author: STREIT, Justice.

text:
    SDG MACERICH PROPERTIES, L.P., Appellant, v. STANEK INCORPORATED a/k/a Stanek, Inc., Joseph E. Stanek, and Lawrence Stanek, Appellees.
    No. 01-0788.
    Supreme Court of Iowa.
    July 17, 2002.

      David Wiggins of Wiggins & Anderson, P.C., West Des Moines, for appellant.
    John C. Gray of Heidman, Redmond, Fredregill, Patterson, Plaza, Dykstra & Prahl, L.L.P., Sioux City, for appellees.
   STREIT, Justice.

Equity aids the vigilant, not those who forget to perform a legal duty. Stanek, Inc. had a twenty-year lease agreement with SDG Macerich Properties, L.P., allowing Stanek to operate a Hardee’s franchise on a property near a Sioux City shopping mall. The lease agreement required Stanek to exercise an option to renew the lease by a particular date. Stanek forgot to exercise its option to renew by that date. Stanek argues equitable relief should save it from the consequences of its forgetfulness. Macerich finds refuge in basic contract principles and strict adherence to contractual terms. The district court agreed with Stanek, dismissing Macerich’s petition for declaratory judgment and its motion for. summary judgment. The court granted Stanek’s counterclaim for declaratory judgment and equitable relief. Because we find equity does not relieve a party who simply forgot to timely exercise an option to renew a lease agreement, we reverse and remand.

I. Background and Facts

Macerich is a real estate investment trust that owns approximately fifty-four shopping centers and a number of strip malls — including Southern Hills Mall in Sioux City, Iowa. Its predecessor signed twenty-year leases with a Kentucky Fried Chicken franchisee, a Pizza Hut franchisee, and Stanek, Inc. Stanek leased the demised property to construct and operate a Hardee’s franchise. The initial lease terms ran for twenty years. Each lessee had an option to renew at the end of the initial term for an additional four five-year periods. The agreements required the lessees give the landlord written notification, exercising the option to renew the lease, at least twelve months before the lease term expired. Stanek’s lease of the Hardee’s property required notice of exercising the option to be given by September 30, 1999.

Near the time the twenty-year leases were due to expire, Macerich was in the process of considering whether to expand its shopping center and was negotiating to add a department store to its mall. It needed to expand parking and decided on the portion of its land occupied by KFC, Pizza Hut, and Hardee’s restaurants.

Termination of KFC’s, Pizza Hut’s, and Hardee’s leases was looming. Hardee’s, Kentucky Fried Chicken, and Pizza Hut did not exercise their options to renew. Kentucky Fried Chicken entered into a two-year certain lease. Pizza Hut’s lease expired on December 31, 2000. Macerich, relying on Stanek’s failure to renew the Hardee’s lease, continued its negotiations with the department store.

In December 1999, a date after the option for renewal expired, Macerich sent Stanek a “Tenant Estoppel Certificate” for Stanek to sign “confirming the commencement and expiration dates of the term.” Included in this confirmation certificate “were four remaining option(s) to renew the term of the lease for five years each.” On January 20, 2000, Stanek notified Macerich of its intention to exercise its option to renew. This was approximately eight and a half months before the lease was to expire but was three and a half months too late. Macerich refused to allow Stanek to renew the lease because there was no option to renew the lease then existing.

Macerich filed a petition in equity for declaratory judgment and Stanek filed a counter-claim for equitable relief. The district court denied Macerich’s motion for summary judgment and dismissed its petition for declaratory judgment. The court also granted Stanek’s counterclaim for declaratory judgment and equitable relief. Macerich appealed.

Macerich argues the district court erred in: (1) denying its motion for summary judgment and (2) granting equitable relief for the defendants’ forgetfulness and dismissing Macerich’s petition for declaratory judgment.

II. Scope of Review

Our review of an action for declaratory relief is determined by the manner in which the action was tried to the district court. Walsh v. Nelson, 622 N.W.2d 499, 502 (Iowa 2001). This case concerns whether or not it is appropriate to grant equitable relief. As such, our review is de novo. Johnson v. Raster, 637 N.W.2d 174, 177 (Iowa 2001). We must examine the facts as well as the law and decide the issues anew. Id. In doing so, we give weight to the district court’s findings of fact, but we are not bound by these findings. Id.

As to the court’s denial of Mace-rich’s motion for summary judgment, our review is for correction of errors at law. Channon v. United Parcel Serv., Inc., 629 N.W.2d 835, 857 (Iowa 2001) (citation omitted). Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Iowa R. Civ. P. 1.981(3) (2002).

III. The Merits

This case presents an issue of first impression in Iowa. We must determine whether equitable relief is available when a party, as the result of forgetfulness, untimely exercises its right of a lease renewal option. Macerich points to our consistent adherence to principles of strict contractual time limitations recognizing “time is of the essence.” J.C. White v. RCA Serv. Co., 234 N.W.2d 153, 154 (Iowa 1975). Macerich argues it is entitled to possession of the lease property when the lease expires because Sta-nek failed to timely exercise its renewal option. In so arguing, Macerich cites numerous other jurisdictions that have required strict compliance with notice provisions in option contracts and have not granted equitable relief.

The district court concluded it was proper to apply equitable principles to grant relief in the case before us. In granting relief, the district court applied the Fountain test announced by the Connecticut Supreme Court eighty years ago in F.B. Fountain Co. v. Stein, 97 Conn. 619, 118 A. 47, 50 (1922). The court concluded whether equity is available to relieve a party’s forgetfulness is determined by: (1) whether the lessee’s conduct was the result of an honest mistake or oversight and not intentional, willful, or grossly negligent conduct; (2) whether the lessor has changed positions or been damaged by the delay; (3) the extent of the delay; and (4) whether the delay would work an unconscionable hardship on the lessee.

Applying the above test, the district court concluded Stanek’s delay was the result of an oversight or mistake. The court found the three and a half month delay was not unreasonably long, and during this time period Macerich did not take any specific action regarding its plans for expansion. The court' found the delay in notice did not prejudice Macerich. Weighing the above factors, the court concluded failure to give equitable relief would result in undue hardship on Stanek.

We are called upon to determine whether the renewal option provision of a lease agreement must be strictly enforced when a party simply forgot to exercise its option. Before we turn to the main issue, we briefly address two issues raised by Stanek in its attempt to justify equitable relief under the circumstances before us.

A. Option Contracts and Substantial Performance

First, Stanek contends it is appropriate to extend the principles of equity into the arena of option provisions solely in land contracts. An option is merely an offer that cannot be revoked until a certain date. 3 Corbin on Contracts § 11.2, at 466 (1996). Similarly, once this time period passes, an option holder may no longer accept the offer. Id. § 11.8, at 534. During the life of an option, it is the holder who has the power of acceptance. Id. § 11.8, at 515. Stanek contends that somehow, through equitable principles, the offer must stay open beyond the agreed upon time only for land contracts. However, the optionee has no power of acceptance after this critical date. Without articulating the reason why, Stanek contends the offer should remain open for land contracts whereas in all other areas of contract law the offer would end. This contention is wholly without merit. The principles applicable to option provisions in land contracts are the same as those for all other contracts. There is no reason to treat the two differently.

Stanek also appears to argue strict construction of the notice provision is inappropriate because Stanek substantially performed its duties under the lease agreement. Substantial performance is that which, “despite deviations from the contract requirements, provides the important and essential benefits of the contract to the promisee.” 17B C.J.S. Contracts § 589, at 279 (1999); see, e.g., Johnson v. Dodgen, 451 N.W.2d 168 (Iowa 1990). The doctrine is intended to protect the right of compensation of those who have performed in all material and substantive particulars, and it excuses contractual deviations or deficiencies which do not severely impair the purpose underlying a contractual provision. 17B C.J.S. § 589, at 278.

The defense of substantial performance is not a valid principle to ameliorate against our clear rules of contract construction. Here, Stanek did not fulfill the conditions agreed upon for the time for performance. The notice of intent to exercise the renewal option is a condition precedent to irrevocability and the formation of contractual obligations. See 3 Corbin on Contracts § 11.8, at 517 (1996). It is not sufficient that after realizing the time for performance had passed, Stanek acted as quickly as possible. It is not enough that it notified Macerich of its intent to exercise the option three and a half months too late. Substantial performance will not excuse the nonoccurrence of an express condition precedent to a contract. 17B C.J.S. Contracts § 589, at 278. Given that “close enough” cannot save Stanek from its failure to timely renew, we turn to our rules governing enforcement of option provisions.

B. Enforcement of Contract

We begin our discussion with the general rule that we determine the validity of an option provision by ordinary rules of contract. 17 C.J.S. Contracts § 55, at 502 (1999). The contract will be strictly construed if its words are clear and unambiguous. See Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1272 (7th Cir.1996); Brecht v. Cedar Rapids Dev. Co., 257 Iowa 1117, 1123, 136 N.W.2d 287, 291 (1965) (“[N]otice is subject to construction as any other written contract. Where the language used is plain and unambiguous the intent of the parties is determined by what the contract says.”). Any conditions precedent to the option provision must be fulfilled according to the agreement for the option to become a contract between the parties. 17 C.J.S. Contracts § 55, at 502.

The rules regarding renewal-option provisions in lease agreements are quite clear. A cardinal rule of contract construction is that “time is of the essence.” J.C. White, 234 N.W.2d at 154. “Contract provisions which not only set the time of performance but also spell out the consequences of nonperformance usually have been construed to make time of the essence.” Kakalik v. Bernardo, 184 Conn. 386, 397, 439 A.2d 1016, 1021 (1981) (Shea, J., concurring); Ujdur v. Thompson, 126 Idaho 6, 878 P.2d 180, 183 (Idaho Ct.App.1994). We have consistently recognized “it is the general rule that the time prescribed in the agreement for the exercise of an option is of the essence and, if the option is not exercised within the time limit, all the rights of the optionee stand forfeited without notice.” Figge v. Clark, 174 N.W.2d 432, 434-35 (Iowa 1970). Where the parties made time of the essence in setting a deadline for exercising an option, strict compliance is required. Ujdur, 878 P.2d at 183. The lease agreement before us provided,

Term ... Lessee shall have the right and option to extend the Lease Term for four (4) additional consecutive periods of five (5) years on the same terms.... Lessee may exercise each of the options ... by giving the Lessor written notice thereof not less than twelve (12) months prior to the termination of the initial Lease Term or extended term, whichever the case may be. ■

Nothing about this option to renew provision is remotely ambiguous. The parties specifically provided time for performance in the lease agreement. They expressly agreed to a cutoff date of September 80, 1999, and by so doing made time of the essence. See, e.g., id. at 183 (where parties expressly agreed to cutoff date by which payment was due, the parties manifested their intent to make time of the essence in their agreement). Stanek did not give Macerich written notification until more than three and a half months later on January 20, 2000. Because Stanek failed to give proper notification, its lease expired on September 30, 1999. Stanek, however, asks us to ignore the parties’ written agreement and save it from its forgetfulness in equity.

C. Equitable Considerations

The district court found, and Stanek seems to argue, equity is appropriate because Stanek’s failure to timely give notice was the result of an “honest mistake or oversight.” As a general principle, a court of equity has the power to relieve a party from the consequences of a mistake. 27A Am.Jur.2d Equity § 7, 525 (1996). However, what happened here is not the result of a mistake.

A mistake within the meaning of equity is a non-negligent but erroneous mental condition, conception, or conviction induced by ignorance, misapprehension, or misunderstanding, resulting in some act or omission done or suffered by one or both parties, without its erroneous character being intended or known at the time.

Utah Coal & Lumber Rest., Inc. v. Outdoor Endeavors Unlimited, 40 P.3d 581, 585 (Utah 2001) (quoting 27A Am.Jur.2d Equity § 7, 525 (1996)). Stanek does not argue it misunderstood the -terms of the contract. It does not contend it was unaware of the notice provision. Rather, the facts before us show Stanek failed to exercise its option because of simple forgetfulness. Forgetfulness is not the equivalent of a mistake.

No one can predicate a' mistake on his own negligent omission to perform a legal duty.... When one is charged with a duty, and forgets to do it, it may under certain circumstances constitute excusable negligence, but it cannot be held to be a mistake.... Negligently and inadvertently omitting to perform a duty is far different than to omit it through mistake or accident.

Id. (citation omitted). As Stanek has admitted, it forgot to exercise its option to renew because of a mere oversight. See Host Intern., Inc. v. Summa Corp., 94 Nev. 572, 583 P.2d 1080, 1082 (1978) (Where party admitted timely exercise of notice was simply “overlooked” the court would not apply equity to protect the party from its own negligent failure to give notice.). Thus, its failure to renew the lease on time was not due to a mistake. “The consequences of a lessee’s failure to exercise an option, however uncomfortable they may be, are self-inflicted.” Id. We will not use equitable principles to save a party from the circumstances it created.

Stanek would have us weigh the equities of each particular case to achieve the most “just” result. However, the decision of which of two profit-seeking parties is more deserving to prevail is not within the province of the courts. Stanek has not offered and we have found no justiciable standards announced in other jurisdictions to assist this court in making such an arbitrary decision. No one factor to be considered in such an equitable analysis is sufficiently compelling to require us to aid Stanek or any other party where the parties bargained freely to their contract.

To hold otherwise would do nothing more than create instability in business transactions and disregard commercial realities. “If the terms of options involving property rights are not strictly construed, Pandora’s Box is opened for serious property title problems to develop.” Robinson v. Martel Enters., Inc., 337 So.2d 698, 704 (Miss.1976) (footnote added). Were we to accept Stanek’s argument, “all contracts would be called into question as meaningless and uncertain, dependent upon the whims of a panacean court or a jury.” Reynolds-Penland Co. v. Hexter & Lobello, 567 S.W.2d 237, 239 (Tex.Civ.App.1978). Attempting in vain to balance the equities, especially in a situation where as here the record is devoid of any so-called “equities,” will weaken the sanctity and predictability of the written word.

The written words of the contract afford greater certainty of intention, and more accurate compliance with the performance of the .terms of the contracts by the parties thereto than do the retrospective, impassive conclusions of a court of equity. A court of equity should not be the first, but the last resort. It is bound by a contract as the parties have made it and has no authority to substitute for it another and different agreement, and should afford relief only where obviously there is fraud, real hardship, oppression, mistake, unconscionable results, and the other grounds of righteousness, justice and morality.

Koch v. H & S Dev. Co., 249 Miss. 590, 163 So.2d 710, 727 (1964). In sum, application of the Fountain rule would result in granting relief for failure to comply with an option provision anytime the “delay is slight, the lessor’s loss is small, and the lessee would suffer a hardship”. Utah Coal & Lumber Rest., Inc., 40 P.3d at 584. Such a rule would excuse failure to comply with the lease in most cases. This result is directly contrary to our established precedent enforcing strict adherence to contractual time limitations.

Here, Stanek has no excuse other than sheer absentmindedness to explain why it missed the deadline to renew the lease. There is no evidence of additional elements such as excusable fault, fraud, mistake, estoppel, accident, or overreaching. See, e.g., Schiltz v. Teledirect Int’l, Inc., 524 N.W.2d 671, 674 (Iowa Ct.App.1994); Sy Jack Realty Co. v. Pergament Syosset Corp., 27 N.Y.2d 449, 318 N.Y.S.2d 720, 267 N.E.2d 462, 464 (1971). It is only in rare cases where one or more of these factors is at play that courts will abandon strict construction of a written agreement.

Though Stanek contends “a few jurisdictions do apply a harsh and ancient prohibition of equitable relief,” it misapprehends the degree to which other jurisdictions recognize the holding of Fountain. A majority of jurisdictions recognize certain circumstances where the untimely exercise of an option should be equitably excused. However, the state high courts appear to be closely divided in their adoption of Fountain. Only a few state high courts have explicitly addressed this case and adopted its holding. See, e.g., Aickin v. Ocean View Invs. Co., 84 Hawai’i 447, 935 P.2d 992, 1000 (1997); Trollen v. Wabasha, 287 N.W.2d 645, 648 (Minn.1979); Western Tire v. Skrede, 307 N.W.2d 558, 562 (N.D.1981); Fletcher v. Frisbee, 119 N.H. 555, 404 A.2d 1106, 1108 (1979); see also Duffy v. Casady, 29 Kan.App.2d 549, 28 P.3d 1040, 1042-43 (2001) (applies Fountain test to relieve equity only if notice is given during the term of the lease).

A majority of state high courts have not adopted Fountain, but instead allow equitable relief only in cases of fraud, misrepresentation, undue influence, mistake, waiver, and duress. See, e.g., Dugan v. Haige, 54 So.2d 201, 202 (Fla.1951); Rounds v. Owensboro Ferry Co., 253 Ky. 301, 69 S.W.2d 350, 354 (1934); Koch, 163 So.2d at 724; Guy Dean’s Lake Shore Marina Inc. v. Ramey, 246 Neb. 258, 518 N.W.2d 129, 133 (1994); Am. Oil Co. v. Rasar, 203 Tenn. 37, 308 S.W.2d 486, 491 (1957); Utah Coal & Lumber Rest., Inc., 40 P.3d at 585; Sentara Enters., Inc. v. CCP Assocs., 243 Va. 39, 413 S.E.2d 595, 597 (1992). Other jurisdictions have required strict compliance with notice provisions in option contracts and have not granted equitable relief. See, e.g., Bekins Moving & Storage Co. v. Prudential Ins. Co., 176 Cal.App.3d 245, 252-53, 221 Cal.Rptr. 738 (1985); Ramey, 518 N.W.2d at 131-33; Host Int’l, Inc., 583 P.2d at 1080; In re Millyard Rest., Inc., 110 B.R. 103, 105 (Bkrtcy.D.N.H.1990); Ahmed v. Scott, 65 Ohio App.2d 271, 418 N.E.2d 406, 410-11 (1979); Western Sav. Fund Soc. of Philadelphia v. Southeastern Pennsylvania Transp. Auth., 285 Pa.Super. 187, 427 A.2d 175, 179-81 (1981); Norton v. McCaskill, 12 S.W.3d 789, 795 (Tenn.2000); Crown Constr. Co. v. Huddleston, 961 S.W.2d 552, 558-59 (Tex.Ct.App.1997).

These courts preserve not only sanctity of contract but also protect the integrity of the fundamental grounds upon which the rules of equitable relief are founded. “While rules and principles of equity jurisprudence are constantly expanding in the aspiration for justice in the administration of law by the courts, they should never forget that ‘the sprout is to savor of the root, and go the same way.’ ” Rounds, 69 S.W.2d at 356. Even where strict enforcement of the contract results in hardship, we cannot change the rights of the parties absent ameliorating circumstances. Hard cases make bad law. “Hard cases must not be allowed to make bad equity, any more than bad law.” Moore v. Pierson, 6 Iowa 279, 297 (1858). When special circumstances that the law of equity recognizes as grounds for relief exist, it is appropriate for equitable principles to intervene. See, e.g., Pennsylvania Life Ins. Co. v. Simoni, 641 N.W.2d 807 (Iowa 2002) (grounds for equitable revocation of a contract existed where we found an arbitration provision unconscionable because it was part of an adhesion contract). Because none of these conditions are present in the case before us, we conclude it is proper to enforce the notice requirement necessary for Stanek to exercise its right to renew the lease.

IV. Conclusion

We hold equitable relief is not available for a commercial party who, through its own carelessness, failed to timely exercise its option to renew a lease agreement. We decline to jeopardize freedom of contract by stepping in and rewriting the parties’ agreement to relieve the consequences of Stanek’s mere forgetfulness. As such, we conclude Macerich’s petition for declaratory judgment should have been sustained and Stanek’s counterclaim for declaratory judgment and equitable relief should have been denied. Macerich’s motion for summary judgment asserting that Stanek failed to timely exercise its option to renew the lease precludes its right to do so should have been granted. We remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . Stanek argued before the district court that because this document seemingly allowed Stanek more time to exercise the option to renew, the certificate constituted a waiver of the time limits placed on the renewal option in the lease agreement. The district court ruled Macerich did not waive the term for the renewal option. Stanek does not argue waiver on appeal.

      . A Pandora's box from Greek mythology is the jar, later referred to as a box, from which Pandora allowed all the world's evils to escape. The Cambridge Encyclopedia .831 (2nd ed.1994). It is the source of a great collection of ills that need not be faced unless an unwise action is taken. The American Heritage Dictionary 897 (2d ed.1985).


source: Caselaw Access Project

license: Public Domain

text:
    Jeffrey ROMINE, Relator, v. BONFE PLUMBING & HEATING and CNA/Transcontinental Insurance Company, Respondents.
    No. C7-02-649.
    Supreme Court of Minnesota.
    July 17, 2002.
    Bruce E. Brody, # 148945, Brooklyn Center, MN, for Relator.
    Jeffrey A. Magnus, # 168488, Minneapolis, MN, for Respondents.
   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 April 3, 2002, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01, subd. 1(b).

BY THE COURT:

Russell A. Anderson Russell A. Anderson Associate Justice


author: ANDERSON, Paul H„ Justice.

text:
    Aaron JOHNSON, Petitioner, Appellant, v. Kimberly Letrice MURRAY, a/k/a Kimberly Letrice Smith, Respondent.
    No. C7-01-480.
    Supreme Court of Minnesota.
    July 18, 2002.

      Aaron Johnson, pro se.
    Kimberly Letrice Murray, pro se.
    Mary Catherine Lauhead, St. Paul, Michael D. Dittberner, for Family Law Section MN State Bar Ass’n.
    Fredrikson & Byron, P.A., Richard D. Snyder, Minneapolis, Gail Chang Bohr, St. Paul, for Children’s Law Center of MN.
   ANDERSON, Paul H„ Justice.

OPINION

Aaron Johnson commenced an action in Minnesota to determine the paternity and custody of Aaron Jamine Junior Johnson (A.J.). Prior to commencing the action, Johnson obtained physical custody of A.J. from A.J.’s maternal grandmother following her request that Johnson take custody. At the time, A. J. was living with his grandmother in Michigan. The district court dismissed Johnson’s action on the grounds that the court lacked personal jurisdiction over A.J.’s mother. On appeal, the court of appeals reversed and remanded the case to the district court for consideration of a number of issues, including whether the district court had subject matter jurisdiction over the custody dispute under Minnesota’s codification of the Uniform Child Custody Jurisdiction Act (UCCJA).

On remand, the district court dismissed Johnson’s paternity claim on the grounds that A.J. had not been joined as a party. On the custody claim, the court found that it did not have subject matter jurisdiction under the UCCJA because there was insufficient evidence to determine whether another state had jurisdiction and there was not a significant connection between A.J.’s mother and Minnesota. The court stated that it also could have declined subject matter jurisdiction under the UC-CJA’s unclean hands provision due to Johnson’s wrongful conduct of taking physical custody of A.J. without his mother’s consent. Johnson again appealed and the court of appeals reversed on the issue of paternity and affirmed on the issue of custody. Having prevailed on the issue of paternity, Johnson appealed only the matter of subject matter jurisdiction. We granted Johnson’s pro se petition for review to determine whether the district court had subject matter jurisdiction over the custody dispute under the UCCJA. We reverse.

In July 1999, appellant Aaron Johnson obtained physical custody of the then 8-year-old A.J. At this time, A.J. resided with his maternal grandmother in Michigan. The grandmother had contacted Johnson about visiting A.J. Johnson .subsequently went to Michigan and returned to his home in Minnesota with A.J. One month later, AJ.’s mother, respondent Kimberly Letrice Murray, a/k/a Kimberly Letrice Smith, who previously had physical custody of A.J., came to Minnesota to work as part of Austin Diversified Products’ seasonal sales staff. On August 27, 1999, a Hennepin County Sheriffs employee served Murray with a summons and petition for custody determination, interrogatories, and requests for admissions on behalf of Johnson. In these documents, Johnson alleged that he was A.J.’s father and was seeking full custody of A.J. He also alleged facts supporting subject matter jurisdiction over the custody issue under the UCCJA.

On September 29, 1999, Johnson moved for default judgment. The same day, he applied for an ex parte temporary restraining order against Murray because she had threatened to take A.J. away from him and had told him that he would never see A.J. again. The district court denied the request for the temporary restraining order. On September 30, Murray and her attorney, with the assistance of the Benton County Sheriff, retrieved A.J. from Johnson’s custody. Johnson has neither heard from nor seen A.J. or Murray since this date.

The day after Murray regained custody of A.J., Johnson obtained an ex parte temporary custody order. That same day, he served Murray by mad addressed to her employer with notice and motion for default judgment. On October 6,1999, Johnson filed a notice of motion and motion for adjudication of parenthood accompanied by an affidavit in which he claimed to be A.J.’s father.

The district court held a hearing on Johnson’s motion for default judgment on October 13,1999. At the hearing, Johnson argued that the court should issue a default judgment and award him custody of A.J. because there was no response by Murray to the initial summons and complaint or petition. Murray did not appear at the hearing, but her attorney was present and contested the court’s personal and subject matter jurisdiction. It was at this hearing that Murray’s attorney acknowledged that Johnson had the grandmother’s consent to take physical custody of A.J. On October 26, 1999, the court issued an order dismissing Johnson’s motion for adjudication of parenthood on the grounds that the court lacked personal jurisdiction over Murray. The court did not address Johnson’s motion that the court should issue a default judgment and award Johnson custody.

On August 7, 2000, the court of appeals reversed and remanded on the issue of personal jurisdiction. The court concluded that certain findings of fact by the district court were clearly erroneous and permitted the district court to reopen the record on remand. Further, the court of appeals ordered the district court to consider on remand Johnson’s motion for default judgment and .Johnson’s motion to deem requests for admissions admitted. Finally, although the district court did not determine whether it or any other state had jurisdiction under the UCCJA, the court of appeals addressed the issue of subject matter jurisdiction.

The court of appeals noted that Johnson had alleged that A.J. had no permanent home, moved from state to state, never lived in a state for more than four months, attended five or more schools in one year, could not remember the names of any of his teachers or of any of the schools he attended, was in the third grade but performed at a first-grade level, and was exposed to drug use and domestic abuse. The court stated that if these allegations were true, it was in A.J.’s best interests for some state to assert jurisdiction to determine his custody status. The court went on to state that given the interstate nature of the custody dispute, the fact that Johnson, the alleged father, lives in Minnesota and the fact that A.J. lived in Minnesota and attended school in Minnesota means that Minnesota might be able to assert jurisdiction under the UCCJA. However, the court concluded that the record lacked the factual findings required to support the exercise of UCCJA jurisdiction and remanded for specific findings on this issue.

On November 15, 2000, the district court held an evidentiary hearing on the remanded issues. Johnson was represented by an attorney and testified, but neither Murray nor her attorney appeared. On January 24, 2001, the court found that Minnesota had personal jurisdiction over Murray, but dismissed Johnson’s action to determine paternity due to Johnson’s failure to join A.J. as a party, denied Johnson’s motion for default judgment, and found that Minnesota lacked subject matter jurisdiction over the custody dispute.

The district court made the following findings of fact, some of which were phrased only in terms of what Johnson alleged or testified to. In 1988, Johnson and Murray met each other while employed at Austin Diversified Products. On June 27,1991, Murray gave birth to A.J. in Eugene, Oregon. A.J.’s father was not identified on the birth certificate. Johnson alleged that during the next four years, Murray, Johnson, and A.J. resided together and that he helped raise A.J. Johnson testified that during those four years, Johnson and Murray were employed by Austin Diversified Products and moved from state to state selling cleaning products, living in motels, and doing drugs. Johnson testified that the longest period of time they would stay in one place was for about six months each winter when they would stay in California. However, the court also found that Johnson stated in an affidavit that to the best of his knowledge, A.J. had never lived in a state for more than four months. Johnson also stated in an affidavit that while he was employed by Austin Diversified Products and cohabitat-ed with Murray, the longest time they lived in any one location was four months.

The district court found that in May 1995, the parties separated and A.J. remained with Murray. The court found that Johnson alleged that from October through December 1995, A.J. resided with Johnson in Oklahoma, Minnesota, and California. The court found that Johnson testified that in December 1995 he dropped A. J. off with Murray in California and then moved to Minnesota, where he has continued to reside. In July 1999, A.J.’s grandmother contacted Johnson to request that he come to Michigan to take A.J. to Johnson’s home in Minnesota. The court found that Johnson traveled to Michigan to pick up A.J. based on the grandmother’s consent. Johnson then took physical custody of A.J., albeit without Murray’s permission. A.J. lived with Johnson until September 30, 1999, when Murray regained physical custody of A. J. with the aid of the Benton County Sheriff.

The district court concluded that Johnson was the presumed father of A.J. and that in a child custody action by a presumed father, the child must be joined as a mandatory party. Because A.J. was not made a party, the court dismissed the paternity action. The court also concluded that under the UCCJA, it did not have subject matter jurisdiction to make a custody determination. Finally, the court denied Johnson’s motion for default judgment.

In a memorandum attached to its order, the district court further explained its conclusions of law. With respect to the custody issue, the court stated that under the UCCJA, it can exercise jurisdiction if (a) Minnesota is the home state of the child or the child’s home within six months before commencement of the proceeding, (b) it is in the child’s best interests that a Minnesota court assume jurisdiction, (c) the child is physically present in Minnesota and there are emergency conditions, or (d) no other court would have jurisdiction or will exercise jurisdiction. The court found that it could not exercise home state, best interests, or emergency jurisdiction. However, the court noted that it could exercise jurisdiction under the UCCJA’s default or vacuum provision if no court of any other state would have home state, best interests, or emergency jurisdiction. The- court then went on to speculate that California might be able to exercise subject matter jurisdiction. The court stated:

Aaron Johnson testified that every year while employed at Austin Diversified he stayed in California up to six months. California could be the child’s home state. Temporary absences are counted as part of the six-month residency requirement. Moreover, about one out [of] three years, Aaron Jamine Jr. Johnson would stay with his grandmother for up to three months over the winter season. This could count a[s] part of the California residency requirement for California. However, this Court cannot, on the evidence before it, conclude that no other State would have jurisdiction either in the July-September 1999 period- or the November 2000 period.

Although the district court speculated regarding whether California might be able to exercise jurisdiction, the court found that there was insufficient evidence before it to conclude that no other state would have jurisdiction over the custody dispute. The court also found that, absent Murray’s consent or an adjudication of paternity, Johnson did not have a legally recognized right to relocate A.J. to Minnesota and then commence a custody proceeding. For these reasons, the court concluded that it did not have subject matter jurisdiction over the custody issue under the UCCJA’s default provision. Finally, the court stated that it could have declined subject matter jurisdiction under the UC-CJA’s unclean hands provision due to Johnson’s “broad and exaggerated” claims regarding A.J., his “questionable” credibility, and his wrongful conduct of taking A.J. from his grandmother without Murray’s consent.

Johnson appealed pro se, arguing that the district court erred in dismissing his custody and paternity action. The court of appeals reversed the district court on the dismissal of the paternity action and affirmed the district court’s determination that Minnesota lacked subject matter jurisdiction over the custody issue. The court of appeals agreed with the district court that there was no basis for Minnesota to assume home state, best interests, or emergency jurisdiction of the custody action. The court also concluded that the district court properly exercised its discretion under the unclean hands provision. It concluded that it was proper to decline jurisdiction under the default provision because Johnson took A.J. from Michigan without first being adjudicated his father and without Murray’s consent. The court stated that regardless of Johnson’s intentions, such conduct went against the purpose of the UCCJA and was tantamount to abduction. Thus, the court of appeals held that the district court did not err in declining to exercise jurisdiction even though the district court did not determine whether another state could exercise jurisdiction.

Johnson filed a pro se petition with our court, seeking review of the issue of whether the district court erred in determining that under the UCCJA it did not have subject matter jurisdiction over custody. Murray did not respond to the petition or participate in this appeal. The Children’s Law Center of Minnesota and the Family Law Section of the Minnesota State Bar Association participated as ami-ci curiae in support of Johnson.

I.

The question before us is whether the district court erred in finding that it lacked subject matter jurisdiction over Johnson’s custody claim under the UC-CJA. Subject matter jurisdiction is a question which we review de novo. Handicraft Block Ltd. P’ship v. City of Minneapolis, 611 N.W.2d 16, 19 (Minn.2000). Statutory interpretation is also a question of law subject to de novo review. Hibbing Educ. Ass’n v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985). Uniform laws are interpreted to effect their general purpose to make uniform the laws of those states that enact them. Minn.Stat. § 645.22 (2000). Accordingly, we give great weight to other states’ interpretations of a uniform law. State v. Vail, 274 N.W.2d 127, 132 n. 9 (Minn.1979).

Under Minn.Stat. § 518A.03 (1998), Minnesota’s codification of the UCCJA, there are four bases for a Minnesota court to assert subject matter jurisdiction over a custody matter: home state jurisdiction, best interest of the child jurisdiction, emergency jurisdiction, and default or vacuum jurisdiction. With minor technical variations, section 518A.03’s jurisdiction provisions are the same as those of the uniform law upon which they are based. Compare Minn.Stat. § 518A.03 with Uniform Child Custody Jurisdiction Act § 3, 9 U.L.A. 307-08 (1999). Minnesota’s default jurisdiction provision grants jurisdiction if:

(1) it appears that no court in another state would have jurisdiction under prerequisites substantially in accordance with clause (a) [home state jurisdiction], (b) [best interest jurisdiction], or (c) [emergency jurisdiction], or a court of another state has declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child, and (2) it is in the best interest of the child that a court of this state assume jurisdiction.

Minn.Stat. § 518A.03, subd. 1(d) (1998).

Minnesota’s UCCJA also grants the district court the discretion to decline jurisdiction on the basis of petitioner’s conduct. Minnesota Statutes § 518A.08, subd. 1 (1998) provides:

If the petitioner for an initial decree has ■wrongfully taken the child from another state or has engaged in similar reprehensible conduct the court may decline to exercise jurisdiction if this is just and proper under the circumstances.

This “reprehensible conduct” or “unclean hands” provision is identical to section 8 of the uniform law. Compare Minn.Stat. § 518A.08, subd. 1, with UCCJA § 8, 9 U.L.A. 526 (1999).

We agree with the district court that it lacked jurisdiction over the custody issue under the UCCJA’s home state, best interest, and emergency jurisdiction provisions. Accordingly, we focus our analysis on whether the court erred in declining jurisdiction under the default provision.

In evaluating whether default jurisdiction exists, a court must determine whether “it appears that no court in another state would have jurisdiction,” whether another state has declined to exercise jurisdiction, and whether it is in the best interest of the child for a Minnesota court to exercise jurisdiction. Minn.Stat. § 518A.03, subd. 1(d). A key indicator of whether it would appear that another state could assert jurisdiction is whether another state would have jurisdiction if an action had been instituted in that state. Peloso v. Botkin, 144 Vt. 461, 479 A.2d 156, 158-59 (1984). The best interest of the child as used in the default provision “refers to a choice of a forum, not to the fitness of the parents.” State ex rel. Rashid v. Drumm, 824 S.W.2d 497, 503 (Mo.Ct.App.1992). If there is no other forum that can and will adjudicate custody, it is in the best interest of the child that some state have the ability to adjudicate custody matters over the child. Reed v. Reed, 62 S.W.3d 708, 715 (Mo.Ct.App.2001); see In re Marriage of Medill, 179 Or.App. 630, 40 P.3d 1087, 1092 (2002). A court commits error if it determines it had no jurisdiction without considering the best interest of the child with respect to a forum. Rashid, 824 S.W.2d at 502.

Here, Johnson was filing his first petition' for custody. Under such circumstances, it was reasonable for the district court to have assumed that another state had not declined to exercise jurisdiction. However, the court did not make a finding as to whether it appeared that no other state would have jurisdiction. The court did speculate that California might be able to exercise home state subject matter jurisdiction over the custody dispute, but stated that it could not, “on the evidence before it, conclude that no other State would have jurisdiction.” Moreover, the court did not address whether it was in A.J.’s best interest for a Minnesota court to exercise jurisdiction as it was required to do by statute.

Based on the record before us, we conclude that the court abused its discretion in failing to make findings regarding (1) the availability of another state forum and (2) the best interest of the child. Such findings are mandated by section 518A.03, subd. 1(d). We also conclude that it is in A. J.’s best interest that some forum be available to adjudicate custody because, under the facts here, there is no other forum that can and will adjudicate custody. Further, because the court identified no other state that had jurisdiction and the record does not indicate a substantial presence in any state, we conclude that no other state had jurisdiction. Therefore, we hold that the district court erred when it found that it did not have jurisdiction over the custody dispute under the UC-CJA’s default provision.

II.

Having concluded that the district court had jurisdiction under the UCCJA’s default provision, we now consider whether the district court has the discretion to decline jurisdiction under the unclean hands provision. The court found that even if it did have jurisdiction under the default provision, it could decline jurisdiction under the unclean hands provision. Minnesota Statutes § 518A.08 provides that “[i]f the petitioner for an initial decree has wrongfully taken the child from another state or has engaged in similar reprehensible conduct the court may decline to exercise jurisdiction if this is just and proper under the circumstances.” The comments to the uniform law state that under the unclean hands doctrine, courts refuse to assume jurisdiction “when the petitioner has abducted the child or has engaged in some other objectionable scheme to gain or retain physical custody of the child in violation of the decree.” UCCJA § 8 cmt., 9 U.L.A. 526-27 (1999).

Nevertheless, the comments to the uniform law emphasize that “when adherence to this rule would lead to punishment of the parent at the expense of the well being of the child, it is often not applied.” Id.; see also Bergeron v. Bergeron, 492 So.2d 1193, 1203 (La.1986) (stating that “If the best interests of all children are to be served * * * [t]he imperative to discourage abduction and other violations of custody orders may, in extraordinary circumstances, be subordinated to the paramount concern in all custody matters for the welfare of the child.”); Rashid, 824 S.W.2d at 502 (stating that the unclean hands provision “is a discretionary ground for denying jurisdiction and does not supersede the best interests of the child” and that “[t]he paramount issue is the welfare of the child rather than the tactics of the parents.”). See also Snow v. Snow, 369 N.W.2d 581, 583 (Minn.App.1985); O’Neal v. O’Neal, 329 N.W.2d 666, 669 (Iowa 1983); Nehra v. Uhlar, 168 NJ.Super. 187, 402 A.2d 264, 267 (1979); Van Houten v. Van Houten, 156 A.D.2d 694, 549 N.Y.S.2d 452, 454 (N.Y.App.Div.1989). Thus, the language of the statute and the comments indicate that a district court, when applying the unclean hands provision, must not only consider whether a petitioner’s conduct was wrong or reprehensible, but must also consider whether declining jurisdiction is proper under the circumstances and in the best interest of the child.

Here, the district court found that Johnson engaged in wrongful conduct in taking A.J. to Minnesota without Murray’s permission. But this is not a case where the petitioning parent abducted the child or where the parent sought a favorable forum to adjudicate custody. Johnson took custody of A.J. after A.J.’s grandmother requested that he take A.J. to his home in Minnesota. There is no evidence that Johnson took custody of A.J. and brought him to Minnesota to find a favorable forum. In fact, Johnson had lived in Minnesota for nearly four years. Therefore, we conclude that the court abused its discretion in finding that Johnson wrongfully gained custody of A.J. The court also abused its discretion in speculating that it could exercise its discretion to decline jurisdiction under the unclean hands provision without considering whether exercising jurisdiction would be in A.J.’s best interest. Section 518A.08 requires a court to consider whether declining jurisdiction is just and proper under the circumstances and there is no indication that the court did so here. Moreover, we conclude that it was just and proper under the circumstances, i.e., in AJ.’s best interest, that some forum, in this case Minnesota, adjudicate custody. Therefore, it would be error for the court to decline jurisdiction under the unclean hands provision. See Rashid, 824 S.W.2d at 502; Nehra, 402 A.2d at 268-69; Van Houten, 549 N.Y.S.2d at 454.

We hold that, under the record before us, the district court has jurisdiction over the custody dispute under the UCCJA’s default provision and cannot decline jurisdiction under the unclean hands provision. We therefore reverse and remand for proceedings consistent with this opinion.

Reversed.

      . Minnesota Statutes Chapter 518A, Minnesota's codification of the UCCJA, was repealed effective January 1, 2000, and replaced by the Uniform Child Custody Jurisdiction and Enforcement Act. Act of April 20, 1999, ch. 74, §§ 1-20, 1999 Minn. Laws 200, 200-16 (codified at Minn.Stat. ch. 518D (2000)).

      . For example, § 518A.03, subd. 1(d) (1998), the default jurisdiction provision, differs from Uniform Child Custody Jurisdiction Act § 3(a)(4), 9 U.L.A. 307-08 (1999) in that the state statute's subdivisions are numbered differently, the word "state” is not capitalized, and it refers to "a court of another state” rather than “another state.”


author: ORDER James H. Gilbert James H. Gilbert Associate Justice

text:
    Walton KJELDERGAARD, Respondent, v. PUERINGER DISTRIBUTION, INC. and Liberty Mutual Insurance Companies, Relators, and MN Department of Labor and Industry, Workers’ Compensation Division, Respondent.
    No. CX-02-628.
    Supreme Court of Minnesota.
    July 19, 2002.
    Sieben, Polk, Laverdiere, Jones & Hawn, John P. Sieben (# 17824X), Hastings, MN, attorneys for respondent — Walton Kjeldergaard.
    Conley & Borgeson, Amy L. Borgeson (# 988X), St. Paul, MN, attorneys for rela-tors — Pueringer Distribution, Inc., and Liberty Mutual Insurance Companies.
    Michael A. Hatch, Minnesota Attorney General, Rory Foley (# 155056), St. Paul, MN, attorney for respondent — MN Department of Labor and Industry, Workers’ Compensation Division.
    Orbovich & Gartner, Chartered, Samuel D. Orbovich (# 137017), St. Paul, MN, attorneys for Amicus Curiae — Insurance Federation of Minnesota.
   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 March 20, 2002, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01, subd. 1(b).

BY THE COURT

James H. Gilbert James H. Gilbert Associate Justice


author: PAGE, Justice.

text:
    STATE of Minnesota, Respondent, v. Douglas Gerard BURG, Petitioner, Appellant.
    No. C6-00-1822.
    Supreme Court of Minnesota.
    Aug. 1, 2002.

      John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, Minneapolis, MN, Attorneys for Appellant.
    Mike Hatch, Minnesota Attorney General, Michael K. Riley, Sr., Nicollet County Attorney, Todd W. Westphal, Assistant County Attorney, Saint Paul, MN, Attorneys for Respondent.
   OPINION

PAGE, Justice.

Appellant Douglas Gerard Burg was convicted of felony nonsupport of a child in violation of Minn.Stat. § 609.375, subd. 2a (1998). Burg’s conviction was based on his failure to pay child support to his former wife Lisa Burg (Lisa) from May 1995 to October 1999. Burg was sentenced to 30 days in jail, placed on probation for two years, ordered to participate in vocational rehabilitation services, and ordered to pay a fíne of $5,000, with credit against the fine for any child support payments made. The trial court stayed Burg’s jail time pending appeal. On appeal, the court of appeals affirmed Burg’s conviction, at which point Burg’s 30-day jail sentence was executed. Because the trial court committed plain error that affected substantial rights by instructing the jury that Burg had the burden of proof with respect to an element of the offense of nonsupport of a child, we reverse Burg’s conviction and grant him a new trial.

Burg and Lisa were married in 1984 and divorced in 1989. During their five-year marriage, they had four children. At the time of the divorce, Lisa was awarded custody of the children and Burg was ordered to pay child support in the amount of $187.80 per month, calculated on an earning capacity of $5 per hour for 40 hours per week. Burg made no child support payments from May 1995 to October 1999. In 1998, two tax refunds totaling $257 were intercepted and applied to his child support obligation. At the time of his trial, Burg was 36 years old, was unemployed, lived with his mother, and, according to Burg, suffered frdm severe depression.

Throughout these proceedings, Burg has not disputed the existence of a court order requiring him to pay child support, nor does he dispute that he failed to pay child support during the relevant period. Rather, Burg claims that he has a lawful excuse for his failure to meet his child support obligation. Burg’s claimed lawful excuse is that he has a mental incapacity that affects his ability to obtain and maintain employment. In support of this claim, Burg argues that he is unable to keep jobs because of depression, caused by working, and because of a series of traumatic events in his life, including: having suffered nearly fatal head injuries when run over by a two-ton truck at age 3, which, according to his brother, made him “mentally slow”; growing up in an often violent alcoholic home; at age 10, seeing one of his friends shoot and kill himself; and being hospitalized for depression at age 14.

Before trial, defense counsel informed the state that Burg planned to submit expert psychological testimony relating to his mental capacity and his inability to work. At a hearing on a motion in limine brought by the state, the state sought to preclude Burg from submitting evidence as to his mental or psychological health as an excuse for Burg’s failure to pay child support and to preclude him from presenting witnesses to testify as to his ability to obtain employment. The state also sought to have the trial court determine that the language “without lawful excuse” contained in Minn.Stat. § 609.375, subd. 1 (1998), did not constitute an element of the offense charged.

From an offer of proof made during trial, it appears that psychologists were prepared to testify that Burg had an IQ of 67, which placed him in the extremely low-range classification of intelligence, that his abilities were limited enough to affect his ability to seek out and maintain employment, that he experienced depression with anxiety, and that he was easily overwhelmed. One psychologist stated that Burg’s “past history of emotional deterioration, head injury, hearing problems, [and] inability to sustain himself educationally or in the work area suggest a disability of substantial magnitude.”

Although the trial court did not issue a formal order after the hearing, it advised the parties that it would not permit the introduction of expert psychological testimony. The trial court reasoned that such testimony lacked probative value because the psychologists were unable to correlate Burg’s present mental condition with his having been so mentally incapacitated that he could not maintain employment. With respect to the statutory language “without lawful excuse,” the trial court advised the parties that the language constituted an element of the offense, which the state bore the burden of proving beyond a reasonable doubt.

Burg subsequently requested that he be permitted to have a vocational rehabilitation psychologist testify. The trial court denied that request in an advisory letter to the parties. The rationale for denying this request was that such a psychologist would be unqualified to testify about Burg’s ability to maintain employment and that his or her testimony would have minimal probative value.

At trial, there was testimony that Burg’s work history was spotty from at least the time of his marriage to Lisa. Burg was employed during the last year of their marriage at the Le Sueur Foundry for approximately three months and at a lawn service for approximately three months. Both Lisa and Burg testified that during their marriage Burg also bought cars to fix up and sell. According to Burg, the money he earned from these car transactions was not enough to make a living. Otherwise, trial testimony confirmed that Burg was unemployed during most of the marriage.

Evidence presented at trial relating to Burg’s employment between May 1995 and October 1999 included: testimony from James Neidecker that Burg worked for him at his pole-barn construction business from mid-December 1996 to mid-February 1997, and that Burg quit that job for an unknown reason; evidence that Burg worked for a short period at Green Giant in its canning operation; testimony from Colleen Johnson, a neighbor of Burg’s, indicating that she thought Burg was employed for “a few months” beginning in May 1998; and, finally, testimony from Burg that he sometimes earned petty cash helping his mother clean houses.

Contradicting its earlier advisory letter, the trial court instructed the jury at the close of trial:

The elements of non-support of a child are: first, Defendant was legally obligated to provide support to a child. Second, Defendant knowingly omitted and failed to provide support to the child. Third, Defendant had no lawful excuse. Mental incapacity is a lawful excuse. * * * Defendant has the burden of proving this mental incapacity by the greater weight of the evidence. * * * Fourth, Defendant’s omission and failure occurred in Nicollet County, Minnesota.
If you find that each of these four elements has been proved beyond a reasonable doubt, Defendant is guilty of non-support of a child. If you find that any of these elements has not been so proved, Defendant is not guilty of nonsupport of a child.

(Emphasis added.)

Burg did not object to the instructions at trial, but, on appeal to the court of appeals, he claimed that the trial court erred by instructing the jury that he had the burden of proving mental incapacity by the greater weight of the evidence. Burg also claimed that the trial court erred when it precluded him from offering expert psychological testimony in support of his claim that he was lawfully excused from paying child support because his mental incapacity rendered him unable to obtain or maintain employment.

The court of appeals held that the instruction was error. State v. Burg, 633 N.W.2d 94, 99 (Minn.App.2001). The court of appeals reasoned that, by placing the burden of proving mental incapacity on Burg, the instruction impermissibly required Burg to disprove “the existence of an element of the crime charged; namely, a legal obligation to provide child support.” The court of appeals went on to conclude, however, that the unobjected-to error was not prejudicial based on “uncontroverted evidence that Burg was employed during the period in question, that he was a good worker, and that his employer would have been willing to rehire him after he quit.” With respect to the exclusion of the expert psychological testimony, the court of appeals concluded that the trial court did not abuse its discretion.

In this appeal, Burg presents the same two issues that he presented to the court of appeals: (1) whether the trial court’s jury instruction concerning lawful excuse impermissibly shifted the burden of proof to Burg; and (2) whether the trial court abused its discretion when it precluded admission of Burg’s expert psychological testimony.

Although Burg did not object to the jury instruction concerning lawful excuse at trial, we may review the issue on appeal if it is plain error. State v. Griller, 583 N.W.2d 736, 740 (Minn.1998); Minn. R.Crim. P. 31.02. Plain error is: (1) error; (2) that is plain; and (3) that affects substantial rights. Griller, 583 N.W.2d at 740 (citing Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). An error is plain if the error is “clear” or “obvious.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); State v. Ihle, 640 N.W.2d 910, 917 (Minn.2002). To show that the error affected substantial rights, the defendant bears the “heavy burden” of showing that the error was prejudicial— that is, the defendant must show that there is a reasonable likelihood that the error substantially affected the verdict. See Olano, 507 U.S. at 734, 113 S.Ct. 1770; Griller, 583 N.W.2d at 741; State v. Glidden, 455 N.W.2d 744, 747 (Minn.1990). If these three factors are present, we then assess whether we should address the error to ensure fairness and the integrity of judicial proceedings. Griller, 583 N.W.2d at 741.

The Due Process Clause of the Fourteenth Amendment to the United States Constitution “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the accused] is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); State v. Auchampach, 540 N.W.2d 808, 816 (Minn.1995). However, the legislature’s mere recognition of a mitigating circumstance “does not require the State to prove its nonexistence in each case in which the fact is put in issue, if in its judgment this would be too cumbersome, too expensive, and too inaccurate.” Patterson v. New York, 432 U.S. 197, 209, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). Thus, the issue presented is whether the phrase “without lawful excuse” constitutes an element of the offense of nonsupport of a child. If so, the trial court’s instruction violated due process by placing the burden of proof on Burg.

The state argues that “without lawful excuse” should not be considered an element of the offense because nonpayment of child support is an act of moral turpitude and requiring the state to prove the absence of a lawful excuse would place an impossible burden on the prosecution. See State v. Brechon, 352 N.W.2d 745, 749 (Minn.1984) (stating that defendant can be required to prove that a statutory exception to a criminal offense applies if the act itself is ordinarily dangerous to society or involves moral turpitude, and if requiring the state to prove that the exception does not apply would place an impossible burden on the prosecution). Before allocating the burden of proof in Brechon, we articulated the test for determining whether something is an element of a criminal offense: “ ‘whether the exception is so incorporated with the clause defining the offense that it becomes in fact a part of the description.’ ” Id. at 749 (quoting Williams v. United States, 138 F.2d 81, 81-82 (D.C.Cir.1943)).

The legislature’s definition of the offense of nonsupport of a child is found in section 609.375, subdivision 1, which provides:

Whoever is legally obligated to provide care and support to a * * * child, whether or not its custody has been granted to another, and knowingly omits and fails without lawful excuse to do so is guilty of a misdemeanor, and upon conviction may be sentenced to imprisonment for not more than 90 days or to payment of a fine of not more than $700, or both.

(Emphasis added.) Section 609.375, subdivision 2a, the subdivision under which Burg was convicted, upgrades the offense to a felony if the nonsupport “continues for a period in excess of 180 days.”

As is clear from the language of section 609.375, subdivision 1, the phrase “without lawful excuse” is part of the legislature’s description of the offense of nonsupport of a child. By embedding the phrase “without lawful excuse” in the definition of the offense, the legislature demonstrated its intent to include the absence of a lawful excuse as one of the facts necessary for a conviction. WTien the legislature in this manner includes the absence of a fact in the definition of an offense, the absence of that fact is generally treated as an element of the offense. Although we have not universally applied this rule, see State v. Paige, 256 N.W.2d 298, 302-04 (Minn.1977) (discussing the criminal offense of possession of a pistol in a public place without a permit and stating that the phrase “without first having obtained a permit” was an “exception” to the offense, rather than an element), our more recent cases have consistently treated such language as creating an element of an offense, see In re Welfare of L.Z., 396 N.W.2d 214, 218 (Minn.1986); Brechon, 352 N.W.2d at 750.

For example, in L.Z., we interpreted Minn.Stat. § 260.015, subd. 19 (1984), which defined the juvenile offense of habitual truancy. L.Z., 396 N.W.2d at 216 & n. 1. Section 260.015, subdivision 19, provided:

“Habitual truant” means a child under the age of 16 years absenting himself from attendance at school without lawful excuse for seven school days if the child is in elementary school or for one or more class periods on seven school days if the child is in middle school, junior high school, or high school.

(Emphasis added.) We stated in L.Z. that “without lawful excuse” was an element of habitual truancy, 396 N.W.2d at 218, and that the state had the burden of proving beyond a reasonable doubt the absence of a lawful excuse, id. at 222.

In Brechon, we reached a similar conclusion when interpreting similar language in the criminal trespass statute, Minn.Stat. § 609.605(5) (1982). Brechon, 352 N.W.2d at 750. Section 609.605(5) provided that “[wjhoever intentionally * * * * [trespasses upon the premises of another and, without claim of right, refuses to depart therefrom on demand of the lawful possessor thereof’ is guilty of a misdemeanor. (Emphasis added.) The court stated that “without claim of right” was “integral to the definition of criminal trespass,” and held that it was “an element the state must prove beyond a reasonable doubt.” Brechon, 352 N.W.2d at 750.

Because the legislature incorporated the phrase “without lawful excuse” in the definition of the offense of nonsupport of a child, and. consistent with our treatment of similar language in L.Z. and Bre-chon, we hold that “without lawful excuse” is an element of the offense of nonsupport of a child. As a result, due process requires the state to prove the absence of a lawful excuse beyond a reasonable doubt. See Winship, 397 U.S. at 364, 90 S.Ct. 1068; Auchampach, 540 N.W.2d at 816. Thus, the trial court’s instruction that Burg bore the burden of proving a lawful excuse by the greater weight of the evidence was error.

To determine whether the error was plain, we evaluate whether the error was clear and obvious at the time of Burg’s appeal. Johnson, 520 U.S. at 467-68, 117 S.Ct. 1544; Ihle, 640 N.W.2d at 917. There are no Minnesota appellate decisions explicitly concluding that the absence of a lawful excuse is an element of the offense of nonsupport of a child. However, as discussed, we have held under similar circumstances that, when the legislature includes the absence of a fact in the definition of an offense, the absence of that fact is an element of the offense. See L.Z., 396 N.W.2d at 218; Brechon, 352 N.W.2d at 750. Moreover, the trial court in this ease appears to have recognized that the absence of a lawful excuse was an element of the offense of nonsupport of a child. The trial court instructed the jury: “The elements of non-support of a child are: * * * Third, Defendant had no lawful excuse.” Based on these considerations, we conclude that it was clear and obvious at the time of Burg’s appeal that the absence of a lawful excuse was an element of the offense of nonsupport of a child, and that the error of instructing the jury that Burg had “the burden of proving [a lawful excuse] by the greater weight of the evidence” was therefore plain.

We next address whether the trial court’s error affected substantial rights. See Griller, 583 N.W.2d at 741. The trial court concluded that mental incapacity constituted a lawful excuse, and so instructed the jury. Thus, had the trial court properly allocated the burden of proof, the state would have been required to prove beyond a reasonable doubt the absence of mental incapacity. Yet the state was not put to that burden because the jury was instructed that Burg had the burden of proving mental incapacity by the greater weight of the evidence. Shifting the burden of proof of an element of a crime to the defendant violates the defendant’s constitutional right to due process. Auchampach, 540 N.W.2d at 816; see Winship, 397 U.S. at 364, 90 S.Ct. 1068. Because Burg’s constitutional right to due process was violated in this manner, we conclude that the error affected Burg’s substantial rights.

Finally, we conclude that it is necessary to correct the trial court’s error to ensure fairness and the integrity of judicial proceedings. See Griller, 583 N.W.2d at 740. As the United States Supreme Court stated in Winship, requiring the state to prove beyond a reasonable doubt every element of the crime charged “is indispensable to command the respect and confidence of the community in applications of the criminal law.” 397 U.S. at 364, 90 S.Ct. 1068. We therefore reverse Burg’s conviction and remand for a new trial.

Reversed and new trial granted.

      . Johnson's testimony was based on her observations of Burg as he rode his bike past her house each weekday morning wearing work clothes and returned in the late afternoon looking dirty and sweaty, as though he had been working.

      . In 2001, the legislature deleted the phrase "without lawful excuse" from the definition of the offense of nonsupport of a child. Act of May 22, 2001, ch. 158, § 7, 2001 Minn. Laws 468, 473. The amended version of the statute is not at issue in this case.

      . We note that the legislature did not expressly identify a lawful excuse as an affirmative defense in the 1998 statute for felony nonsupport of a child. Cf. Minn.Stat. §§ 609.205, 609.21, subd. 4a, 609.26, subd. 2 (2000).

      . Section 260.015, subdivision 19, was repealed by the legislature in 1999. Act of May 11, 1999, ch. 139, art. 4, § 3, 1999 Minn. Laws 567, 692. "Habitual truant” is now defined in Minn.Stat. § 260C.007, subd. 19 (2000).

      . The statute defining criminal trespass has since been amended numerous times and is now codified at Minn.Stat. § 609.605 (2000).

      . We note that, as in L.Z. and Brechon, the state can satisfy this burden by presenting evidence sufficient to permit an inference that the defendant's knowing failure to pay child support was, beyond a reasonable doubt, without lawful excuse. See L.Z., 396 N.W.2d at 221 (explaining that state could present school attendance records showing no excuse or insufficient excuse for student's absence, and that such records would permit an inference that student's absence from school was, beyond a reasonable doubt, without lawful excuse); Brechon, 352 N.W.2d at 750 (explaining that state could present evidence that third party had title to property and third party did not grant permission to defendant to enter property, and that such evidence would permit an inference that defendant’s trespass was, beyond a reasonable doubt, without claim of right). With respect to the offense of nonsupport of a child, the state can establish an inference that a defendant's knowing failure to provide child support was, beyond a reasonable doubt, without lawful excuse by presenting evidence of an enforceable court order requiring the defendant to pay child support.
      The defendant can rebut this inference by coming forward with evidence of an allegedly lawful excuse, as Burg did in this case, but the burden remains on the state to disprove beyond a reasonable doubt any lawful excuse raised by the defendant. See L.Z., 396 N.W.2d at 221-22; Brechon, 352 N.W.2d at 750.

      . In light of the jury instruction in this case, it is particularly troubling that the trial court denied Burg’s request to have a vocational rehabilitation expert testify and excluded Burg's expert psychological testimony. Although not considering the issue here, we see no reason why such expert psychological testimony would not have met the requirements of Minn. R. Evid. 702. Given our resolution of the jury instruction issue, however, we decline to address this evidentiary matter.


text:
    STATE of Minnesota, Respondent, v. Douglas Alan STROMMEN, Petitioner, Appellant.
    No. C9-00-1930.
    Supreme Court of Minnesota.
    Aug. 8, 2002.

      John M. Stuart, State Public Defender, Marie Wolf, Assistant State Public Defender, Minneapolis, MN, Attorneys for Appellant.
    Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, St. Paul, MN, Wayne H. Swanson, Polk County Attorney, Crookston, MN, Attorneys for respondent.
   OPINION

PAGE, Justice.

Appellant Douglas Strommen was convicted of attempted robbery in violation of Minn.Stat. §§ 609.17, subd. 1, 609.24 (2000). He appealed the conviction, alleging several errors, including errors in jury instruction, prosecutorial misconduct, erroneous admission of evidence, insufficient evidence, and ineffective assistance of counsel. On appeal, the court of appeals concluded that the trial court erred by failing to instruct the jury on accomplice testimony, but that the error was harmless. The court of appeals also concluded that the trial court erred by admitting testimony that Strommen had killed someone in the past, however, the court of appeals concluded that this error was not plain error warranting reversal. The court of appeals ultimately affirmed Strommen’s conviction. State v. Strommen, No. C9-00-1930, 2001 WL 1034929, at *1 (Minn.App. Sept.11, 2001). We reverse and remand for a new trial.

The relevant facts , are as follows. On March 23, 2000, at approximately 10:30 p.m., Strommen and Margaret Townsend walked into a Kum & Go convenience store in Crookston, Minnesota. The store’s clerk, Rosalie Villa, was in the back of the store stocking the cooler at the time. Upon hearing the front-door buzzer, indicating that someone had entered the store, Villa returned to the front of the store and greeted Strommen and Townsend. According to Villa, Townsend had her hands up to her face and was wearing a makeshift mask. Noticing Villa looking at the mask, Strommen indicated that Townsend had been burned, although, in fact, she had not been burned.

According to Villa, both Strommen and Townsend were drunk. Townsend then began ordering Villa to give her money. At this point, Strommen told Villa that Townsend was “drunk” and that she was “just messing around.” Within seconds, Townsend moved behind the counter and began trying to open the cash register. After Townsend moved behind the register, Strommen pulled the mask off her face. Strommen and Townsend were arguing. Strommen said to Townsend, “Come on. Don’t be stupid.” Townsend said, ‘You told me if I didn’t do this, you were going to kill me, so I’m doing this.” Strommen responded, “I didn’t want this. I just wanted liquor,” Townsend responded, ‘Well, I did too. All I want to do is go to bed.”

According to Villa, as Townsend continued trying to open the register, Strommen was pulling on her arm trying to get her away from the register. When Strommen asked Villa if he could come behind the counter, Villa told him no, and he obeyed. When Villa told him he should just leave the store, Strommen left the store and went outside, albeit after what may have been some slight hesitation. According to Villa, Strommen appeared to be gesturing to Townsend to come out also, which she did after about one minute. Before Townsend left, Villa asked her if she was okay. Townsend responded that she was not okay and that she just wanted Strommen to leave her alone. After Townsend left, Villa could see the two of them outside the store, either talking or arguing, for approximately half of a minute, at which point they parted ways, each walking in a different direction.

Villa called the police at 10:37 p.m. and they arrived shortly thereafter. Strom-men was picked up approximately four blocks away from the convenience store. When questioned, Strommen admitted to being at the Kum & Go store to buy cigarettes and alleged that he had been hit by a man. He also stated that a woman had been involved and that he had just wanted some cigarettes. The officer who questioned Strommen found it difficult to understand him because of Strommen’s intoxicated state. Strommen was taken back to the store, where Villa identified him. The officer testified that Strommen explained that he had brought a woman to the store, but that he had been trying to help the clerk out. Villa shook her head “no,” indicating that Strommen had not been trying to help her out, and Strommen was arrested.

At trial, the state’s theory of the case was that Strommen coerced Townsend into helping him attempt the robbery. Strom-men’s defense was that he was not guilty because he “desisted voluntarily and in good faith and abandoned the intention to commit the crime” as required by Minn. Stat. § 609.17, subd. 3 (2000). The state’s witnesses were Villa, Townsend, and two police officers. Strommen did not testify. Townsend testified under a grant of immunity. She testified that, earlier in the evening, she and Strommen had been drinking what apparently were substantial quantities of beer and “Pucker” and that Strommen took some Valium. According to Townsend, Strommen at some point began growling and acting like a muscleman, which made her nervous. Although nervous, she went with him to a bar and, eventually, they decided to go to a store to get cigarettes for Strommen and a candy bar and chips for her. Townsend testified that, shortly before they arrived at the Kum & Go store, Strommen gave her a makeshift mask, told her to put it on, and told her that they were going to go in the store and get money. She testified that Strommen threatened that he would beat her if she did not do what he wanted her to do and that, after arguing in front of the store for about 15 minutes, Strommen hit her in the head with the receiver of a pay telephone located in front of the store. At this point, they went inside the store.

During the state’s direct examination of Townsend, she also testified that she was afraid of Strommen because earlier in the evening he had told her about having kicked in doors and that he had once killed somebody during a fight. On that subject, the state elicited the following testimony from Townsend:

Q. Did [Strommen] talk about any type of criminal activity he has engaged in in the past?
A. I can’t remember what brought the conversation up to that. I think it had to do with kicking in the doors, you know, I was asking him, you know, about it, and he said about a person that — something about he died or something when they were fighting.
Q. Did he talk in much great detail about that incident?
A. He just said that he killed somebody.
Q. Did he say that he had been charged for that crime?
A. Yes, he did.
Q. Did he say whether he was convicted?
A. I don’t remember.

Strommen’s defense counsel did not object to this testimony, but the trial court sua sponte called counsel to the bench for an off-the-record discussion and subsequently gave a cautionary instruction to the jury.

During the arresting police officer’s direct testimony, the prosecutor elicited testimony suggesting that Strommen was known to the police because of past crimes:

Q. Had you ever had any contact with [Strommen] before [the incident on March 23]?
A. Yes.
Q. Did you recognize him as Doug Strommen?
A. Oh, yes, I know who he is.
Q. How do you know him?
A. From, like you say, prior contacts and incidents.
Q. Do you know him on a first name basis?
A. I don’t know if he knows me by my first name or not. I know him though.

Again, there was no objection from Strom-men’s defense counsel.

During closing argument, the prosecutor addressed attempted robbery and abandonment by stating:

Now, just take a look at the evidence. What would be a substantial step here? I tell you, the crime was committed, a substantial step occurred as soon as they walked in the store. As soon as they walked in the store with that mask on, with the intent to commit a crime, boom, the crime is committed. It doesn’t matter what happened after that.

Strommen’s defense counsel objected and the trial court gave the following curative instruction to the jury:

Members of the jury, as I told you in preliminary instructions, the law as it applies to this case is the law that will be given to you by this court in the instructions I will give you later, and you’re to take the law from the instructions that I give you and not from the attorneys.

The state then continued its argument by addressing abandonment:

We may have a bit of a disagreement as to exactly what I meant when I said that, and I just want to be real clear as to what I said when I said the crime is committed. There is a caveat to that. It can be true that a crime is committed as soon as a substantial step is taken. There is also going to be another step in there also, and that is: It can be possible that a crime is abandoned after a step is taken, and it’s going to be your decision as to whether there is sufficient abandonment.

Also during closing argument, the prosecutor stated, “When we have difficult eases like this, sometimes the only way to deal with it is just to weigh the story in each hand and decide which one is most reasonable, which one makes the most sense.” Although this statement was inconsistent with the state’s burden of proving the offense beyond a reasonable doubt, defense counsel did not object.

After closing arguments, the trial court reminded the jury of its earlier cautionary instruction, as well as its earlier curative instruction, in addition to properly instructing the jury as to the elements of attempted robbery, the defense of abandonment, and the state’s burden of proof. Strommen was found guilty of attempted robbery, in violation of Minn.Stat. §§ 609.17, subd. 1, 609.24. He was sentenced to 19 months in prison and fined $1,000.

Strommen appealed, arguing that he did not receive a fair trial because the trial court failed to give, and defense counsel failed to request, a jury instruction on accomplice testimony, and because the prosecutor committed misconduct by misstating the law regarding attempted robbery and abandonment and by misstating the state’s burden of proof. Strommen also argued that the trial court erroneously admitted testimony from Townsend and the arresting officer from which one could infer that Strommen had a criminal record. Finally, Strommen argued that, as a matter of law, the evidence adduced at trial was insufficient to sustain his conviction for attempted robbery because the accomplice testimony was uncorroborated and the evidence proved that Strommen abandoned the attempted robbery.

Affirming Strommen’s conviction, the court of appeals concluded that, although the trial court erred in failing to instruct the jury on the corroboration of accomplice testimony, this error was harmless. The court of appeals also concluded that Strommen failed to carry his burden of proving that his defense counsel’s failure to request the instruction amounted to ineffective assistance of counsel.

The court of appeals rejected Strom-men’s claims of prosecutorial misconduct, concluding that the trial court’s curative instruction was sufficient to cure any error resulting from the prosecutor’s misstatement of law regarding attempted robbery and abandonment and that the prosecutor’s misstatement of the state’s burden of proof did not result in plain error.

Regarding the admission of Townsend’s testimony that Strommen had killed someone, the court of appeals declined to find plain error because the evidence that Strommen was guilty was “so strong” that the error would not have affected the outcome of the case. The court of appeals further concluded that it was not plain error to admit the arresting officer’s testimony that he knew Strommen from “prior contacts and incidents” because such testimony showed merely that the police were aware of who Strommen was. Finally, the court of appeals concluded that the evidence was sufficient to- sustain Strommen’s conviction for attempted robbery.

I.

Although Strommen makes several allegations of error, the principal thrust of his appeal is that he was denied the right to a fair trial. We conclude that the trial court erred by admitting evidence of other crimes allegedly committed by Strommen, and by failing to give the required instruction on accomplice testimony. We also conclude that the prosecutor engaged in misconduct when he misstated the state’s burden of proof and when he misstated the law on the issue of abandonment. Therefore, we conclude that Strommen was denied a fair trial and, consequently, we reverse the court of appeals and remand for a new trial.

II.

First, we address the admission of evidence relating to Strommen’s involvement in other crimes. Because Strom-men’s defense counsel faded to object to the admission of this testimony, our review is under the plain error standard. See Minn. R.Crim. P. 31.02; State v. Hage, 595 N.W.2d 200, 204 (Minn.1999); State v. Griller, 583 N.W.2d 736, 740 (Minn.1998). The plain error standard requires that the defendant show: (1) error; (2) that was plain; and (3) that affected substantial rights. Griller, 583 N.W.2d at 740 (citing Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). “If those three prongs are met, we may correct the error only if it ‘seriously affeet[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn.2001) (quoting Johnson, 520 U.S. at 467, 117 S.Ct. 1544 (internal quotation marks and citations omitted)); see Griller, 583 N.W.2d at 740.

The state contends that the admission of Townsend’s testimony about Strom-men’s kicking in doors and killing someone was necessary to show that Townsend participated in the attempted robbery because she feared Strommen. While this argument explains Townsend’s motive for participating in the charged crime, her motive was not relevant to determining Strom-men’s guilt. Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Minn. R. Evid. 401. Townsend’s motivation for participating in the charged offense was not relevant to the determination of the charges against Strommen. Townsend was not on trial for her participation in the attempted robbery and Strommen was not charged with an offense based on his conduct toward Townsend. Therefore, Townsend’s testimony regarding Strommen’s kicking in doors and killing someone was inadmissible.

In addition to being inadmissible on grounds of relevance, the testimony was highly prejudicial and should have been excluded under Minn. R. Evid. 403. Rule 403 provides that, notwithstanding its relevance, “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” Here, the testimony was prejudicial because it portrayed Strommen as a person of bad character and the jury may have been motivated to punish Strommen for his other bad acts. See State v. Norgaard, 272 Minn. 48, 51, 136 N.W.2d 628, 631 (1965) (“It has been held that prejudice resulting in the minds of the jury by asking improper questions relating to other bad acts may require reversal.”). In a criminal prosecution, a prosecutor may not attack the character of a defendant until the defendant puts his or her character in issue. Minn. R. Evid. 404(a)(1); State v. Currie, 267 Minn. 294, 301, 126 N.W.2d 389, 395 (1964). In this case, Strommen had not put his character in issue and, therefore, the character attack was improper.

The trial court’s cautionary instruction did not mitigate the admission of the objectionable portions of Townsend’s testimony. That instruction reads as follows:

I’m going to give you a cautionary instruction on the evidence which was just received in this matter. The state has offered evidence of alleged occurrences on unspecified dates prior to March 23, 2000. This evidence is being offered for the limited purpose of assisting you in determining whether the defendant committed those acts with which the defendant is charged in the complaint in this proceeding. The defendant is not being tried for and may not be convicted of any offense other than the charged offense. You are not to convict the defendant on the basis of any of the occurrences referred to prior to March 23, 2000. To do so might result in unjust double punishment.

This instruction was an adaptation to the facts of this case of CRIMJIG 2.01 and 3.16, which ordinarily are given in connection with the introduction of Spreigl evidence. 10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 2.01, 3.16 (4th ed.1999). The problem, however, is that the issue raised by Townsend’s testimony was whether it was admissible in the first instance. Because the testimony was inadmissible, the trial court’s instruction should have been curative, rather than cautionary, and the inadmissible testimony should have been stricken. Instead, the cautionary instruction suggested to the jury that Strommen’s having killed someone was relevant to whether Strommen committed the attempted robbery and in doing so exacerbated its prejudicial effect.

Finally, with respect to the testimony elicited from the arresting officer that he knew Strommen on a first-name basis and from “prior contacts and incidents,” the court of appeals concluded that, while this evidence may been irrelevant, its admission did not change the outcome of the case. From a review of the record, Strommen’s identification does not appear to have been the intended purpose of the questions eliciting the officer’s testimony regarding “prior contacts and incidents.” Before the offending questions were asked, the officer had been asked and had answered questions identifying Strommen as matching the general description of the individual who was involved in the March 23, 2000, incident at the Kum & Go store. Thus, to the extent that the questions were intended to establish that the person the officer arrested was indeed Strommen, the questions were unnecessary.

Moreover, Strommen’s identity does not appear to have been an issue in this case. Strommen’s defense at trial was that he was not guilty because he abandoned the attempted robbery. He did not claim that it was someone else and not he who was involved. It appears that the purpose in asking the offending questions was to illicit a response suggesting that Strommen was a person of bad character who had frequent contacts with the police. For this reason, as with Townsend’s testimony regarding Strommen’s having kicked in doors and having killed someone, this testimony was highly prejudicial and it reinforced the prejudicial impact of the inadmissible testimony from Townsend. Therefore, we conclude that the trial court erred by admitting the testimonies from Townsend and the arresting officer.

Having concluded that the trial court erred by admitting the testimonies from Townsend and the arresting officer, we must next determine whether the errors were plain. An error is “plain” if it was “clear” or “obvious.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); State v. Ihle, 640 N.W.2d 910, 917 (Minn.2002). Under facts similar to those before us, we have held that the state cannot “be permitted to deprive a defendant of a fair trial by means of insinuations and innuendoes which plant in the minds of the jury a prejudicial belief in the existence of evidence which is otherwise inadmissible.” Currie, 267 Minn. at 301, 126 N.W.2d at 395. Because Townsend and the arresting officer’s testimony about Strommen’s previous bad acts was clearly irrelevant and highly prejudicial, we conclude that the error was plain.

We further conclude that the erroneous admission of Townsend’s testimony and the arresting officer’s testimony affected Strommen’s substantial rights. Ají error affects substantial rights if the error is prejudicial — that is, if there is a reasonable likelihood that the error substantially affected the verdict. State v. Smith, 582 N.W.2d 894, 896 (Minn.1998); Van Buren v. State, 556 N.W.2d 548, 551 (Minn.1996). The problems with the testimony from both Townsend and the arresting officer were relevance and prejudice. Given these problems, we conclude that, on the record presented, the erroneous admission of testimony relating to Strommen’s other bad acts and interaction with the police substantially affected the verdict. Based on these errors, we conclude that Strom-men did not receive a fair trial. Therefore, it is necessary to reverse Strommen’s conviction and remand for a new trial to ensure the fairness and integrity of the judicial proceeding.

III.

Although we reverse based on the erroneous admission of evidence, to provide guidance on remand, we address Strom-men’s claims regarding the failure to give a jury instruction on accomplice testimony and prosecutorial misconduct.

Regarding the omission of the jury instruction on accomplice testimony, we first note that a conviction cannot rest on the uncorroborated testimony of an accomplice. See Minn.Stat. § 634.04 (2000); State v. Clements, 82 Minn. 434, 443, 85 N.W. 229, 232 (1901). As a rule, trial courts have a duty to instruct juries on accomplice testimony in any criminal case in which it is reasonable to consider any witness against the defendant to be an accomplice. State v. Shoop, 441 N.W.2d 475, 479 (Minn.1989). The rationale for this rule is that the credibility of an accomplice is inherently untrustworthy. State v. LaJambe, 300 Minn. 539, 541, 219 N.W.2d 917, 919 (1974); see State v. Azzone, 271 Minn. 166, 170, 135 N.W.2d 488, 493 (1965) (“The object of [Minn.Stat. § 634.04] is to provide a check upon the credibility of testimony of a person who, having been admittedly involved in criminal conduct, might be disposed to shift or diffuse responsibility in order to curry the favor of law enforcement officials.”). As we noted in Shoop, “The accomplice may testify against another in the hope of upon a promise of immunity or clemency or to satisfy other self-serving or malicious motives.” 441 N.W.2d at 479. Absent an instruction on accomplice testimony, there is the very real possibility that the jury could reject corroborating evidence and convict on the testimony of the accomplice standing alone. See id. at 481. Thus, the duty to instruct on accomplice testimony remains regardless of whether counsel for the defendant requests the instruction. Here, there was no question that Townsend was an accomplice. Yet, the trial court failed to give the instruction.

We next address the prosecutor’s misstatement of the law on abandonment. The law is clear in providing that “[i]t is a defense to a charge of attempt that the crime was not committed because the accused desisted voluntarily and in good faith and abandoned the intention to commit the crime.” Minn.Stat. § 609.17, subd. 3. Because Strommen’s defense was that he abandoned his attempt to rob the store, what happened after Strommen walked into the store was critical to whether the jury could properly convict Strommen of attempted robbery. Therefore, it was improper for the prosecutor to state, during his closing argument, that it did not matter what happened after Strommen walked into the store. Here, the jury rejected what our review of the record suggests was strong evidence of abandonment. Although the trial court, in its final instructions, gave the correct instruction on abandonment, we cannot say with certainty that the prosecutor’s misstatement of the law did not play a role in that rejection.

The same is true for the prosecutor’s misstatement of the state’s burden of proof. To tell the jury to “weigh the story in each hand and decide which one is most reasonable, which one makes the most sense,” was a misstatement of the state’s burden to prove each element of the crime charged beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In the context of a criminal trial, “[mjisstate-ments of the burden of proof are highly improper.” State v. Hunt, 615 N.W.2d 294, 302 (Minn.2000). While we note that in the final instructions the trial court properly instructed the jury on the state’s burden of proof, we conclude that the misstatement, in the context of this trial, presented a source of confusion for the jury and may have played a role in the decision to convict.

Finally, we note that the trial court’s failure to instruct the jury on accomplice testimony and the prosecutor’s misstatements of law concerning abandonment and the state’s burden of proof support our conclusion that Strommen was denied a fair trial.

Reversed and remanded for a new trial.

      . Minnesota Statutes § 609.17, subdivision 1, provides that "[wjhoever, with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime is guilty of an attempt to commit that crime.”
      Minnesota Statutes § 609.24 provides:
      Whoever, having knowledge of not being entitled thereto, takes personal property from the person or in the presence of another and uses or threatens the imminent use of force against any person to overcome the person’s resistance or powers of resistance to, or to compel acquiescence in, the taking or carrying away of the property is guilty of robbery and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both.

      . Although Villa had been in the back of the store for approximately five minutes before Strommen and Townsend entered, she testi-fled that she did not notice anyone in front of the store during the ten minutes prior to her going to the back of the store.

      . At trial, the prosecutor asked the arresting officer:
      Q. Did you eventually find somebody that you believed fit that description?
      A. Yes, I saw a male suspect that matched the general description.
      Q. Where did you find that suspect?
      A. Behind the M & H gas station there is a set of railroad tracks, and I saw the defendant walking from the railroad tracks down the bank and end up in the alley right behind the Captain Crooks bar there on the North Main Street.
      Q. It was the defendant you saw do that?
      A. That's correct.

      . We note that, before the officer’s testimony, Villa and Townsend had identified Strommen as being involved in the incident at the Kum & Go store.

      . Minnesota Statutes § 634.04 provides:
      A conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

      . We reach this conclusion notwithstanding State v. Soltau, 212 Minn. 20, 25, 2 N.W.2d 155, 158 (1942), which stated that "[i]t is not error to fail to give an unrequested cautionary instruction.”

      . Strommen’s actions showing abandonment include the following: when Townsend demanded money, Strommen told Villa, "She’s just messing around. She’s drunk”; Strom-men pulled off Townsend's mask when Townsend was behind the register; Strommen told Townsend, "Come on. Don't be stupid”; when arguing with Townsend, Strommen told her that he did not "want this,” he "just wanted liquor”; Strommen asked permission of Villa to walk behind counter; Strommen remained on the customer side of the counter when Villa denied him permission; Strom-men tried pulling Townsend's arm to pull her away from the register; Strommen left the store at Villa’s suggestion; while standing outside, Strommen motioned for Townsend to leave the store and come outside as well; and Strommen himself never made any demands for money.