author: SHUMAKER, Judge.

text:
    STATE of Minnesota, Respondent, v. Kevin EDWARDS, Appellant.
    No. A06-820.
    Court of Appeals of Minnesota.
    July 31, 2007.

      Lori Swanson, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, St. Paul, MN; and Kathleen Heaney, Sherburne County Attorney, Elk River, MN, for respondent.
    John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by SHUMAKER, Presiding Judge; PETERSON, Judge; and ROSS, Judge.
   OPINION

SHUMAKER, Judge.

Appellant Kevin Edwards challenges his conviction of first-degree criminal sexual conduct, arguing that he was denied a fair trial because the attorney who represented him was suffering from mental illness during the trial. Appellant argues that an attorney’s mental illness during the representation .is presumptively prejudicial and should qualify as structural error. Appellant also argues that his attorney exhibited aberrant behavior: being belligerent, offering broad and inappropriate generalizations, and losing concentration during closing argument, all of which prejudiced appellant’s case. We reject the application of structural error to appellant’s attorney's alleged mental illness and conclude that such illness does not create a presumption of prejudice. Further, because counsel’s conduct during trial cannot be shown to have affected the outcome of the case, his performance was not constitutionally deficient, and we affirm.

FACTS

The state charged appellant Kevin Edwards with one count each of first-degree, second-degree, and third-degree criminal sexual conduct arising out of his conduct in sexually assaulting C.F., a 20-year-old student at St. Cloud State University, in June 2005. C.F. testified that she went out for the evening to two parties with a friend. She testified that when she left the second party at about 1 a.m., she had an argument with her friend, began walking home, and became lost. She testified that she met two men who told her that her apartment was by Cub Foods. They walked her to Cub Foods, where one of the men stopped to talk with a man sitting in a van in the parking lot.

After C.F. entered and then left the store with one of the men, she began walking around the outside of the building to go home. The man in the van, who was later identified as Edwards, pulled up to her and said he heard she needed a ride; she got into the van.

Edwards drove past C.F.’s apartment and stopped the van near the entrance to the quarry, a wooded area. C.F. testified that Edwards walked into the woods calling someone’s name and told her to wait. She testified that Edwards came back, pushed her shoulders on the ground, and got on top of her, saying he “just wanted to look” at her. She testified that she was “seared” and was “trying to find a way out,” and that after a struggle Edwards was able to remove her pants and underwear. She testified that he stimulated his penis and was able to place it partially into her vagina. She removed his penis, but he placed it partially into her vagina a second time. He told her that he would kill her if he did not ejaculate; she testified that she was terrified and that she believed him. She estimated that he threatened five or six times to kill her. She lied and told him she was a virgin. She testified that after she pulled his penis out a second time, he said, “I’m sorry, I didn’t know” and ran away.

C.F. put on her pants and was able to find her underwear, but dropped it on her way out of the woods. Her purse strap was broken during the assault. She left a shoe behind so that she could remember the location of the assault. C.F.’s post-assault medical examination showed injuries to her elbows and above her buttocks, but no tissue injury to her vagina.

Although C.F. was unable to get the van’s license-plate number, police identified Edwards as the van’s driver. In a police interview, Edwards at first denied a sexual encounter with C.F., but agreed to submit a DNA sample. The partial DNA profile obtained from the sperm-cell fraction of C.F.’s perineal swab matched Edwards’s DNA profile. The BCA scientist was unable to get a full DNA profile because there were so few sperm cells present. The statistical probability of finding that profile in unrelated individuals in the general population is one in 569. C.F. identified Edwards from a photo array as the person who committed the assault.

Edwards testified at trial that he had a sexual encounter with C.F., but asserted that it was consensual. He testified that he initially denied the encounter to police because he did not want to tell his pregnant girlfriend that he had cheated on her and because he did not ejaculate and did not think there would be any semen present. The jury convicted Edwards on all three counts.

Six weeks after trial, the Minnesota Supreme Court issued an order transferring Edwards’s privately retained trial counsel, Nicholas Gegen, to disability inactive status, based on a stipulation entered with the Director of the Office of Lawyers Professional Responsibility. See In re Gegen, 706 N.W.2d 763, 763 (Minn.2005). The order stated that Gegen’s reinstatement was subject to conditions relating to testing for alcohol abuse and expert evidence regarding his psychological fitness to resume practicing law. Id. at 763-64.

At a posttrial hearing, the disability-status order was discussed, and the district court granted Edwards’s application for a public defender to represent him at sentencing. Defense counsel then moved for a new trial on the ground that Edwards’s right to a fair trial was impaired because Gegen had been suffering from a mental illness, specifically bipolar disorder, at the time of trial. The defense argued that Gegen’s mental illness amounted to structural error, which gave rise to a presumption of unfairness. The district court denied the new-trial motion, implicitly rejecting the argument that structural error applied. The district court determined that under the standard in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), counsel’s representation did not fall below an objective standard of reasonableness, and there was no showing that, but for counsel’s errors, the result of the proceeding would have been different. The court sentenced Edwards to 144 months, the mandatory-minimum sentence for first-degree criminal sexual conduct. This appeal followed.

ISSUES

I. Does the alleged mental illness of Edwards’s attorney as manifested during trial qualify as structural error, entitling him to a new trial?
II. Did the district court err by denying Edwards’s motion for a new trial on the ground that counsel’s behavior could not be shown to have affected the outcome of the case?

ANALYSIS

I.

Generally, a party alleging ineffective assistance of counsel must affirmatively show that his “counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Gates v. State, 398 N.W.2d 558, 561 (Minn.1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984)). This court need .not address both the. performance and prejudice prongs if one is determinative. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069; Hale v. State, 566 N.W.2d 923, 927 (Minn.1997). This court reviews claims of ineffective assistance de novo. Strickland, 466 U.S. at 698, 104 S.Ct. at 2070; see also Barger v. United States, 204 F.3d 1180, 1181 (8th Cir.2000).

Edwards argues that he should not be held to the Strickland prejudice requirement because Gegen’s alleged mental illness, as manifested at trial, constitutes a structural error, which requires a per se presumption of prejudice. See Arizona v. Fulminante, 499 U.S. 279, 308, 309-10, 111 S.Ct. 1246, 1264, 1265, 113 L.Ed.2d 302 (1991) (stating that while some types of trial errors are susceptible to “quantitative [ ] assessment] in the context of other evidence presented in order to determine whether ... [the errors were] harmless beyond a reasonable doubt,” other kinds of errors are not subject to harmless-error analysis, but constitute “structural defects in the constitution of the trial mechanism” and “so affect[ ] the framework [of] ... trial” that they require automatic reversal); see also Brecht v. Abrahamson, 507 U.S. 619, 629-30, 113 S.Ct. 1710, 1717, 123 L.Ed.2d 353 (1993) (stating that structural errors “require[ ] automatic reversal because they infect the entire trial process”).

In a decision released the same day as Strickland, the United States Supreme Court specified three circumstances in which a defendant’s conviction would be reversed without inquiring into counsel’s actual performance or requiring the defendant to show what effect counsel’s representation had at trial. United States v. Cronic, 466 U.S. 648, 659-62, 104 S.Ct. 2039, 2047-48, 80 L.Ed.2d 657 (1984) (cited in Bell v. Cone, 535 U.S. 685, 695-96, 122 S.Ct. 1843, 1850-51, 152 L.Ed.2d 914 (2002)). These circumstances are: (1) “the complete denial of counsel” at a “critical stage” of the proceeding; (2) “if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing”; or (3) when counsel is called on to render assistance under circumstances when competent counsel could very likely not do so. Id. In Cone, the Supreme Court held that when a defendant’s claim involved a challenge to specific aspects of counsel’s representation, rather than an assertion that counsel had entirely failed to test the prosecutor’s ease, error could not be presumed, and the Strickland standard applied. Cone, 535 U.S. at 697, 122 S.Ct. at 1851.

Generally, courts have applied a presumption of prejudice only when the defendant has established a constructive denial of counsel. McGurk v. Stenberg, 163 F.3d 470, 474 (8th Cir.1998); see also Burdine v. Johnson, 262 F.3d 336, 349 (5th Cir.2001) (applying presumption of prejudice to sleeping attorney); United States v. Novak, 903 F.2d 883, 890 (2nd Cir.1990) (applying presumption when counsel had a fraudulently obtained license). Further,

[a]s a practical matter, it is difficult to imagine situations that would trigger structural error analysis beyond the failure on the part of counsel to inform a defendant of certain basic rights, such as the right to trial by jury, to self-representation, or to an appeal as a matter of right.

McGurk, 163 F.3d at 475 n. 5.

The Eighth Circuit has declined to adopt a rule requiring a per se presumption of prejudice regarding an attorney’s mental illness. Johnson v. Norris, 207 F.3d 515, 518 (8th Cir.2000). The court in Johnson held that evidence of an attorney’s bipolar disorder was “not the type of structural error envisioned in McGurk,” stating that “[bjipolar disorder, like most mental illnesses, can have varying effects on an individual’s ability to function, and the disease can vary widely in the degree of its severity. We are not convinced there is anything about [the attorney’s] bipolar condition that would not lend itself to the normal fact-specific Strickland analysis.” Id. Other circuits have come to a similar conclusion. See, e.g., Dows v. Wood, 211 F.3d 480, 485 (9th Cir.2000) (holding that state court correctly ruled that presumption of prejudice did not apply when defendant’s counsel was diagnosed with Alzheimer’s disease 18 months after trial); Bellamy v. Cogdell, 974 F.2d 302, 308 (2nd Cir.1992) (holding that defense counsel’s admitted physical and mental incapacity before trial, resulting in suspension immediately after trial, did not constitute per se ineffective assistance); cf. Pilchak v. Camper, 935 F.2d 145, 148 (8th Cir.1991) (holding that use of unconstitutional jury-selection process by defense counsel who had Alzheimer’s disease entitled defendant to new trial on ground of fundamental fairness).

Edwards acknowledges that the presumption of prejudice has been extended on a case-by-case basis only to situations in which “the defendant has established a constructive denial of counsel.” He also acknowledges that the courts that have considered this issue “have rejected the application of structural error where counsel is mentally ill.” But Edwards claims that he was constructively denied counsel because his mentally ill attorney was equivalent to a sleeping attorney.

Edwards provides numerous examples of counsel’s somewhat bizarre statements and actions during trial. These include counsel: (1) “singing and dancing” in the parking lot, as witnessed by Edwards’s girlfriend; (2) making slang references to premature ejaculation during trial; (3) asking C.F. whether it was appropriate for a person who is going to be an elementary teacher to “black out” from drinking; (4) referring to “black outs” with the nurse who examined C.F. at the hospital, even though the nurse said the term was inappropriate; (5) making generalizations that students from St. Cloud State, and C.F. in particular, were big partiers; (6) making stereotypical statements that Russians can hold their vodka and are good boxers, even though C.F.’s roommate was Bulgarian; and (7) making stereotypical statements about women during closing argument.

But contrary to Edwards’s contention, his attorney was not equivalent to a sleeping attorney. Gegen told the jury his theory of the case and recited the burden of proof at opening statement and closing argument, objected at trial, and aggressively cross-examined the complainant. During closing argument, he challenged C.F.’s credibility, based on her drinking during the evening and the quarry’s reputation as a party spot, and raised the inference that she may have “blacked out” during the assault. Although counsel’s performance, as noted by Edwards, shows odd behavior at various times throughout the trial, it does not amount to a constructive denial of counsel.

Edwards notes counsel’s additional conduct that he asserts was prejudicial to the defense. For instance, he points out that counsel elicited Edwards’s testimony that Edwards did not review the police reports because he knew what he was going to say at trial and that counsel asked questions during cross-examination of the nurse who examined C.F. that led the nurse to reiterate C.F.’s testimony. But this conduct is appropriately tested under the Strickland standard and does not trigger structural analysis. See McGurk, 163 F.3d at 475 n. 5. Edwards also asserts a due-process violation based on counsel’s elicitation from a police officer that the police interview ended after Edwards stated that he wanted an attorney. See Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976) (holding that a prosecutor’s use of a post-arrest Miranda warning violated due process). But this line of questioning immediately ended, and the officer also testified that the interview ended when the issue of Edwards’s DNA testing was brought up. See State v. Dobbins, 725 N.W.2d 492, 509-10, 513 (Minn.2006) (holding that unobjected-to prosecutorial misconduct of eliciting testimony on post-Miranda silence was not prejudicial and did not provide grounds for a new trial when line of questioning immediately ended). This conduct does not rise to the level of structural error.

Edwards argues additionally that because he did not know that his counsel was mentally ill at the time of trial, he was deprived of his Sixth Amendment right to choose retained counsel, which is subject to a structural-error analysis. See United States v. Gonzalez-Lopez, — U.S. —, —, 126 S.Ct. 2557, 2561, 165 L.Ed.2d 409 (2006). But “[djeprivation of the right [to select counsel of one’s choice] is ‘complete’ when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received.” Id. at 2563. Edwards does not deny that he was allowed to choose the attorney he wished to represent him. And to the extent that Edwards appears to argue that he was denied a right to a knowing and intelligent choice of counsel, we have found no authority requiring the state to ensure full disclosure of an attorney’s possible disability within the context of a private attorney-client relationship.

Finally, Edwards argues that because criminal defendants must be mentally competent to stand trial, it stands to reason that a defendant may not be represented by a mentally ill attorney. We observe that the record does not establish that Gegen’s disability was due to mental illness. Further, this argument improperly equates the standard for competency to stand trial with a diagnosis of mental illness.

The district court did not err by failing to consider defense counsel’s mental illness as structural error that entitled Edwards to a new trial without the need for a Strickland analysis.

II

Edwards does not argue that, if structural error does not apply, the district court erred by determining that the two prongs of the Strickland test were not met. Ordinarily, issues not briefed are waived. State v. Butcher, 563 N.W.2d 776, 780 (Minn.App.1997), review denied (Minn. Aug. 5, 1997). We will, however, address this issue in the interests of justice. See Minn. R.Crim. P. 28.02, subd. 11.

The district court at sentencing stated,

I don’t believe that either of the prongs in the Strickland standard have been met here either. I think the evidence was substantial and significant that the State presented. I don’t think there is any showing that the outcome would have been different, nor do I think there’s enough evidence — and I presided over the trial — that Mr. Ge-gen’s representation fell below an objective standard of reasonableness.
I think it is significant to note that a lot of the behavior that might be considered outside the main stream ... are some of the things that Mr. Gegen said during breaks and not during the trial; and his behavior during the trial, although possibly aggressive as [the prosecutor] has described it, was not that of a mentally ill person that I saw by my observations, so I’m going to deny the motion.

In Johnson, the court similarly analyzed the behavior of defense counsel, who was diagnosed with bipolar disorder five years after the defendant’s trial, under the Strickland standard. The court declined to find ineffective assistance based on examples of defense counsel’s “unprofessional and perhaps bizarre behavior,” including lying about his experience in capital cases, submitting a false application for malpractice insurance, and lack of trial preparedness. Johnson, 207 F.3d at 518. The court held, “Whether a result of bipolar disorder, character flaws, or just plain bad lawyering, these examples do not rise to the level of constitutionally deficient performance, because they cannot be shown to have affected the outcome of the case.” Id. Similarly, defense counsel’s conduct, although unorthodox, cannot be shown to have affected the outcome of this case. The evidence against Edwards was significant, including the complainant’s injuries to her elbows and buttocks, which contradicted Edwards’s theory of consensual sex. Therefore, the district court did not err by determining that the second prong of the Strickland test was not met.

DECISION

Edwards’s claim of ineffective assistance based on his attorney’s alleged mental illness is not subject to structural-error analysis. The district court did not err by determining that Edwards failed to prove that his counsel’s conduct during trial affected the outcome of the case.

Affirmed.


source: Caselaw Access Project

author: KALITOWSKI, Judge.

license: Public Domain

text:
    In the Matter of the WELFARE OF S.J.T.
    No. A07-49.
    Court of Appeals of Minnesota.
    July 31, 2007.

      Sara K. Sorenson, Ohnstad Twichell, P.C., West Fargo, ND, for appellant S.J.T.
    Brian Melton, Clay County Attorney, Jenel K. Wavra, Assistant County Attorney, Moorhead, MN, for respondent.
    Considered and decided by WORKE, Presiding Judge; KALITOWSKI, Judge; and MINGE, Judge.
   OPINION

KALITOWSKI, Judge.

Appellant S.J.T. challenges his certification as an adult on four counts of first-degree criminal sexual conduct arising from allegations regarding a number of nonconsensual sexual encounters between appellant and his adopted sister, arguing that (1) the Minnesota certification procedure violates the Fifth Amendment by requiring the juvenile to rebut a presumption of certification; (2) the Fifth Amendment precludes the district court from compelling the juvenile to submit certain information to the state; and (3) the district court abused its discretion by improperly weighing testimony, relying on police reports not in evidence, and concluding that appellant failed to rebut the presumption of certification.

FACTS

Appellant S.J.T. challenges his certification as an adult for prosecution on four counts of first-degree criminal sexual conduct arising from allegations that he initiated numerous nonconsensual sexual encounters with his adopted sister in approximately 2003. At the time, appellant was 16-17 years old and his sister was approximately 12 years old.

At the certification hearing, appellant produced an expert witness, Dr. Ascano, a psychologist who had reviewed documents, interviewed appellant, and administered psychological tests to appellant in order to prepare a psychosexual risk assessment. Respondent produced two expert witnesses: Dr. Hein-Kolo, a psychologist, and Tama Puhr, a probation officer who prepared appellant’s certification study. Because appellant refused to meet with her, Dr. Hein-Kolo did not interview or evaluate appellant personally, but relied on reports prepared by others, including Dr. Ascano, in preparing her opinion. Ms. Puhr interviewed appellant twice and although appellant signed a release of information to obtain medical records, appellant subsequently revoked the release. On advice of counsel, appellant refused to provide Ms. Puhr with his version of the allegations.

Prior to the certification hearing, appellant filed a motion to dismiss, which the district court denied. Appellant requested, but was denied, a stay of proceedings while he appealed the denial of his motion to dismiss. The court of appeals affirmed the denial of the motion to stay proceedings pending appeal and denied discretionary review. Following a hearing, the district court granted certification.

ISSUES

1. Does the Minnesota certification procedure violate the Fifth Amendment by requiring the juvenile to rebut a presumption of certification?

2. Does the Fifth Amendment preclude the district court from requiring the juvenile to submit certain information to the state?

3. Did the district court abuse its discretion by both admitting certain expert testimony into evidence and by according it too much weight?

4. Did the district court abuse its discretion by relying on police reports not in evidence?

5. Did the district court abuse its discretion by determining that appellant failed to rebut the presumption of certification?

ANALYSIS

A district court has considerable latitude in deciding whether to certify, and this court will not upset its decision “unless its findings are clearly erroneous so as to constitute an abuse of discretion.” In re Welfare of J.L.B., 435 N.W.2d 595, 598 (Minn.App.1989), review denied (Minn. Mar. 17, 1989). For purposes of certification, the juvenile is presumed guilty of the alleged offenses. Id.

Certification is presumed for an offense committed by a juvenile if the child was 16 or 17 years old at the time of the offense and the delinquency petition alleges that the child committed an offense that would result in a presumptive commitment to prison under the sentencing guidelines and applicable statutes. MinmStat. § 260B.125, subd. 3 (2004). Thus, in presumptive-certification proceedings, the state bears the burden of showing that (1) the juvenile was 16 or 17 years old, and (2) the alleged offense carries a presumptive prison sentence. Id.

Once the state has met its burden, the juvenile may rebut the presumption of certification by “clear and convincing evidence that retaining the proceeding in the juvenile court serves public safety.” Id. If the juvenile rebuts the presumption, the proceedings are retained in the juvenile court system under extended jurisdiction juvenile (EJJ) proceedings. Id., subd. 8 (2004). But if the juvenile fails to provide sufficient evidence to rebut the presumption, the matter must be certified. Id., subd. 3.

When assessing whether public safety would be served by retaining proceedings in the juvenile system, courts must consider six statutory factors: (1) the seriousness of the offense; (2) the culpability of the child in committing the offense; (3) the child’s prior record of delinquency; (4) the child’s programming history; (5) the adequacy of punishment or programming available in the juvenile system; and (6) the dispositional options available for the child. Id., subd. 4 (2004). The greatest weight must be placed on factor (1), the seriousness of the offense, and factor (3), the prior record of delinquency. Id.

I.

This court reviews the constitutionality of a statute de novo. In re Welfare of J.C.P., 716 N.W.2d 664, 666 (Minn.App.2006), review denied (Minn. Oct. 17, 2006). “Minnesota law presumes that all statutes are constitutional and should be declared unconstitutional only if it is established beyond a reasonable doubt that they violate a constitutional provision.” In re Welfare of T.C.J., 689 N.W.2d 787, 795 (Minn.App.2004), review denied (Minn. Jan. 26, 2005).

Appellant argues that the presumptive-certification proceeding violates his Fifth Amendment rights by requiring him to rebut the presumption of certification as an adult. The United States Supreme Court has held that “a juvenile [is] entitled to the protection of due process, including specifically the right to notice of the charges, to counsel, to confrontation and cross-examination and to the privilege against self-incrimination, and to appellate review and a transcript of the proceedings.” In re Welfare of B.M.L., 558 N.W.2d 113, 114 (Minn.App.1996) (citing and quoting Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (citations omitted)). “[A]n order of certification is a pretrial determination that transfers jurisdiction from the juvenile court to the district court.” In re Welfare of J.C.P., 716 N.W.2d at 669 (citing Minn. Stat. § 260B.125, subd. 1 (2004), and In re Welfare of L.J.S., 539 N.W.2d 408, 413 (Minn.App.1995) (noting that certification is a pretrial procedure that determines which court will try the juvenile), review denied (Minn. Jan. 25, 1996)). In other words, a juvenile certification procedure is not a dispositional procedure. But the United. States Supreme Court has stated that “[t]he privilege [against self-incrimination] can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory.... [I]t protects any disclosures which the witnesses may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used.” Application of Gault, 387 U.S. at 47-48, 87 S.Ct. at 1454 (quoting Murphy v. Waterfront Comm’n, 378 U.S. 52, 94, 84 S.Ct. 1594, 1611, 12 L.Ed.2d 678 (1964)). Because the Fifth Amendment right against self-incrimination applies to all proceedings, civil or criminal, administrative or judicial, we conclude that it must necessarily apply to a juvenile certification procedure.

Having concluded that the Fifth Amendment applies to certification proceedings, we must now decide whether, as appellant alleges, a defendant’s Fifth Amendment right against self-incrimination is violated by the presumptive-certification proceeding. Appellant argues that he suffered a penalty by choosing not to testify because, based on the presumption of certification, his failure to testify precluded his ability to rebut the presumption and resulted in certification. Appellant alleges that in order to rebut a presumption that public safety is not best served by the juvenile’s certification, the juvenile is essentially required to testify: “Under Minnesota’s statutory scheme, S.J.T. had no means or opportunity of rebutting these alleged comments without potentially inculpating himself.”

We note that we have already decided that the presumptive-certification proceeding does not violate a juvenile’s Sixth Amendment rights or right to Due Process under the Fourteenth Amendment. We concluded that the presumptive-certification process does not conflict with the presumption of innocence, stating that “[t]he presumptive certification statute does not affect the state’s burden of proving an element of the offense, and so does not conflict with the presumption of innocence.” In re Welfare of L.J.S., 539 N.W.2d 408, 413 (Minn.App.1995), review denied (Minn. Jan. 25, 1996). And we further concluded that the presumptive-certification statute does not improperly create an irrebuttable presumption: “The juvenile may rebut the presumption ‘by demonstrating by clear and convincing evidence that retaining the proceeding in the juvenile court serves public safety.’ ” Id. Specifically, “[t]he statute [ ] allows the juvenile to present evidence going beyond those basic facts to the broader issue of whether public safety is served.” Id.

Here, we are asked to analyze the presumptive-certification proceedings from a Fifth Amendment standpoint. We conclude, as in L.J.S., that the proceedings are not unconstitutional. In a presumptive-certification procedure, the juvenile may present evidence regarding “the broader issue of whether public safety is served,” id., which includes expert testimony regarding each of the six public-safety factors. Because the child is presumed guilty of the charged offense, the issues the court decides during the certification proceeding are policy issues regarding the case against the juvenile and not the facts of the specific case. Although the juvenile may testify, he is not required to do so; whether the juvenile testifies is a tactical decision made by the juvenile and his attorney, not an evidentiary decision made by the court. Moreover, as discussed below, state and federal rules, statutes, and caselaw provide protection against self-incrimination for a juvenile who elects to testify.

We reject appellant’s argument that the statute compels him to testify. Although a juvenile may testify, there is nothing in the statute that requires him to do so. Without the requirement to testify, we conclude that the fact that the presumptive-certification statute provides an opportunity for the juvenile to rebut a presumption of adult certification does not violate the juvenile’s Fifth Amendment right against self-incrimination, either facially or as applied.

II.

Appellant next argues that the presumptive-certification proceeding violates the Fifth Amendment, facially and as applied, by allowing the district court to compel a defendant to produce certain records without providing sufficient protection to the defendant for any incriminating statements that those records may contain.

First, we must decide whether Minn. R. Juv. Delinq. P. 18.03, subd. 1, which states that- “[t]he court ... may order social, psychiatric, or psychological studies concerning the child who is the subject of the certification proceeding,” compels testimony from the juvenile. Then, we must decide whether, if testimony is compelled, adequate protection is afforded a juvenile against the use of the potentially self-incriminating statements. Finally, if the rules do not violate the Fifth Amendment, we must look at the disclosures ordered in this case and determine whether the district court abused its discretion by failing to comply with the rules.

1. Compelled Testimony

The Fifth Amendment not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also permits him “not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136, 1141, 79 L.Ed.2d 409 (1984) (quotation omitted). The “constitutional guarantee is only that the witness not be compelled, to give self-incriminating testimony,” McKune v. Lile, 536 U.S. 24, 36, 122 S.Ct. 2017, 2026, 153 L.Ed.2d 47 (2002) (quotation omitted), “of a communicative or testimonial nature.” State v. Bebel, 383 N.W.2d 724, 726 (Minn.App.1986), review denied (Minn. May 22, 1986).

As an initial matter, we conclude that a juvenile’s participation in a court-ordered investigation or study is compelled because he has no option to refuse. “[T]o be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 189, 124 S.Ct. 2451, 2460, 159 L.Ed.2d 292 (2004) (quotation omitted). A juvenile’s submission to psychological or other evaluations that require the juvenile’s responses as part of the study produces testimonial evidence. Accordingly, we conclude that court-ordered submission of a juvenile to certification studies that require the juvenile’s responses as part of the study fall within the Fifth Amendment’s scope of compelled testimony.

2. Adequate Protection

Next, we must decide whether adequate protections exist to permit the district court to compel a juvenile to comply with Minn. R. Juv. Delinq. P. 18.03, subd. 1, without violating the juvenile’s Fifth Amendment right against self-incrimination. The Minnesota Supreme Court has cited the United States Supreme Court’s holding that “a statute granting both use and derivative use immunity to a witness whose testimony was to be compelled was coextensive with the Fifth Amendment privilege and thus constitutionally permissible.” Prod. Credit Ass’n of Redwood Falls v. Good, 303 Minn. 524, 530, 228 N.W.2d 574, 578 (1975); see also State v. Nolan, 231 Minn. 522, 529, 44 N.W.2d 66, 71 (1950) (quoting Glickstein v. United States, 222 U.S. 139, 141, 32 S.Ct. 71, 72-73, 56 L.Ed. 128 (1911)).

Here, specific and general protections against self-incrimination are in place in Minnesota rules and statutes. Minnesota Rule of Juvenile Delinquency Procedure 18.04, subdivision 5, provides that “[a]ny matters disclosed by the child to the examiner during the course of the study may not be used as evidence or the source of evidence against the child in any subsequent trial.” And the Minnesota Supreme Court has determined that Minnesota Statute § 609.09 grants Fifth Amendment compliant immunity against use of compelled testimony against the witness from whom it was compelled in any criminal proceeding. Good, 303 Minn, at 530, 228 N.W.2d at 578. Minnesota Statute § 609.09, subdivisions 1 and 2 (2004), provide additional protection. Subdivision 1 states:

In any criminal proceeding, including a grand jury proceeding, paternity proceeding, or proceeding in juvenile court, if it appears a person may be entitled to refuse to answer a question or produce evidence of any other kind on the ground that the person may be incriminated thereby, and if the prosecuting attorney, in writing, requests the chief judge of the district or a judge of the court in which the proceeding is pending to order that person to answer the question or produce the evidence, the judge, after notice to the witness and hearing, shall so order if the judge finds that to do so would not be contrary to the public interest and would not be likely to expose the witness to prosecution in another state or in the federal courts.
After complying, and if, but for this section, the witness would have been privileged to withhold the answer given or the evidence produced by the witness, no testimony or other information compelled under the order, or any information directly or indirectly derived from such testimony or other information may be used against the witness in any criminal case, but the witness may be prosecuted or subjected to penalty or forfeiture for any perjury, false swearing or contempt committed in answering, or in failing to answer, or in producing, or failing to produce, evidence in accordance with the order.

Subdivision 2 provides further assurances of immunity:

In every case not provided for in subdivision 1 and in which it is provided by law that a witness shall not be excused from giving testimony tending to be self-incriminating, no person shall be excused from testifying or producing any papers or documents on the ground that doing so may tend to criminate the person or subject the person to a penalty or forfeiture; but no testimony or other information directly or indirectly derived from such testimony or other information may be used against the witness in any criminal case, except for perjury committed in such testimony.

Minn.Stat. § 609.09, subd. 2. Furthermore, the Minnesota Supreme Court has stated:

Although we find that Minn.Stat. [§ ] 609.09, subd. 2, granted defendant transactional immunity, we note that defendant would have been constitutionally entitled to use and derivative use immunity even in the absence of any statutory protection. The United States Supreme Court has held that if a witness is ordered to answer questions without an express grant of immunity, he need not subject himself to a contempt sentence but may choose to answer and thus become entitled to immunity coextensive with the Fifth Amendment privilege.

Good, 303 Minn, at 532 n. 6, 228 N.W.2d at 579 n. 6 (citing Lefkowitz v. Turley, 414 U.S. 70, 78, 94 S.Ct. 316, 322, 38 L.Ed.2d 274 (1973)).

We conclude that any use of appellant’s compelled statements against him in a criminal case is precluded either by Minn. R. Juv. Delinq. P. 18.04, subd. 5, Minn. Stat. § 609.09, Lefkowitz, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274, or Murphy, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678. Accordingly, we conclude that the presumptive-certification proceeding does not violate the Fifth Amendment by providing inadequate protections against the further use of appellant’s compelled testimony, including studies compelled by the court.

3. Application Here

“[W]hether the [district] court violated [a witness’s] Fifth Amendment privilege against self-incrimination is a question of law which this court reviews de novo.” In re Contempt of Ecklund, 636 N.W.2d 585, 587 (Minn.App.2001) (quoting State v. Kaquatosh, 600 N.W.2d 158, 156 (Minn.App.1999), review denied (Minn. Dec. 14, 1999)).

Here, appellant alleges that the district court ordered appellant to release his medical records to the state. Although medical records are not specifically referenced in rule 18.03, subdivision 1, the nature of the requested evidence falls within the scope of the rule. And because the district court compelled the juvenile to provide the evidence, the information provided is therefore immune from use in appellant’s criminal proceeding.

The compelled nature of the evidence also brings the records under the purview of Minn.Stat. § 609.09, subd. 2, which precludes use of the records or information uncovered through the records against the juvenile in the criminal proceeding. Although only self-incriminating evidence may be protected, In re Welfare of J.W., 415 N.W.2d 879, 883 (Minn.1987), that is the evidence appellant is concerned about. Finally, as discussed above, Lefkowitz, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274, and Murphy, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678, provide appellant additional protection against self-incrimination.

We conclude that the district court did not abuse its discretion by requiring that appellant’s medical records be turned over to the state and that such disclosure does not violate the Fifth Amendment because, as compelled testimony, appellant is provided adequate protection against further use of the evidence in a criminal proceeding.

III.

Appellant argues that testimony from respondent’s two experts was erroneously admitted and relied on by the district court. “Expert testimony is admissible if it will assist the trier of fact in evaluating evidence or resolving factual issues.” State v. Crow, 730 N.W.2d 272, 279 (Minn.2007). “A qualified expert may testify in the form of an opinion if the expert’s ‘scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.’ ” Id. (quoting Minn. R. Evid. 702). “The opinion, however, ‘must have foundational reliability.’ ” Id. (quoting State v. Blanche, 696 N.W.2d 351, 372 (Minn.2005)).

First, appellant argues that the testimony of the state’s expert, Dr. Hein-Kolo, lacked foundation because she did not interview or personally examine appellant. Appellant cites Peterson v. Peterson, 408 N.W.2d 901, 904 (Minn.App.1987), in support of his argument that personal interviews must be conducted before an expert may render an opinion. In Peterson, a father attempted to introduce expert testimony regarding a custody case, but the expert had not spoken to the mother or the child and based its recommendations on the father’s statements only. 408 N.W.2d at 904.

Here, the record indicates that Dr. Hein-Kolo is a Ph.D. clinical psychologist, who has been licensed in the State of Minnesota for almost 12 years, and has performed approximately 50 sex offender evaluations. The record further indicates that Dr. Hein-Kolo’s testimony was not based solely on information received from respondent, as was the case- in Peterson. Rather, Dr. Hein-Kolo reviewed investigative reports that contained statements from both appellant and the victim, relied on a sex offender evaluation performed by appellant’s expert, and reviewed the Petition for Certification.

Dr. Hein-Kolo testified about general treatment programs and time requirements for sexual offenders and, based on her review of the documents, the seriousness of the crime and the adequacy of treatment in the EJJ system. Although the state elicited generalized responses from Dr. Hein-Kolo, she also testified regarding specific admissions or statements in the documents that she had reviewed and her perspective on the effect the truth of such statements would have on treatment. For example, when asked about appellant’s likelihood of recidivism, she cited the allegations from the documents that she deemed relevant to the issue of recidivism. She also assessed appellant’s likelihood of recidivism based on her evaluation of appellant’s statements and cited clinical studies to support her assessment.

Appellant provides no legal support for his assertion that a clinical psychologist cannot provide expert testimony in a certification hearing without having personally interviewed the witness. Furthermore, the record indicates that the reason that Dr. Hein-Kolo did not interview appellant is that appellant refused to speak with her. The district court has wide discretion whether to admit expert testimony, Crow, 730 N.W.2d at 279. Thus, we cannot conclude that in light of appellant’s refusal to cooperate with the witness, it was an abuse of discretion for the district court not to have precluded the witness from testifying. The basis of an expert’s testimony is appropriately considered in the weight to give the testimony. And weight and credibility issues are within the province of the fact-finder. Tsudek v. Target Stores, Inc., 414 N.W.2d 466, 469 (Minn.App.1987), review denied (Minn. Dec. 13, 1987). We conclude that the district court did not abuse its discretion by admitting and crediting the testimony of Dr. Hein-Kolo.

Appellant also argues that Tama Puhr was not qualified to conduct a certification study, testified without relying on psychological data, and recommended certification even though appellant had no history of misconduct. But appellant did not object to Ms. Puhr’s qualifications or the foundation of her report at the hearing and we decline to address the objections for the first time here. Roby v. State, 547 N.W.2d 354, 357 (Minn.1996).

IV.

Appellant argues that the district court impermissibly considered police reports not in evidence. But the specific statement that appellant challenges, that appellant may have had inappropriate sexual contact with another sister, was referenced by a witness during the hearing. Appellant has not shown that the district court considered information or reports not in evidence.

In addition, even if the district court erred by considering information not in evidence, appellant must show that the error was prejudicial. Bernhardt v. State, 684 N.W.2d 465, 475 (Minn.2004). Here, although appellant notes that the police report contained an allegation that appellant may have had inappropriate sexual contact with another sister, he does not explain how this allegation was used in the certification proceeding. The district court’s conclusions of law, which detail its analysis regarding the public-safety factors, do not refer to another possible victim. And because, as discussed below, the district court adequately concluded that appellant failed to rebut the presumption of certification without reference to the complained-of allegation, appellant has failed to show that the district court’s consideration of any matters not in evidence resulted in prejudice.

V.

A district court has considerable latitude in deciding whether to certify, and this court will not upset its decision “unless its findings are clearly erroneous so as to constitute an abuse of discretion.” In re Welfare of 435 N.W.2d at 598. For purposes of certification, the juvenile is presumed guilty of the alleged offenses. Id.

Certification is presumed for an offense committed by a juvenile if the child was 16 or 17 years old at the time of the offense and the delinquency petition alleges that the child committed an offense that would result in a presumptive commitment to prison under the sentencing guidelines and applicable statutes. Minn.Stat. § 260B.125, subd. 3. Here, appellant was 16-17 when he allegedly committed a crime and the crime, first-degree criminal sexual conduct, carries a presumptive prison sentence of 144 months. Therefore, certification is presumed.

The juvenile may rebut the presumption of certification by “clear and convincing evidence that retaining the proceeding in the juvenile court serves public safety.” Id. If the juvenile rebuts the presumption, the proceedings are retained in the juvenile court system under EJJ. Id., subd. 8. But if the juvenile fails to provide sufficient evidence to rebut the presumption, the matter must be certified. Id., subd. 3. Appellant argues that the district court abused its discretion by concluding that appellant failed to rebut the presumption of certification.

When assessing whether public safety would be served by retaining proceedings in the juvenile system, courts must consider six statutory factors: (1) the seriousness of the offense; (2) the culpability of the child in committing the offense; (3) the child’s prior record of delinquency; (4) the child’s programming history; (5) the adequacy of punishment or programming available in the juvenile system; and (6) the dispositional options available for the child. Id., subd. 4. The greatest weight must be placed on factor (1), the seriousness of the offense, and factor (3), the prior record of delinquency. Id. Here, the district court addressed each factor in its decision.

1. Seriousness of the Offense

In assessing the seriousness of the offense, courts are to consider any aggravating factors and the impact on the victim. Id., subd. 4(1); In re Welfare of U.S., 612 N.W.2d at 195. Here, the district court concluded that the charged offenses are “very serious.” The petition for certification, the charges of which are presumed to be true, In re Welfare of J.L.B., 435 N.W.2d at 598, states that appellant had intercourse with the victim “too many times to count,” beginning when the victim was approximately 11 years old and ending when she was approximately 13 years old. The victim experienced pain and bleeding; appellant allegedly held his hand over her mouth and threatened to hurt her if she told anyone. The district court stated that:

It is particularly significant that the Juvenile’s conduct is alleged to have occurred on numerous occasions over the course of several years, and that the Juvenile was so blinded by denial that he believed [the victim] enjoyed being violated. It is concerning that the Juvenile is alleged to have used threats, intimidation, and force to accomplish his abusive behavior. In addition, the Court finds it significant that the Juvenile is several years older than [the victim] and was in a position of influence as [the victim’s] older brother. There was very little testimony on victim impact in this case. However, the Petition reflects that the police first became aware of the situation because [the victim] began to experience behavioral problems, and it was determined that she needed therapy. The Juvenile’s conduct has clearly affected not only [the victim], but the entire family. In conclusion, the Court finds that the first factor weighs in favor of certification.

The record supports the district court’s conclusion.

2. Culpability

The district court found appellant culpable, noting that he “committed the offense on his own, without the participation or help of others” and “used threats, intimidation, and force.” The district court also determined that the mitigating factors under the sentencing guidelines are inapplicable in this case. We conclude that the district court properly determined that the culpability factor weighs in favor of certification.

3. Prior Delinquency Record

The parties agree that because appellant had no prior delinquency record, this factor weighs against certification.

4. Programming History

The parties agree that appellant had no prior programming history, weighing against certification.

5. Adequacy of Punishment or Programming and Dispositional Options Available

Under EJJ, the juvenile court retains jurisdiction over certain offenders until they reach the age of 21. Minn.Stat. § 260B.193, subd. 5(b) (2004). The juvenile court imposes a juvenile disposition and a stayed adult disposition, which is imposed only if the juvenile fails to comply with the juvenile disposition or commits any new offenses. Minn.Stat. § 260B.130 (2004). Because appellant turned 19 years old on July 15, 2006, appellant would remain under EJJ jurisdiction for less than two years at the time of certification. Alternatively, the presumptive adult sentence is 144 months. Insufficient time for rehabilitation under the juvenile system is an appropriate consideration when determining whether to certify a juvenile. In re Welfare ofU.S., 612 N.W.2d at 197.

In addition, the experts testified that, if the state’s allegations were true, the EJJ system was inadequate for treating or punishing appellant. The district court concluded:

The Court finds it likely that the Juvenile will need rehabilitative therapy for an extended period of time if he is found guilty of the alleged offense. In addition, the Court has grave concerns that the EJJ system will not allow for enough time to provide the Juvenile with the treatment he needs. In light of the serious nature of the alleged offense, the Court also believes the EJJ system will not provide an adequate punishment for the Juvenile. The Court concludes that the last two public safety factors weigh in favor of certification.

We conclude that the district court properly determined that four of the six factors favored certification, including one of the factors that is statutorily prescribed to receive greater weight.

Appellant argues that because all the experts testified that he has a low likelihood of recidivism, he is not in need of treatment. He further contends that since he is unlikely to reoffend he is not a risk to public safety and this alone should outweigh the district court’s evaluation of the statutory factors. But the likelihood that a juvenile will reoffend is not specifically listed as a factor to consider in deciding whether public safety is served by retaining appellant in the juvenile system. Here, the record indicates that the district court properly evaluated the statutorily prescribed factors. And it is not the province of this court to create law, but rather to interpret legislation. Martinco v. Hastings, 265 Minn. 490, 497, 122 N.W.2d 631, 638 (1963) (stating that a change in a statute must come from the legislature). Thus, we decline appellant’s invitation to deviate from the plain language of the statute and create a new standard by which to evaluate a juvenile’s threat to public safety.

We conclude that the district court did not clearly err in its findings or abuse its discretion in its conclusion that appellant failed to establish that retaining appellant in the juvenile court serves public safety.

DECISION

The Fifth Amendment right against self-incrimination applies to the juvenile certification procedure, but the presumptive-certification statute does not violate this right, either facially or as applied, by providing an opportunity for the juvenile to rebut a presumption of adult certification. A court-ordered requirement that a juvenile submit to certification studies that require the juvenile’s responses falls within the Fifth Amendment’s scope of compelled testimony, but such testimony is protected against further use in a criminal proceeding by Minnesota and federal rules, statutes, and caselaw. The district court did not abuse its discretion by ordering appellant to submit his medical records to the state because the compelled testimony contained therein is afforded adequate immunity from further use.

The district court has broad discretion whether to admit expert testimony and appellant’s refusal to cooperate with the expert witness’s investigation does not preclude the witness from testifying.

On this record we conclude that the district court did not clearly err or abuse its discretion by determining that appellant failed to establish that retaining appellant in the juvenile court serves public safety and by certifying appellant as an adult for further criminal proceedings.

Affirmed.


author: HALBROOKS, Judge.

text:
    Theresa Mary MITSCH, Appellant, v. AMERICAN NATIONAL PROPERTY AND CASUALTY COMPANY, Respondent.
    No. A06-1626.
    Court of Appeals of Minnesota.
    July 31, 2007.

      Sharon L. Van Dyck, James G. Wein-meyer, Schwebel, Goetz & Sieben, P.A., Minneapolis, MN, for appellant.
    Klay C. (KC) Ahrens, Elizabeth E. Ca-turia, Hellmuth & Johnson, PLLC, Eden Prairie, MN, for respondent.
    Considered and decided by HALBROOKS, Presiding Judge; LANSING, Judge; and HUDSON, Judge.
   OPINION

HALBROOKS, Judge.

Appellant challenges the district court’s decision to dismiss on summary judgment her claim seeking underinsured-motorist (UIM) benefits under an insurance policy issued by respondent American National Property and Casualty Company (AN-PAC). Because (1) the application of that covered policy’s reducing clause in this context violates Minn.Stat. § 65B.49, subd. 4a (2006), and (2) appellant’s claim for UIM benefits does not result in a conversion of first-party coverage to third-party coverage, we conclude that the district court erred in granting summary judgment to ANPAC. We therefore reverse and remand.

FACTS

On the afternoon of September 23, 2002, appellant Theresa Mary Mitsch was riding as a passenger on a motorcycle driven by her husband, Thomas Mitsch (Thomas). As they were traveling on the highway, a truck driven by Joseph Henry Frank (Frank) “invaded” their lane of traffic, forcing Thomas to swerve off the road and into a ditch. Appellant, who was thrown from the motorcycle, sustained significant injuries. Thomas conceded that he was driving his motorcycle at an excessive speed for the road conditions and thus acknowledged that the accident was partially due to his negligence. Frank also conceded that the accident was due, in part, to his negligence.

At the time of the accident, Frank was insured by Austin Mutual Insurance Company (Austin Mutual) with a liability limit of $30,000 per person. Thomas had coverage on his motorcycle with ANPAC that provided liability and UIM limits of $250,000 per person. Because appellant is the spouse of Thomas, the named ANPAC insured, she is an insured under that policy.

Appellant settled her liability claim against Frank for $30,000 — the liability limit under the Austin Mutual policy. Appellant also settled her liability claim against Thomas for the liability limit on the ANPAC policy of $250,000. But because these amounts were not sufficient to fully compensate appellant for her injuries, she submitted a claim for UIM benefits to ANPAC. ANPAC denied appellant’s claim pursuant to the “Limits of Liability” clause in Part IV of its policy, otherwise known as “the reducing clause,” which states that UIM “[ajmounts payable will be reduced by: (1) a payment made by the owner or operator of the ... underin-sured motor vehicle, or organization which may be legally liable; [and] (2) a payment made under the Liability Coverage or Personal Injury Protection Coverage of this policy[.]”

Appellant sued ANPAC, seeking to recover UIM benefits. ANPAC subsequently moved for summary judgment, arguing, in part, that under the policy’s reducing clause, “any claimed UIM benefits would have to be reduced by the already tendered liability claim of $250,000.00, which would eliminate any potential UIM benefits, because the UIM benefits are limited to $250,000.00.” Appellant responded that the reducing clause in ANPAC’s policy is contrary to Minnesota law and therefore sought an order from the district court declaring that ANPAC’s policy provides her with up to $250,000 in UIM benefits. The district court granted AN-PAC’s motion for summary judgment and dismissed appellant’s complaint seeking UIM benefits under the ANPAC policy. The district court, citing this court’s decisions in Jensen v. United Fire & Cas. Co., 524 N.W.2d 536 (Minn.App.1994), review denied (Minn. Feb. 3, 1995), and Engle v. Estate of Fischer, No. C9-02-1088 (Minn.App. Jan.28, 2003), review denied (Minn. Apr. 15, 2003), noted that “[Reducing clauses have been upheld as consistent with established case law that prevents converting first party UIM coverage into additional third party liability coverage.” The district court therefore concluded that “[t]he reducing clause in [ANPAC’s] policy is enforceable as applied to the facts of this case” provided ANPAC “is not attempting to reduce its UIM benefits based upon liability payments made by another tort-feasor or pursuant to insurance coverage on another vehicle,” but instead is reducing benefits where there has been a liability payment previously made under that same policy.

This appeal follows.

ISSUE

Did the district court err by granting ANPAC’s motion for summary judgment on the ground that the reducing clause in the ANPAC insurance policy is enforceable, thereby eliminating appellant’s claim for UIM benefits?

ANALYSIS

The parties do not dispute the underlying facts. In an appeal from a grant of summary judgment when there are no genuine issues of material fact, “we review de novo whether the [district] court erred in its application of the law.” Kelly v. State Farm Mut. Auto. Ins. Co., 666 N.W.2d 828, 380 (Minn.2003). Similarly, the interpretation of insurance-policy language based on undisputed underlying facts, as well as statutory construction, are questions of law, which we review de novo. Jensen v. United Fire & Cas. Co., 524 N.W.2d 536, 538 (Minn.App.1994), review denied (Minn. Feb. 3,1995).

The extent of an insurer’s liability is determined by the insurance contract with its insured as long as that insurance policy does not omit coverage required by law and does not violate applicable statutes. Lynch ex rel. Lynch v. Am. Family Mut. Ins. Co., 626 N.W.2d 182, 185 (Minn.2001). This court must construe an insurance policy as a whole and must give unambiguous language its plain and ordinary meaning. Henning Nelson Constr. Co. v. Fireman’s Fund Am. Life Ins. Co., 383 N.W.2d 645, 652 (Minn.1986). But when language in an insurance contract is ambiguous, such that it is reasonably subject to more than one interpretation, we will construe it in favor of the insured. Progressive Specialty Ins. Co. v. Widness ex rel. Widness, 635 N.W.2d 516, 518 (Minn.2001); Hammer v. Investors Life Ins. Co. of N. Am., 511 N.W.2d 6, 8 (Minn.1994).

Minnesota law mandates that all UIM coverage issued in the state be “add-on” coverage, as expressed in Minn.Stat. § 65B.49, subd. 4a (2006), which provides:

With respect to underinsured motorist coverage, the maximum liability of an insurer is the amount of damages sustained but not recovered from the insurance policy of the driver or owner of any underinsured at fault vehicle. If a person is injured by two or more vehicles, underinsured motorist coverage is payable whenever any one of those vehicles meets the definition of underinsured motor vehicle in section 65B.43, subdivision 17. However, in no event shall the un-derinsured motorist carrier have to pay more than the amount of its underin-sured motorist limits.

Minnesota courts have refused to award UIM benefits when the claim for benefits results in coverage conversion. See, e.g., Kelly, 666 N.W.2d at 331-32 (holding that a policy excluding an insured’s vehicle from definition of “underinsured motor vehicle” so as to avoid coverage conversion did not violate No-Fault Act); Myers v. State Farm Mut. Auto. Ins. Co., 336 N.W.2d 288, 291 (Minn.1983) (holding that owned-vehicle exclusion in insurance policy barring UIM coverage did not violate no-fault act when the exclusion served to prevent coverage conversion). Coverage conversion occurs when less expensive first-party UIM coverage is used as a substitute for more expensive third-party liability coverage. Kelly, 666 N.W.2d at 331.

Here, the reducing clause in ANPAC’s insurance policy states that UIM “[a]mounts payable will be reduced by: (1) a payment made by the owner or operator of the ... underinsured motor vehicle, or organization which may be legally liable; [and] (2) a payment under the Liability Coverage or Personal Injury Protection Coverage of this policy[.]” ANPAC contends that its reducing clause is enforceable because it prevents the impermissible conversion of first-party UIM coverage into third-party liability coverage. The district court agreed, concluding that because “[t]he reducing clause in [ANPAC’s] policy is enforceable as applied to the facts of this case,” appellant was appropriately denied UIM benefits under the policy. The district court reasoned that “[r]educing clauses have been upheld as consistent with established case law that prevents converting first party UIM coverage into additional third party liability coverage.” As noted, in support of its decision, the district court cited to this court’s decisions in both Jensen and Engle v. Estate of Fischer, No. C9-02-1088, 2003 WL 174541 (Minn.App. Jan.28, 2003), review denied (Minn. Apr. 15, 2003).

In Jensen, 12-year-old Katie Jensen was severely injured when the vehicle in which she was riding was involved in a single-vehicle accident. 524 N.W.2d at 537. The vehicle, which was owned by Dennis Harker (the father of a friend), was being driven by Katie’s older sister Shanna at the time of the accident. Id. Three insurance policies potentially covered Katie’s injuries arising from the accident: (1) a policy issued by State Farm Mutual Automobile Insurance Company (State Farm) that insured Harker’s vehicle; (2) a family/personal policy issued by National Farmers Union Property & Casualty Company (Farmers Union) to Shanna’s father, Roger Jensen, that covered Shanna as the driver of the vehicle; and (3) a commercial insurance policy issued by United Fire & Casualty (United Fire) to “Eagle Excavating Jensen Roger dba.” Id.

Harker’s insurer, State Farm, conceded coverage and paid its liability limit of $100,000. Id. Farmers Union also paid its liability limit of $100,000 on behalf of Shanna as the driver. Id. But because Katie’s injuries were not fully compensated by these payments, her father, Roger, filed a declaratory-judgment action on Katie’s behalf, seeking UIM benefits under both the Farmers Union policy and the commercial United Fire policy. Id. at 537-38. The Farmers Union policy had $100,000 of UIM coverage, and the United Fire policy had UIM coverage of $300,000. Id. at 538. The district court subsequently granted summary judgment on behalf of both Farmers Union and United Fire, and Jensen appealed. Id.

On appeal, this court began by examining the Farmers Union policy, which contained a reducing clause, stating that “[a]ny [UIM] amounts payable will be reduced by: ... [a]ny payment under the Liability Coverage of this policy.” Id. Jensen argued that the reducing clause should be ignored because the clause violated the “add-on” nature of UIM coverage as required by the no-fault act. Id. at 539. But this court disagreed, stating that “the 1989 amendment is irrelevant under these facts” because “Farmers Union [wa]s not attempting to use liability payments by other tortfeasors to reduce the available UIM coverage — which is what the legislature’s ‘add-on’ amendment sought to avoid.” Id. Instead, this court determined that the reducing clause was “based on the relevant policy’s explicit language that excludes recovery when there has been a previous liability payment under that same 'policy.” Id. This court therefore affirmed the district court’s grant of summary judgment in favor of Farmers Union, holding that the reducing clause expressly decreased the available UIM benefits by the amount of any liability insurance proceeds paid to Katie under the same policy. Id. at 538. Consequently “the $100,000 limit of UIM coverage must be reduced by the $100,000 liability coverage that Farmers Union already paid to Katie on behalf of the driver,” leaving a balance of zero. Id. This court reasoned that “the reducing clause is in accord with established case law that prevents converting first-party UIM coverage into additional third-party liability coverage.” Id.

In Engle, “appellant Tiesha Engle was injured in a motor vehicle accident while riding as a passenger in a vehicle driven by Brandon Thompson.” 2003 WL 174541, at *1. Thompson’s vehicle collided with a vehicle driven by Dorothy Fischer and insured by Farmers Insurance Group (Farmers) with liability limits of $100,000. Id. Thompson’s vehicle was insured by Continental Casualty Company (Continental), which provided for a $100,000 per person and $300,000 per accident limit for both liability and UIM coverages. Id. En-gle eventually settled with Farmers, Fischer’s insurance company, for the policy limit of $100,000 and with Continental, Thompson’s insurer, for $70,000. Id. Engle subsequently asserted a UIM claim against Continental. Id.

Following trial, the jury found Fischer to be 100% at fault for the accident and awarded Engle $206,690.50 in total damages. Id. Continental moved to reduce the verdict based on the $70,000 liability payment that it had already paid under its policy on behalf of its insured Thompson, arguing, in part, that the policy language limited its liability. Id. Specifically, the “limit of liability” clause in the insurance policy stated that “[a]ny amounts otherwise payable for damages under these coverages shall be reduced by all sums ... [p]aid because of bodily injury by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid under Personal Liability Coverage.” Id. at *3. The district court granted Continental’s motion, concluding that the plain language of the insurance policy limited Continental’s liability to $100,000. Id. at *2. Accordingly, the district court offset Continental’s UIM exposure to Engle by the amount that Continental previously paid in settlement of its liability claim on behalf of Thompson. Id. As a result, the district court ordered Continental to pay Engle UIM benefits of $28,500. Id. After the district court denied Engle’s motion to amend the findings, Engle appealed the district court’s decision to this court. Id.

Engle argued to this court that Continental’s policy violated Minn.Stat. § 65B.49, subd. 3a(l) (2002), because it created a “difference in limits” approach to UIM benefits that was previously abrogated by the Minnesota Legislature. Id. at *4. But this court disagreed, stating that

Continental’s policy, which provides that UIM benefits are available up to a per person limit of $100,000 after reduction for any amount paid by Continental under personal-liability coverage is neither a “difference in limits” or “limits less paid” policy. Language similar to that contained in Continental’s policy has been characterized as a “reducing clause.” Jensen v. United Fire & Cas. Co., 524 N.W.2d 536, 538 (Minn.App.1994), review denied (Minn. Feb. 3, 1995). We considered and rejected the argument asserted by Engle in Jensen. 524 N.W.2d at 539-540.

Id. This court therefore affirmed, concluding that “[b]ecause Continental’s clause does not contravene Minn.Stat. § 65B.49, subd. 3a(l), the [district] court did not err by reducing Continental’s UIM payment by the $70,000 it paid to settle Engle’s liability claim against Thompson.” Id. at *5.

Appellant argues that Jensen is distinguishable from the facts here because she is not attempting to convert first-party UIM coverage into third-party liability coverage by seeking UIM benefits from ANPAC based on the premise that Thomas’s vehicle was underinsured. Instead, she is seeking UIM benefits based on the fact that Frank’s vehicle was an underin-sured motor vehicle, thereby rendering the reducing clause unenforceable under section 65B.49, subdivision 4a. But respondent contends that, as in both Jensen and Engle, appellant seeks to recover UIM benefits under the same insurance policy that previously paid its liability limits for the negligence of its insured, and therefore, under the reducing clause, the available UIM benefits should be reduced by the liability payments.

We conclude that the facts in Jensen and Engle are distinguishable from the facts here. In Jensen, a single-vehicle accident, the plaintiff sought UIM benefits under the Farmers Union policy to cover her unpaid expenses caused by the negligence of a tortfeasor who was an insured under the Farmers Union policy and for whom the Farmers Union policy had already paid its liability limits. This court held that, under those facts, a reducing clause stating that amounts payable under the UIM provision would be reduced by payments made under the liability coverage section is enforceable because it prevents the conversion of less expensive UIM coverage into a second layer of liability coverage. Specifically, we explained that Farmers Union was not attempting to use liability payments by other tortfeasors to reduce the available UIM coverage, but instead was attempting to reduce UIM coverage for liability payments made under that same policy.

Similarly, in Engle, the plaintiff was seeking UIM benefits under the Continental policy. But Continental moved to reduce the amount recoverable based on the amount it had already paid under the liability portion of its own policy on behalf of its insured. Relying on Jensen, this court again upheld the validity of the reducing clause and reduced Continental’s UIM payments by the amount it paid under the liability portion of the policy to settle the plaintiffs claim against its insured.

Accordingly, if appellant here brought a claim to recover UIM benefits from AN-PAC for injuries caused by Thomas’s negligence, appellant would be improperly attempting to convert first-party UIM coverage into third-party liability coverage. Because ANPAC has already made liability payments under the same policy, the ANPAC reducing clause would limit such recovery under Jensen and Engle.

But unlike Jensen and Engle, appellant is not seeking UIM benefits under the ANPAC policy to compensate for injuries caused by Thomas’s negligence. Instead, her claim for UIM benefits is based on the injuries she suffered as a result of Frank’s negligence. It is undisputed that Frank’s vehicle meets the definition of an underin-sured motor vehicle under the ANPAC policy. Accordingly, we find that the facts here are more akin to our decision in Lahr v. Am. Family Mut. Ins. Co., 528 N.W.2d 257 (Minn.App.1995).

In Lahr, plaintiff Almira Lahr, riding as passenger in a vehicle driven by Elizabeth Peura, was injured when Peura collided with another vehicle driven by Mary Kay Kivisto. 528 N.W.2d at 258. Peura’s vehicle was insured by American Family Mutual Insurance Company (American Family) with liability and UIM limits of $50,000. Id. American Family’s insurance policy excluded vehicles owned by the insured from its definition of “underinsured motor vehicle.” Id. Atlantic Mutual Insurance Company (Atlantic Mutual) insured Kivisto for $100,000 in liability coverage. Id. Lahr’s own vehicle, which was not involved in the accident, was insured by Western National Mutual Insurance Company (Western National) for $100,000 of UIM coverage. Id.

American Family (Peura’s insurer) paid Lahr $50,000 under its liability coverage. After Lahr notified American Family that she intended to settle with Kivisto and American Family declined to substitute payment for the proposed Atlantic Mutual settlement, Lahr settled her liability claim against Kivisto for $80,000. Id. Lahr also received $35,500 from Western National in settlement of her UIM claim. Id. Lahr subsequently brought a declaratory-judgment action against American Family, claiming that her damages exceeded $150,000 and seeking $50,000 in UIM benefits “to the extent that Kivisto was under-insured with respect to the portion of damages attributable to Kivisto.” Id. The district court granted summary judgment to American Family, concluding that, as a matter of law, a passenger may not recover UIM benefits from the driver’s insurer. Id. Lahr appealed. Id.

This court reversed and remanded, concluding that “[t]he district court erred in granting American summary judgment on Lahr’s claim for UIM benefits.” Id. at 260. We recognized that Lahr would be prohibited from obtaining UIM benefits from American Family, her driver’s insurer, if the vehicle American Family insured (Peura’s) was either the only vehicle involved in the accident or if only one car was at fault, as the recovery of UIM benefits in such circumstances would result in coverage conversion. Id. at 259. But we adopted Lahr’s contention that this prohibition is “confined to situations where only the passenger’s driver is liable (either because only that vehicle is involved or because the other involved vehicle is not at fault)” and that the prohibition thus “does not extend to situations where a passenger seeks UIM benefits from her driver’s insurer for the other at-fault vehicle’s lack of adequate liability coverage.” Id. We rejected American Family’s argument that allowing Lahr to recover UIM benefits from American Family would result in the impermissible conversion of first-party UIM coverage into third-party liability coverage, reasoning:

Where a vehicle other than the one in which the passenger is riding is potentially at fault, the prohibition against converting the passenger’s driver’s UIM coverage into liability coverage is not applicable because the driver’s lack of adequate liability coverage is not at issue. Rather, the other vehicle’s lack of sufficient liability coverage is what triggers the passenger’s claim for UIM benefits from her driver’s insurer. There is no conversion into third-party liability coverage because Peura’s UIM benefits are not substituting for Peura’s inadequate liability coverage but for Kivisto’s inadequate liability coverage.

Id. at 260 (citation omitted).

While we recognize that the dispute in Lahr centered on was over the effect of the “owned vehicle exclusion” in the American Family policy and not the enforceability of a “reducing clause,” the facts in Lahr are similar to those in this case. And the Lahr court’s decision is similarly focused upon avoiding coverage conversion. As in Lahr, appellant properly seeks UIM benefits from ANPAC for Frank’s vehicle’s lack of adequate liability coverage. Indeed, the Minnesota Supreme Court stated in Kelly:

UIM coverage is designed to “protect against ... the risk that a negligent driver of another vehicle will have failed to purchase adequate liability insurance; that is, it is intended ‘to protect the named insured and other additional insureds from suffering an inadequately compensated injury caused by an accident with an inadequately insured automobile.’ ”

666 N.W.2d at 331 (quoting Meyer v. Ill.Farmers Ins. Group, 371 N.W.2d 635, 537 (Minn.1985)). Commentators have similarly noted that

[i]f there is another motoring tortfeasor, unrelated to the claimant, there is no obstacle to collecting both the liability coverage and the underinsured motorist coverage under one single policy because there are then two distinct, separately insured “risks.” One such risk involves the liability claim. If there is a second, unrelated vehicle which is also at fault, that other unrelated vehicle involves a separate risk.... If the other vehicle were inadequately insured, it would trigger precisely the underin-sured motorist “risk” for which the UIM coverage was issued.

Theodore J. Smetak, Underinsured Motorist Coverage in Minnesota: Old Precedents in a New Era, 24 Wm. Mitchell L.Rev., 857, 902 (1998); see also Theodore J. Smetak et al., Minnesota Motor Vehicle Insurance Manual 401 (3d ed. 2000) (“The Myers case also has no application in a case where the guest passenger is seeking recovery of UIM benefits under the host driver’s vehicle policy based on the fault of the ‘other’ motorist. The passenger is permitted to recover under the liability coverage on the host vehicle for the negligence of the host driver and under the UIM coverage of the host policy based upon the negligence and inadequate coverage of the other at-fault motorist. In such a case, there is no improper conversion of UIM into additional liability coverage because the UIM claim is based on the negligence of the driver of the other motor vehicle.” (citations omitted)).

Here, appellant is not attempting to convert first-party UIM coverage into additional third-party liability coverage, as in Jensen and Engle. Instead, ANPAC is seeking to use liability payments made by Austin Mutual, Frank’s insurer, on behalf of another underinsured tortfeasor (Frank), to reduce the UIM benefits payable to appellant under the ANPAC policy. This contravenes the statute. Therefore, we conclude that the first portion of AN-PAC’s reducing clause, which states that UIM benefits may be reduced by “a payment made by the owner or operator of the ... underinsured motor vehicle, or organization which may be legally liable,” violates Minn.Stat. § 65B.49, subd. 4a, and is therefore unenforceable. Thus, we also conclude that the district court erred when it granted ANPAC’s motion for summary judgment after determining that the reducing clause is enforceable.

DECISION

Because the first prong of the reducing clause in ANPAC’s insurance policy violates Minn.Stat. § 65B.49, subd. 4a (2006), in this context and is therefore unenforceable, we conclude that the district court erred by granting ANPAC’s motion for summary judgment.

Reversed and remanded.

      . ANPAC also argued that Thomas's vehicle did not "meet the policy definition of an un-derinsured motor vehicle because of the owned-vehicle exclusion in the policy,” and therefore appellant could not recover UIM benefits under the policy. Appellant concedes that Thomas's vehicle is not an underinsured motor vehicle as defined in the policy. But appellant argues that her claim for UIM benefits is based on Frank’s vehicle being an un-derinsured vehicle, and thus the owned-vehicle exclusion in the policy does not apply. The district court determined that the owned-vehicle exclusion in the policy does not apply to Frank's vehicle, that Frank's vehicle is an underinsured vehicle under the relevant statute, and therefore that appellant has a legitimate claim "for UIM benefits based on ... Frank's negligence and ... Frank's underin-sured vehicle.” The owned-vehicle exclusion has not been raised on appeal.

      . With regard to the United Fire policy, this court held that because the named insured in the commercial policy was Eagle Excavating, and not an individual, the policy did not apply to Katie, and therefore summary judgment for United Fire was appropriate. Id. at 540.

      . Appellant also argues that this court incorrectly decided Engle and that we should now disregard that decision. Specifically, appellant contends that because the jury in Engle ultimately determined that Fischer was 100% at fault for causing the accident, Engle therefore must have sought UIM coverage under the Continental policy based on Fischer's negligence. But despite the fact that the jury ultimately concluded that Fischer was the sole tortfeasor and that Thompson was not at fault for the accident, Continental was still responsible for the pretrial $70,000 liability settlement it agreed to pay on behalf of Thompson, and thus Engle initially sought UIM coverage alleging that Thompson was an underinsured motorist. Accordingly, as in Jensen, we held that the reducing clause in Continental’s insurance policy applied so as to reduce “Continental’s UIM payment by the $70,000 it paid to settle Engle's liability claim against Thompson,” its insured, and not that the reducing clause applied so as to reduce UIM compensation based on Fischer’s negligence, as appellant suggests. Engle, 2003 WL 174541, at *5.