be stated in separate counts”); Minn. R.Crim. P. 17.03, subd. 1 ("When the defendant's conduct constitutes more than one offense, each such offense may be charged in the same indictment or complaint on a separate count.”). The general venue statute permits both of the charged offenses to be tried "where the services involved in an offense were provided.” Minn.Stat. § 627.01, subd. 2 (2002).

      . For purposes of this appeal, it is undisputed that American Bankers does business in Minnesota.


author: ROBERT H. SCHUMACHER, Judge.

text:
    STATE of Minnesota, Respondent, v. Charles Conrad HAGEN, Appellant.
    No. C0-02-1318.
    Court of Appeals of Minnesota.
    Dec. 28, 2004.

      Mike Hatch, Attorney General, St. Paul, MN, and Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, St. Paul, MN, for respondent.
    John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by WILLIS, Presiding Judge; TOUSSAINT, Chief Judge; and SCHUMACHER, Judge.
   OPINION

ROBERT H. SCHUMACHER, Judge.

The supreme court has remanded Charles Conrad Hagen’s appeal from his sentence for first-degree criminal sexual conduct following this court’s affirmance of the sentence after the first remand. See State v. Hagen, 679 N.W.2d 739 (Minn.App.2004), opinion vacated and remanded (Minn. July 20, 2004). We conclude the upward sentencing departure violates Ha-gen’s right to a jury trial under Blakely. We reverse and remand for resentencing consistent with Blakely.

FACTS

Hagen pleaded guilty in March 2002 to first-degree criminal sexual conduct committed against 13-year-old J.N., an autistic girl who lived in the house in which Hagen rented an apartment. The complaint charged a single count under Minn. Stat. § 609.342, subd. 1(g), which requires that the offender engaged in sexual penetration with a victim under the age of 16 with whom he had a “significant relationship.”

The plea agreement, as outlined in the Rule 15 plea petition, provided that Hagen would plead guilty to the offense as charged, and be able to “argue downfward] departure based on amenability to probation.” Hagen pleaded guilty on the date set for trial. The prosecutor pointed out there was no agreement as to sentence. It was understood that the district court would be “open” to considering a departure, depending on the results of the pre-sentence investigation. In the guilty plea hearing, Hagen admitted that he sexually penetrated 13-year-old J.N. Hagen testified that his attorney had discussed with him the “significant relationship” element, which was based on his living in the “same residence” as the victim.

At sentencing, Hagen’s attorney admitted that there were some “very aggravating factors,” and stated that Hagen “does not deny that.” Counsel then referred to “some issues about violence,” apparently referring to some aspect of the offense. When Hagen exercised his right of allocution, he acknowledged that his crime would have longstanding effects on the victim.

The district court characterized this case as “one of the more horrendous cases of child sexual abuse that I have seen.” The court sentenced Hagen to 216 months, an upward departure from the presumptive sentence of 144 months. In support of the departure, the court stated:

The basis for the departure is that you entered the victim’s zone of privacy, that being that this took place in her home, and outside of the home for that matter; that it created great psychological and emotional trauma to the victim in this case; and, most importantly, that this child was particularly vulnerable due to her many disabilities.

The court concluded that these factors, along with “the deception that [Hagen] engaged in,” supported the departure.

This court’s first initial opinion rejected Hagen’s challenge to his guilty plea, holding that Hagen, who rented an apartment in the basement of the house where the victim lived with her mother, did live in the same “dwelling” as the victim. State v. Hagen, No. C0-02-1318, 2003 WL 21006136 at *2-*3 (Minn.App. May 6, 2003). The second opinion concluded that violation of the zone of privacy was not a proper aggravating factor, but that the victim’s severe psychological trauma and her particular vulnerability due to numerous disabilities supported the 50% upward departure. State v. Hagen, 679 N.W.2d 739, 741-43 (Minn.App.2004), opinion vacated and remanded (Minn. July 20, 2004). The supreme court has remanded for reconsideration of the sentence imposed in light of Blakely v. Washington, — U.S. —, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

ISSUE

Does the upward durational departure violate Hagen’s Sixth Amendment right to a jury trial under Blakely?

ANALYSIS

The decision to depart from the presumptive sentence rests within the discretion of the district court and will not be disturbed absent a clear abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn.1996). But the Blakely argument presents a constitutional issue, which this court reviews de novo. See generally State v. Manning, 532 N.W.2d 244, 247 (Minn.App.1995), review denied (Minn. July 20,1995).

In Blakely, the Supreme Court stated that the greatest sentence a judge can impose is “the maximum sentence [that may be imposed] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely v. Washington, — U.S. —, —, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004). The defendant has a Sixth Amendment right to a jury determination of the existence beyond a reasonable doubt of any fact, except the fact of a prior conviction, that increases the sentence above this maximum. Id. at 2543; Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000). The Court therefore reversed the 90-month “exceptional sentence” that had been imposed under Washington state’s determinate sentencing scheme and remanded “for further proceedings not inconsistent with this opinion.” Blakely, — U.S. at —, 124 S.Ct. at 2543.

This court has held that Blakely does apply in Minnesota to preclude upward durational departures under the sentencing guidelines based on aggravating factors as found by the sentencing court rather than the jury. State v. Conger, 687 N.W.2d 639 (Minn.App.2004), pet. for review filed (Minn. Nov. 10, 2004). But the state argues that Hagen is not entitled to relief under Blakely because he admitted to the aggravating factors found by the district court.

The Blakely Court held that the “statutory maximum” sentence “for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” — U.S. at -, 124 S.Ct. at 2537. The Court did not explain the sentencing court’s authority to sentence based on the defendant’s admissions, nor did it attempt to define when an aggravating factor is “admitted” by the defendant.

The “admission exception” was not at issue in Blakely and was only briefly discussed in Apprendi, in which the defendant specifically denied his offense was motivated by bias, the factor that enhanced his sentence. See Apprendi, 530 U.S. at 471, 120 S.Ct. at 2352 (noting the defendant’s denial he was biased against African-Americans). But the Apprendi Court did note that the defendant’s admission had been a factor in an earlier case holding that due process was not violated by making recidivism a sentencing factor rather than an element of the offense. Id. at 488, 120 S.Ct. at 2361-62 (discussing Almendarez-Torres v. United States, 523 U.S. 224, 247-48, 118 S.Ct. 1219, 1233, 140 L.Ed.2d 350 (1998)).

Unfortunately, none of these Supreme Court cases — Blakely, Apprendi, and Almendarez-Torres — discusses what would qualify as an “admission” satisfying this exception to the Sixth Amendment jury-trial right. The state argues that defense counsel’s admission that there were “very aggravating factors” and Hagen’s admission that his crime would have longstanding effects on the victim satisfy the “admission exception” to Blakely. We must resort to law outside the Apprendi line of cases to analyze this issue.

The effect of a defendant’s admission to an aggravating factor is to waive the defendant’s constitutional right to a jury trial on the sentencing issue. The general rule is that the waiver of a constitutional right must be knowing, voluntary, and intelligent. See generally State v. Trott, 338 N.W.2d 248, 251 (Minn.1983) (discussing requirements of guilty plea). The waiver of a constitutional right, at least one that impacts the fairness of the trial itself, must be a “knowing and intelligent relinquishment or abandonment of a known right or privilege.” Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1884, 68 L.Ed.2d 378 (1981) (discussing waiver of right to counsel before questioning). Other constitutional rights may be “waived” without actual knowledge of the right involved, although that knowledge may be a factor in the voluntariness of the waiver. See Schneckloth v. Bustamonte, 412 U.S. 218, 236-44, 93 S.Ct. 2041, 2052-56, 36 L.Ed.2d 854 (1973); State v. Dezso, 512 N.W.2d 877, 881 (Minn.1994) (noting police advisory on right to refuse consent to search is only one factor in determining voluntariness of consent). A waiver of the right to a jury trial has been held to require a defendant have knowledge of that right. State v. Ross, 472 N.W.2d 651, 653 (Minn.1991); State v. Pietraszewski, 283 N.W.2d 887, 890 (Minn.1979).

Hagen pleaded guilty to first-degree criminal sexual conduct. In the course of the guilty-plea hearing, Hagen was informed in general terms of his right to a jury trial “and that all jurors would have to find you guilty to have you pronounced guilty.” But he was not informed that he had a right to a jury determination on any fact used to support an upward sentencing departure.

The aggravating factors cited by the district court — invasion of the victim’s zone of privacy, victim vulnerability, and psychological impact on the victim — may not have been contested by the defense. But in State v. Wright, 679 N.W.2d 186 (Minn.App.2004), review denied (Minn. June 29, 2004), this court held that a defendant’s stipulation to an element of an offense must be supported by a personal oral or written waiver of the defendant’s right to a jury trial on that element. Thus, stipulations to facts constituting elements of the offense may no longer be accepted as effective but informal waivers of the jury-trial right without a full-scale, on-the-ree-ord oral or written waiver. Cf. State v. Berkelman, 355 N.W.2d 394, 397 (Minn.1984) (noting that defendant “in effect offered” to waive jury trial on element of prior DWI conviction within five years by agreeing to stipulate to that fact).

In this regard, we find no basis to distinguish a stipulation to an aggravating sentencing factor from a stipulation to an element of the offense. The Blakely Court has effectively dismantled the distinction between offense elements and sentencing factors. See Blakely, — U.S. at —, 124 S.Ct. at 2539 (stating that Apprendi assures that “the judge’s authority to sentence derives wholly from the jury’s verdict”). The opinion calls into question any legislative labeling of certain facts as “sentencing factors.” Id. Therefore, we cannot conclude that Blakely leaves a defendant free to stipulate to a “sentencing factor” without complying with the requirements pronounced in Wright for waiver of a jury trial on an element of the offense.

This court in Conger noted that any upward durational departure not based solely on the facts admitted by the defendant in the guilty plea was invalid. 687 N.W.2d at 645. But because the district court had made no findings to support the particular-vulnerability and particular-cruelty factors, the court in Conger did not discuss the need for a Blakely admission to an aggravating factor to be accompanied by a waiver of the right to a jury trial on that issue. See id. And we note that the state in Conger did not argue in its brief that the defendant’s statements in the guilty-plea hearing constituted an “admission” under Blakely. See generally State v. Soukup, 656 N.W.2d 424, 431 (Minn.App.2003) (describing “dictum” as statement concerning issue not addressed in adversarial briefing and argument).

Here, the state argues in its brief that Hagen’s statements constituted an “admission” under Blakely. And the district court’s reliance on the victim’s vulnerabilities was supported by reference to her “many disabilities,” which in turn referred to the victim-impact statement detailing the victim’s ADHD and her autism. That statement graphically detailed the psychological and emotional impact on the victim. Thus, there is no doubt in this case that the record amply supports the district court’s finding on the aggravating factors, and the adequacy of Hagen’s admissions, therefore, must be addressed. We note also that Hagen’s only personal admission was made at sentencing, whereas the defendant in Conger made his admissions at the guilty-plea hearing, at the same time he waived his jury-trial right. See generally State v. Lyle, 409 N.W.2d 549, 552-53 (Minn.App.1987) (holding that factual basis had to be established at time of guilty plea, not later in presentence investigation).

Because Hagen’s sentence violated his right to a jury trial under Blakely, the sentence must be reversed and remanded. We note that in Blakely, the Court did not remand for imposition of a sentence within the “standard range” under Washington law, but instead remanded “for further proceedings not inconsistent with this opinion.” — U.S. at —, 124 S.Ct. at 2543. We agree with the state’s argument that Hagen is not automatically entitled on remand to a reduction of his sentence to the presumptive sentence. But the appropriate remedy, including the possible impaneling of a jury to determine the sentencing issues, has not been fully litigated here and must be determined in the first instance by the district court.

DECISION

The upward durational departure violated Hagen’s right to a jury trial under Blakely. The matter is remanded for re-sentencing in light of Blakely.

Reversed and remanded.


author: KALITOWSKI, Judge.

text:
    STATE of Minnesota, Respondent, v. David Lee BROOKS, Appellant.
    No. A03-2050.
    Court of Appeals of Minnesota.
    Dec. 28, 2004.

      Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, St. Paul, MN; and Raymond F. Schmitz, Olmsted County Attorney, Rochester, MN, for respondent.
    John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by KALITOWSKI, Presiding Judge; WRIGHT, Judge; and FORSBERG, Judge.

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

   OPINION

KALITOWSKI, Judge.

Appellant David Brooks challenges his convictions and sentence, arguing that (1) his sentence was invalid because the district court, rather than a jury, found that appellant’s criminal history score included a custody status point; (2) the prosecutor engaged in prejudicial misconduct; and (3) the evidence was insufficient to sustain his convictions.

FACTS

In May 2001, appellant attacked his girlfriend. He was subsequently charged with and convicted of fifth-degree felony assault. This court affirmed the conviction in State v. Brooks, No. C2-02-1434, 2003 WL 22039323 (Minn.App. Sept. 2, 2003). In February 2002, the day before appellant’s girlfriend was scheduled to testify at the trial on the May 2001 assault, appellant went to the apartment he shared with his girlfriend and punched her in the mouth. Later that night, appellant broke through a locked door in the apartment, damaged property, and threatened to harm his girlfriend if he was sent to prison. Appellant was charged with another count of fifth-degree felony assault and one count of tampering with a witness. Following a bench trial, the district court found appellant guilty of both counts in March 2003.

In September 2003, the district court sentenced appellant for the assault and witness-tampering convictions. The district court reviewed sentencing worksheets and found: (1) at the time of sentencing for the severity-level four assault conviction, appellant had six criminal history points, one of which was a custody status point; and (2) at the time of sentencing for the severity-level five witness-tampering conviction, appellant had seven criminal history points, including the custody status point and the point for the previous assault conviction. The district court sentenced appellant to the presumptive 30-month prison sentence for the assault conviction, and 51 months for the witness-tampering conviction. See Minn. Sent. Guidelines IY. (2003). The witness-tampering sentence included a three-month enhancement based on appellant’s custody status point. See Minn. Sent. Guidelines II.B.2. (calling for three-month enhancement for a custody status point when the defendant’s criminal history score is in the far right-hand column of the sentencing grid before the custody status point is added).

ISSUES

1. Were appellant’s Sixth Amendment rights violated when the district court, rather than the jury, determined that appellant’s criminal history score included one custody status point?

2. Did the prosecutor engage in prejudicial misconduct?

3. Was the evidence sufficient to support appellant’s convictions?

ANALYSIS

I.

Appellant claims that his sentence was constitutionally invalid because the district court, rather than a jury, made the finding that appellant’s criminal history score included a custody status point. Relying on Blakely v. Washington, — U.S. —, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), appellant argues that the district court engaged in judicial fact-finding in violation of his right to have a jury determine every fact legally essential to his sentence. Appellant contends that his sentence must be reduced to the presumptive guidelines sentence calculated without the custody status point, or vacated and remanded for resentencing consistent with Blakely. We disagree.

In Blakely, the United States Supreme Court examined the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000). Blakely, — U.S. at —, 124 S.Ct. at 2536 (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63). In Apprendi, the Court held that the Sixth Amendment to the United States Constitution requires that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-68. The Court concluded that the prescribed statutory maximum means “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, — U.S. at —, 124 S.Ct. at 2537.

In State v. Conger, 687 N.W.2d 639 (Minn.App.2004), this court held that Minnesota’s sentencing guidelines are subject to the analysis set forth in Blakely. The Conger court stated:

[Ujnder the Minnesota sentencing procedures, the applicable presumptive, fixed sentence established by the Sentencing Guidelines Commission is the maximum sentence that a judge may impose without finding facts that support a departure, and a judge who imposes an upward durational departure must do so in a manner that complies with the Sixth Amendment to the United States Constitution as explained in Blakely.

Id. at 644. The Conger court held that the district court’s upward durational departure did not comply with the Sixth Amendment to the United States Constitution because the departure was based on the district court’s independent findings of aggravating factors, rather than facts admitted by the defendant in his guilty plea. Id. at 646.

Here, unlike Conger, the district court did not make independent findings in support of a durational departure that increased appellant’s penalty beyond the prescribed statutory maximum. Rather, the district court imposed the presumptive sentence under the guidelines based on appellant’s criminal history score and the severity level of appellant’s offenses. The district court imposed the three-month enhancement for appellant’s custody status point as called for in the guidelines. The guidelines state:

An additional three months shall be added to the duration of the appropriate cell time which then becomes the presumptive duration when:
a. a custody status point is assigned; and
b. the criminal history points that accrue to the offender without the addition of the custody status point places the offender in the far right hand column of the Sentencing Guidelines Grid.

Minn. Sent. Guidelines II.B.2.

We conclude that the determination of appellant’s criminal history score, including notice of a custody status point, is analogous to Blakely’s exception for the “fact of a prior conviction.” Blakely, — U.S. at —, 124 S.Ct. at 2536 (quotation omitted). Like the fact of a prior conviction, custody status points are established by the court’s own records. In addition, custody status points are based on the fact that a person has one or more prior convictions. Moreover, the concept of a “presumptive sentence” is meaningless without a criminal history score, which includes status points. And a jury’s verdict does not determine that score. State v. Hanf, 687 N.W.2d 659, 664 (Minn.App.2004). Thus, we conclude that no purpose would be served by requiring that a jury make a finding of fact regarding the existence of a custody status point, and that Blakely must be construed as recognizing that a jury need not make such a determination.

Because Blakely does not mandate that a jury find, or a defendant admit, the existence of a custody status point, we conclude that the district court did not violate appellant’s Sixth Amendment rights by finding that appellant’s criminal history score included a custody status point.

II.

Appellant argues that his convictions for fifth-degree felony assault and tampering with a witness must be reversed because the prosecutor engaged in serious and prejudicial misconduct throughout the trial. We disagree.

In reviewing claims of prosecuto-rial misconduct, we will reverse only if the misconduct, when considered in light of the whole trial, was so serious and prejudicial that it impaired the defendant’s right to a fair trial. State v. Johnson, 616 N.W.2d 720, 727-28 (Minn.2000). “Typically, the failure to object to a prosecutor’s statement forfeits a defendant’s right to have the issue considered on appeal.” State v. Sanders, 598 N.W.2d 650, 656 (Minn.1999) (quoting State v. Atkins, 543 N.W.2d 642, 647 (Minn.1996)) (quotation marks omitted). We have discretion to consider issues not objected to at trial, however, if there is plain error affecting substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn.1998). An error affects substantial rights “if the error was prejudicial and affected the outcome of the case.” Id. at 741.

Appellant asserts that the prosecutor engaged in misconduct by (1) offering his personal opinion on the truthfulness of testimony; (2) eliciting improper vouching testimony; (3) injecting emotion into the case; and (4) improperly using inadmissible hearsay under the guise of " impeachment. We reject appellant’s contention that the prosecutor’s alleged misconduct was either serious or pervasive. And we conclude that there is no reasonable doubt that the actions of the prosecutor did not affect the verdict in this bench trial. Therefore, because appellant failed to object during trial and has not established plain error, he has waived his right to have these issues reviewed on appeal.

III.

When considering a sufficiency of the evidence claim, we examine the evidence in a light most favorable to the verdict to decide “whether the facts in the record and the legitimate inferences drawn from them would permit the jury to reasonably conclude that the defendant was guilty beyond a reasonable doubt of the offense of which he was convicted.” Davis v. State, 595 N.W.2d 520, 525 (Minn.1999) (quoting State v. Moore, 481 N.W.2d 355, 360 (Minn.1992)). “We review criminal bench trials the same as jury trials when determining whether the evidence is sufficient to sustain convictions.” Id. (quoting State v. Hough, 585 N.W.2d 393, 396 (Minn.1998)).

Appellant argues that the district court’s decision was based on inadmissible testimony of the victim and an eyewitness and that the remaining evidence was insufficient to support the convictions. But as discussed above, by failing to make the proper objections at trial, appellant waived his right to have the admissibility of the evidence considered on appeal. We conclude that based on the facts in the record and the legitimate inferences drawn from them, including the statements of the victim, the district court reasonably concluded beyond a reasonable doubt that the defendant was guilty of fifth-degree felony assault and tampering with a witness.

DECISION

The district court did not violate appellant’s Sixth Amendment rights by determining that appellant’s criminal history score included a custody status point. Appellant waived evidentiary objections by failing to object at trial on the grounds raised on appeal and the evidence was sufficient to support the convictions.

Affirmed.


author: KAPSNER, Justice.

text:
    2004 ND 226
    Jody FOSTER, Plaintiff and Appellee v. Daniel FOSTER, Defendant and Appellant.
    No. 20040063.
    Supreme Court of North Dakota.
    Dec. 14, 2004.
    Richard L. Hagar, Kenner Sturdevant & Cresap, PC, Minot, ND, for plaintiff and appellee.
    Lynn M. Boughey, Boughey Law Firm, Minot, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Daniel Foster appealed from a divorce decree awarding custody of his two children to Jody Foster. We affirm.

I.

[¶ 2] Daniel Foster and Jody Foster were married in England on September 8, 1990. Two children were born during the 13-year marriage; they were 12 and 9 at the time of trial. Jody Foster had temporary custody while the divorce was pending.

[¶ 3] Daniel Foster was in the Air Force when the parties married. After he was honorably discharged in 1992, they moved to Oregon, where he had been raised. Jody Foster missed her home state of North Dakota, and a year later they moved to Minot where they have lived since. He works as a self-employed handyman earning approximately $12,000 annually. She does medical transcription from her home, working an average of 20 hours each week and earning approximately $400 per month. Both parties have high school diplomas and took some college courses but did not complete degrees.

[¶ 4] Both parties are smokers. Jody Foster struggles with her weight. Otherwise both parties appear to be in good health.

[¶ 5] The parties acknowledge the marriage was strained for many years. Daniel Foster is outgoing and social, while Jody Foster prefers to stay at home. They attended one session of marriage counseling in 1996, and she attended a few additional sessions. She said he was controlling and tried to run her life. Jody Foster has never had a driver’s license, and it was suggested during counseling that she should obtain one to help her feel more independent. She still has not taken steps to accomplish this, admittedly because she does not want to.

[¶ 6] Daniel Foster decided to move the family back to Oregon in 2002 because he felt he could make a better living there. He claims he discussed the move with Jody Foster, but she alleges she learned of his intentions from a member of their church. She refused to leave and served him with divorce papers shortly before he was to move.

[¶ 7] Trial was held October 24, 2003, and December 2, 2003. The parties divided their property by agreement prior to trial, leaving the custody of the children as the primary issue at trial. The district judge issued his decision in a letter to the parties on December 15, 2003. The letter stated Jody Foster would have custody and Daniel Foster liberal visitation, he was to pay child support as previously ordered and spousal support of $200 per month for three years, and her attorney was to draft the appropriate documents. Daniel Foster’s attorney submitted a proposed order and judgment on December 18, 2003, stating her attorney had failed to prepare the documents and he was exercising his right to do so under N.D.R.Ct. 7.1. Jody Foster’s attorney sent a letter on December 19, 2003, saying Daniel Foster’s proposed order was improper because it did not contain findings of fact and requesting the judge to provide some guidance so he could draft a document that included findings of fact. There is no record of further correspondence between the judge and Jody Foster’s attorney. Jody Foster’s attorney submitted a proposed order on January 6, 2004, which included findings of fact similar to those in the guardian ad litem’s summation report. Daniel Foster’s attorney, through his secretary, sent a letter on January 6, 2004, stating he had objections to the proposed order and would be submitting those objections within 10 days of receipt of the documents as allowed under N.D.R.Ct. 7.1. The judge signed the proposed findings and order prepared by Jody Foster’s attorney on January 6, 2004, and the judgment was filed on January 7, 2004. Daniel Foster appealed.

II.

[¶ 8] A trial court should consider the best interests of the children as outlined in N.D.C.C. § 14-09-06.2 when making a custody determination. Huntress v. Griffey, 2002 ND 160, ¶ 5, 652 N.W.2d 351. A trial court’s child custody determination is treated as a finding of fact and is reviewed by this Court under the clearly erroneous standard. Id. (citing DesLauriers v. DesLauriers, 2002 ND 66, ¶ 6, 642 N.W.2d 892). A finding is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support the decision, or, even though the decision has some evidentiary support, after viewing all the evidence this Court is left with a firm and definite conviction a mistake has been made. Huntress, at ¶ 5 (citing Ramstad v. Biewer, 1999 ND 23, ¶ 10, 589 N.W.2d 905).

[¶ 9] Findings made under Rule 52(a), N.D.R.Civ.P., provide guidelines to help the appellate court understand the factual basis relied on by the trial court when making conclusions of law and entering judgment. Huntress, 2002 ND 160, ¶ 6, 652 N.W.2d 351. Rule 52(a) states:

In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment; ... It will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of the evidence or appear in an opinion or memorandum of decision filed by the court....

N.D.R.Civ.P. 52(a). This Court has found sufficient findings in “mislabeled findings” and “transcribed oral opinion[s].” Huntress, at ¶ 7 (citing Skoglund v. Skoglund, 333 N.W.2d 795, 796 (N.D.1983) and Soby Constr., Inc. v. Skjonsby Truck Line, 275 N.W.2d 336, 341 (N.D.1979)).

[¶ 10] There is nothing in the record indicating the district judge made either oral or written findings of fact other than the directives in his letter dated December 15, 2003. However, he amended the findings prepared by Jody Foster’s attorney by removing a line, which is evidence that he read them and, with that amendment, signed the findings. When the court signs proposed findings they become the court’s findings and will be upheld on appeal unless clearly erroneous. Smith Enterprises v. In-Touch Phone Cards, 2004 ND 169, ¶ 11, 685 N.W.2d 741. “Although we prefer that trial courts prepare their own findings of fact, we reject [the] argument that the court’s wholesale adoption of [Jody Foster’s] proposed findings of fact, by itself, is reason to reverse the court’s decision.” Id.

III.

[¶ 11] Daniel Foster argues he should have had 10 days to object to Jody Foster’s proposed findings and order before they were filed. Rule 7.1(b)(1), N.D.R.Ct., states:

Any findings of fact and conclusions of law prepared by one or more parties shall be served upon all other parties for review and comment. The other parties may serve a response in writing, within 10 days of service, or such other time as the court, in its discretion, may allow. The court shall thereafter enter findings of fact and conclusions of law as it may deem appropriate.

[¶ 12] This Court has noted objections to findings of fact may be raised at the trial court level under N.D.R.Ct. 7.1(b)(3). Ratajczak v. Ratajczak, 1997 ND 122, ¶ 11, 565 N.W.2d 491. N.D.R.Ct. 7.1(b)(3) states, “[n]othing contained in this Rule of Court affects the right of any party to move the court for an order amending the findings of fact finally entered by the court or to make additional findings, under N.D.R.CivJP. 52(b).” Under Rule 52(b), N.D.R.Civ.P., a party who objects to findings of fact may, no more than 15 days after notice of entry of judgment, serve a motion requesting an amendment to the findings.

[¶ 13] Daniel Foster’s attorney’s secretary sent a letter on January 6, 2004, stating, “[p]lease be advised that Mr. Boughey and his client have specific objections in regards to the above documents. Mr. Boughey will provide a detailed listing of these objections within 10 days of receipt of these documents as provided under Rule 7 of the Rules of Court.” There is nothing in the record indicating any further objection was made by Daniel Foster.

[¶ 14] Under N.D.R.Ct. 7.1(b)(1), Daniel Foster should have been given 10 days to object to the proposed findings of fact before they were filed. Although the district court erred in not waiting to file the findings, it was harmless error. The findings were clearly adopted. Daniel Foster had a further option to bring to the district court’s attention any particular findings that he believed were not supported by the evidence under Rule 52(b), N.D.R.Civ.P., or to pursue his appeal. He chose to appeal.

rv.

[¶ 15] Attorney Channing Schmidt was appointed guardian ad litem and participated in the trial on behalf of the minor children. Schmidt’s position as guardian ad litem, rather than custody investigator, was established and clarified during the trial. Schmidt submitted a summation report on December 12, 2003. The final paragraph of his report recommended Jody Foster receive custody of the children. Daniel Foster argues it was improper for Schmidt to make a recommendation because he was a guardian ad litem, and only custody investigators are supposed to make custody recommendations.

[¶ 16] Rule 8.7, N.D.R.Ct., outlines the responsibilities of a guardian ad litem. A guardian ad litem “shall advocate the best interests of the child as to legal custody, physical placement, visitation, and support.” N.D.R.Ct. 8.7(d)(1). A guardian ad litem may also “deliver a summation.” Id. at (e). The rule does not specifically grant or deny a guardian ad litem the ability to make a custody recommendation.

[¶ 17] Rule 8.6, N.D.R.Ct., outlines the responsibilities of a custody investigator. A custody investigator shall “prepare a written report regarding the child’s best interest, including conclusions and recommendations and the facts upon which they are based.” N.D.R.Ct. 8.6(b)(8). A custody investigator is specifically required to make a custody recommendation.

[¶ 18] Daniel Foster argues a guardian ad litem must be prohibited from making a custody recommendation because Rule 8.6 specifically requires a custody investigator to make a recommendation and Rule 8.7 is silent for a guardian ad litem. We decline to read the rules this way. A guardian ad litem’s job is to advocate the best interests of the child, and this may include a custody recommendation.

V.

[¶ 19] We affirm.

[¶ 20] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING and WILLIAM A. NEUMANN, JJ„ concur.

I concur in the result. DALE V. SANDSTROM.