author: MAHAN, J.

text:
    In the Interest of E.G., Minor Child, State of Iowa, Appellant.
    No. 07-1718.
    Court of Appeals of Iowa.
    Dec. 28, 2007.
    Thomas J. Miller, Attorney General, Charles Phillips, Assistant Attorney General, Michael Walton, Acting County Attorney, and Gerda Lane, Assistant County Attorney, for appellant State.
    Barbara Maness, Davenport, for interve-nor.
    Angela Fritz Reyes, Davenport, for minor child.
    Considered by VOGEL, P.J., and MAHAN and ZIMMER, JJ.
   MAHAN, J.

The State appeals a district court ruling terminating the Iowa Department of Human Services’ (Department) guardianship of the child, granting guardianship to the guardian ad litem, and placing custody with the foster mother. We reverse and remand to the juvenile court with directions.

I. Background Facts and Proceedings

This is the State’s second appeal arising out of the post-termination phase of this juvenile case. The subject of this case is a three-year-old boy with achondroplasia dwarfism who has been in the foster home of Susan since March 2005. We incorporate the facts, as set out in our previous opinion in this case, in In re E.G., 738 N.W.2d 653 (Iowa Ct.App.2007). We further add the following facts.

In the State’s first appeal, we found that the juvenile court did not abuse its discretion in granting Susan’s motion to intervene. In re E.G., 738 N.W.2d 653 (Iowa Ct.App.2007). However, we affirmed the guardianship of the Department, reversed the juvenile court’s order placing custody of Elijah with Susan, and vacated the adoption order because no petition for adoption had been filed. Id. We found the juvenile court’s order for adoptive placement with Susan invaded the right of the Department, as guardian, to consent to Elijah’s adoption. Specifically, we stated that:

The State argues strongly that, under these circumstances, the juvenile court does not have authority to direct the specific adoptive home for the child. In In re C.D.P., 315 N.W.2d 731, 733 (Iowa 1982), the supreme court held that in delinquency dispositions, the juvenile court picks the type of placement for the delinquent child but not the specific institution. That decision is left to the child’s custodian. C.P.D., 315 N.W.2d at 733. The court determined that when the legislature gave the juvenile court the authority to specify the child’s best interests, it granted authority to the juvenile court to direct the type of placement the Department was to make, but did not empower the juvenile court to direct a specific placement, though the court had the power to monitor the placement. Id.
The evidence shows the Department was responsibly discharging its duties as guardian. It found an adoptive home for Elijah that the juvenile court found to be “highly qualified,” a finding with which we agree. We affirm the guardianship of the Department and reverse the juvenile court’s order placing the child with Susan.

Id. The supreme court denied further review of the case on August 3, 2007.

On August 16, 2007, Susan petitioned the juvenile court for guardianship and custody of Elijah and asked for concurrent jurisdiction in district court to be approved to provide for a petition for adoption to be filed by Susan. The petition included a “Notice of Rights of Proposed Ward and Notice of Guardianship Powers.” The State then filed a motion to dismiss for lack of jurisdiction, contending Susan’s petition for guardianship and notice were apparently made under Iowa Code chapter 633 — the probate code. The State claimed subject-matter jurisdiction did not lie in probate-code guardianship and that we had clearly affirmed the guardianship of the Department in our first opinion. On September 17, 2007, the guardian ad litem moved to have guardianship transferred from the Department pursuant to Iowa Code section 232.118(1) (2007). In her motion, the guardian ad litem states that Elijah:

needs permanency and the most expeditious way to achieve that goal is to remove the Department as Guardian for the child and appoint either this GAL or the foster mother as the Guardian, so that the adoption of this child can take place.

The motion alleged that this action was consistent with the juvenile court’s previous finding that adoption by Susan was in Elijah’s best interests and that it was further consistent with our opinion because there was now a petition for adoption on file. The juvenile court granted both motions and awarded guardianship of the child to the guardian ad litem and custody to Susan, finding Elijah’s best interests demand permanent placement with Susan. The State now appeals.

Some background facts regarding Susan’s care and the Department’s efforts toward finding an adoptive placement for Elijah are necessary for a complete understanding of the issues facing our court in this case.

The record shows Susan has provided a more than adequate foster home for Elijah. Susan is a forty-nine year-old single mother who is currently unemployed. She relies on staté benefits to support her family. After she was laid off from her job, she chose to stay at home with her children. Susan plans to return to work when Elijah begins preschool. The record shows Susan has asthma and is a smoker, but otherwise establishes that her health is good. Susan has an adult daughter in college and adopted a six year-old African-American child six years ago with behavioral and learning disorders. All the children are thriving in her home. Susan has ensured Elijah has had the appropriate medical care and has spent the time required to help him develop normally. Elijah is well bonded with Susan and her family, including extended family and the social community. There is no indication Susan is not a good caretaker for Elijah.

The Department selected the adoptive California family with which they seek to place Elijah after reviewing five potential adoptive homes. Its selection was made with the assistance of the Little People of America Adoption Program to select a home that could meet . Elijah’s special needs. Extensive specialized medical services to treat achondroplasia dwarfism are concentrated near this California home. In addition, the potential adoptive family has had personal experiences with achon-droplasia dwarfism and is financially stable. There is no indication this home would not be an excellent adoptive home for Elijah.

II. Standard of Review

Our review of this juvenile case is de novo. See In re K.C., 660 N.W.2d 29, 32 (Iowa 2003) (permanency order); In re 492 N.W.2d 686, 689 (Iowa 1992) (adoption dispute); In re Adoption of Moriarty, 260 Iowa 1279, 1285, 152 N.W.2d 218, 221 (1967) (adoption-related equitable proceeding). We review both the facts and the law and adjudicate rights anew. In re H.G., 601 N.W.2d 84, 85 (Iowa 1999). Although we give weight to the juvenile court’s findings of fact, we are not bound by them. In re N.M., 528 N.W.2d 94, 96 (Iowa 1995).

III. Merits

A. Motion to Intervene

The record is clear the Department conducted a very thorough search process in seeking an adoptive home for Elijah. By mid-February 2006 the Department had conducted an interview with the prospective adoptive family, and the guardian ad litem was invited to participate in this interview. The guardian ad litem declined this invitation but agreed with the selection of the prospective adoptive family. Susan neither sought to intervene nor asked to be considered as a prospective placement during this time. Although she did file a motion to intervene in July 2006, it is clear that most of the pre-adoption study had been completed by that time.

. B. Permanency Review Order

The juvenile court terminated the guardianship of the Department following a permanency review hearing. This action was not based upon any proof of unreasonable actions on the part of the Department. Indeed, the Department conducted an extensive adoption work-up, which resulted in finding a “highly qualified” adoption home.

In addition, the permanency review order was not consistent with the court of appeals opinion previously issued. Instead, the permanency review order stated that “[t]he Court determines that maintaining the child in the guardianship of the Department of Human Services is unnecessary and inappropriate in this circumstance because the Court has already determined the most appropriate placement of the child.... ” In our previous opinion we stated that

when the legislature gave the juvenile court the authority to specify the child’s best interests, it granted authority to the juvenile court to direct the type of placement the Department was to make, but did not empower the juvenile court to direct a- specific placement, though the court had the power to monitor the placement.

In re E.G., 738 N.W.2d 653 (Iowa Ct.App. 2007). On remand, by placing custody of the child with Susan, the district court invaded the duty and right of the guardian to choose a specific placement for Elijah. We find the juvenile court erred in terminating the Department’s guardianship of Elijah.

The district court’s finding was based on its belief that adoption of Elijah by Susan was in Elijah’s best interests. However, in this case, there is not only one, but two, situations that would be in Elijah’s best interests. While Susan has done a wonderful job of raising Elijah to this point and there is no evidence that she would not continue to do so, it also appears that the adoptive home chosen by the Department would also serve Elijah’s best interests.

The foster care system is designed to provide temporary, not permanent, homes for children. This is to facilitate the goals of reunification with the parents or placement in a relative’s home. We certainly recognize the bond that is developed between a foster parent and child. We also recognize that a bond between the foster parents and the child signifies a good foster home. However, if every foster parent who formed a bond with a child were given enforceable rights to the children, it would upset the goals of the system. The legitimate permanency goals of the guardian, the Department in this case, cannot be disrupted merely because a foster mother decided, at the last hour, that she wished to adopt the child.

Susan was aware of the Department’s efforts to find adoptive placement. She failed to intervene or otherwise express her desire to adopt Elijah until after the Department had made significant investments in locating an appropriate adoptive home for Elijah. There is no evidence the Department in any way failed in its guardianship duties or in looking out for Elijah’s best interests. The permanency review order is reversed and remanded to juvenile court with directions to reinstate guardianship of Elijah with the Department.

REVERSED AND REMANDED WITH DIRECTIONS.

      . Susan filed only a petition for guardianship and custody, which further asked that the juvenile court approve concurrent jurisdiction in the district court to provide for a petition for adoption to be filed by Susan.


source: Caselaw Access Project

license: Public Domain

text:
    Becky PALMER, Plaintiff-Appellee v. Karin HOFMAN, Defendant-Appellant.
    No. 07-0550.
    Court of Appeals of Iowa.
    Jan. 16, 2008.
    Sharese Manker and Douglas L. Phillips of Klass Law Firm, LLP, Sioux City, for appellant.

      Randall J. Shanks of Shanks Law Firm, Council Bluffs, for appellee.
    Considered by VOGEL, P.J., and MAHAN and ZIMMER, JJ.
   MAHAN, J.

Karin Hofman appeals the district court’s ruling finding that good cause excused the delay of service of process upon her by Plaintiff Becky Palmer. Concluding the district court erred when it found good cause existed for the delay, we reverse and remand.

I.Background Facts and Proceedings.

Palmer and Hofman were involved in a vehicle accident on May 26, 2004. Palmer filed suit on May 23, 2006, asserting a negligence claim against Hofman resulting in injuries and other damages to Palmer. Allied Mutual Insurance, Palmer’s under-insured motorist policy carrier, was also a named defendant. Two file-stamped copies of the original notice and one file-stamped copy of the petition and jury demand were sent on May 23, 2006, by Palmer’s attorney’s office to the Mills County Sheriff for service on Hofman. Service was not completed until January 25, 2007.

On February 7, 2007, Hofman filed a motion to dismiss the petition against her for delay of service past the ninety-day requirement of Iowa Rule of Civil Procedure 1.302(5). Palmer’s attorney argued against the motion to dismiss on the basis that good cause existed to excuse the delay of service: His paralegal put in charge of preparing the petition and original notices, as well as filing and serving the documents, had not done so in a timely manner. The paralegal’s last day of employment with Palmer’s attorney was before the dismissal hearing. Counsel asserted that the paralegal willfully withheld that service had not been completed on Hofman, going so far as to insist on opening mail in the office (allegedly to head off any documents in the case) and rescheduling the dismissal hearing, until after her departure from the firm, without counsel’s knowledge. Counsel did not contend he actively inquired of the case and the paralegal continually deceived him as to its progress. In fact, he stated he had absolutely no knowledge that Hofman had not yet been served. The district court concluded the paralegal’s inaction on the case constituted good cause to excuse the delay, and the motion to dismiss was overruled. Hofman applied for and was granted leave to file an interlocutory appeal on the issue on May 23, 2007.

II. Scope and Standards of Review

We review motions to dismiss for correction of errors at law. Iowa R.App. P. 6.4; Crall v. Davis, 714 N.W.2d 616, 619 (Iowa 2006). When considering a motion to dismiss for delay of service, the district court’s factual findings are binding if they are supported by substantial evidence. Crall, 714 N.W.2d at 619. Substantial evidence is evidence that “a reasonable mind would accept .... as adequate to reach a conclusion.” Id. (quoting Business Consulting Servs., Inc. v. Wicks, 703 N.W.2d 427, 429 (Iowa 2005) (per curiam)).

III. Existence of Good Cause to Excuse 247-Day Delay of Service.

Hofman asserts that good cause does not exist to excuse the delay of service. The district court did not make any specific factual findings, but stated:

[Hjaving reviewed the Resistance filed by the Plaintiff and heard arguments of Counsel, finds that good cause exists for the delay in service upon the Defendant Hofman. It is therefore ordered that the Defendant Karin Hofman’s Motion to Dismiss is overruled.

Iowa Rule of Civil Procedure 1.302(5) states:

If service of the original notice is not made upon the defendant, respondent, or other party to be served within 90 days after filing the petition, the court, upon motion or its own initiative after notice to the party filing the petition, shall dismiss the action without prejudice as to that defendant, respondent, or other party to be served or direct an alternate time or manner of service. If the party filing the papers shows good cause for the failure of service, the court shall extend the time for service for an appropriate period.

Rule 1.302(5) “requires service within ninety days and requires the plaintiff to take affirmative action to obtain an extension or directions from the court if service cannot be accomplished.” Meier v. Senecaut, 641 N.W.2d 532, 543 (Iowa 2002) (emphasis added). When there is no service within ninety days and no order extending the time for sendee, the delay is presumptively abusive. Id. at 542. Once a determination of good cause has been accepted or rejected, the district court has no discretion and is required to either extend the time for service for an appropriate period or dismiss the action without prejudice. Id. at 541-42. The sole issue before this court is whether substantial evidence supports the district court’s conclusion that Palmer demonstrated good cause for the delay in service. Id.

Our good cause standard requires a showing by the plaintiff that she has:

[T]aken some affirmative action to effectuate service of process upon the defendants] or has been prohibited, through no fault of her own, from taking such an affirmative action. Inadvertence, neglect, misunderstanding, ignorance of the rule or its burden, or half-hearted attempts at service have generally been waived as insufficient to show good cause.

Grall, 714 N.W.2d at 619. In defining good cause, our supreme court has further stated:

[G]ood cause is likely (but not always) to be found when the plaintiffs failure to complete service in timely fashion is a result of the conduct of a third person, typically the process server, the defendant has evaded service of the process or engaged in misleading conduct, the plaintiff has acted diligently in trying to effect service or there are understandable mitigating circumstances.

Id. at 620 (quoting Wilson v. Ribbens, 678 N.W.2d 417, 421 (Iowa 2004)). A plaintiff is required to act diligently in trying to effect service. See id. at 621 (discussing that a plaintiff must be diligent in attempting to serve the defendants and a court may consider a lapse of time between service attempts with no explanation for the delay within the ninety-day time period).

The good cause propounded by Palmer before the district court was based upon the inaction of a paralegal in her attorney’s office. The parties concede that service was made 247 days after filing the petition, which is 184 days beyond the deadline, and no extension was sought or granted by the district court. Palmer’s attorney asserted the paralegal willfully withheld that service had not been completed on Hofman, going so far as to insist on opening mail in the office and rescheduling the dismissal hearing without his knowledge. The sole attempt to complete service was the initial delivery of the petition and original notices to the Mills County Sheriff right after filing. Palmer’s attorney did not contend that he actively inquired about the case and the paralegal continually deceived him as to its progress. Instead, it appears the paralegal was just left to her own devices on the matter with little or no supervision by the attorney for approximately eight months after the petition was filed until the dismissal hearing.

As Hofman argued before the district court, she contends the Iowa Rules of Professional Responsibility require a “nonlaw-yer employed or retained by or associated with a lawyer.... a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer....” Iowa R. Prof. Conduct 32:5.3. We note the guidance provided in Comment 1 to this particular section provides:

Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer’s professional services. A lawyer must give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment. ... and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline.

Based upon the particular facts of this case, we conclude that good cause does not exist to excuse delay of service. While the circumstances of Palmer’s attorney’s paralegal are unfortunate, we do not believe they constitute good cause excusing the delay of service because counsel was ultimately responsible for the conduct and work product of his paralegal. No effort to complete service was taken after delivery of the documents to the Mills County Sheriff. Not monitoring the progression of a case in one’s own office until eight months have passed is not akin to the uncontrollable, rogue actions of a third party beyond the attorney or party’s reach that prevents timely service of process. No supporting evidence was put forth by affidavit or otherwise supporting the arguments of Palmer’s attorney regarding his paralegal’s conduct. Although the paralegal may have concealed her dila-toriness on the case, the record does not reflect that counsel actively inquired of the case’s development with her or with the district court. We therefore conclude substantial evidence does not support a finding of good cause existing for the 184-day delay in service of process beyond the statutory limit set forth by rule 1.302(5). See also McIsaac v. Cedergren, 54 Mass.App.Ct. 607, 611, 766 N.E.2d 903, 907 (2002) (holding a legal secretary’s dilatoriness in completing service on defendant was not “excusable neglect” sufficient to vacate judgment of dismissal for delay of service because plaintiffs counsel disregarded his own responsibility to monitor the progress of the case and meet requirements of the rules of civil procedure). We reverse the ruling of the district court overruling the motion to dismiss and remand for entry of an order for dismissal without prejudice.

REVERSED AND REMANDED.

      . Nationwide Mutual Insurance Company was later substituted for Allied by amended petition filed November 27, 2006.


author: /s/ Russell A. Anderson Chief Justice

text:
    In the Matter of the Welfare of the Children of S.E.P. and J.W.P., Parents.
    No. A07-25.
    Supreme Court of Minnesota.
    Dec. 3, 2007.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the court of appeals filed August 7, 2007, reversing termination of S.E.P.’s parental rights is reversed. Opinions will follow. The Clerk of Appellate Courts shall enter judgment immediately. We retain limited jurisdiction solely for the purpose of the subsequent filing of the opinions in the case.

BY THE COURT:

/s/ Russell A. Anderson Chief Justice

ANDERSON, PAUL H., J., concurs.

PAGE, J., dissents.

HANSON, J., took no part in the consideration or decision of this matter.


author: GILDEA, Justice.

text:
    STATE of Minnesota, Respondent, v. C. Dennis SIMION, Appellant.
    No. A06-83.
    Supreme Court of Minnesota.
    March 13, 2008.
   OPINION

GILDEA, Justice.

Appellant C. Dennis Simion was charged with felony theft by swindle in violation of Minn.Stat. § 609.52, subd. 2(4) (2006), felony damage to property in violation of Minn.Stat. § 609.595, subd. 1(3) (2006), and felony theft from a person with a superior right of possession in violation of Minn.Stat. § 609.52, subd. 2(2) (2004). Following a jury trial, Simion was found guilty of misdemeanor criminal damage to property and felony theft from a person with a superior right of possession, and not guilty of theft by swindle. Simion thereafter moved the district court for judgment of acquittal and a new trial, claiming that the district court lacked jurisdiction and that the State failed to prove the elements of the charged crimes. The district court denied both motions, convicted Simion of misdemeanor criminal damage to property and felony theft, and ordered that Simion pay restitution in the amount of $1,509.23. The court of appeals affirmed the convictions, but reversed and remanded on the restitution issue. State v. Simion, No. A06-83, 2007 WL 1412764 (Minn.App. May 15, 2007). Because we conclude that the district court had jurisdiction over the theft charge, but not over the criminal damage to property charge, we affirm in part, reverse in part and remand.

This case arises from the employment relationship between Simion and President Lines, Inc. (“PLI”). Simion was an over-the-road truck driver for PLI and he used a truck owned by PLI to make deliveries from PLI to various places in the United States. PLI is located in Minneapolis and Simion resides in Wisconsin. PLI permitted Simion to use its truck to travel to his home in Wisconsin and to keep the truck on his property in Wisconsin when he was not on duty.

Around June 2003, Simion asked the president of PLI to purchase a custom captain seat for Simion to use in the PLI truck assigned to him. The president approved the purchase with the understanding that $50 per week would be deducted from Simion’s paycheck to reimburse the company for the cost of the seat. Based on this understanding, PLI purchased the captain seat for $1,709.23 and paid $118 to have it installed in the truck assigned to Simion. According to PLI, the parties agreed that once Simion reimbursed PLI for these costs, he would own the captain seat. PLI’s president testified that he “made it very clear that the seat was going into a truck that was owned by President Lines and that it would be President’s seat until it was fully paid for,” at which point Simion would own the seat. In other words, according to the State’s witnesses, PLI owned the seat and Simion was going to buy it from PLI through the deductions from his paycheck.

At some point, the employment relationship between Simion and PLI became strained, and by September 2003, Simion became convinced that PLI was not paying him everything he thought he was owed. The situation escalated on September 21, 2003, when Simion returned to PLI headquarters to turn in his paperwork after delivering a load and expected to pick up a paycheck. PLI did not have a paycheck for him. Simion testified that when PLI did not produce his check, he made up his mind that he would give PLI one more chance to pay him what he thought he was owed. Simion testified that he decided that he would have to be paid by September 23, when he was scheduled to return to PLI to pick up his next load. As Simion explained at trial, on September 21 he decided to pick up the next load and deliver it if PLI paid him, but if his check was not ready on September 23, when he was scheduled to return to PLI, he was going to quit his job at that time.

After making this decision on September 21, Simion left PLI headquarters and drove the truck to his home in Wisconsin. He removed all of his “personal belongings,” including the captain seat, from the truck and reinstalled the original stock seat. Simion explained at trial that he removed these items because “either I would have got my check [when I returned to PLI on September 23] and [would] pick [ ] up my load and [go] back by the house and put my stuff back in it or I would have quit.” He explained that “if I got my check [on September 23], I was going to put the [captain] seat back in.” But if he did not receive his check and would be quitting, he did not want to have to remove his personal items from the truck in Minneapolis.

On September 23, Simion drove to the PLI office as he had planned and the paycheck he expected was not there. According to PLI’s president, Simion entered the president’s office and said, “I want my f* * *ing. money right now or I’m going to take it out in trade.” Simion then demanded that he and PLI’s president take the dispute “outside,” at which point the president called security. Minneapolis police were also notified of Simion’s threats.

After Simion left the premises, PLI’s president, its general manager, and a police officer located the truck assigned to Simion parked behind the loading docks near their facility. They inspected the truck and found that it had been damaged. Specifically, armrests were missing, seat belts were cut, the air line to the seat was “cut with a knife,” speakers were torn out, the radio wire was cut, and dome lights were broken. PLI’s general manager testified that he had inspected the interior and exterior of the truck two weeks before the September 23 incident and had found it to be “very clean and in very good shape.” Simion admitted at trial that he had cut the truck’s air line and that his daughter mistakenly removed a fire extinguisher from the truck, but he testified that the truck was already damaged to a certain extent when it was assigned to him in 2002. The total cost of the repairs to the interior and exterior of the truck was $1,862.86. The person who performed the repair work on the truck testified that in his opinion the damage to the truck was caused deliberately, and not by ordinary wear and tear.

On October 21, 2003, police executed a search warrant at Simion’s Wisconsin residence and found the captain seat in his garage. The seat was seized and eventually returned to PLI. The State subsequently charged Simion with felony criminal damage to property, felony theft from a person with superior right of possession, and felony theft by swindle. The complaint alleges that Simion vandalized the truck, removed the custom seat, and submitted a false claim for reimbursement for the cost of tires that, in fact, had not been purchased.

At the close of the evidence and before the jury was charged, Simion moved for judgment of acquittal. He argued that the court lacked jurisdiction over the damage to property and theft offenses because they were committed in Wisconsin and that the State did not prove the elements of the crime of theft from a person with a superior right of possession, MinmStat. § 609.52, subd. 2(2). The district court denied the motion and charged the jury. The jury found Simion guilty of misdemeanor criminal damage to property and felony theft, and not guilty of theft by swindle. After the verdict, Simion renewed his motion for judgment of acquittal and he argued in the alternative that he was entitled to a new trial. The district court denied the motions, and Simion appealed. The court stayed sentencing pending Simion’s appeal, and ordered restitution in the amount of $1,509.23.

On appeal, Simion argued that no part of the offenses for which he was convicted occurred in Minnesota and that therefore there was no jurisdiction in Minnesota. He also argued that the State failed to prove that he committed the elements of the crime of theft from a person with superior right of possession, Minn.Stat. § 609.52, subd. 2(2), that the jury instructions on the theft charge were erroneous, that the prosecutor committed prejudicial misconduct requiring a new trial, and that PLI was not entitled to any restitution.

The court of appeals held that jurisdiction over the theft charge existed in Minnesota because Simion “quit and left the truck at PLI in Minnesota without the captain’s seat. * * * [W]hile [Simion] took the seat out of the truck in Wisconsin, the act caused an injury to PLI, the party with a superior right of possession, in Minnesota, and jurisdiction was proper.” Simion, 2007 WL 1412764, at *2. With respect to the criminal damage to property charge, the court found that there was jurisdiction in Minnesota because Simion’s “act caused a result in Minnesota.” Id. The court also found that the evidence was sufficient to sustain Simion’s theft conviction, that the district court did not abuse its discretion with regard to the jury instructions, that any prosecutorial misconduct did not require a new trial, and that a remand was necessary on the restitution question. Id. at *3-8. We granted Si-mion’s petition for review.

I.

We first consider Simion’s argument that because the offenses were eom-mitted in Wisconsin, there was no subject matter jurisdiction in Minnesota. “We review issues of jurisdiction de novo.” State v. R.M.H., 617 N.W.2d 55, 58 (Minn.2000). Jurisdiction is the court’s “power to hear and decide disputes.” State v. Smith, 421 NW.2d 315, 318 (Minn.1988). Under the common law, “the criminal jurisdiction of state courts was limited to crimes committed within the territorial boundaries of the state.” State v. McCormick, 273 N.W.2d 624, 625 (Minn.1978). But the legislature, by adopting Minn.Stat. § 609.025 (2006), expanded the jurisdiction of Minnesota courts to hear and try criminal offenses. This statute provides as follows:

A person may be convicted and sentenced under the laws of this state if the person:
(1) commits an offense in whole or in part within this state; or * * *
(3) being without the state, intentionally causes a result within the state prohibited by the criminal laws of this state.

It is not a defense that the defendant’s conduct is also a criminal offense under the laws of another state or of the United States or of another country. Minn.Stat. § 609.025. The State contends that jurisdiction existed under both paragraphs 1 and 3 of the statute for the charges at issue here. We examine each charge in turn to determine whether jurisdiction existed under either paragraph 1 or paragraph 3 of section 609.025.

A. Criminal Damage to Property

To prove criminal damage to property, the State had to show that Simion intentionally caused damage to PLI’s property without PLI’s consent to the damage. Minn.Stat. 609.595. The State claims that because the property Simion damaged belonged to PLI, a Minnesota business located in Hennepin County, and because PLI withheld its consent within Minnesota, jurisdiction exists under paragraph 1 of section 609.025. But the crime of damage to property was complete when Simion acted in Wisconsin. PLI’s reaction to the damage, its physical presence in Minnesota, and the fact that PLI experienced economic harm within Minnesota are not relevant considerations as to the determination of jurisdiction under paragraph 1 of section 609.025. Paragraph 1 requires that the defendant commit at least some part of the offense in Minnesota. Minn.Stat. § 609.025(1). There is no evidence in the record showing that Simion committed any of the damage to the truck in Minnesota. Accordingly, we hold that jurisdiction did not exist over the criminal damage to property charge under paragraph 1 of section 609.025.

The State also argues that jurisdiction exists under paragraph 3 of section 609.025 because Simion caused a result— economic loss to a Minnesota resident-within Minnesota. The court of appeals seems to have agreed, concluding as follows:

The truck belonged to PLI, which was headquartered in Minnesota, and PLI did not consent to appellant causing damage to the truck. Additionally, appellant drove the truck back to Minnesota where it was repaired. Therefore, appellant caused damage to PLI’s truck while in Wisconsin, but the act caused a result in Minnesota and jurisdiction was proper.

Simion, 2007 WL 1412764, at *2. This conclusion of the court of appeals requires that we consider whether jurisdiction existed in this case under paragraph 3 of section 609.025 because the corporate victim resides, and therefore suffered injury, in Minnesota.

To consider this question, we begin with the Minnesota Constitution. Pursuant to Article I, Section 6 of the Minnesota Constitution, a criminal defendant has a right to a trial by an impartial jury of “the county or district wherein the crime shall have been committed.” See also U.S. Const, amend VI (providing that a defendant shall enjoy the right to a trial by an impartial jury of “the state and district wherein the crime shall have been committed.”). Consistent with the constitutional provision, “some operative event” or “part of the crime charged must be ‘committed’ within” Minnesota in order for Minnesota courts to have jurisdiction. Smith, 421 N.W.2d at 319. For example, in Smith we held that the Minnesota court did not have jurisdiction over a prosecution of a defendant for murder when all available evidence indicated that the crime had been committed outside of Minnesota. We noted that the location of the victim’s body in Minnesota did not provide a sufficient connection to Minnesota to support jurisdiction over the murder charge. Id. at 320.

The constitutionally-based nexus principle we applied in Smith is further illustrated by our analysis in State v. McCormick, 273 N.W.2d 624 (Minn.1978). In McCormick, the defendant and his wife divorced in California and the wife, having been granted custody of the couple’s children, moved with them to Minnesota. Id. at 625. Later, she obtained an order from a Minnesota district court restraining the defendant from visiting the children. Id. The defendant thereafter removed the children to California. Id. The defendant was charged under a Minnesota statute that made it a crime to “intentionally detain [ ] [one’s] own child * * * outside the state of Minnesota, with intent to deny another’s rights under an existing court order.” Id. (citing Minn.Stat. 609.26 (1978)). Based on these facts, the State argued that jurisdiction existed in Minnesota because the defendant’s actions “cause[d] a result within the state that is detrimental to protectible interests of the state and its citizens.” Id.

Notwithstanding the fact that his former wife undoubtedly suffered injury in Minnesota due to the defendant’s actions in removing the children from Minnesota, we held that the statute was unconstitutional. Id. at 628. We reached this conclusion because the statute purported to allow prosecution in Minnesota for criminal conduct that occurred entirely “outside the State of Minnesota.” Id. at 625; see also id. at 628 (“Defendant constitutionally and historically can only be tried in the district where the crime occurred, a right which experience demonstrates is designed to further the ends of justice.”). The analysis in McCormick supports the conclusion that, as a matter of constitutional law, causing injury to a Minnesota resident through acts committed entirely outside Minnesota is not enough, by itself, to support criminal jurisdiction in Minnesota. See Smith, 421 N.W.2d at 320 (noting that in McCormick we “struck down a statute that made totally extraterritorial activity a crime in Minnesota”).

The test that emerges from our precedent to determine whether the district court had jurisdiction asks whether “some operative event, a triggering event,” for the crime occurred in Minnesota. Id. at 319. We said in Smith that “[t]he event needed, as required by the Minnesota and United States Constitutions, is that some part of the crime charged must be ‘committed’ within the jurisdiction.” Id. The result of the criminal behavior caused in Minnesota by acts committed outside Minnesota, as set forth in paragraph 3 of Minn.Stat. § 609.025, could satisfy the test if the result is part of the crime or related to an element of the crime. Several states have recognized this rule. See Cousins v. State, 202 Ark. 500, 151 S.W.2d 658, 660 (1941) (concluding that the overdraft statute was not violated by drawing funds from a bank outside the state, even though the act resulted in defrauding a resident of the state in whose favor the draft was drawn); State v. Cain, 360 Md. 205, 757 A.2d 142, 145 n. 2 (2000) (citing Pennington v. State, 308 Md. 727, 521 A.2d 1216, 1219 (1987)) (noting that the intended “result” or “effect” can be “the basis of territorial jurisdiction only if the definition of the crime includes such a result”); Commonwealth v. Carroll, 360 Mass. 580, 276 N.E.2d 705, 709 (1971) (“[W]e have held that the crime of larceny, which includes the element of asportation, may be punished in Massachusetts if the thief brings the stolen goods into this State after acquiring them outside the jurisdiction.”). The language of our statute also supports this rule because it provides that jurisdiction exists if the result is “prohibited by the criminal laws of this state.” Minn. Stat. § 609.025(3).

When we apply the “operative event” test to the criminal damage to property charge it is clear that jurisdiction did not exist in Minnesota. Simion committed no criminal behavior relevant to the damage to property charge in Minnesota. As noted above, the crime was complete in Wisconsin when Simion damaged the truck while it was at his residence, and the victim’s economic loss in Minnesota is neither part of the crime nor related to an element thereof. See Sykes v. State, 578 N.W.2d 807, 811, 812 (Minn.App.1998), rev. denied (Minn. July 16, 1998) (noting that a Minnesota “victim’s reaction to the threat is circumstantial evidence relevant to the element of intent” and holding that jurisdiction existed under Minn.Stat. § 609.025(3) for a terroristic threats charge because “the crime of making ter-roristic threats was complete when [the defendant’s] threats were received by the victims in Minnesota”). The court of appeals therefore erred in concluding that jurisdiction existed over the damage to property charge based only on the fact that the alleged victim was located here and therefore felt the effects of the crime in Minnesota. Because no operative event occurred within Minnesota, we hold that the district court did not have subject matter jurisdiction over the damage to property charge and we reverse Simion’s conviction of that charge.

B. Theft from a Person with Superior Right of Possession

The theft statute under which Si-mion was charged provided that a person is guilty of theft if he or she, “having a legal interest in movable property, intentionally and without consent, takes the property out of the possession of a * * * person having a superior right of possession, with intent thereby to deprive the * * * person permanently of the possession of the property.” Minn.Stat. § 609.52, subd. 2(2) (2004). The State argues that jurisdiction was proper under both paragraphs 1 and 3 of section 609.025. Specifically, the State argues that jurisdiction exists because the captain seat belonged to PLI, a business located in Hen-nepin County; PLI withheld consent to the taking of the seat in Minnesota; the “locus of PLI’s superior right to possess was in Minnesota, where the business was located and where the truck was officially housed as part of PLI’s fleet of vehicles”; and Simion formed the intent to permanently deprive PLI of the captain seat while in Minnesota on September 21, and then returned the truck without the seat to PLI’s office in Minnesota on September 23.

We consider first whether jurisdiction existed under paragraph 1 of the statute. Unlike the damage to property crime, for which Simion committed all of the criminal behavior in Wisconsin, the record establishes that “some operative event, a triggering event,” for the crime of theft occurred in Minnesota. Smith, 421 N.W.2d at 319. Specifically, based on the evidence at trial, Simion determined that if his paycheck was not ready for him on September 23 when he returned to Minneapolis with the truck, he was going to leave his employment with PLI and keep the captain seat, which he had removed from the truck and left on his property in Wisconsin. When Simion removed the seat from the truck in Wisconsin, the crime cannot be said to have been complete because of Simion’s plan to return to Minnesota, in essence, to give his employer another chance to pay him what he felt he was owed. As Simion told PLI when he was in Minnesota on September 23, PLI could either give him his money or he would “take it out in trade.” Simion’s intent to permanently deprive PLI of the captain seat was formed at least in part in Minnesota. His conduct at PLI on September 23 provides a sufficient nexus to Minnesota to meet the plain terms of paragraph 1 of section 609.025 and the constitutionally-based nexus requirement we applied in Smith and McCormick.

This conclusion is reinforced by the fact that because of the employment relationship, Simion had the right to use PLI’s truck with the captain seat in it. When that relationship ended in Minnesota on September 23, Simion’s right to continue using the truck and the seat also ended. A “triggering event” then for the theft charge happened in Minnesota when Si-mion went to PLI headquarters on September 23 to pick up his check and it was not there for him. Smith, 421 N.W.2d at 319. When Simion’s employment ended on September 23 so did his right to continue to use PLI’s truck and the captain seat. An operative event for the theft crime then occurred when Simion’s permission to continue to use the truck and the seat ended. According to the evidence, that event occurred on September 23 in Minnesota. Under the unique circumstances of this case, we hold that the district court had jurisdiction over the theft charge under paragraph 1 of section 609.025.

The conclusion that jurisdiction existed under paragraph 1 of section 609.025 makes it unnecessary for us to consider whether the district court also had jurisdiction under paragraph 3 of the statute. We affirm the conclusion of the court of appeals that the district court had jurisdiction over the theft charge.

II.

We next consider whether the district court erred in denying Simion’s motion for judgment of acquittal because, as he argues, his conduct did not meet the elements of the crime of theft from a person with a superior right of possession under Minn.Stat. § 609.52, subd. 2(2). A motion for judgment of acquittal is properly denied where the evidence, viewed in the light most favorable to the State, is sufficient to sustain a conviction. State v. Slaughter, 691 N.W.2d 70, 75 (Minn.2005); see also Minn. R.Crim. P. 26.03, subd. 17(1) (providing that “[a]fter the evidence on either side is closed, the court on motion of a defendant or on its initiative shall order the entry of a judgment of acquittal of one or more offenses charged * * * if the evidence is insufficient to sustain a conviction”).

Simion was convicted of violating Minn. Stat. § 609.52, subd. 2(2), which provided that a person is guilty of theft if he or she, “having a legal interest in movable property, intentionally and without consent, takes the property out of the possession of a * * * person having a superior right of possession, with intent thereby to deprive the * * * person permanently of the possession of the property.” Simion alleges that the evidence failed to prove that (1) he had a “legal interest” in the seat; (2) he took the seat “out of the possession” of PLI; and (3) PLI had a “superior right of possession” to the seat. We examine each element in turn.

A. Legal Interest

Simion first argues that he did not have a legal interest in the captain seat. The statute does not define “legal interest,” but generally the phrase refers to “[a]n interest recognized by law, such as legal title.” Black’s Law Dictionary 829 (8th ed.2004). While Simion did not have legal title to the seat when he removed it from the truck, he did have a protectable interest in the seat. This is so because he had paid at least $368 toward the purchase of the seat from PLI. We therefore hold that the evidence satisfied the “legal interest” element of Minn.Stat. § 609.52, subd. 2(2).

B. Possession

Simion next argues that the evidence does not establish that he took the seat out of PLI’s possession. Specifically, Simion contends that he had possession, not just custody, of the seat during the time he was making installment payments and that he thus did not take the seat “out of the possession” of PLI when he removed it from the truck. See Minn.Stat. § 609.52, subd. 2(2). Minnesota Statutes § 609.52, subd. 2(2) does not define “possession,” but the term is used interchangeably to describe actual possession and constructive possession. Baehr v. Penn-O-Tex Oil Corp., 258 Minn. 533, 537, 104 N.W.2d 661, 664 (1960).

Constructive possession “is usually said to mean the legal right to possession which follows from title without actual possession.” Id. at 537, 104 N.W.2d at 664. Such possession exists where an owner intentionally gives actual possession-direct physical control-of the property to another in order for that person to do some act for the owner to or with the property. Jacobson v. Aetna Cas. & Sur. Co., 233 Minn. 383, 388, 46 N.W.2d 868, 871 (1951). In Jacobson we said that where the master surrenders physical control of the property to the servant for a “use or purpose for the direct benefit” of the master, the master has constructive possession while the servant has mere custody of the property. 233 Minn, at 387, 389-90, 46 N.W.2d at 871-72. In this ease, the evidence, when construed in the light most favorable to the State, supports the conclusion that PLI had constructive possession of the seat at all times before Simion fully repaid PLI for the purchase and installation of the seat. That PLI allowed Simion to use the seat in the PLI truck assigned to Simion does not negate this conclusion; it shows only that PLI gave Simion permission to use the seat in connection with his employment until he paid for it, at which time it would become his property. We hold that the evidence supports the possession element. Minn. Stat. § 609.52, subd. 2(2).

C. Superior Right of Possession

Finally, Simion argues that PLI’s right to possess the seat was not superior to his and that this element therefore was not satisfied. The element at issue requires Simion to have taken “property out of the possession of a pledgee or other person having a superior right of possession.” Minn.Stat. § 609.52, subd. 2(2). Simion relies on our decision in State v. Cohen, 196 Minn. 39, 263 N.W. 922 (1935), to support his argument that the evidence failed to prove that PLI had a superior right of possession to the seat. Advisory committee comments to the theft statute, Minn.Stat. § 609.52, subd. 2(2), indicate that the Cohen decision was the impetus for the enactment of that section. Minn. Stat. Ann. § 609.52, subd. 2(2), advisory committee cmt. (West 2003).

While the statute plainly covers the situation at issue in Cohen through its use of the word “pledgee,” it is not, as the court of appeals noted, limited to only those situations presenting the same facts as in Cohen. Simion, 2007 WL 1412764, at *3. The statute makes this plain because it provides that theft can be committed against some “other person” in addition to a pledgee. Minn.Stat. § 609.52, subd. 2(2).

Here, PLI bought the seat and had an ownership interest in it, pursuant to the parties’ agreement, until Simion reimbursed PLI for its seat-related expenses. Because Simion had only repaid PLI a small portion of his total debt when he took the seat, we hold that the evidence supports the conclusion that PLI’s right to the seat was superior to Simion’s right for the purpose of Minn.Stat. § 609.52, subd. 2(2).

We therefore hold that the district court did not err in denying Simion’s motion for judgment of acquittal on the charge of theft from a person with a superior right of possession.

III.

Simion next alleges that he is entitled to a new trial because of prosecutorial misconduct.

A. Unobjeded-to Conduct

Simion argues that the prosecutor committed misconduct by asking him “were they lying” questions and by denigrating the defense. Defense counsel did not object to this conduct at trial. Under State v. Griller, before an appellate court reviews unobjected-to trial error, there must be error that is plain and the error must affect substantial rights. 583 N.W.2d 736, 740 (Minn.1998). If these elements are met, “we will consider whether a new trial is necessary to ensure fairness and the integrity of judicial proceedings.” Id. at 742. An error is plain if it “contravenes case law, a rule, or a standard of conduct.” State v. Ramey, 721 N.W.2d 294, 302 (Minn.2006). In the context of prosecutorial misconduct, if the defendant shows that there was error, and that it was plain, the burden shifts to the prosecution to demonstrate that the error did not affect the defendant’s substantial rights. Id.

First, Simion argues that the prosecutor committed misconduct by asking him “were they lying” questions during cross-examination. Generally, questions designed to elicit testimony from one witness about the credibility of another have no probative value and are considered improper and argumentative. State v. Pilot, 595 N.W.2d 511, 518 (Minn.1999) (in general, “were they lying” questions are improper). But the prosecutor may ask these questions “when the defendant ‘[holds] the issue of the credibility of the state’s witnesses in central focus.’ ” State v. Morton, 701 N.W.2d 225, 233 (Minn.2005) (quoting Pilot, 595 N.W.2d at 518).

The prosecutor’s four “were they lying” questions related to (1) PLI’s general manager’s testimony that drivers were not allowed to make reimbursement checks out to themselves, (2) the general manager’s inspection of the truck, and (3, 4) the general manager and repairman’s testimony that the damage to the truck was caused deliberately. Even if the first question constituted error that could be considered plain, it did not affect Simion’s “substantial rights” because it was asked in the context of the theft by swindle charge, of which Simion was acquitted.

The remaining three questions do not require reversal because Simion held the credibility of the State’s witnesses in “central focus.” In State v. Dobbins, we concluded that the prosecutor did not commit misconduct by asking the defendant if a State’s witness was lying, because the defendant held the credibility of that witness in “central focus.” 725 N.W.2d 492, 511 (Minn.2006), cert. denied, — U.S. -, 127 S.Ct. 3021, 168 L.Ed.2d 741 (2007). There, a witness testified that he saw the defendant shoot the victim. Id. The defendant “vigorously denied” the accusation and further testified that the witness committed the crime. Id. In the present case, Simion similarly maintained throughout the trial and during closing argument that PLI’s version of the events was wrong, that PLI in fact owed him money, and that the testimony of PLI’s general manager and the repairman was incorrect. Under Dobbins, the “central focus” of Simion’s defense was to undermine the credibility of the State’s witnesses and deny that he was involved in any wrongdoing. See id. Therefore, Si-mion has not met his burden to show that the prosecutor’s “were they lying” questions were error.

Second, Simion argues that the prosecutor improperly “denigrated the defense” during his closing argument when he commented that Simion took “every opportunity to dirty up President Lines by accusing and insinuating that they were violating some rule or regulation.” A prosecutor is allowed “to argue that there is no merit to a particular defense or argument,” but “may not generally belittle a particular defense in the abstract.” State v. Ashby, 567 N.W.2d 21, 28 (Minn.1997). The prosecutor’s comment here was designed to draw the jury’s attention to Si-mion’s attempt to distract from the criminal issues at trial. We hold Simion did not meet his burden to show that this argument was error.

B. Objected-to Conduct

Simion also argues that the prosecutor committed misconduct during his closing argument to which Simion objected. Simion argues that the prosecutor’s statements about Simion’s ability to tailor his testimony to the rest of the evidence, made during the State’s closing argument, constitute prosecutorial misconduct. Si-mion also argues that the prosecutor committed misconduct by implying in rebuttal argument that Simion conspired with his attorney to fabricate testimony. For objected-to prosecutorial misconduct, this court applies a “harmless error test, the application of which varies based on the severity of the misconduct.” State v. Wren, 738 N.W.2d 378, 389 (Minn.2007). The conduct at issue relates to the theft by swindle charge. As Simion was acquitted of this charge, we hold that he has not met his burden to show that any prosecutorial error was prejudicial.

IV.

Finally, we consider the question of restitution. Simion argues that restitution is not appropriate as a matter of law in this case because the seat was returned to PLI. Simion relies on State v. Glewwe, 307 Minn. 513, 239 N.W.2d 479 (1976), to support his restitution argument. In that case, the defendant stole an antique saddle and bridle from the victim and subsequently sold them to a third party. Id. at 514, 239 N.W.2d at 480. We concluded that because the property was returned to the victim, restitution was improper. Id. at 515, 239 N.W.2d at 480. Glewwe does not dispose of the restitution question presented here. PLI alleged that it suffered economic loss due to the cost of the seat and its installation. A crime victim “has the right to receive restitution as part of the disposition of a criminal charge * * * against the offender if the offender is convicted.” Minn.Stat. § 611A.04, subd. 1(a) (2006). In determining the amount of restitution to award, the district court considers several factors, including “the amount of economic loss sustained by the victim as a result of the offense.” Minn.Stat. § 611A.045, subd. 1(a)(1) (2006); see State v. Terpstra, 546 N.W.2d 280, 282 (Minn.1996).

But PLI is entitled to be made whole and no more. We hold that the court of appeals properly remanded the issue of what, if any, restitution is appropriate to PLI. On remand, the district court must consider the fact that the seat was returned to PLI and the monetary payments that Simion had made before the theft to determine whether PLI has in fact suffered any economic loss from the theft.

Affirmed in part, reversed in part, and remanded.

DIETZEN, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

      . The State’s evidence showed that as of September 23, Simion had paid $368 toward the cost of the seat — five payments of $50 for the captain seat and one payment of $118 for the cost of installation.

      . The jury found Simion guilty of criminal damage to property, but in answer to special interrogatories found that the damage reduced the value of PLI's truck by $250 or less. Accordingly, Simion was convicted of misdemeanor criminal damage to property in violation of Minn.Stat. § 609.595, subd. 3 (2006). In 2007, the legislature amended Minn.Stat. § 609.595, subd. 1(3), to increase the threshold for felony damage to property from $500 to $1,000. Act of May 7, 2007, ch. 54, art. 2, § 17, 2007 Minn. Laws 206, 244 (codified at Minn.Stat. § 609.595, subd. 1(3) (Supp. 2007)).

      . This first question comes to us for review of the district court's post-trial decision to deny Simion’s motion for judgment of acquittal or for a new trial. Because of this procedural posture, the inquiry is "narrow” and we examine whether all of the evidence, considered in the light most favorable to the State, created a question of fact as to whether jurisdiction existed. State v. Slaughter, 691 N.W.2d 70, 76 (Minn.2005); see also Minn. R.Crim. P. 26.03, subd. 17.

      . In 2005, this statute was amended to insert “with or without” to the beginning of the clause. Act of June 2, 2005, ch. 136, art. 17, § 31, 2005 Minn. Laws 901, 1138. This amendment is inapplicable to the analysis in this case because the amendment went into effect after the commission of the crime.

      . This result is consistent with the conclusions reached by other courts when confronted with theft charges arising within the context of an employment relationship. See Wright v. State, 339 Md. 399, 663 A.2d 590, 590, 591 (1995) (holding that a Maryland court had jurisdiction over the theft charge against the defendant truck driver who left Maryland in a company truck with permission from his employer in order to deliver cargo to several other states, where the defendant "was not authorized to retain the truck for his own use, and was expected to return the vehicle to the trucking company upon completion of his deliveries”); State v. White, 230 Mont. 356, 750 P.2d 440, 440, 441 (1988) (holding that a Montana court had jurisdiction over a theft charge against a defendant who took possession of his employer’s truck and left the state with the employer's permission, but who unlawfully assumed possession of the truck while in another state and failed to return the truck to his employer in Montana).

      . Actual possession is "possession in its ordinary or original sense." Jacobson v. Aetna Cas. & Sur. Co., 233 Minn. 383, 387, 46 N.W.2d 868, 871 (1951); see 73 C.J.S. Property § 52 (2004) (" ‘Actual possession' of a chattel exists when the thing is in the actual manual custody of the parly * * ⅜.“).

      . In Cohen, the owner of a fur coat was prosecuted for larceny after the owner engaged a furrier to make certain alterations and repairs, refused to remit payment upon completion of the work, and then fraudulently absconded with the coat. 196 Minn. at 40-41, 263 N.W. at 923-24. We said that "[a] person may be guilty of larceny of his own property if taken from the possession of one who has a lien thereon under which possession may lawfully be retained until the lien is discharged.” Id. at 42, 263 N.W. at 924.

      . The district court must resolve disputes regarding the amount of restitution by a preponderance of the evidence. Minn.Stat. § 611A.045, subd. 3(a). The offender has the burden to produce evidence to challenge the amount of restitution, id., and must do so within 30 days of sentencing or of receiving written notice of the restitution request, id. at subd. 3(b). There is no evidence that Simion filed a formal challenge to the restitution award within the statutory period, but that does not decide the legal issue before this court — whether the victim should get restitution if stolen property is returned.


author: ANDERSON, RUSSELL A., Chief Justice.

text:
    STATE of Minnesota, Respondent, v. Daniel E. JONES, Appellant.
    No. A06-1719.
    Supreme Court of Minnesota.
    March 13, 2008.
   OPINION

ANDERSON, RUSSELL A., Chief Justice.

Appellant Daniel E. Jones was convicted of third-degree criminal sexual conduct, Minn.Stat. § 609.344, subd. 1(d) and (2) (2006); third-degree controlled substance crime, Minn.Stat. § 152.023, subd. 1(3) (2006); neglect of a child, Minn.Stat. § 609.378, subd. 1(a)(1) (2006); and endangerment of a child, MinmStat. § 609.378, subd. 1(b)(1). He was acquitted of third-degree murder, Minn.Stat. § 609.195(b) (2006). The district court imposed an enhanced sentence for the criminal sexual conduct conviction. The court of appeals affirmed the convictions but reversed the enhanced sentence and remanded for re-sentencing in accord with Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). On remand, the district court reimposed the enhanced sentence based on facts the district court concluded the jury necessarily found by its verdicts of guilty on child neglect and endangerment. The court of appeals affirmed. Concluding that Jones has the right to a jury determination of the facts that would justify an enhanced sentence, we reverse and remand for resentencing.

On November 6, 2000, Jones was in a trailer home in Burnsville with a friend, Jones’ 15-year-old cousin, and a 16-year-old girl, B.P. That afternoon, all four individuals ingested methamphetamine before traveling by limousine service to a south Minneapolis home to watch a football game. While at the Minneapolis home, B.P. began shaking and perspiring. Around 8:30 p.m., Jones called the limousine service for a ride for him and B.P. back to the trailer home, telling his cousin that he would take care of B.P. When the limousine arrived, B.P. was “wobbly” and needed help walking out to the vehicle. On the ride to Burnsville, B.P. was agitated and stressed. When they arrived at the trailer, the driver carried her inside and laid her on the couch. The driver noted that she was incoherent and soaked in perspiration. He told Jones to get some ice, thinking that would help. After about 5 or 10 minutes, the driver left the trailer, leaving Jones alone with B.P.

Jones’ cousin and his friend returned to the trailer a couple hours later. They had to pound on the door for several minutes before Jones let them in. When they entered, B.P. was lying on a bed, dressed only in her underwear. She was not moving or breathing. Wlien efforts to revive her failed, the cousin and friend drove her to the hospital. Although medical personnel found a pulse, she died shortly after midnight. The cause of death was methamphetamine toxicity.

Law enforcement obtained information from the cousin and friend implicating Jones, and they used information obtained from the cousin’s cell phone to locate the trailer home. Forensic testing of a comforter seized from the trailer home and of B.P.’s undergarment yielded semen samples matching Jones’ DNA profile. There was also semen present on a vaginal swab from B.P. matching Jones’ DNA profile.

Jones was indicted by grand jury for third-degree murder, third-degree criminal sexual conduct, third-degree controlled substance crime, child neglect, and child endangerment. Following a jury trial, he was acquitted of murder but convicted of the remaining offenses. The district court sentenced Jones to a prison term of 102 months for the criminal sexual conduct conviction, which is an upward durational departure of 24 months from the presumptive guidelines sentence of 78 months, together with 5 years of conditional release.

On appeal, Jones challenged the eviden-tiary support for the convictions and the validity of the enhanced sentence based on facts not found by the jury, in violation of the Blakely decision, which was filed less than 2 months after Jones was sentenced. The court of appeals affirmed the convictions, but reversed the enhanced sentence and remanded for resentencing in accordance with Blakely. State v. Jones, No. A04-1303, 2005 WL 2008492, *1 (Minn.App.), rev. denied (Minn. Nov. 22, 2005). Upon remand, the district court reimposed the 102-month sentence, reasoning that the child-neglect and child-endangerment verdicts satisfied the fact-finding requirement of Blakely for an upward departure on the third-degree criminal sexual conduct conviction. The court of appeals affirmed, and we granted review. State v. Jones, 733 N.W.2d 160, 165 (Minn.App.), rev. granted (Minn. Aug. 21, 2007).

I.

“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The statutory maximum “is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303, 124 S.Ct. 2531 (emphasis in original). Here, in articulating the reasons for the upward departure, the district court on remand stated that

[Jones] was found guilty of felony Neglect and felony Child Endangerment. By these convictions, the jury found that [Jones] deprived the victim of health care or supervision, and that-deprivation resulted in substantial harm to the victim’s physical health — that [Jones] failed to provide health care or supervision to the victim during a time when he was the only person who could have helped her, and that neglect/endangerment caused her death.

The court concluded that because the sentencing departure was based on facts reflected in the jury’s guilty verdicts for child neglect and child endangerment, the Blakely fact-finding requirements had been satisfied.

The Minnesota Sentencing Guidelines “were created to assure uniformity, proportionality, rationality, and predictability in sentencing.” State v. Misquadace, 644 N.W.2d 65, 68 (Minn.2002) (citing Minn.Stat. § 244.09, subd. 5(2) (2006)). Under the guidelines, “imposition of the presumptive sentence is mandatory absent additional findings.” State v. Shattuck, 704 N.W.2d 131, 141 (Minn.2005). And consistent with Blakely, “for felonies other than first-degree murder the presumptive sentence prescribed by the Minnesota Sentencing Guidelines is ‘the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant.’ ” Id. (quoting Blakely, 542 U.S. at 303, 124 S.Ct. 2531).

The guidelines sentencing scheme intended that departures from the presumptive sentence be the exception, having application “to a small number of cases,” and that “each departure must be based on the offense of conviction.” Misquadace, 644 N.W.2d at 68. Departures are warranted only when substantial and compelling circumstances are present. State v. McIntosh, 641 N.W.2d 3, 8 (Minn.2002). Substantial and compelling circumstances are those demonstrating that “the defendant’s conduct in the offense of conviction was significantly more or less serious than that typically involved in the commission of the crime in question.” Misquadace, 644 N.W.2d at 69 (citing State v. Cox, 343 N.W.2d 641, 643 (Minn.1984)) (emphasis added). The guidelines provide a nonexclusive list of aggravating factors that may be used as reasons for departure. Minn. Sent. Guidelines II. D.2(b).

Although failure to obtain medical care is not included in the guidelines list, we recognized failure to seek aid as an indication that the crime was committed in a particularly cruel way. State v. Jones, 328 N.W.2d 736, 738 (Minn.1983) (citing State v. Stumm, 312 N.W.2d 248, 249 (Minn.1981)). Nevertheless, these failure-to-seek-aid cases were decided in the “early stages of the determinate guidelines system in which ‘real time’ sentences revealed relatively short terms typically served” under the prior indeterminate parole board system. Taylor v. State, 670 N.W.2d 584, 589 (Minn.2003). The guidelines have since been adjusted, substantially increasing sentence durations for the most serious offenders, and now including a separate grid for sex offenders. Compare Minn. Sent. Guidelines TV (1980) with Minn. Sent. Guidelines IV (2007).

Also since the time of our early decisions involving the guidelines, our jurisprudence related to limitations on redundant enhancements is much more developed. Among the boundaries identified for proper departure is that “[t]he reasons used for departing must not themselves be elements of the underlying crime.” State v. Blanche, 696 N.W.2d 351, 378-79 (Minn.2005) (citing State v. Thao, 649 N.W.2d 414, 423-24 (Minn. 2002)); accord State v. Osborne, 715 N.W.2d 436, 447 (Minn.2006) (holding that elements of lesser-included offenses “cannot support upward sentencing departures”). Departures cannot be based on uncharged or dismissed offenses. Taylor, 670 N.W.2d at 588. Departures cannot be based on conduct underlying an offense of which the defendant was acquitted. State v. Givens, 332 N.W.2d 187, 190 (Minn.1983) (concluding that departure for third-degree murder could not be based on conduct implicit in jury’s acquittal of first-degree murder). And conduct underlying one conviction cannot be relied on “to support departure on a sentence for a separate conviction.” State v. Williams, 608 N.W.2d 837, 840 (2000) (citing State v. Spaeth, 552 N.W.2d 187, 196 (Minn.1996) (holding that it was impermissible to use conduct that resulted in victim’s murder as aggravating factors for burglary conviction)).

Based on this precedent, there are several flaws with the enhanced sentence in this case. First, the Blakely fact-finding requirements were not satisfied because the jury did not make the findings needed to support the departure reasons given by the court. Neither the child-neglect verdict nor the ehild-endan-germent verdict reflected jury findings that the neglect or endangerment caused the victim’s death, and Jones was acquitted of the homicide so it could not be a basis for enhancement. Givens, 332 N.W.2d at 190. Second, the enhancement was not based on the offense of conviction, third-degree criminal sexual conduct. Misquadace, 644 N.W.2d at 68. The neglect and endangerment verdicts did not demonstrate that Jones’ conduct in the sexual conduct crime was significantly more serious “than that typically involved in the commission” of that crime. Id. at 69. Finally, the conduct underlying the neglect and endangerment convictions could not be used to support the departure for the separate criminal sexual conduct conviction. Williams, 608 N.W.2d at 840.

In addition, Minn.Stat. § 609.035 (2006) prohibits cumulative punishment for conduct that constitutes more than one offense. The statute provides that “if a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses.” Id. The statute “contemplates that a defendant will be punished for the ‘most serious’ of the offenses arising out of a single behavioral incident because ‘imposing up to the maximum punishment for the most serious offense will include punishment for all offenses.’ ” State v. Rebaso, 713 N.W.2d 317, 322 (Minn.2006) (quoting State v. Johnson, 273 Minn. 394, 399, 141 N.W.2d 517, 522 (1966)).

The legislature has amended Minn.Stat. § 609.035 to authorize cumulative punishment for certain enumerated crimes, including criminal sexual conduct when committed with force or violence. Id., subd. 6. The statutory exceptions reflect legislative determinations concerning specific conduct that is eligible for increased punishment even when committed as part of the same behavioral incident. However, there is no such exception for the variety of criminal sexual conduct involved in this case.

Nevertheless, Jones’ aggravated 24-month durational departure for the criminal sexual conduct conviction based on the child neglect and child endangerment verdicts, in reality, amounted to cumulative punishment. Child neglect and child endangerment are level I felonies. Minn. Sent. Guidelines V (2000) (offense severity reference table). The offenses are eligible for permissive consecutive sentences, but only when the presumptive disposition is a commitment to prison. Id. II.F. If the neglect or endangerment conviction were to be sentenced last, with Jones’ criminal history score of four, the presumptive sentence would be a stayed 15-month term. Id. TV (guidelines grid). As such, the 24-month enhancement imposed in this case resulted in a de facto consecutive sentence. Cf. State v. Folley, 438 N.W.2d 372, 374 (Minn.1989) (advising courts “to ensure that the withholding of jail credit does not result in a de facto departure with respect to consecutive service”). Even if the neglect or endangerment conviction were to be sentenced consecutively, which would, be a departure, the criminal history score would be zero and the presumptive duration would be 1 year and 1 day. Minn. Sent. Guidelines II.F, IV.

Accordingly, reliance on conduct underlying the child neglect and child endangerment verdicts to enhance the sentence for the criminal sexual conduct conviction amounted to cumulative punishment, in derogation of Minn.Stat. § 609.035. In achieving the sentencing guidelines goals of uniformity, proportionality, rationality, and predictability in sentencing, “substantial efforts have been made to avoid systematic manipulation.” State v. Zeimet, 696 N.W.2d 791, 796 (Minn.2005). Sentences that are not authorized by the legislature undermine this policy of rational sentencing. In summary, we conclude that the child neglect and child endangerment verdicts did not satisfy Blakely.

II.

When the district court’s reasons stated on the record for a departure are improper or inadequate, our past practice has been to independently examine the record to determine if “there is sufficient evidence in the record to justify departure” for legitimate reasons. State v. Geller, 665 N.W.2d 514, 516 (Minn.2003) (quoting Williams v. State, 361 N.W.2d 840, 844 (Minn.1985)). Blakely, however, “has clarified that the fact finding function must be done by the jury, unless waived by the defendant.” State v. Thompson, 720 N.W.2d 820, 832 (Minn.2006) (Hanson, J., dissenting). Consequently, Jones is entitled to a jury determination of the facts that would justify an enhanced sentence. We therefore reverse the enhanced sentence and remand for resentencing. On remand, the district court may impose the presumptive guidelines sentence or, unless waived by Jones, empanel a resentencing jury. Given the amount of time that Jones has already been incarcerated on this matter, this should be done on an expedited basis.

Reversed and remanded.

DIETZEN, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

      . Jones was also sentenced to a concurrent prison term of 27 months for the third-degree controlled-substance offense. This portion of Jones' sentence is not in dispute.

      . These aggravating factors include: a victim's particular vulnerability known to the offender, particularly cruel treatment of the victim, repeat criminal sexual conduct involving victim injury, major economic offenses, major controlled substance offenses, crimes for hire, pattern sex offenders, dangerous offenders, group crimes, hate crimes, and certain identity-theft crimes. Minn. Sent. Guidelines II.D.2(b).

      . Before the sentencing guidelines became effective May 1, 1980, proportionality review of a sentence was not allowed. So long as the sentence imposed was within the statutory limits for the offense in question, this court would not intervene. State v. Whitledge, 500 N.W.2d 488, 489 (Minn. 1993) (citations omitted). We had, however, recommended the problem of disparities in sentencing and the widely expressed view that sentences in serious criminal cases be subject to appellate review to the legislature for consideration. State v. Gamelgard, 287 Minn. 74, 80, 177 N.W.2d 404, 408 (1970). The legislature thereafter authorized expanded appellate review of sentencing, including proportionality review. Act of April 5, 1978, ch. 723, art. 1, § 11, 1978 Minn. Laws 761, 768 (codified at Minn.Stat. § 244.11 (2006)).

      .Child neglect occurs when "[a] parent, legal guardian, or caretaker ⅜ ⅜ * willfully deprives a child of necessary food, clothing, shelter, health care, or supervision appropriate to the child's age” when such deprivation “harms or is likely to substantially harm the child’s physical, mental, or emotional health.” Minn.Stat. § 609.378 subd. 1(a) (2006). At trial, the court defined substantial harm for the jury as "bodily harm that involves a temporary but substantial disfigurement, causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or causes a fracture of any bodily member.” By instructions and special verdict form, the jury was asked to find only whether the neglect resulted in substantial harm.
      Child endangerment occurs when “[a] parent, legal guardian, or caretaker ⅛ ⅜ * endangers the child’s person or health by * * * intentionally or recklessly causing or permitting a child to be placed in a situation likely to substantially harm the child's physical, mental, or emotional health or cause the child's death.” Minn.Stat. § 609.378, subd. 1(b)(1) (2006). As with neglect, the jury was asked to find only whether or not the endangerment resulted in substantial harm.

      . The State does not contest that the offenses charged in this case arise from the same behavioral incident.

      . Minnesota Statutes § 609.035, subd. 6, provides:
      Notwithstanding subdivision 1, a prosecution or conviction for committing a violation of sections 609.342 to 609.345 with force or violence is not a bar to conviction of or punishment for any other crime committed by the defendant as part of the same conduct. If an offender is punished for more than one crime as authorized by this subdivision and the court imposes consecutive sentences for the crimes, the consecutive sentences are not a departure from the Sentencing Guidelines.
      (Emphasis added.)

      . Minnesota Statutes § 609.035 would bar sentencing on both the child neglect and child endangerment convictions.