author: McGIVERIN, Chief Justice.

text:
    Tom TEGGATZ, Appellant, v. Joseph RINGLEB, Appellee.
    No. 98-1149.
    Supreme Court of Iowa.
    April 26, 2000.

      Raymond P. Drew of Drew Law Firm, P.C., Hampton, for appellant.
    James Beres of Sween & Beres, P.C., Eldora, for appellee.
   McGIVERIN, Chief Justice.

Plaintiff, Tom Teggatz, appeals a decision of the district court dismissing his petition against his former employee, defendant Joseph Ringleb, in which Teggatz sought to recover a judgment for money Ringleb stole while an employee of Teg-gatz. The district court concluded that the amount of restitution ordered in a related criminal theft prosecution against Ringleb, see Iowá Code § 910.2 (1997), precluded Teggatz from recovering additional damages from Ringleb in the later civil action.

Upon our review, we conclude that the amount of restitution ordered in the criminal case against Ringleb does not preclude plaintiff Teggatz from relitigating, in a later civil suit, the amount of damages he allegedly sustained as a result of Ringleb’s criminal conduct. Accordingly, we reverse the decision of the district court and remand for further proceedings.

I. Background facts and proceedings.

Plaintiff Tom Teggatz operates a car wash and laundromat in Hampton, Iowa. Defendant Joseph Ringleb was employed at Teggatz’s business until April 1997 when he was terminated after Teggatz discovered that Ringleb had been stealing quarters from the car wash and laundromat business. During a related criminal investigation, law enforcement officers learned that on several occasions, Ringleb had taken large amounts of quarters to several banks in the area to receive currency, often in the form of $100 bills. Law enforcement officers also found $13,948 in quarters and $9,600 in bills in Ringleb’s apartment.

Ringleb later pled guilty in a district court criminal case to second-degree theft, a class “D” felony, see Iowa Code §§ 714.1(1) and 714.2(2), concerning charges related to his theft of money from Teggatz.

After an evidentiary hearing in the criminal case, the court entered a ruling ordering Ringleb to make restitution to Teggatz in the amount of $22,261.56, as that was the amount of loss the criminal court found that Teggatz suffered as a direct result of Ringleb’s criminal activity. The court also imposed a suspended prison sentence on Ringleb.

In addition, Teggatz filed a civil case petition at law against Ringleb in district court, seeking judgment for all the money Ringleb stole from him. Teggatz’s civil action proceeded to trial. Teggatz presented evidence that numerous people in the community had informed him that since the date of Ringleb’s conviction in the criminal case, Ringleb had been purchasing merchandise with a substantial amount of quarters. Based on this information, Teggatz contended that by reason of Ringleb’s access to Teggatz’s candy and vending machines during his employment, Ringleb stole at least another $5000 from Teggatz’s business in addition to that determined by the criminal court in the restitution order. It is undisputed that plaintiff Teggatz has now received the $22,261.56 of restitution that was ordered by the criminal court.

The court in the present civil case concluded that the court in the criminal restitution case previously determined the amount of damages sustained by Teggatz as a result of Ringleb’s criminal conduct and that the doctrine of issue preclusion therefore prevented Teggatz from recovering judgment for any additional amount from Ringleb in the civil suit. The court dismissed Teggatz’s petition and entered judgment in favor of Ringleb.

After the district court overruled his Iowa rule of civil procedure 179(b) motion, plaintiff Teggatz appealed.

II. Standard of review.

Our standard of review in this case is for correction of errors at law. See . Iowa R.App. P. 4.

III. Plaintiffs civil claim for damages.

A. The district court’s decision.

The criminal court concluded that $22,-261.56 represented the amount of damages Teggatz suffered as a direct result of Rin-gleb’s criminal conduct and ordered Rin-gleb to pay that amount to Teggatz as restitution. In ruling on Teggatz’s present civil action against Ringleb, the district court sua sponte concluded that the criminal court’s restitution order conclusively determined the amount of damages Teg-gatz sustained and therefore the doctrine of issue preclusion prevented Teggatz from recovering an additional judgment against Ringleb. In essence, the court concluded that the amount of restitution ordered in the criminal case precluded Teggatz from relitigating in the civil case the amount of damages he sustained as a result of Rin-gleb’s criminal conduct.

On appeal, plaintiff Teggatz contends that under a plain reading of Iowa Code section 910.8, the district court erred in concluding that the doctrine of issue preclusion barred his right to recover additional damages in a later civil action against defendant Ringleb. Upon our review, we agree with Teggatz’s contentions.

B. Analysis.

1. We begin our analysis by examining the relevant provisions of Iowa Code chapter 910 concerning restitution. The legislature has decided that restitution shall be ordered in all criminal cases in which the defendant pleads guilty or is found guilty. See Iowa Code § 910.2; State v. Watts, 587 N.W.2d 750, 751 (Iowa 1998). We have explained that the purpose of the restitution statute is to protect the public by compensating victims of criminal activities and to rehabilitate criminal defendants. Speer v. Blumer, 483 NW.2d 599, 601 (Iowa 1992); accord State v. Blakley, 584 N.W.2d 645, 648 (Iowa 1995).

Pursuant to Iowa Code section 910.1(4), restitution may include “payment of pecuniary damages to a victim in an amount and in the manner provided by the offender’s plan of restitution.” Iowa Code § 910.1(4). “Pecuniary damages” are defined as follows:

... all■ damages to the extent not paid by an insurer, which a victim could recover against the offender in a civil action arising out of the same facts or event, except punitive damages and damages for pain, suffering, mental anguish, and loss of consortium. Without limitation, “pecuniary damages” includes damages for wrongful death and expenses incurred for psychiatric or psychological services or counseling or other counseling for the victim which became necessary as a direct result of the criminal activity.

Iowa Code § 910.1(3) (emphasis added).

We have said that the amount of restitution ordered in a criminal prosecution is not limited by the parameters of the offense for which the defendant enters a guilty plea. ' Watts, 587 N.W.2d at 751 (rejecting defendant’s claim that dollar amount of the offense — $10,000 for second-degree theft — presumptively limits the amount of restitution that may be ordered); accord Earnest v. State, 508 N.W.2d 630, 633 (Iowa 1993); State v. Holmberg, 449 N.W.2d 376, 377 (Iowa 1989). Additionally, we have held that a validly entered and accepted guilty plea precludes a criminal defendant from relit-igating essential elements of the criminal offense in a later civil case. See Ideal Mut. Ins. Co. v. Winker, 319 N.W.2d 289, 296-97 (Iowa 1982); accord AID Ins. Co. (Mut.) v. Chrest, 336 N.W.2d 437, 439 (Iowa 1983) (stating that entry of guilty “plea precludes relitigation in a subsequent civil action of all issues necessarily determined by the conviction ”) (emphasis added). We did not say in Winker, however, that the criminal restitution order precludes a victim from relitigating, in a later civil case, the amount of damages sustained by the victim as a result of the defendant’s criminal conduct. Therefore, it was proper for Teggatz to offer into evidence in the civil case, Ringleb’s criminal case file for purposes of establishing the elements of his civil action against Ringleb for money damages, but doing so did not preclude Teggatz from relitigating the issue of damages in the civil case.

2. Through enactment of Iowa Code section 910.8, the legislature has stated therein that an order requiring payment of restitution by a criminal defendant does “not limit or impair the rights of victims to sue and recover damages from the offender in a civil action.” (Emphasis added.) Iowa Code section 910.8 further states:

The institution of a restitution plan shall toll the applicable statute of limitations for a civil action arising out of the same facts or event for the period of time that the restitution plan is effective. However, any restitution payment by the offender to a victim shall be set off against any judgment in favor of the victim in a civil action arising out of the same facts or event.

(Emphasis added.) It is this section of chapter 910 that we must interpret.

Certain rules provide guidance in determining the meaning of a statute. For instance, if the terms of the statute are explicit, the plain meaning of the language will be applied. State v. Jackson, 601 N.W.2d 354, 356 (Iowa 1999); see also Drahaus v. State, 584 N.W.2d 270, 274 (Iowa 1998) (when text of statute is plain and its meaning clear, court will not search for meaning beyond express terms of statute or resort to rules of statutory construction). In such cases, we will simply give effect to the statute as written. Drahaus, 584 N.W.2d at 274.

Upon our review, we believe that the district court’s conclusion, that Teggatz’s civil claim against Ringleb is barred by issue preclusion, conflicts with both the specific language and the purpose of Iowa Code section 910.8. We are convinced that the language of section 910.8, that “proceedings under [chapter 910] do not limit or impair the rights of victims to sue and recover damages from the offender in a civil action,” is clear and unambiguous. We thus need look no further than a plain reading of the language of section 910.8 to determine that the amount of restitution ordered in the criminal case does not preclude Teggatz from religitating the issue of damages in his present civil suit against Ringleb. While it might otherwise seem that Teggatz’s civil action against Ringleb would be an appropriate case to apply the issue preclusion doctrine, the legislature has decided, by enacting section 910.8, that issue preclusion shall not affect a crime victim’s civil remedies against a criminal defendant. We will therefore give effect to the statute as written. See Drahaus, 584 N.W.2d at 274.

3. We also point out that to adopt the rule now urged by Ringleb, that issue preclusion applies in this case, would in effect, render the tolling provisions of Iowa Code section 910.8 meaningless. See Speer, 483 N.W.2d at 601 (concluding that the applicable civil statute of limitation is tolled, pursuant to Iowa Code section 910.8, from the time that restitution is “ordered,” and the tolling ceases when criminal defendant is discharged from probation and the restitution order is no longer effective). We said in Speer that the purpose of the tolling provision is to avoid having two potentially conflicting actions, the criminal case and civil case, proceeding at the same time. Id. The tolling provision would be unnecessary if the amount of restitution ordered in a criminal case precludes a victim’s later civil suit for damages and our statements in Speer specifically contemplate the possibility that a civil suit may be' brought by the victim.

4. Our conclusion that Teggatz is not precluded from relitigating the issue of damages in his civil suit against Ringleb is further supported by the fact that there are notable differences between a criminal restitution proceeding and a civil action and by several policy reasons. First, the victim is not a party to the criminal restitution proceeding. This point raises the obvious concern that there may be disparities between the way the victim’s interests are represented in the restitution proceeding and how those interests are represented in a separate civil action. In the civil suit, for example, the victim, as plaintiff, has greater control over the course of the litigation. Another obvious difference is that the victim has no right to appeal the amount of restitution ordered by the criminal court. See 4 John L. Yeager & Ronald L. Carlson, Iowa Practice: Criminal Law and Procedure § 1791, at 362 (West Supp. 1997) (noting that a criminal case, defendant can challenge a restitution plan ordered under chápter 910 by appeal, but that a dissatisfied victim, however, is not a party to the prosecution, and appeal is therefore not appropriate; certiorari is the proper remedy if the court has acted illegally); accord Jackson, 601 N.W.2d at 357 (stating that “Iowa Code section 910.7 permits an offender who is dissátisfied with the amount of restitution required by the plan to petition to district court for modification”).

Additionally, we have .said that the amount to be recovered under the Iowa restitution statute is not treated as a civil judgment. See State v. Haines, 360 N.W.2d 791, 795 (Iowa 1985); accord State v. Akers, 435 N.W.2d 332, 334 (Iowa 1989); State v. Smith, 99 N.C.App. 184, 392 S.E.2d 625, 626 (1990) (amount of restitution imposed as a condition of probation is not a legal obligation equivalent to a civil judgment); State v. Hull, 68 Or.App. 817, 683 P.2d 157, 157 (1984) (stating that “[rjestitution is not a form of civil recovery” and rejecting criminal defendant’s claim that restitution was improper in connection with his theft convictions because victim-bank had obtained a civil judgment against him for its losses). This is because a criminal restitution court does not adjudicate the civil liability of the criminal defendant concerning any civil claims that may later be pursued by the victim. See Thome v. Gay, 92 Or.App. 251, 758 P.2d 380, 381 (1988) (“Restitution is a criminal sanction and is not intended to be the equivalent of a civil award.”); Monson v. Carver, 928 P.2d 1017, 1027 (Utah 1996) (restitution statutes are “entirely remedial” and purpose is “to compensate victims for the harm caused by a defendant and whose likely intent is to spare victims the time, expense, and emotional difficulties of separate civil litigation to recover their damages from the defendant”). We have also stated that a criminal court ordering restitution, does not have authority under chapter 910 to impose interest on restitution amounts. See Akers, 435 N.W.2d at 337 (stating that victim may still pursue a civil action for interest under Iowa Code section 910.8 and noting parenthetically that the civil liability of the offender is not changed by restitution statute).

Furthermore, an amount determined to be appropriate restitution will not necessarily be based on the full amount of damages sustained by a victim as a result of the defendant’s criminal behavior. This is because a court ordering restitution must consider the rehabilitative effect on the criminal defendant as well as the defendant’s ability to make restitution. See Iowa Code § 910.2 (“sentencing court shall order that restitution be made by each offender to victims of offender’s criminal activities, ... to the extent that the offender is reasonably able to pay”). Therefore, unlike a civil.damages award, the amount of criminal restitution ordered under chapter 910 may not always be based on the full amount of damages sustained by the victim. See Haines, 360 N.W.2d at 795 (noting that restitution statute gives criminal defendants protections, including the option of community service in lieu of cash payment, which are not afforded a judgment debtor); accord State v. Hitchmon, 678 So.2d 460, 462 (Fla.Dist.Ct.App.1996) (noting that because criminal court must consider financial resources of defendant in determining restitution, restitution award may be less than victim’s claim for damages, but stating that restitution “statute is very clear that remedies of restitution and civil suit are not mutually exclusive”); Thome, 758 P.2d at 381 (noting that unlike civil recovery, restitution amount is not necessarily based on full amount of damages because it takes into consideration rehabilitative effect on defendant as well as defendant’s ability to pay).

Because of the differences between a criminal restitution proceeding and a civil action, we do not believe a victim has had his or her day in court simply because the victim may have participated in the criminal restitution proceedings. Therefore, a victim should not be precluded from relit-igating, in a later civil suit, the amount of damages allegedly sustained as a result of the defendant’s criminal conduct.

Finally, we point out that the set off provision in Iowa Code section 910.8 disposes of any concerns that a victim will receive double recovery in a civil suit for damages sustained as a result of a defendant’s criminal conduct.

Our conclusion does not mean that the plaintiff-victim will be entitled to damages in every later civil action. Damages may be denied either because of duplicate recovery or perhaps because of lack of proof concerning damages. Such a situation, however, is different from saying that a plaintiff-victim is precluded from relitigat-ing the issue of damages in the later civil suit as a matter of law.

5. In summary, we conclude that under a plain reading of the language of Iowa Code section 910.8 and for the other reasons stated above, the amount of restitution ordered by the district court in the criminal case does not preclude Teggatz from relitigating, in this later civil suit, the amount of damages he sustained as a result of Ringleb’s criminal conduct. The district court therefore erred in dismissing Teggatz’s petition. That ruling is reversed and the case should be remanded for further appropriate proceedings.

IV. Disposition.

The trial court did not reach the issue of whether Teggatz had proven that Ringleb had misappropriated more than $22,261.56 from Teggatz. Therefore, on remand, the trial court is directed to consider that issue, based on the existing record, and render an appropriate judgment thereon. We express no opinion as to the merits of that issue.

We conclude that the amount of restitution ordered in the prior criminal case against defendant Ringleb does not preclude plaintiff Teggatz from relitigating, in this later civil suit against Ringleb, the amount of damages Teggatz allegedly sustained as a result of Ringleb’s criminal conduct.

Accordingly, we reverse and remand for further appropriate proceedings as above directed,

REVERSED AND REMANDED WITH DIRECTIONS.

All justices concur except LAVORATO, J., who takes no part.

      . We recognize that in most cases, the victim’s interests, concerning the amount of damages sustained as a result of the defendant's criminal conduct, will be adequately represented by the State in the restitution proceeding and therefore it may seem unnecessary to relitigate the issue of damages in a later civil suit. In some cases, however, through no fault of the State, the victim’s interests may not be fully and adequately represented in the restitution proceeding. Therefore, instead of having to examine whether the State’s representation of the victim’s interests in the restitution proceeding was sufficient for purposes of a later civil action against the criminal defendant, we believe that the better approach is to adopt a bright line rule , that the amount of restitution ordered in a criminal case does not preclude the victim from reliligating, in a later civil case, the amount of damages the victim sustained as a result of the defendant's criminal conduct.

      . Other jurisdictions have concluded that the amount of restitution ordered in a criminal case does not preclude a later civil action for damages. See Spircoff v. Stranski, 301 Ill. App.3d 10, 234 Ill.Dec. 570, 703 N.E.2d 431, 434 (1998) (holding that criminal defendant's restitution payment of $25,000 to plaintiff-victims for defendant's misappropriation of funds from plaintiffs’ business did not preclude plaintiffs from filing subsequent civil action against defendant to recover damages in excess of $25,000 already paid); Benedick v. Mohr, 233 Ill.App.3d 903, 175 Ill.Dec. 440, 600 N.E.2d 63, 67 (1992) (stating that amount of damages suffered by victim in civil case against former employee involved the same issue of monetary loss that was determined in the restitution hearing, i.e., how much defendant stole from her employer; defendant was therefore collaterally estopped from relitigat-ing issue of damages in civil case because any finding in the civil case different from the finding in the restitution case would result in inconsistent judgments and plaintiff was therefore entitled to summary judgment in civil suit); Thome, 758 P.2d at 381 (holding that victim was not collaterally estopped from seeking reimbursement of unlawfully obtained unemployment benefits from criminal defendant in civil action even though criminal court had entered order stating that defendant had satisfied his restitution obligation by performing community service); Moran v. Reed, 175 W.Va. 698, 338 S.E.2d 175, 177 (1985) (concluding that neither collateral es-toppel nor the doctrine of res judicata precluded a criminal victim's later civil suit against a defendant when the victim has been awarded criminal restitution).


source: Caselaw Access Project

author: ' VOGEL, J.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Kevin Lamont HOWARD, Appellant.
    No. 98-1392.
    Court of Appeals of Iowa.
    Dec. 13, 1999.
    Thomas J. Miller, Attorney General, Roxann M. Ryan, Assistant Attorney General, William E. Davis, County Attorney, and Joseph Grubisich, Assistant County Attorney, for appellee.
    Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.
    Heard by SACKETT, C.J., HUITINK, VOGEL, MAHAN, and ZIMMER, JJ., and SCHLEGEL, S.J.

       Senior judge assigned by order pursuant to Iowa Code § 602.9206 (1999).

   ' VOGEL, J.

Kevin Howard appeals his conviction and sentence, following a jury trial, for first-degree robbery. As we find the court erred in finding that Howard’s mere absence from the state tolled the statute of limitations, we conclude the State was barred from prosecuting the charged offense. We therefore reverse Howard’s conviction and remand for dismissal of the charge.

Background facts. On March 29, 1993, the Helzberg’s jewelry store in Davenport, Iowa, reported that it had been robbed of $30,000 to $40,000 worth of jewelry by a well-dressed, six-foot-tall black man with short hair. The clerk reported that the perpetrator had threatened her with a gun and carried off the jewelry in a small gift bag with twine handles. An initial investigation produced no prime suspects. However, on April 15, 1993, a jewelry store in Fairbault, Minnesota, was robbed in a similar fashion by an individual matching the description of the Davenport perpetrator. The perpetrator in the Fairbault robbery was apprehended soon after the robbery and identified as Kevin Howard.

When Davenport police received word of the Fairbault robbery, they requested Howard’s photograph and palm prints. The Helzberg’s store clerk picked Howard’s photograph out of a lineup and police determined that Howard’s print matched a print taken from the crime scene. On June 2, 1993, the Scott County attorney charged Howard, issued a warrant, and placed a detainer against him. During his incarceration in Minnesota, Howard filed two “protest letters” which expressed that he had no intention of requesting final disposition under the Interstate Agreement on Detainers.

Howard was released from prison in Minnesota on January 23, 1997, but was held an additional sixty days because of the detainer. Without further proceedings, Howard was released and placed on parole. Howard was subsequently arrested on another outstanding warrant in Missouri and was transported to Iowa. Finally, on February 26, 1998, Scott County filed a trial information alleging that Howard committed robbery in the first degree and detailing the acts occurring on March 29, 1993. Howard filed a pro se petition for writ of habeas corpus and a motion to dismiss, both based on the running of the statute of limitations. The district court denied both and the case proceeded to trial. A jury convicted Howard of robbery in the first degree and he now appeals.

Scope of review. We review issues involving statutory construction for errors at law. See State v. Francois, 577 N.W.2d 417, 417 (Iowa 1998) (citations omitted). We are not bound by the trial court’s legal determinations. Id.

Statute of limitations. Howard claims the district court erred in determining that his prosecution was not barred by the statute of limitations.

Howard was charged with robbery in the first degree, a class “B” felony. See Iowa Code § 711.2 (1991). Generally, the State must prosecute a felony within three years after its commission. See Iowa Code § 802.3 (1991). However, the statute of limitations may be tolled when a person leaves the state with the intention of avoiding prosecution. See Iowa Code § 802.6(1) (1991). It is the State’s burden to prove that the statute of limitations has been suspended. See State v. Moran, 131 Iowa 645, 645,109 N.W. 187,188 (1906).

Prior to 1979, the Iowa Code required that a felony action be commenced within three years excluding the period that the defendant was not publicly resident within the state. See Iowa Code §§ 752.3, 752.5 (1977). Iowa Code § 752.5 (1977) provided:

If, when the offense is committed, the defendant is out of the state, the indictment or prosecution may be found or commenced within the time herein limited after his coming into the state, and no period during which the party charged was not publicly resident within the state is part of the limitation.

In 1979, the tolling statute was revised to reflect the current version found in Iowa Code section 802.6:

When a person leaves the state with the intention of avoiding prosecution, the indictment or prosecution may be found or commenced within the time herein limited after the person’s coming into the state, and no period during which the party charged was not publicly resident within the state is a part of the limitation.

Iowa Code § 802.6(1) (emphasis added).

Therefore, under the previous statute, proof of a person’s absence from the state was all that was required to toll the statute of limitations. The revised statute went beyond mere absence to require proof that a person left the state with the intent to avoid prosecution in order to toll the statute of limitations.

In enacting a statute, it is presumed that the entire statute is to be effective. Iowa Code § 4.4(2) (1991). Statutes should not be construed so as to make any part of it superfluous; therefore, we presume the legislature enacted each part of the statute for a purpose and intended that each part be given effect. See In re G.J.A., 547 N.W.2d 8, 6 (Iowa 1996) (citation omitted). When a statute’s terms are unambiguous and its meaning plain, there is no room for second-guessing legislative intent. State v. Bond, 493 N.W.2d 826, 828 (Iowa 1992); State v. Burgs, 479 N.W.2d 328, 324 (Iowa 1992).

In ruling on the habeas corpus petition and the motion to dismiss, the trial court found that it was only necessary for the State to show defendant’s absence from the state. Howard asserts that the court misinterpreted the statute and that the State had the burden to show that he left the State of Iowa with the intention of avoiding prosecution. We agree. As stated before, the revised statute requires more than mere absence from the state. It requires that the State show a defendant left with the intent to avoid prosecution. There is no evidence in the record to establish this statutory requirement. By his own testimony, Howard went to Minnesota for one day, which was the same day he was arrested for the Fairbault jewelry store robbery. The record shows that on that date, April 15, 1993, the investigation into the Davenport robbery was closed and there were no known suspects. No charges were filed against Howard until June 2, 1993. His subsequent stay in Minnesota while the statute of limitations ran was due solely to his arrest, conviction, and imprisonment.

The State asks us to broaden the definition of “leaves the state” in the statute to include the act of simply “being absent” from the state or “avoiding return.” We decline to do so. Such definitions would strain the plain meaning of the statute and would render the 1979 revisions to the statute utterly meaningless. We conclude the court erred in finding Howard’s mere absence from the state tolled the statute of limitations.

The State points out that reversing the case would have the effect of rewarding Howard for refusing to waive extradition. However, this contention assumes the State was left without a remedy to prosecute. The State could have pursued extradition at any time during the statutory time frame. By failing to do so, the State is time-barred from prosecuting Howard for this offense.

As we are reversing Howard’s conviction because of the running of the statute of limitations, we need not address his remaining arguments on appeal. We remand for dismissal of this case.

REVERSED AND REMANDED.


author: SACKETT, C.J.

text:
    Carl SHINN a/k/a Carl D. Shinn, Plaintiff-Appellant, v. IOWA MUTUAL INSURANCE COMPANY, Defendant-Appellee.
    No. 99-0107.
    Court of Appeals of Iowa.
    Feb. 23, 2000.

      John A. Pabst of Pabst Law Firm, Albia, for appellant.
    Michael J. Moreland and Jeffrey R. Logan of Lynch, McKay, Moreland & Web-ber, P.C., Ottumwa, for appellee.
    Heard by SACKETT, C.J., and ZIMMER and MILLER, JJ.
   SACKETT, C.J.

Plaintiff-Appellant Carl Shinn, purchased a policy from Defendant-Appellee Iowa Mutual.Insurance Company insuring his home in Udell, Iowa, for fire damage. The house burned. Plaintiff filed a timely claim for coverage. Defendant denied plaintiffs claim for coverage contending plaintiff made false representations and he conspired with another, Ernest Stetter, to burn the house down. Plaintiff sued defendant contending it breached his contract of insurance. A jury denied plaintiffs claim for coverage on the fire. Plaintiff contends the district court erred (1) in admitting hearsay evidence; and (2) in instructing the jury. We affirm in part, we reverse in part and remand for new trial.

The fire loss occurred on November 13, 1996. At the time of the fire plaintiff was in Kansas. The theory advanced after the fire investigation was George Byers in conspiracy with plaintiff paid Ernest Stetter to start the fire. Stetter was arrested and charged with arson. Following his arrest, Stetter gave a video taped confession to the Appanoose County Sheriff. Stetter’s confession came after an agreement was made between Stetter and the state that Stetter would give testimony in return for a reduction of the charges against him and he would not be held financially responsible for the fire loss. The arson charge against Stetter was dismissed. Stetter then left the state and could not be found. He was not available at trial time.

The defendant sought to introduce evidence of Stetter’s statements through the testimony of Deputy Sheriff Gary Anderson. Anderson testified over objection Stetter told him George Byers, a neighbor and friend of plaintiff, offered Stetter $500 to burn down plaintiffs house. Stetter also said Byers said Stetter would get $500 more from plaintiffs insurance proceeds. Anderson testified Stetter described the interior of the house and told him plaintiff put gasoline in plastic antifreeze containers in the house and left the back door unlocked. Anderson related Stetter said he spread the gasoline through the home and lit it. A charred plastic antifreeze container containing gasoline was found on the premises.

Plaintiff contends it was error for the district court to allow Anderson’s testimony of statements made by Stetter and statements Stetter made as to what Byers said. Defendant admits error was preserved in that plaintiff filed a motion under Iowa Rule of Evidence 104(b) and objected to Anderson’s testimony as to statements made by Stetter.

Anderson’s testimony was based on alleged out-of-court statements made to him by a non-testifying declarant, Stetter. It was offered to prove the truth of the matter asserted, that is, that plaintiff paid to have the fire started. See Iowa R.Evid. 801(c), and Iowa R.Evid. 802. Such rulings should be reviewed for correction of errors of law. State v. Ross, 573 N.W.2d 906, 910 (Iowa 1998). Admission of hearsay evidence over a proper objection is presumed to be prejudicial error unless the contrary is affirmatively established. See State v. Rice, 543 N.W.2d 884, 887 (Iowa 1996); State v. McKettrick, 480 N.W.2d 52, 60 (Iowa 1992); accord State v. Nims, mi N.W.2d 608, 609 (Iowa 1984); State v. Wixom, 599 N.W.2d, 481, 484 (Iowa App.1999).

Plaintiff contends Stetter’s statements were hearsay. A first question is whether the statements ai*e hearsay. Defendant, relying on Rule 801(d)(2)(E) contends they are not.

801(d)(2)(E) provides in relevant part: Statements Which Are Not Hearsay. A statement is not hearsay if ... (2) The statement is offered against a party and is ... (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

(emphasis added).

In order for the rule to apply to Stetter’s statements to Deputy Anderson two conditions must be met. First, the statement .must have been made during the pendency of the conspiracy. Second, it must have been made in promotion of the object or design of the conspiracy. State v. Ross, 573 N.W.2d 906, 915 (Iowa 1998); State v. Wedelstedt, 263 N.W.2d 894, 899 (Iowa 1978). We find that the statement was not made either during the alleged conspiracy or in promotion of its object.

In State v. Puffinbarger, 540 N.W.2d 452, 456 (Iowa App.1995), we held the 801(d)(2)(E) exception did not apply to written statements made by a codefendant to the police after the codefendant had been arrested. The court reasoned a conspiracy ends when the central criminal purposes have been attained, when the last objective sought is achieved or when all co-conspirators have been arrested. Id. Accordingly, a co-conspirator’s incriminating statement following an arrest does not qualify under the co-conspirator definition because the statement was not in furtherance of the criminal act; rather, the conspiracy has terminated. Id.

The same holds true in the present case. Stetter’s statement was made to Deputy Anderson after the house had burned and after Stetter was arrested. Consequently, the object of the alleged conspiracy had already been achieved. The statement was made after the alleged conspiracy had terminated. Also, since it was made to a police officer after Stetter’s arrest, it would not have been made in furtherance of the alleged conspiracy even if its purpose had not already been attained. Thus, these statements were hearsay.

The second question is, are the hearsay statements admissible as an exception to the general ban on hearsay evidence. Defendant contends they are admissible under Iowa Rule of Evidence 804(b)(3) which provides:

Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest or so far tended to subject him to civil or criminal liability, ... that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

This exception requires that the declarant be unavailable. No one disputes that Stet-ter was not available. Plaintiff contends Stetter had a motive to give false testimony and the circumstances under which the testimony was given indicate the statement was not trustworthy. We agree..

The question is whether the evidence admitted by the trial court “so far tended to subject [Stetter] to ... criminal liability ... that a reasonable man in his position would not have made statements unless he believed they were true.” Iowa R.Evid. 804(b)(3).

However, in interpreting the federal counterpart to rule 804(b)(3), the United States Supreme Court has stated that “even the confessions of arrested accomplices may be admissible if they are truly self-inculpatory, rather than merely attempts to shift blame or curry favor.” Williamson v. United States, 512 U.S. 594, 603, 114 S.Ct. 2431, 2436, 129 L.Ed.2d 476, 485 (1994).

Stetter’s assertions implicated him. He described how he set the fire, which was against his penal interest. Although Stet-ter’s declarations implicate plaintiff and Byers along with himself, he did not seek to shift blame for actually setting fee to plaintiffs house..

Nevertheless, Stetter was attempting to curry favor with the authorities by admitting he personally committed the crime at the time he was charged with arson. He gave the statement in exchange for a promise his original charges would be reduced and he would not be held responsible for restitution. Stetter’s declarations were hardly contrary to his pecuniary or proprietary interest when made. They are not truly inculpatory and therefore are not admissible under 804(b)(3).

The challenged testimony is hearsay and is not admissible under an exception. The district court erred in allowing its admission. We reverse on this issue and remand for a new trial.

We next address plaintiffs claim the district court should not have instructed on both fraud and fraudulent disclosure. Defendant claims plaintiff committed fraud and fraudulent nondisclosure by stating he did not conspire with Stetter to set the fee. Plaintiff advances the only difference between fraud and fraudulent disclosure is a duty to disclose and the district court erred in instructing on both.

Defendant contends it presented substantial evidence to support an instruction for fraudulent misrepresentation and fraudulent nondisclosure.

We .review a trial court’s formulation of jury instructions for errors of law. Iowa R.App. 4; Foggia v. Des Moines Bowl-O-Mat, Inc., 543 N.W.2d 889, 892 (Iowa 1996). Our standard of review for jury instructions is whether .prejudicial error by the trial court has occurred. Thavenet v. Davis, 589 N.W.2d 233, 236 (Iowa 1999); Coker v. Abell-Howe Co., 491 N.W.2d 143, 148 (Iowa 1992). Instructions must be considered as a whole, and if the jury has not been misled there is no reversible error. Thavenet, 589 N.W.2d at 236; In re Will of Behrend, 233 Iowa 812, 818,10 N.W.2d 651, 655 (1943).

There was substantial evidence to support submission of both instructions to the jury. The submission of both instructions is not so confusing as to mislead the jury. Plaintiff was not prejudiced by the submission of both instructions. We affirm on this issue.

We have ordered a new trial. Thus we need not address plaintiffs challenge to the length of jury deliberations.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . The question of whether the state had authority to relieve Stetter from civil liability for the fire is not an issue.


author: STRINGER, Justice.

text:
    Michael KNAPP, Respondent, v. COMMISSIONER OF PUBLIC SAFETY, Appellant.
    No. CX-98-2163.
    Supreme Court of Minnesota.
    April 20, 2000.

      Mike Hatch, Attorney General, Michael R. Pahl, Assistant Attorney General, St. Paul, for appellant.
    Alan J. Albrecht, Brooklyn Center, for respondent.
   OPINION

STRINGER, Justice.

Early in the morning of June 30, 1998, two Wright County sheriffs deputies were dispatched to check on the welfare of a person, later determined to be Michael Knapp (respondent), sleeping in the back seat of a parked car with the engine running. When respondent failed a preliminary breath test (PBT) administered by the deputy arriving first at the scene, he was warned by the deputy not to drive. A short time later, a second deputy who was aware of the warning observed respondent driving and arrested him on a charge of driving while under the influence of alcohol pursuant to Minn.Stat. § 169.121, subd. I, and respondent’s license to drive was revoked pursuant to Minn.Stat. § 169.123 (1998). Following the implied consent hearing the trial court upheld the revocation. The court of appeals reversed, the majority ruling that the second deputy did not have a factual basis for his suspicion that respondent was intoxicated when he stopped him. The Commissioner of Public Safety appeals, arguing that the deputy had a reasonable and articulable suspicion that respondent was intoxicated justifying the stop. We agree and reverse.

At around 6:30 in the morning of respondent’s arrest, Deputy Holland had been on duty for about a half-hour when he was dispatched to check on the welfare of respondent, who was reported to be asleep in the back seat of his car with its engine running. Respondent’s car was parked in a parking lot in Monticello, Minnesota shared by a municipal on-sale liquor store and Rhonda’s Café, an eating establishment. A second Wright County sheriffs deputy who had been working the night shift, Deputy Lang, also received the radio dispatch, arrived at the scene before Deputy Holland and administered a PBT on respondent. Respondent failed the test. Deputy Lang told respondent that he must either stay with his car, walk home or call for a ride. As Deputy Lang was speaking with respondent about his failing the PBT and his options, Deputy Holland arrived. Deputy Holland testified in the implied consent hearing on October 9, 1998, that when he arrived at the parking lot respondent’s car was turned off, Deputy Lang had already administered a PBT on respondent, he overheard Deputy Lang tell respondent that he had failed the PBT and that Lang told Holland that respondent was unable to drive because he failed the test. However, Deputy Holland did not recall being told by Deputy Lang about other signs of intoxication exhibited by respondent, for example an odor of alcohol, bloodshot eyes or problems with balance and coordination. Deputy Holland further acknowledged that he could not personally verify that respondent exhibited signs of intoxication but he suspected respondent was guilty of driving while intoxicated based upon the information Deputy Lang provided and his knowledge that respondent was sleeping in his car.

Respondent appeared to be calling someone on his cell phone as the deputies left the parking lot driving separately in their squad cars and proceeded to a parking lot across an alleyway where they parked and exchanged information unrelated to respondent. Minutes later, respondent drove through the alley directly in front of the squad cars. Deputy Holland stopped respondent, arrested him for driving while intoxicated and his driver’s license was revoked pursuant to Minn.Stat. § 169.123 for driving a motor vehicle while intoxicated.

During the hearing respondent argued that there was no evidence supporting Deputy Lang’s belief that respondent was intoxicated other than the fact that respondent was in the back seat of a car in the parking lot with the engine running, and this fact alone does not constitute probable cause to administer a PBT. Respondent further argued that because Deputy Holland’s stop of respondent was based on an illegally administered PBT, there was no basis for Deputy Holland to stop respondent. Respondent argued that Deputy Holland’s stop was illegal under the “fruit of the poisonous tree” doctrine.

The trial court sustained the revocation of respondent’s driving privileges under Minn.Stat. § 169.123, subd. 4(e) (1998). The court of appeals reversed, holding that “[tjhere [were] no facts. in the record showing or providing a basis for inferring that Lang had a specific and articulable suspicion that Knapp was under the influence of alcohol.” Knapp v. Commissioner of Pub. Safety, 594 N.W.2d 239, 242 (Minn.App.1999). The majority of the court held that “[wjithout such facts, an officer may not administer a PBT. Since Holland relied entirely on the impermissible PBT as his own ‘reason to believe’ that Knapp was under the influence, ultimately Holland’s arrest lacked the requisite factual basis.”

Id. The dissent argued that Deputy Holland had probable cause to stop appellant based on information Deputy Lang provided him regarding the failed PBT and Deputy Holland’s knowledge that appellant was in a liquor store parking lot, asleep in his car with the engine running. See id. The dissent also noted that Deputy Holland’s stop may have been justified because respondent failed to obey a police order. See id.

The Commissioner now appeals, arguing that Deputy Holland had a reasonable basis to stop respondent and that respondent’s reliance on the “fruit of the poisonous tree” doctrine is misplaced.

A stop is lawful if it is “based on a reasonable and articulable suspicion of ongoing criminal activity.” State v. Britton, 604 N.W.2d 84, 89 (Minn.2000). In determining the propriety of investigative stops, “we review the events surrounding the stop and consider the totality of the circumstances in determining whether the police had a reasonable basis justifying the stop.” Id. at 87 (citing United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). The factual basis required to support a stop is minimal. See Marben v. State, Dept. of Pub. Safety, 294 N.W.2d 697, 699 (Minn.1980). We look to the totality of the circumstances relating to Deputy Holland’s stop and arrest to determine if it was based on a reasonable and articulable suspicion of illegal conduct. See id. (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). At the time Deputy Holland stopped respondent he knew that respondent had been sleeping in the back seat of a car with its engine running at 6:30 a.m. in the parking lot of a liquor store, he overheard Deputy Lang tell the respondent that he failed the PBT, he was told by Deputy Lang that respondent had been ordered not to drive, and within minutes he saw respondent drive directly in front of his squad car. Deputy Holland’s knowledge that respondent failed the PBT was thus not only valid and admissible evidence in support of his stop and arrest of respondent-it was also one of many factors constituting the factual basis for his stop. Clearly Deputy Holland had a “reasonable and articulable suspicion” that respondent was intoxicated.

Respondent argues that the principal basis for the stop was Deputy Holland’s information that respondent failed the PBT and that because there was no evidence in the record to justify administering the PBT in the first instance, it was unlawful and therefore Holland’s stop was unlawful. We disagree. Even if the administration of the first PBT was not supported by sufficient evidence, a dubious proposition given the facts here, we need not reach that issue because the “fruit of the poisonous tree” doctrine does not taint Deputy Holland’s stop. In determining whether evidence is “fruit of the poisonous tree,” the relevant concern is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” State v. Warndahl, 436 N.W.2d 770, 775 (Minn.1989) (quoting Wong Sun, 371 U.S. at 488, 83 S.Ct. 407). This court looks at several factors to determine whether the illegal evidence taints its fruits. “The factors include the purpose and flagrancy of the misconduct, the presence of intervening circumstances, whether it is likely that the evidence would have been obtained in the absence of the illegality and the temporal proximity of the illegality and the evidence alleged to be the fruit of the illegality.” Warndahl, 436 N.W.2d at 776.

Applying the Wamdahl factors, there was no evidence of police misconduct and respondent driving his vehicle after being ordered not to by Officer Lang clearly is an intervening circumstance which in all likelihood would have made his intoxication discoverable by Deputy Holland wholly apart from any information about respondent failing the PBT. We hold the initial PBT is not a “poisonous tree” tainting Deputy Holland’s stop of respondent and the revocation of respondent’s driver’s license was lawful.

We therefore reverse the order of the court of appeals and reinstate the trial court order of revocation of respondent’s driver’s license pursuant to Minn.Stat. § 169.123.

Reversed.

      . "It is a crime for any person to drive, operate, or be in physical control of any motor vehicle within this state ⅜ * * when the person is under the influence of alcohol.” Minn. Stat. § 169.121, subd. 1.

      . The provision states in relevant part:
      Subd. 2(a). Any person who drives, operates, or is in physical control of a motor vehicle within this state * * * consents, subject to the provisions of this section and sections 169.121 and 169.1211, to a chemical test of that person's blood, breath or urine for the purpose of determining the presence of alcohol * * *. The test may be required of a person when an officer has probable cause to believe the person was driving, operating or in physical control of a motor vehicle in violation of section 169.121 and * * * the screening test was administered and indicated an alcohol concentration of 0.10 or more.
      ⅛ ‡ ⅜ ⅜
      Subd. 5(a). On behalf of the commissioner of public safety, a peace officer requiring a test * * * shall serve immediate notice of intention to revoke and of revocation on a person * * * who submits to a test the results of which indicate an alcohol concentration of 0.10 or more.
      Minn.Stat. § 169.123.

      . See Minn.Stat. § 169.121, subd. 1.

      . This doctrine concerns "whether,-granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

      . The provision states:
      Upon certification by the peace officer that there existed probable cause to believe the person had been- driving, operating, or in physical control of a motor vehicle in violation of section 169.21 and that the person submitted to a test and the test results indicate an alcohol concentration of 0.10 or more * * * then the commissioner of public safety shall revoke the person’s license or permit to drive * * * for a period of 90 days.
      Minn'Stat. § 169.123, sub. 4(e).

      . An officer requesting that an individual take a test for driving while intoxicated under the implied consent law has probable cause where “there are facts and circumstances known to the officer which would warrant a prudent man in believing that the individual was driving or was operating a motor vehicle on the highway while under the influence of an alcoholic beverage.” State v. Harris, 295 Minn. 38, 42, 202 N.W.2d 878, 881 (1972).


author: PAGE, Justice. PAUL H. ANDERSON, J.

text:
    STATE of Minnesota, petitioner, Appellant, v. Aaron David KATES, Respondent.
    No. C3-98-1467.
    Supreme Court of Minnesota.
    April 27, 2000.

      Michael A. Hatch, Minnesota Attorney General, Thomas R. Ragatz, Assistant Attorney General, St. Paul, Ross E. Arneson, Blue Earth County Attorney, Mankato, for appellant.
    John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, Minneapolis, for respondent.
   OPINION

PAGE, Justice.

Respondent, Aaron David Kates (“Kates”), was charged in Blue Earth County District Court with two counts of third-degree criminal sexual conduct and two counts of fourth-degree criminal sexual conduct for an incident involving 15-year-old J.S.; one count of indecent exposure for an incident involving 16-year-old T.L.; one count of third-degree criminal sexual conduct for an incident involving 13-year-old C.L.; and one count of third-degree criminal sexual conduct for an incident involving 15-year-old T.H. The incidents involving J.S. and T.L. occurred on January 24, 1997. The incident involving C.L. occurred on May 30, 1997 and the incident involving T.H. occurred sometime in April 1997. All of the charges were joined for trial. In a pretrial motion, Kates moved pursuant to Rule 17.03, subd. 3(l)(a), to sever the trial of the charges that arose from incidents involving J.S. and T.L. from the charges that arose from the incidents involving T.H. and C.L. The district court, after conducting a limited hearing, denied Kates’ motion stating only that the jury would receive separate instructions and would have to determine each offense separately. The case proceeded to trial and the jury convicted Kates of one count of third-degree and one count of fourth-degree criminal sexual conduct involving J.S., and one count of third-degree criminal sexual conduct involving T.H. Kates was acquitted of all of the other charges.

The district court sentenced Kates to serve 180 days of local jail time and an 18-month stayed sentence for his conviction of third-degree criminal sexual conduct involving T.H.; and a consecutive 185 days of local jail time and an 18-month stayed sentence for his conviction involving J.S. The fourth-degree criminal sexual conduct conviction involving J.S. was vacated pursuant to Minn.Stat. § 609.035, subd. 1 (1998).

Kates appealed to the court of appeals, arguing that the district court committed prejudicial error when it failed to grant his pretrial motion to sever the trial of the charges arising out of the incidents with J.S. and T.L. from the trial of the charges arising out of the incidents with C.L. and T.H. Agreeing with Kates, the court of appeals reversed and remanded for new trials with the charges involving J.S. being tried separately from the charge involving T.H. See State v. Kates, 598 N.W.2d 693 (Minn.App.1999). The court of appeals, relying on this court’s harmless error analysis in State v. Juarez, 572 N.W.2d 286 (Minn.1997), based its decision on its conclusion that the district court’s error was not harmless. In doing so, the court of appeals neither acknowledged nor applied this court’s decision in State v. Profit, 591 N.W.2d 451 (Minn.1999), which was filed after Kates’ trial but before the court of appeals’ decision. On appeal to this court, the state argues that the district court’s refusal to sever the charges against Kates, while error, was harmless.

The first question we must answer is whether the district court erred when it refused to grant Kates’ motion to sever the unrelated offenses, resulting in a single trial on all charges. The state concedes that the district court erred when it denied the motion to sever and therefore does not challenge the court of appeals’ decision on that basis. As a result, we assume without deciding, that the district court’s denial of the motion to sever the unrelated charges was error.

We next turn to whether the district court’s erroneous décision not to sever requires reversal of the convictions. See State v. Townsend, 546 N.W.2d 292, 296 (Minn.1996). In Profit, we held that the analysis developed in State v. Spreigl for the admissibility of other crimes evidence is the proper framework for the evaluation of whether an erroneous failure to sever is so prejudicial that reversal is necessary. See Profit, 591 N.W.2d at 460-61. The court of appeals use of the Juarez harmless error analysis in place of, the Spreigl balancing test we prescribed in Profit was error. Accordingly, we remand to the court of appeals for reconsideration in light of Profit.

Another issue implicit in this case requires comment. Although Kates did not challenge the adequacy of the jury instructions at the trial or appellate level, we have in past, cases involving claims of erroneous joinder touched on that issue. See Profit, 591 N.W.2d at 460 (explaining that absence of Spreigl cautionary instructions does not negate the argument that where evidence of a charge would be admissible under Spreigl, its joinder is not prejudicial); see id. at 471-72 (Anderson, R.A., J., dissenting) (stating that cautionary instructions should be given when charges are joined); see also State v. Knight, 260 N.W.2d 186, 187 (Minn.1977) (rejecting argument that erroneous joinder was prejudicial in part because trial court clearly instructed the jury to treat offenses separately). Because the issue was not raised by the defendant here and because we remand on the issue of prejudicial error in the refusal to sever, we do not address or decide the adequacy of the jury instructions given in this case. We do, however, take this opportunity to announce a new rule, to be applied prospectively to eases arising on or after the date of the filing of this opinion, requiring that for trial of all offenses joined under Minn. R.Crim. P. 17.03, subd. 1, the jury must be instructed to consider each of the charges separately.

Reversed and remanded.

PAUL H. ANDERSON, J.

(concurring specially).

I concur in the result reached by the majority, but, unlike the majority, I would not use the occasion of this opinion to announce a new rule on jury instructions. As the majority points out, this issue was not raised by the defendant and thus not argued on appeal. I would leave resolution of this issue to either a genuine case or controversy or for consideration by the Minnesota District Judges Association Committee on Criminal Jury Instruction Guides.

      . Minnesota Rules of Criminal Procedure, 17.03, subd. 3(l)(a) provides:
      Subd. 3. Misjoinder of offenses or charges or defendants shall not be grounds for dismissal, but on motion, offenses or defendants improperly joined shall be severed for trial.
      (1) On motion of the prosecuting attorney or the defendant, the court shall sever offenses or charges if:
      (a) the offenses or charges are not related!.]

      . In Profit, we stated that ''[bjecause our purpose on the appeal of both Spreigl and joinder issues is to determine whether the introduction of evidence of other crimes at trial was prejudicial, the analysis we have developed for Spreigl evidence serves as a useful framework for evaluating the possible prejudicial effect of improperly joining offenses.” 591 N.W.2d at 461.

      . See e.g. Eighth Circuit Manual of Model Jury Instructions, Criminal.
      The presumption of innocence alone is sufficient to find the defendant not guilty and can be overcome only if * the government proves, beyond a reasonable doubt, each essential element of the crime charged.
      Keep in mind that each count charges a separate crime. You must consider each count separately, and return a separate verdict for each count.

        Eighth Circuit Manual of Model Jury Instructions, Criminal, 3.06 (West 1996). See also 1 Edward J. Devitt et al., Federal Jury Practice and Instructions § 12.12 (4th ed.1992) which reads: "A separate crime is charged in each count of the indictment. Each charge, and the evidence pertaining to it, should be considered separately by the jury. The fact that you may find [the] defendant guilty or not guilty asto one of, the offenses charged should not control your verdict as to any other offense charged.”


author: PAGE, Justice.

text:
    STATE of Minnesota, Respondent, v. Craig Dennis BJORK, Appellant.
    No. C8-99-924.
    Supreme Court of Minnesota.
    May 18, 2000.
    Rehearing Denied June 7, 2000.

      Bradford S. Delapena, Assistant State Public Defender, Minneapolis, for Appellant.
    Michael A. Hatch, Minnesota State Attorney General, St. Paul, and Doug Johnson, Washington County Attorney, Kari A. Lindstrom, Christopher K. Wachtler, Assistant Washington County Attorneys, Stillwater, for Respondent.
   OPINION

PAGE, Justice.

Following a jury trial in Washington County District Court, Appellant Craig Dennis Bjork, an inmate at the Minnesota Correctional Facility-Stillwater (MCF-STW), was convicted of murder in thé first degree in violation of Minn.Stat. §§ 609.185(1) (1998) and 609.184, subd. 2 (1998), and murder in the second degree in violation of Minn.Stat. § 609.19, subd. 1(1) (1998), for the November 27, 1997 killing of fellow inmate Edwin Curry, Sr. Bjork was sentenced on the first-degree murder conviction to a term of life in prison without the possibility of release, to run consecutively with the sentences he was serving at the time of Curry’s murder. Bjork now brings this direct appeal- from the judgment of conviction claiming that errors by the trial court and his trial counsel violated his right to a fair trial. Because we conclude that Bjork’s trial was fair, we affirm.

Bjork and Curry were workers in MCF-STW’s kitchen. Bjork’s duties usually involved cleaning garbage cans and Curry’s involved recycling. At approximately 10:00 a.m. on November 27, 1999, corrections officer John Sward found Bjork alone in the kitchen’s basement'recycling area using a hose to wash away what appeared to be large amounts of blood on the floor. Suspecting some kind of wrongdoing, Sward asked Bjork, “What is going on?” Bjork replied,'“It’s these beet cans making a big mess.” When Sward told Bjork that the mess did not appear to have been made by beet cans, Bjork dropped the hose and said, “I got to get out of [ ] here,” and left the area.

Instead of pursuing Bjork, Sward followed a set of drag marks on the floor, leading to an overturned garbage cart in a room referred to as the garbage room. Lifting the garbage cart, Sward found Curry with a plastic bag partially covering his face, lying in the fetal position, covered with blood and struggling to breathe. The area was secured and Curry was transported to Regions Hospital, where he died at approximately 1:10 p.m. that afternoon.

After securing the area, MCF-STW staff began searching for Bjork. He was found in the dining hall, eating a candy bar and drinking a cup of milk. As he was escorted to the prison security center, Bjork made the following statements: “[Y]ou are lucky a guard came when he did otherwise there would be three more bodies laying there.” “I told those motherfuckers they should get me out of D Hall.” “None of this would have happened if they would have got me out of D Hall like I told them to.” At the security center, Bjork said to one of the corrections officers that “it was nothing personal but a few minutes more and you would have had a dead guard on your hands also.” When the corrections officer replied that he might someday have to repeat Bjork’s statement, Bjork replied, ‘Well, that is okay, because I don’t care. I’ll see you in court.”

Bjork was first interviewed by a corrections department investigator. When asked what happened in the basement, Bjork did not respond directly to the questions, but instead complained that he had been denied telephone privileges by the way other inmates managed telephone usage on his cell tier. Bjork also referred to killing a corrections officer, and said he wanted to do it on Thanksgiving because Christmas would have been too late.

That afternoon, Bjork was interviewed by and gave a statement to investigators from the Washington County Sheriffs Office and the Department of Corrections. The interview was audiotaped, transcribed, and played for the jury. In the interview, Bjork states that he was angry with MCF-STW staff because, although he had asked to be moved to a different cell tier over seven weeks earlier and had recently been told that he would be moved before Thanksgiving, they had failed to move him. Bjork said he knew when he went to bed the night before and when he awoke that morning that he would kill someone that day, and that he had intended to kill a staff member. By doing so, Bjork hoped to send a message to MCF-STW’s administration not to “play [ ] games” with people. According to the statement, he wanted “enough dead bodies to get enough media attention.” He indicated that although he did not like Curry, the attack was not personal and Curry was just in the right place at the right time. He also indicated that after killing Curry, he had hoped to kill other inmates. When Bjork was asked if he attacked Curry just because he was closest, Bjork responded, “There’s a saying in the business world, location, location, location, huh, location is everything.” While giving the statement to the Washington County Investigator, Bjork repeatedly asked about Curry’s condition, stating that he did not care if Curry died. Before finding out that Curry had died, Bjork stated, “I wish the son of a bitch was dead.”

When asked about the murder weapon, Bjork said that shortly before Thanksgiving he had found and hidden a three-foot section of pipe in the kitchen’s basement. He had also hidden a shorter section of pipe that he had planned to use to kill MCF-STW staff members. He referred to this shorter section of pipe as the “staff killer.”

Bjork described killing Curry as follows. Earlier that morning, while in the kitchen, he observed the corrections officer on duty for a while, then went to the basement. While Curry was at the recycling sink removing can labels, Bjork retrieved the three-foot section of pipe from its hiding place, approached Curry from behind, and hit him in the back of the head as if swinging a baseball bat. Curry was temporarily knocked into the sink, but he stood back up. Bjork then hit him in the head at least another eight times before crushing his windpipe. When Bjork was convinced that Curry was dead, he dragged Curry’s body into the garbage room and covered it with a garbage cart. He rinsed the pipe, washed himself off, changed into a clean shirt he had brought along, placed the shirt he had been wearing in a bag in the garbage, and began hosing down the floor, at which point Officer Sward arrived.

The Bureau of Criminal Apprehension (BCA) was called to process the crime scene. BCA agents found a three-foot section of pipe, partially covered with blood, standing in one corner of the recycling area and a shorter section of pipe in a milk crate. A paper bag containing a bloody shirt was discovered in a garbage cart. The recycling sink and the surrounding area were heavily spattered with blood. Blood spatter analysis established five impact sites, the first was sixty inches high and directly in front of the sink, the others were further from the sink and lower to the ground. Shoe prints recovered from the floor matched the shoes Bjork was wearing when he was taken to the security center. Bjork’s left shoe contained bloodstains consistent with being a mixture of Bjork and Curry’s blood. The three-foot section of pipe and items of Bjork’s clothing, including the shirt found in the garbage cart, were all stained with blood consistent with Curry’s. A search of Bjork’s cell produced a notebook, the first page of which was captioned “November” and contained an entry, written in red and underlined, for the 27th that read “Should have moved me, punks.”

An autopsy revealed that Curry died from head and neck injuries caused by blunt trauma. Curry suffered fourteen major injuries to his head, including multiple skull fractures. Blunt trauma to Curry’s neck caused a massive hemorrhage in the airway and fractured the thyroid cartilage, the superior horn, and the hyoid boné. Curry also suffered twenty less serious injuries to other, parts of his body and face, at least six of which were consistent with defensive wounds.

At his trial, Bjork’s testimony was significantly different from the statement he gave to the Washington County Sheriffs investigator. Bjork testified that he had known Curry for a little more than one year, that they both held service jobs in the prison kitchen, and that for a period of time they lived in the same cell hall. Approximately two weeks before the murder, Curry started calling Bjork a “sissy boy” and a “punk,” arid saying that Bjork needed a “daddy.” Bjork took those comments to mean that Curry was suggesting that he could not take care of himself and that Curry would protect him in exchange for sexual favors. The Thursday before Thanksgiving, Curry pressed the issue while he and Bjork were working in the basement. Eventually, Bjork told Curry he would not be Curry’s “punk,” and Curry knocked him unconscious. When he came to, he was alone and his pants were down, exposing his buttocks.

The following Monday, while Bjork was at his work station, Curry came up behind him, grabbed him by the hair, and threatened to cut his throat with a can lid if he moved. When Bjork said he would not move, Curry unsnapped Bjork’s pants, inserted his finger into Bjork’s rectum, and then rubbed his penis on Bjork’s buttocks, causing Bjork to be terrified. The encounter ended when Curry simply walked away. Afterwards, according to Bjork, Curry continued to humiliate him by calling him “punk” and “bitch.”

According to Bjork, he went to work on Thanksgiving morning hoping to finish his duties in the basement as quickly as possible. Before he could finish, however, Curry entered the basement and approached Bjork, saying that he was going to sexually assault Bjork that day. Bjork asked Curry to leave him alone, but instead Curry punched Bjork in the stomach three or four times and hit him once on the head. Feeling scared, Bjork retrieved a three-foot section of pipe he claimed that he had left in the basement in case he should someday need a weapon. When Curry lunged at him, Bjork swung the pipe without making contact. Curry then said to Bjork, “I’m going to fuck you and cut your fucking throat,” and ran to the recycling sink and started removing a can lid. While Curry was retrieving the can lid, Bjork came up behind Curry and hit him on the head, causing Curry to momentarily bend over the sink and then stand back up. Bjork next hit him on the shoulder to make Curry drop whatever he was holding. This blow caused Curry to fall. Afraid that Curry might get up and kill him, Bjork continued to hit Curry until Curry stopped trying to get up, at which point he panicked and dragged Curry’s body to the washroom and hid it under a garbage cart. Bjork then cleaned up and changed into an extra shirt he claimed he kept in his work area because of the dirty nature of the work. As he began hosing down the blood on the floor, he was confronted by Officer Sward. In his testimony, Bjork admitted giving the statement to the Washington County Sheriffs Investigator, but claimed he had contrived the story he gave during the statement because telling the truth would have demonstrated weakness to the other inmates who would then have subjected him to further abuse.

At trial, Bjork sought to introduce evidence of the violent nature of the prison environment at MCF-STW, as well as general evidence of prison assaults. His purpose in having this evidence admitted was to give the jury insight into the violent nature of prison life in order to assist the jury in understanding why his reaction to Curry’s alleged assault on November 27, 1997 was genuine and reasonable. The trial court permitted the' introduction of some general evidence about what happens to snitches in prison and about the dangers of prison life, but it limited the evidence regarding prison assaults to those involving Bjork and Curry.

The primary issue raised in this appeal is whether the trial court erred when it limited the introduction of evidence at trial concerning the violent nature of the prison environment and excluded evidence of assaults by inmates in the prison that did not involve Bjork and Curry. In his pro se brief, Bjork raises the additional issues of: (1) whether the trial court protected Bjork’s right to self-representation; (2) whether the trial court record sufficiently reflects evidentiary rulings; and (3) whether the trial court erred in its restitution award to the victim’s family.

We first address Bjork’s argument that the trial court erred when it limited the introduction of evidence relating to the violent nature of life at MCF-STW and excluded evidence of assaults by inmates that did not involve Bjork and Curry. A trial court’s evidentiary rulings will not be overturned absent a clear abuse of discretion. See State v. Kelly, 435 N.W.2d 807, 813 (Minn.1989). Bjork claims that the trial court’s error here prevented him from putting on a complete defense. A defendant has the right to present a complete defense. See Bixler v. State, 582 N.W.2d 252, 255 (Minn.1998). That right, however, is not unlimited. See id. (holding that district courts have wide latitude to limit a defendant’s right to present a complete defense if evidence is repetitive, marginally relevant or poses an undue risk of harassment, prejudice, or confusion of the issues).

Bjork’s defense at trial was self-defense. We have stated that, “The elements of self-defense are by nature very specific to the person apprehending fear and the very particular circumstances causing fear.” State v. Nystrom, 596 N.W.2d 256, 260 (Minn.1999). Bjork argues that in order to prevail on his claim of self-defense, he had to convince the jury that he had an “actual and honest belief that he [ ] was in imminent danger of death or great bodily harm” and that he had “reasonable grounds for that belief.” Id. Thus, he claims it was necessary for the jury to hear evidence of the violent nature of MCF-STW’s environment, including evidence of assaults by inmates upon one another, in order to understand why his actions in killing Curry were genuine and reasonable. At trial, Bjork’s defense counsel explained:

[WJhat I am trying to point out in this testimony to this jury is that prison is a totally different atmospheric circumstance than civilian society is, and the options that are available to the average person in society aren’t available to someone in prison, and that [a] person’s perceptions are different, albeit reasonable.

Bjork urges us to consider a case decided by the North Carolina Supreme Court, in which evidence relating to the prisoner’s pervasive fear of harm by other inmates, the violent nature of a prison’s environment, and prior attacks on the defendant by inmates other than the victim was held admissible to support an inmate’s self-defense claim. See State v. Spaulding, 298 N.C. 149, 257 S.E.2d 391, 397 (1979). In Spaulding, the defendant, while in the prison’s recreation yard, stabbed another inmate who had given him trouble earlier that day. See id. at 394. The defendant had armed himself with a knife before going to the prison’s recreation yard because he believed, based on the earlier conversation with the victim, that the victim might try to stab him during recreation. See id. On the day of the stabbing, the victim, with his hands “jammed” in his pockets and saying nothing, approached the defendant who had repeatedly indicated to the victim that he did not want any trouble. See id. When the victim did not stop approaching, the defendant stabbed the victim. See id.

We view Spaulding as distinguishable and of no assistance on the facts presented here. Spaulding is different in that the threat posed by the victim to the defendant was not as clear or as immediate as the threat Bjork testified Curry posed to him. Therefore, in Spaulding, evidence of pervasive fear, the violent nature of the prison environment, and other attacks defendant suffered was likely to be helpful to the jury in determining the reasonableness of the defendant’s fear and violent actions.

In contrast, Bjork testified that he was responding to a direct and immediate threat of sexual assault and death when he attacked Curry. Bjork testified that Curry had physically and sexually assaulted him on two earlier occasions and that during the events leading up to Curry’s death, Curry threatened to sexually assault and kill him, punched him in the stomach and head and then went to the sink to get a can lid to use as a weapon. Given the immediacy of these events, evidence of the violent nature of MCF-STW’s environment and prison assaults not involving Bjork and Curry, was not likely to be helpful to the jury in determining the genuineness and reasonableness of Bjork’s fear and violent actions. Applying our holding in Nystrom to the facts and circumstances that Bjork contends caused him fear of death or great bodily harm, it is clear that the evidence excluded by the trial court was not relevant and the exclusion of that evidence was not an abuse of discretion.

Bjork next claims that the trial court failed to protect his right to self-representation. See State v. Richards, 552 N.W.2d 197, 205 (Minn.1996) (acknowledging criminal defendant’s constitutional right to represent himself); see also U.S. Const, amend. VI. The record belies this claim. During jury selection, Bjork made a motion to waive his right to counsel and represent himself. At that time, Bjork claimed that there had been turmoil between him and his counsel, that he had not had sufficient time with his counsel, that his counsel had not explained any of his legal rights to him, and that he did not trust his counsel. Bjork’s trial counsel disagreed with Bjork’s assessment of the representation. Noting that it appeared that Bjork had been effectively represented, the trial court in some detail informed Bjork of the consequences of his decision to represent himself and the difficulty of self-representation. The trial court then asked Bjork if he still wanted to represent himself. After some discussion and a recess, Bjork indicated that he would represent himself and that his decision was being made under duress. After further discussion about what Bjork meant by saying his decision was being made under duress, the trial court dismissed Bjork’s attorneys, appointed them as standby counsel, and, at the state’s request, examined Bjork pursuant to State v. Rubin, 409 N.W.2d 504, 506 (Minn.1987) (setting out questions courts should ask defendants to insure that waiver of right to counsel is voluntary and intelligent). To ensure that Bjork was making a voluntary and intelligent waiver of his right to counsel, the judge asked him about the charges against him, the maximum punishment he would face if convicted, and any possible defenses he might assert. See id. Finally, the trial court appointed temporary counsel to consult with Bjork about his decision to waive trial counsel. After consulting with his temporary counsel, Bjork elected to proceed to trial with the previously dismissed counsel. Based on the record before us, we conclude that Bjork’s right to self-representation was scrupulously protected by the trial court.

Bjork also claims that the trial court erred when it ordered him to pay $2,686.64 in restitution to Curry’s family for funeral expenses. Specifically, he objects to being ordered to pay $300 to the VFW Women’s Auxiliary, $422.65 for flowers, $51.24 for photographs, $18.20 for printing of the eulogy, $13.90 for music, and $64 for postage. This claim fails. Based on our reading of the record, we' conclude that the trial court’s restitution order was entirely proper. See Minn.Stat. §§ 611A.04 and 611A.045 (1998); see also State v. Tenerelli 598 N.W.2d 668, 672 (Minn.1999) (affirming restitution award ‘for costs associated with a Hmong Hu Plig ceremony, holding that the ceremony fit within the statutory definition of “any out-of-pocket losses resulting from the crime”).

As for Bjork’s claim that the trial court record does not sufficiently reflect the trial court’s evidentiary rulings, we have reviewed the record and conclude that this claim has no merit.

Affirmed. .

      . This statute was repealed and recodified .at Minn.Stat. § 609.106, subd. 2 (1998). See Act of Apr. 6, 1998, ch. 367, art. 6, §§ 3, 16, 1998 Minn. Laws 667, 727, 735.

      . At the time he killed Curry, Bjork was incarcerated at MCF-STW serving consecutive sentences for three separate first-degree murder convictions plus a separate consecutive sentence for second-degree murder and was not eligible for supervised release on those convictions until 2056.

      . In his pro se brief, Bjork requests that this direct appeal be stayed until such time as he has had a chance to pursue claims of ineffective assistance of counsel and voir dire violations by way of a postconviction petition. In addition, he seeks an order of this court requiring his appellate counsel to request the voir dire transcript from his trial, thereby enabling him to properly raise his voir dire violation claims. We note that in his pro se brief, Bjork links the voir dire violation claims with the ineffective assistance of counsel claims.
      We have said that the preferred method for raising a claim of ineffective" assistance of "counsel is in a. postconviction proceeding before direct, appeal. See Fratzke v. State, 450 N.W.2d 101, 102 n. 3 (Minn.1990).' Given the manner in which these two issues have arisen, however, we see no reason to stay this appeal pending their resolution in a postcon-viction . proceeding. Therefore, we deny Bjork's request for a stay. Notwithstanding our denial of the stay, we preserve Bjork’s right to have the ineffective assistance of counsel and voir dire violation issues addressed in a postconviction proceeding.


author: GILBERT, Justice.

text:
    In re ESTATE OF JANECEK
    No. C2-99-1437.
    Supreme Court of Minnesota.
    May 18, 2000.

      William E. Haugh Jr., Collins, Buckley, Sauntry & Haugh, St. Paul, personal representative.
    William M. Hart, Meagher & Geer PLLP, Minneapolis, personal representative.
    Brent W. Primus, Minneapolis, for respondent Robert L. Janecek.
    David M. Jacobs, Minneapolis, for Robert C. Janecek.
   OPINION

GILBERT, Justice.

The question presented to us in this matter is whether an interlocutory appeal may be brought from a district court order disqualifying a personal representative’s attorney in a probate proceeding. The Minnesota Court of Appeals dismissed personal representative William Haugh’s (Haugh) appeal from a district court order that disqualified Kenneth J. Rohleder (Rohleder) from continuing as Haugh’s attorney in his capacity as personal representative. The court of appeals stated that Minn.Stat. § 525.71 (1998) contained an exclusive list of appealable orders from a probate proceeding and therefore the order was not appealable, regardless of whether the order was otherwise appeal-able under the Rules of Civil Appellate Procedure. We reverse and remand.

Although this has been a lengthy and at times acrimonious probate proceeding, the facts relevant to this appeal are limited and not in dispute. Charles Janecek (decedent) died on June 15, 1989. Decedent’s will was filed in Ramsey County District Court’s Probate Division for probate. In the will, the decedent nominated his son, respondent Robert L. Janecek (Janecek), as personal representative. Janecek retained Rohleder and his firm, Rohleder & Pitton, Ltd., to represent Janecek as the personal representative of the estate. Rohleder had previously represented the decedent in varying matters while alive and had represented Janecek before as well.

Because of claims brought against the estate by Janecek’s former wife and her objection to Janecek continuing as personal representative of the estate, Haugh subsequently replaced Janecek as personal representative. The record indicates that the appointment of Haugh was made at Rohleder’s recommendation and with Ja-necek’s permission. Rohleder continued as the attorney of record for the personal representative. Janecek continued to manage the estate property into 1991.

In 1991 there was a “falling out” between Janecek, Rohleder and Haugh over the personal representative’s fees and attorney fees accruing as the estate Jailed to close. Haugh and Rohleder were also concerned about what they perceived as a failure on Janecek’s part to cooperate with the probate process and disclose certain activities connected with his management of estate property.

At this point the probate of the estate became acrimonious and litigation ensued over the closing of the estate. Haugh, concerned over possible conflicts in using Rohleder as his attorney in his capacity as personal representative in adversarial litigation against Janecek, retained other counsel to depose Janecek. After Janecek was removed as manager of the estate property, Rohleder . resumed representation of Haugh in his capacity as personal representative.

Due to significant difficulties disposing of some of the estate’s property, a final account of the estate was not submitted by Haugh until February 1998. Janecek objected to this final account, alleging financial mismanagement by Haugh and Roh-leder. Specifically, Janecek objected to the fees to be paid to Haugh and Rohleder. Janecek later moved the court to disqualify Rohleder from continuing to act as counsel for the personal representative. The district court granted Janecek’s motion, concluding that under Minn. R. Prof. Conduct 1.9 and this court’s ruling in Jenson v. Touche Ross & Co., 335 N.W.2d 720 (Minn.1983), the nature of Rohleder’s prior representation of Janecek and the decedent created at least the strong appearance of a conflict of interest in his current representation of Haugh as personal representative of the estate.

Haugh appealed. Janecek moved the court of appeals to dismiss the appeal, arguing that Minn.Stat. § 525.71 exclusively controls appeals from probate proceedings and an order removing the personal representative’s attorney is not listed in section 525.71. The court of appeals agreed and by order dated September 28, 1999, granted Janecek’s motion to dismiss Haugh’s appeal. See Estate of Janecek, No. C2-99-1437 (Minn.App. Sept. 28, 1999). Haugh petitioned this court for review of the court of appeals’ decision, arguing that Minn.Stat. § 525.71 does not preclude an appeal from an order otherwise appealable under the Minnesota Rules of Civil Appellate Procedure.

We have not addressed section 525.71 since the probate courts were consolidated with the district courts and the Minnesota Court of Appeals was created. Prior to that we ruled that this section was an exclusive list of appealable orders from a probate proceeding because of the nature and jurisdiction of the probate courts at that time. See generally Swensen v. Board of Christian Science (In re Estate of Peterson), 202 Minn. 31, 39-40, 277 N.W. 529, 534 (1938). This list includes 17 different types of orders. See Minn.Stat. § 525.71. Orders removing a personal representative’s attorney are not included. Prior to 1983, we reasoned that because district courts had no inherent appellate authority and the probate courts had exclusive jurisdiction over probate proceedings, the right of appeal to the district court from a probate court proceeding was exclusively governed by statute. See Estate of Peterson, 202 Minn, at 39-40, 277 N.W. at 534; see also Riener v. First Nat’l Bank of Minneapolis (In re Estate of Nunvar), 257 Minn. 324, 327, 101 N.W.2d 145, 147 (1960). However, our reasoning in Estate of Peterson and subsequent cases interpreting Minn.Stat. § 525.71 as an exclusive list of appealable probate orders no longer applies.

Resolution of this appeal requires us to interpret section 525.71 in light of its 1983 amendment, which removed jurisdiction of appeals of probate proceedings from the district court and transferred it to the court of appeals. See Act of June 1, 1983, ch. 247, § 186, 1983 Minn. Laws 852, 951-52. The interpretation of a statute and of the rules of appellate procedure present only questions of law, therefore our review is de novo. See In re Estate of Palmen, 588 N.W.2d 493, 495 (Minn.1999); Stoebe v. Merastar Ins. Co., 554 N.W.2d 733, 735 (Minn.1996).

In 1983 the Minnesota Court of Appeals was created by constitutional amendment and legislative act. See Act of Mar. 22, 1982, ch. 501, §§ 1, 3, 1982 Minn. Laws 569, 569-71. The amendment, which passed in November 1982, states in part that, “[t]he court of appeals shall have appellate jurisdiction over all courts, except the supreme court, and other appellate jurisdiction as prescribed by law.” Minn. Const, art. VI, § 2 (amended 1982). By this time the probate, municipal and county courts of the state had been consolidated into district courts of general jurisdiction. See generally Minn.Stat. § 487.191 (1998).

Under our inherent constitutional authority, we have promulgated rules of civil appellate procedure regulating those appeals that may be taken to the court of appeals from judgments and orders issued in judicial and administrative proceedings. See Minn. R. Civ.App. P. 103.03; see generally State v. Erickson, 589 N.W.2d 481, 485 (Minn.1999). Accordingly, the court of appeals’ authority to hear matters arising out of the district courts of this state are limited only by the constitution and by the rules promulgated by this court. See In re Clerk of Lyon County Courts’ Compensation, 308 Minn. 172, 180, 241 N.W.2d 781, 786 (1976) (“Inherent judicial power grows out of express and implied constitutional provisions mandating a separation of powers and a viable judicial branch of government. It comprehends all authority necessary to preserve and improve the fundamental judicial function of deciding cases.”). Minnesota Rule of Civil Appellate Procedure 103.03 encompasses all ap- ' pealable judgments and orders, with Rule 103.03(i) allowing for additional rights of appeal to be created by statute or under the decisions of our state’s appellate courts.

Janecek argues that Minn.Stat. § 525.71 contains an exclusive list of orders that may be appealed from a probate proceeding and, furthermore, that Rohleder’s disqualification from this matter is not appealable under Minn. R. CivApp. P. 103.03. Haugh argues that the order removing counsel is an appealable order pursuant to Minn. R. CivApp. P. 103.03(b) and (g) and that Minn.Stat. § 525.71 does not preclude an appeal from the district court’s order. Haugh argues that the court of appeals’ interpretation of section 525.71 as being the exclusive means to appeal a probate proceeding is in conflict with the constitution. However, Haugh argues that it is not necessary to reach this constitutional question but rather asks us to interpret this section in light of its 1983 amendment, the establishment of the court of appeals and Minn. R. Civ.App. P. 103.03(g).

The question before us now is whether an order disqualifying an attorney in a probate proceeding is' an appealable order under the Rules of Civil Appellate Procedure. It is not necessary to determine whether Minn.Stat. § 525.71 is constitutional because section 525.71 and Rule 103.03 are not in conflict. Rule 103.03 governs those orders and judgments that may be appealed to the court of appeals. Rule 103.03(g) provides that unless precluded by statute, a “final order, decision or judgment affecting a substantial right made in an administrative or other special proceeding” may be appealed to the court of appeals. Section 525.71 does not preclude an appeal of an order disqualifying an attorney in a probate proceeding. It merely identifies appeals that “may be taken from” certain orders and judgments and contains no mandatory terms or limitations. The issue is then whether such an order is a final order in a special proceeding.

We have defined a final order as one that ends the proceeding as far as the court is concerned or that “finally determines some positive legal right of the appellant relating to the action.” Weinzierl v. Lien, 296 Minn. 539, 540, 209 N.W.2d 424, 424 (1973); see also Gabel v. Ferodowill, 254 Minn. 324, 337-38, 95 N.W.2d 101, 110 (1959). We have also recognized that a party has a substantial right to be represented by its attorney of choice. See, e.g., Kerling v. G.W. Van Dusen & Co., 109 Minn. 481, 483-84, 124 N.W. 235, 235 (1910). In this case the court’s order disqualifying Rohleder finally determined Haugh’s right to be represented by his counsel.of choice. We therefore conclude that an order disqualifying a party’s attorney of choice due to a conflict of interest is a final order affecting a substantial right. What remains to be determined is whether this was a special proceeding.

Our court has defined the term “special proceeding” with reference to appealable orders under Rule 103.03(g) and the rule’s statutory predecessors. See Willeck v. Willeck, 286 Minn. 553, 554 n. 1, 176 N.W.2d 558, 559-60 n. 1 (1970); Chapman v. Dorsey, 230 Minn. 279, 283-84, 41 N.W.2d 438, 440-41 (1950). As we explained in Chapman, a special proceeding is a generic term for a remedy that is not part of the underlying action and that is brought by motion or petition, upon notice, for action by the court independent of the merits of the underlying action. Id. at 283, 41 N.W.2d at 440-41. We have held that a motion to enforce an attorney lien arising in a divorce proceeding is a special proceeding. See Willeck, 286 Minn, at 554 n. 1, 176 N.W.2d at 559-60 n. 1. We have also stated in criminal matters that a hearing to determine whether one attorney may represent two co-defendants is a special proceeding. See State v. Eaton, 292 N.W.2d 260, 262 (Minn.1980).

In this case the district court’s order finally determined the disqualification of Haugh’s attorney in a special proceeding under the court’s inherent power to supervise the attorneys who appear before it. See generally Holmberg v. Holmberg, 588 N.W.2d 720, 726 (Minn.1999). The district court’s determination was made under the Minnesota Rules of Professional Conduct and our decision in Jenson and was not dependent on the merits of this probate proceeding.

On the facts presented in this case, with respect to those orders granting a motion to disqualify an attorney for a conflict of interest in a probate proceeding, we conclude that the disqualification of an attorney for a conflict of interest is a final order in a special proceeding within the context of Rule 103.03(g). We therefore hold that the order dismissing Haugh’s attorney was an appealable interlocutory order under Rule 103.03(g). We reverse and remand this matter to the court of appeals for further proceedings in accordance with our decision.

Reversed and remanded.

      . While Rohleder continued to act as Haugh's counsel in Haugh’s capacity as personal representative, Rohleder now retained separate counsel to represent him in this motion and his interests with respect to the estate.


author: Alan C. Page Associate Justice

text:
    Howard J. MAJERUS, Respondent, v. ENGLE FABRICATION, INC. and State Fund Mutual Insurance Company, Relators.
    No. C9-00-308.
    Supreme Court of Minnesota.
    May 24, 2000.
    Lynn, Scharfenberg & Associates, Mark Chapin Hall, Minneapolis, for relators.
    McCoy, Peterson, Jorstad & Brabbit, Raymond R. Peterson, Minneapolis, for respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed January 27, 2000, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01, subd. 1(b).

Employee is awarded $600 in attorney fees.

BY THE COURT: ■

Alan C. Page Associate Justice


author: Edward C. Stringer Associate Justice

text:
    Rick L. BLIGHT, Relator, v. HARBOR CITY MASONRY and Michigan Physicians Mutual Liability Company, Respondents.
    No. C3-00-384.
    Supreme Court of Minnesota.
    May 25, 2000.
    Cuzzo, Bradt & Envall, Ronald R. En-vall, Michael J. Cuzzo, Duluth, for relator.
    Roll, Morrison & Charpentier, Andrew J. Morrison, Barbara G. Lawton, St. Paul, for respondents.
   AMENDED ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed February 8, 2000, be, and the same is, affirmed without opinion. See Minn. R. CivApp. P. 136.01, subd. 1(b).

BY THE COURT:

Edward C. Stringer Associate Justice