author: ANDERSON, PAUL H., Justice.

text:
    Joseph Donald TURE, Jr., petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A03-1457.
    Supreme Court of Minnesota.
    June 3, 2004.

      Mark D. Nyvold, Joseph Special Ass’t State Public Defender, St. Paul, Joseph Donald Ture, MCF-Stillwater, Bayport, Attorneys for Appellant.
    Michael A. Hatch, State Attorney General, St. Paul, Doug Johnson, Washington County Attorney, John W. Fristik, Ass’t County Attorney Government Center, Stillwater, Attorneys for Respondent.
   OPINION

ANDERSON, PAUL H., Justice.

In 1998, Joseph Donald Ture, Jr. was convicted of first-degree murder for the May 1979 death of Marlys Wohlenhaus. On appeal of the denial of postconviction relief, which is the first substantive review of his conviction, Ture alleges a number of trial errors that he claims entitle him to relief from conviction. Specifically, Ture alleges as error: (1) the admission of Spreigl evidence regarding the murder of Diane Edwards and the manner in which this evidence was presented at trial; (2) the admission of numerous pages of women’s names, addresses, phone numbers, and license plate numbers; (3) the district court’s failure to use a more specific cautionary instruction to limit the use of Spreigl evidence; and (4) the state’s conduct during closing argument. Ture also submitted a supplemental pro se brief rer questing relief. We affirm.

At about 3:30 p.m. on May 8, 1979, 18-year-old Marlys Wohlenhaus was discovered by her mother in a downstairs room of their Afton home covered in blood with her head “bashed in.” Wohlenhaus had several star-shaped cuts on her scalp and her skull was fractured. The injuries caused uncontrollable bleeding and severe brain injury. Wohlenhaus was hospitalized and underwent emergency surgery, but the next day she was taken off a respirator and pronounced dead. An autopsy also revealed broken fingers and bruises on both hands.

The Washington County Sheriffs Department investigated the murder and had several leads. The leads included a neighbor who saw a car fishtail out of Wohlen-haus’s driveway at about 3:15 p.m. on May 8, the day Wohlenhaus was assaulted. Also, a friend of Wohlenhaus testified that on the night before Wohlenhaus’s death, she and Wohlenhaus had been at a restaurant in Afton and Wohlenhaus had appeared upset upon seeing a man sitting in the back of the restaurant. The man had light blond hair and was wearing a leather coat, sunglasses, and a baseball cap. The man apparently followed the two women on a motorcycle after they left the restaurant. Despite the investigation of several suspects, no one was charged in connection with Wohlenhaus’s death.

In the early 1990’s, Everett Doolittle, a Special Agent with the Cold Case Unit of the Bureau of Criminal Apprehension (BCA), began investigating the Wohlen-haus murder. Appellánt Joseph Donald Ture, Jr. was one of the suspects in the case because of evidence that he had made a detailed written confession to the Woh-lenhaus murder while in jail awaiting trial for another crime. Nevertheless, Ture had been cleared as a suspect because he was thought to have been working at the Saint Paul Ford plant at the time of the murder.

Ture’s written confession was drafted in November and December 1981 while he was being held in the Sherburne County Jail awaiting trial for .the murder of Diane Edwards, a 19-year-old waitress who was abducted from West Saint Paul, sexually assaulted, and killed in 1980. While in jail, Ture had fellow inmate Toby Kromin-ga draft a confession to the Wohlenhaus murder and “another matter.” Ture signed the confession, stating that he was making the confession with the hope of getting to Saint Peter State Hospital for treatment. According to the confession, in 1978 Ture worked part time for Wohlen-haus’s father at Greg’s Body Shop in Af-ton. Ture claimed that Wohlenhaus’s father wanted Ture to kill Wohlenhaus’s mother and that Ture drove to the Woh-lenhaus home to kill the mother. According to his statement, while Ture waited outside for Wohlenhaus’s mother to arrive, Wohlenhaus came home and she invited Ture inside to “smoke dope.” Ture asked Wohlenhaus for sex, but she rejected his advances. Ture then got upset and hit her with a hatchet. A handwriting expert for the BCA testified at Ture’s trial that the signatures on each page of the confession were Ture’s.

Ture also confessed to David Hofstad, who worked in the Sherburne County Attorney’s Office from 1981-1982. Hofstad received a call in November 1981 from a Twin Cities television news cameraman with whom he was acquainted. The cameraman apparently told Hofstad he should talk to Ture about Wohlenhaus. Ture, who was still in jail awaiting trial for the Edwards murder, agreed to meet with Hofstad. Hofstad, who knew nothing about the Wohlenhaus murder, asked Ture about Wohlenhaus and Ture told him that he had known her, she had been a waitress, and he had wanted to date her. Ture then told Hofstad that he had wanted to talk to Wohlenhaus, so one day he went to her house to wait for her to come home. He got into the house through the garage and, when Wohlenhaus arrived, they talked, argued, and he killed her with either a hatchet or a crowbar. Hofstad later called the Washington County Sheriffs Office and spoke with someone involved with the investigation of Wohlenhaus’s murder about what Ture told him.

Upon further investigation of Ture, Doolittle discovered that authorities had cleared Ture as a suspect because they believed he was working at the Ford plant at the time of the murder. However, Doolittle concluded that this alibi was erroneous because the authorities had mistakenly looked up the work schedule of his father, Joseph Ture, Sr.

Ture was indicted in 1996 for first-degree premeditated murder in violation of Minn.Stat. § 609.185, subd. 1 (1978), in connection with Wohlenhaus’s death. He was tried before a jury beginning in September 1998. In addition to both Kromin-ga and Hofstad, other witnesses testified at trial that Ture directly and indirectly told them about the Wohlenhaus murder. Former Washington County Deputy Sheriff Jeff Klarich testified that Freeman Stanton, a former cellmate of Ture’s in Montana, told him that Ture had said that he had “beat” a young girl to death with an axe or hatchet. Several former inmates of Ture’s also testified. Donald Mampel testified that in 1981 or 1982 when a news story was on television about a girl who had been killed in Afton, Ture stated that the. authorities would never be able to prove it against him. Randall Ferguson testified that in May 1998, at Oak Park Heights Prison, Ture bragged to him that he had beaten a woman to death in Afton. Ray Lumsden- testified that in 1990 or 1991 Ture described killing a male victim while burglarizing a small house in a rural area of Afton. Leon Lasley testified that in the summer of 1998 he overheard Ture asking a prisoner with cancer to “take the rap” for him.

Wohlenhaus’s friend who had been out with Wohlenhaus the night before she was assaulted also testified. The friend stated that Ture could have been the man in the restaurant whom Wohlenhaus was upset upon seeing and who followed them on a motorcycle. A man who worked at Greg’s Body Shop in 1979 identified Ture from a photo array and testified that he could have been a man he had seen riding a motorcycle in the Afton area between 1978 and 1980. Another man, who lived near the Wohlenhaus residence in Afton, identified a photo of Ture as someone he had seen in the Afton area and testified that he remembered him having a motorcycle.

Over Ture’s objection, the state offered testimony that in 1980 Ture abducted Diane Edwards as she was walking home after working at the Robert Street Perkins restaurant in West Saint Paul and eventually murdered her. Ture was convicted of the Edwards murder. Twenty-four witnesses testified to the details of the Edwards murder, taking up almost three of the twelve total days of trial testimony. In sum, witnesses testified that Edwards’ body was found in rural Sherburne County approximately two weeks after she went missing. Evidence indicated that Edwards had been sexually assaulted and died- of stab wounds to* her chest. Ture had confessed to the Edwards murder while he was in jail waiting to be tried for that murder and again after he was convicted. The state also attempted to offer evidence about the murder of Alice Huling and three of her four children, as well as another murder, but the court did not allow the state to present this evidence.

Jack Kulseth, a retired Minneapolis homicide investigator, testified that he interviewed Ture in late October 1980 while investigating the Edwards murder. Through'Kulseth, the state offered a loose-leaf notebook and various other notebooks and address books found during a 1980 search of Ture’s motor vehicle and garage in South Saint Paul. The notebooks and address books contained listings of women’s names, license plate numbers, addresses, and phone numbers. Included in these notebooks, which listed the names of women and their descriptions, was a reference to the West Saint Paul Perkins. The notebooks do not appear to contain any information related to Wohlenhaus.

Ture did not testify, but presented witnesses who lived in the Afton area in 1979. These witnesses, who included persons who worked at Greg’s Body Shop, gave testimony directed at contradicting some of the details of Ture’s written confession. This included testimony that they did not know a man named Joseph Ture, Jr. or that they did not recognize him in any of the police photo line-ups.

At the close of trial, the district court instructed the jury on the limited use of Spreigl evidence by stating:

The state introduced evidence in this case of an occurrence on September 26th, 1980 involving Diane Edwards. As I told you at the time that this evidence was offered, it was admitted for the limited purpose of assisting you in determining whether defendant committed the crimes with which he is charged in the indictment I read to you.
[The] defendant is not being tried for and may not be convicted of any crime other than the crime charged in the indictment. You are instructed specifically that you are not to convict [the] defendant on the basis of any occurrence on September 26th, 1980, involving Diane Edwards. To do so might result in unjust double punishment.

This instruction was adapted from Criminal Jury Instruction 3.16. See 10 Minn. Dist. Judges Ass’n, Minnesota Practice— Jury Instruction ' Guides, Criminal, CRIMJIG 3.16 (4th ed.1999) (hereinafter “CRIMJIG 3.16”). Ture objected to this instruction, arguing that the court should use the Eighth Circuit’s instruction for a defendant’s prior similar acts because that instruction specifies that the jury could use Spreigl evidence for purposes of identity.

Ture was convicted of first-degree premeditated murder and sentenced to life in prison consecutive to other sentences he was 'serving. Following his conviction, Ture filed a direct appeal. However, after Ture’s attorney unsuccessfully sought to supplement the record on the jury instructions requested by Ture at trial, Ture and the state stipulated to a dismissal of the appeal, which we' accepted. Ture subsequently filed for postconviction relief. He did not request an evidentiary hearing, but alleged a. number of trial errors he claimed entitle him to relief from conviction. The alleged errors were: (1) the admission of Spreigl evidence regarding the murder of Diane Edwards and the manner in which this evidence was presented at trial; (2) the admission of pages of women’s names, addresses, phone numbers, and license plate numbers; (3) the district court’s failure to use a more specific cautionary instruction to limit the use of Spreigl evidence; and (4) the state’s conduct during closing argument. The postconviction court denied the petition without conducting a hearing pursuant to Minn.Stat. § 590.04, subd. 1 (2002). On appeal of the denial of postconviction relief, Ture asserts the same errors argued to the postconviction court.

I.

We begin by addressing whether the district court properly admitted Spreigl evidence that Ture murdered Edwards. Spreigl evidence is evidence of another crime, wrong, or bad act — the appellation is derived from our decision in State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965). On appeal of the denial of postconviction relief that is an appellant’s first substantive review of his conviction, we review whether there is sufficient evidence in the record to sustain the post-conviction court’s findings. Butala v. State, 664 N.W.2d 333, 338 (Minn.2003). A district court’s decision to admit Spreigl evidence is reviewed for abuse of discretion. See State v. Shannon, 583 N.W.2d 579, 583 (Minn.1998).

Evidence of another crime, wrong, or act is not admissible at trial to prove the character of a person in order to show that he acted in conformity therewith. Minn. R. Evid. 404(b). Such evidence, may be admissible for other purposes, however, such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id. For the evidence to . be admissible, “the other crime, wrong, or act and the participation in it by a relevant person [must be] proven by clear and convincing evidence.” Id,.

' To admit Spreigl evidence, the district court must determine “(1) that the evidence is clear and convincing that the defendant participated in the other offense; (2) that the Spreigl evidence is relevant and material to the state’s case; and (3) that the probative value of the Spreigl evidence is not outweighed by its . potential for unfair prejudice.” Shannon, 583 N.W.2d at 583. Ture was convicted of killing Edwards and he does not dispute that the evidence of his murder of her was clear and convincing. Ture does, however, argue that the court did not admit the Edwards murder evidence for a proper Spreigl purpose (i.e., that it was not relevant) and that the evidence, particularly because of the way it was presented at trial, was more prejudicial than probative.

The district court admitted the Edwards murder evidence for several purposes other than to identify Ture as the murderer of Wohlenhaus as well as Edwards, including to illustrate Ture’s intent and modus operandi. To determine the relevance of such evidence, a district court should consider “the issues in the case, the reasons and need for the evidence, and whether there is a sufficiently close relationship between the charged offense and the Spreigl offense in time, place, or mo-dus operandi.” State v. DeBaere, 356 N.W.2d 301, 305 (Minn.1984). The closer the relationship between the events, the greater the relevance of the evidence and the lesser the likelihood it will be used for an improper purpose. State v. Lynch, 590 N.W.2d 75, 80 (Minn.1999). Spreigl evidence need not be identical in every way to the charged crime, but should serve to “complete the picture” of the defendant and “not to paint another picture.” Lynch, 590 N.W.2d at 81 (quoting State v. Berry, 484 N.W.2d 14, 18 (Minn.1992)).

The record establishes that the Edwards murder and the Wohlenhaus murder were similar in time, place, and modus operandi. Edwards was a 19 year old waitress when she was abducted and murdered; Wohlenhaus was an 18 year old waitress. Edwards was abducted from West Saint Paul, about 20 miles from Af-ton, approximately 16 months after Woh-lenhaus was murdered in Afton. Ture, who maintained a garage in South Saint Paul, told law enforcement officials that he frequented the Perkins restaurant in West Saint Paul where Edwards worked and that he asked her out on dates: Ture told law enforcement officials that he “blew up” at Edwards after she said something he did not like. Evidence indicated that Edwards was sexually assaulted and stabbed multiple times. Krominga testified that Ture told him he wanted to have sex with Wohlenhaus and that when she refused he “freaked,” grabbed a hatchet, and struck her in the head. Hofstad testified that Ture told him Wohlenhaus was a waitress and that he had wanted to date her. Ture also discussed the details of the Edwards and Wohlenhaus murders with authorities, a reporter, and fellow inmates in a similar fashion and in tandem. For all these reasons, we conclude ■ that the district court did not abuse its discretion in ruling that the Edwards murder evidence was relevant.

Even when relevant, however, Spreigl evidence should be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice.” Minn. R. Evid. 403. Spreigl evidence “should be excluded where it is merely cumulative and a subterfuge for impugning a defendant’s character or for indicating to the jury that he is a proper candidate for punishment.” State v. Billstrom, 276 Minn. 174, 179, 149 N.W.2d 281, 284-85 (1967). Ture argues that the state’s presentation of 24 witnesses testifying to the details of the Edwards murder for almost three of the twelve days of trial testimony made the evidence highly prejudicial. We agree with much of Ture’s argument. The state’s presentation of evidence was practically a retrial of the Edwards case. Much of the witnesses’ testimony was redundant. While the state had the right to present evidence of the details of the Edwards murder, courts should not allow the state, when presenting Spreigl evidence, to present evidence that is unduly cumulative with the potential to fixate the jury on the defendant’s guilt of the other crime. See Minn. R. Evid. 403.

Nevertheless, Ture did not object to the number of witnesses who testified regarding the details of the Edwards murder, nor did Ture object on the record to the testimony of specific witnesses who may have presented unduly prejudicial testimony. Without Ture’s objection to the manner in which the Edwards murder evidence was presented, we are reluctant to second-guess the court’s sound discretion. Therefore, we hold that the district court did not abuse its discretion by admitting the Edwards murder evidence. ■

II.

Ture also argues that the district court erroneously admitted notebooks and address books seized from him during the 1980 investigation of the Edwards murder. These items contained women’s names, license plate numbers, addresses, and phone numbers, including a reference to the West Saint Paul Perkins where Edwards' worked. Ture argues that this evidence was Spreigl evidence impropeiiy admitted without notice because this behavior-collecting information on ■ various women-could be characterized as stalking. The district court and postconviction court both concluded that the evidence was not evidence of bad acts because there is nothing per se wrong with collecting information on women. We agree that this evidence was not Spreigl evidence.

Ture also argues, as he did at trial, that the notebooks and address books were not relevant because they did not appear to contain any information related to Wohlenhaus. The postconviction court found that the evidence was admitted bp-cause collecting information on women was Ture’s habit and routine practice. Evidence of a habit or routine practice is relevant because it déseribes “one’s regular response to a repeated specific situation.” Minn. R. Evid. 406 advisory committee comment-1989 (quoting C.T. McCormick, Evidence § 195 (2d ed.1972)). “Whether the response is sufficiently regular and whether the specific situation has been repeated enough to constitute habit are questions for the trial court.” Id. (citing Lewan, Rationale of Habit Evidence, 16 Syracuse L.Rev. 39 (1964)).

While the postconviction court found that the notebooks and address books were evidence of Ture’s habit and routine practice, the record does not indicate that the district court made any kind of inquiry to assure that-a true habit existed. See id. (“The [district court] should make a searching inquiry to assure that a true habit exists.”). The state concedes that whether Ture’s collection of information on women was proper evidence of his habit or routine practice is a close call. We agree. Regardless, following a thorough review of the record, we hold that even if admission of this evidence was erroneous, the error was harmless because the verdict was surely unattributable to the error. See, State v. Juarez, 572 N.W.2d 286, 292 (Minn.1997).

III.

Next, we consider the district court’s refusal to grant Ture’s request to use the Eighth Circuit’s jury instruction for the admission of evidence of prior bad acts. The court instructed the jury using an adaptation of CRIMJIG 3.16 to the facts of this case. See CRIMJIG 3.16. Ture argued that Eighth Circuit Model Instruction 2.09 would be a more appropriate instruction because the only proper us'e for the Spreigl evidence was to determine the identity of the person who killed Wohlenhaus. According to Ture, failure to give this instruction prejudiced him because the instruction the court gave left the jury free to use the Spreigl evidence for purposes other than proof of identity.

We observed in Billstrom that, as a safeguard for the admission of Spreigl evidence, the court “should admonish the jury that the testimony is received for the limited purpose of establishing identity.” 276 Minn. at 179, 149 N.W.2d at 285. In State v. Broulik, we considered the approach taken by several federal appellate jurisdictions, including the Eighth Circuit, which include in their model instructions the specific limited purpose for which evidence of prior bad acts may be used. 606 N.W.2d 64, 70-71 (Minn.2000). We contrasted this approach with CRIMJIG 3.16, which leaves the possible inferences that may be drawn from the evidence to the arguments of counsel. Id. We noted that we did not read Billstrom as mandating a specific limited purpose instruction for Spreigl evidence. Broulik, 606 N.W.2d at 69. However, in Broulik we did not reach any conclusions on the instruction issue, holding that a “trial court’s failure to give an instruction on the specific purpose for which Rule 404(b) evidence may be considered is not error where no request to so instruct is made.” Id. at 71.

Here, Ture specifically requested Eighth Circuit Model Instruction 2.09 rather than the CRIMJIG instruction for Spreigl evidence. Eighth Circuit Model Criminal Jury Instruction 2.09 is given when evidence of a defendant’s prior similar acts is introduced to prove identity. Eighth Circuit CRIM MI 2.09. Eighth Circuit Model Instruction 2.08 is given when evidence of a defendant’s prior similar acts is introduced for a purpose other than to prove identity, which purpose is to be specifically described in the instruction. Eighth Circuit CRIM MI 2.08. The primary difference between Eighth Circuit Model Instruction 2.09 and GRIMJIG 3.16 is that the Eighth Circuit instruction specifically limits the jury’s use of the evidence to whether it “suggests that the same person” ■ committed the act, whereas CRIM-JIG 3.16 more generally limits the jury’s use of the evidence to “determining whether defendant committed those ■ acts with which the defendant is charged.”

We have stated that as a general rule, “instructions on particular kinds of evidence ‘should be avoided as much as possible’ ” because they tend to inject argument into the judge’s charge. State v. Olson, 482 N.W.2d 212, 215 (Minn.1992) (quoting Manual of Model Criminal Jury Instructions for the Ninth Circuit 48 (1989 ed.)). CRIMJIG 3.16 leaves it to the attorneys to argue to the jury the possible inferences that can be drawn from the evidence. We have utilized this approach because Spreigl evidence does not always fit neatly into specific categories-purposes such as identity, “common scheme or plan,” and modus operandi may overlap, or the evidence may be properly admitted for more than one purpose. See State v. Forsman, 260 N.W.2d 160, 167 (Minn.1977) (discussing how the “common scheme or plan” exception has evolved to embrace offenses which tend, to corroborate the charged offense because of their marked similarity in mo-dus operandi). ■

Based on the foregoing distinction, we conclude that under the circumstances here, when the Edwards murder evidence was not necessarily admitted solely for purposes- of proving identity, Eighth Circuit Model Instruction 2.09 would not have been a better instruction than the adapted CRIMJIG 3.16 instruction. Accordingly, we hold that the district court did not abuse its discretion in giving the CRIM-JIG instruction instead of Ture’s requested instruction.

IV.

Ture next argues that during closing argument the state committed prosecu-torial misconduct sufficient to warrant a new trial. Ture argues that the state improperly mentioned other rapes that Ture committed, evidence of which was not permitted at trial. He asserts the state did so by arguing to the jurors that Ture had confessed to the Edwards case “to try and get a package deal for the Diane Edwards murder and other cases, other rapes.” (Emphasis added.) Ture also argues that the state committed misconduct by arguing Ture’s character to the jurors when he told them the state had Diane Edwards’ father testify because the state wanted the jury to “see what kind of a man Joe Ture is, and how he acts and how he behaves consistently in his crimes.” Finally, Ture argues that the state improperly personalized the case against Ture and interjected personal opinion into the closing argument through use of phrases such as “I wanted you to see” and by twice addressing a portion of the closing argument to Ture rather than to the jury. Following the state’s closing argument, Ture moved for a mistrial based on these comments, which the district court denied.

Prosecutorial misconduct does not in and of itself necessitate that a defendant be granted a new trial. State v. Atkins, 543 N.W.2d 642, 647 (Minn.1996). Once misconduct has been established, we must then determine whether the defendant was, denied a fair trial. Id. at 647-48. Generally, a defendant alleging prosecuto-rial misconduct will not be granted a new trial if the misconduct was harmless beyond a reasonable doubt. State v. Hunt, 615 N.W.2d 294, 301-02 (Minn.2000). To determine whether the state committed misconduct warranting a new trial, we look to the closing argument as a whole, rather than to selected phrases and remarks. State v. Walsh, 495 N.W.2d 602, 607 (Minn.1993).

The postconviction court noted, as did the district court in denying the mistrial motion, that the closing argument was two and a half hours long, summarized a complicated murder trial, and the misconduct appeared to have been inadvertent. The postconviction court concluded that the state’s comments did not deny Ture the right to a fair trial. We agree and conclude that while the state committed misconduct during closing argument, the misconduct was harmless beyond a reasonable doubt.

The state’s mention of “other rapes” was clearly improper given that evidence of Ture’s prior sexual assaults was ruled inadmissible at trial. However, the jury was presented evidence of Ture’s rape and murder of Edwards, and the jury had been made aware of “other cases.” We do not believe that this single reference to another rape, given all that the jury already knew about Ture, entitles Ture to a new trial.

The state’s argument regarding Ture’s character was also inappropriate. Character attacks are improper during closing argument. State v. Washington, 521 N.W.2d 35, 39 (Minn.1994). In this case in particular, the state’s argument regarding “what kind of man Joe Ture is” appears to strike at the heart of the potential for prejudice inherent with Spreigl evidence. But this statement must be read in context. It appears that the state was attempting to illustrate the similarities of the Edwards and Wohlenhaus murders and to ■ tie the evidence together. This type of reference to character came just one time during the closing argument and the state specifically mentioned how Ture behaves “consistently in his crimes,” not that the Edwards murder showed his character for such crimes.

Finally, we conclude that the use of the first-person pronoun “I” during closing argument and addressing of portions of the argument directly to Ture was an improper'interjection of personal opinion into the argument. An attorney may argue a particular witness’s credibility, but may not interject his or her personal opin-ión so as to “personally attach[] himself or herself to the cause which he or she represents.” State v. Everett, 472 N.W.2d 864, 870 (Minn.1991). This “personal opinion rule” helps prevent “exploitation of the influence of the prosecutor’s office.” Id. (citing AJBA Standards Relating to the Prosecutor’s Function, S — 5.8(b) and Commentary (1979)). Nevertheless, we conclude that the state’s actions could not reasonably have had an impact' on the jury’s verdict. The'refore, while we are troubled by the state’s conduct during closing argument, after examining the argument as a whole, we hold that the state’s misconduct was harmless beyond a reasonable doubt and does not warrant a new trial.

V.

In addition to arguments presented through counsel, Ture submitted a supplemental pro se brief arguing, among other things, that he was denied effective assistance of counsel and that the evidence was insufficient for this conviction. Ture argues he was denied effective assistance because, he claims, his counsel allowed the state to present inaccurate testimony about when his work hours< were at the Saint Paul Ford plant in 1979. Ture claims he was working at the time the Wohlenhaus murder took place. We have considered each of Ture’s pro se arguments and, after a thorough review of the record and case law relevant to these arguments, we hold that none of these arguments has merit.

Affirmed.

      . Ture was ultimately convicted for the murder of Diane Edwards. See State v. Ture, 353 N.W.2d 502 (Minn.1984) (affirming Ture's conviction for first-degree murder of Edwards).

      . The phrase "another matter” refers to the 1978 murder of Alice Huling and three of her four children. Ture was ultimately convicted of these murders as well. See State v. Ture, 632 N.W.2d 621 (Minn.2001) (affirming conviction for four counts of first-degree murder).

      . The State has introduced evidence of an occurrence on_at'_As I told you at the time this evidence was offered, it was-admitted for the limited purpose of assisting you in determining whether the defendant committed those acts with which the defendant is charged in the (indictment) (complaint).
      The defendant is not being tried for and may not be convicted of any offense other than the charged offense(s). You are not to convict the defendant on the basis of any occurrence on_at_To do so might result in unjust, double punishment.
      10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 3.16 (4th ed.1999).

      . You [are about to hear] [have heard] evidence that the defendant previously committed [an act] [acts] similar to [the one] [those], charged in this case. You may use this evidence to help you decide manner in which the evidence will be used to prove identity— e.g., [whether the similarity between the act[s] previously committed and the one[s] charged in this case suggests that the same person committed all of them.]
      Remember, however, that the -mere fact that the defendant may have committed [a similar act] [similar acts] in the past is not evidence that [he][she] committed such [an act] [acts] in this case. The defendant is on trial for the crime[s] charged and for [that] [those] crime[s] alone. You may not convict a person simply because you believe [he][she] may have committed some act[s], even bad act[s], in the past.

        Manual of Model Criminal Jury Instructions for the District Courts of the Eighth Circuit
        Instruction 2.09 (2002 ed.) (hereinafter "Eighth Circuit CRIM-MI”) (brackets in original).


source: Caselaw Access Project

author: /s/ Paul H. Anderson Associate Justice

license: Public Domain

text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST Melanie Anne FLORES, a Minnesota Attorney, Registration No. 290865.
    No. A04-894.
    Supreme Court of Minnesota.
    June 3, 2004.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Melanie Anne Flores has committed professional misconduct warranting public discipline, namely, misappropriating funds belonging to the law firm for which she worked and making false statements to the disciplinary investigators to conceal her misappropriation, in violation of Minn. R. Prof. Conduct 1.15(a), 8.1(a), 8.4(c) and 8.4(d).

Respondent admits her conduct violated the Rules of Professional Conduct, waives her rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is a 30-day suspension and payment of $900 in costs and disbursements under Rule 24, RLPR.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Melanie Anne Flores is suspended from the practice of law for 30 days, effective immediately. Respondent shall pay $900 in costs and disbursements under Rule 24, RLPR.

BY THE COURT:

/s/ Paul H. Anderson Associate Justice


author: GILBERT, Justice.

text:
    STATE of Minnesota, Appellant, v. Alan George OLHAUSEN, Jr., Respondent.
    No. C1-02-1361.
    Supreme Court of Minnesota.
    June 10, 2004.

      John B. Galus, Assistant Attorney General, St. Paul, MN, L. Douglas Storey, Cottonwood County Attorney, David Paul Honan, Cottonwood County Attorney, Windom, MN, for Appellant.
    Daniel S. Adkins, Richard Sand & Associates, St. Paul, MN, for Respondent.
   OPINION

GILBERT, Justice.

This case involves a first-degree controlled substance conviction where the de-fendánt prevented scientific testing of the alleged substance by disposing of it while fleeing the crime scene. Respondent was convicted of three counts of a first-degree controlled substance crime: aiding and abetting the sale of 10 or more grams of a mixture containing methamphetamine in violation of Minn.Stat. §§ 152.021, subds. 1(1) and 8, and 609.05 (2000); conspiracy to sell 10 or more grams of a mixture containing methamphetamine in violation of Minn.Stat. §§ 152.021, subds. 1 and 3, and 152.096 (2000); possession of 25 or more grams of a mixture containing methamphetamine in violation of Minn.Stat. § 152.021, subds. 2(1) and 3 (2000). Respondent was also convicted of fleeing a peace officer in a motor vehicle in violation of Minn. Stat § 609.487, subd. 3 (2000) and one count of first-degree criminal damage to property in violation of Minn.Stat. § 609.595, subds. 1(1) and 1(3) (2000). The court of appeals reversed each first-degree controlled substance conviction, reasoning that a scientific test of the actual alleged drug substance was necessary for conviction. State v. Olhausen, 669 N.W.2d 385, 393 (Minn.App.2003). We reverse.

On December 12, 2000, an investigator with the Worthington Police Department received information that respondent Alan George Olhausen, Jr., would be willing to sell 2 pounds of methamphetamine. This information was passed along to Robert Nance, a special agent with the Minnesota Bureau of Criminal Apprehension. Nance began to pursue an undercover drug deal with respondent. Nance placed a series of tape-recorded telephone calls to respondent on December 12 and 13 in order to set up a purchase of methamphetamine. In one conversation, on December 13, 2000, respondent told Nance that, “I got two right now,” which Nance understood to mean 2 pounds of methamphetamine. Nance agreed to purchase half that amount.

Respondent told Nance that he had to retrieve the purchase item from a friend, May Chantharath, who was located at a Toro plant in Windom. Nance set up a meeting with respondent that evening at a gas station in Worthington.. Nance was equipped with an electronic listening device and brought a roll of money that resembled $10,000. After meeting at the gas station, Nance drove behind respondent to the Toro plant parking lot. At the parking lot, Nance got into respondent’s car, and respondent utilized Nance’s cell phone to attempt to contact Chantharath. Nance overheard respondent state, “Hey, man, I am outside your work. Swing out when you can. Talk to you then.” Following the call, respondent produced a clear plastic bag containing a yellow, chunky substance, perhaps as a sample, and stated “this is what it is, right here.” Nance never actually took possession of the plastic bag, but believed that it contained approximately 3.5 grams of methamphetamine. Nance told respondent that he would not give him the money until he saw the methamphetamine.

Respondent again attempted to contact Chantharath by calling the Toro Corporation. Nance heard respondent state “Is there any way I could talk to May Chan-tharath?” Respondent then went on to advise the party to have Chantharath call him back. At that point, Nance returned to his car, drove behind respondent to another area of the parking lot and parked next to respondent. Chantharath called Nance’s cell phone and requested to speak with respondent. Nance reached through his car window and handed the cell phone to respondent. Nance overheard respondent tell Chantharath, “Hello. Hey I am here. I got the money for one. And the other guy will be here later.” Nance later heard respondent state, “Ten for one,” followed by “You are in your car?” and “He wants to look at it.” Nance understood respondent’s “ten for one” comment to mean $10,000 for 1 pound of methamphetamine. Respondent then commented that he hoped that the methamphetamine was properly packaged into one pound.

Nance then received a call from a special agent who was covertly monitoring the situation. The special agent advised Nance that Chantharath had exited the. Toro plant and was walking, to Chanthar-ath’s car. Respondent then drove to Chantharath’s car. Nance never saw respondent actually enter Chantharath’s car because his view was blocked - by respondent’s car. Several minutes later respondent returned to Nance’s car and indicated that he had the 1-pound package with him. Respondent noted that the Toro parking lot might have cameras that could record the transaction, and in response Nance suggested that they go to the nearby Hy-Vee parking lot which was located approximately an eighth of a mile from the Toro parking lot. Nance also believed the Hy-Vee parking lot was a location that would be suitable for arresting respondent. Nance and respondent drove separately to the Hy-Vee parking lot.

Once they arrived at the Hy-Vee parking lot, Nance entered respondent’s car and questioned him about the packaging of the alleged methamphetamine. Respondent then ripped open a corner of the package and stated, “See, it is covered in cinnamon and mustard.” Nance testified that the package appeared to be heat-sealed and he estimated that it measured approximately 10 inches by 16 inches. Inside the package was a hard, dark-colored cylinder or “sausage-shaped” object that was about 8 inches in length by 3 to 4 inches in diameter. Nance testified he handled the package and that it had an oily texture. Nance noted that he smelled cinnamon and that the usual purpose of a cinnamon coating is to mask the scent of the methamphetamine from drug detection dogs. Nance also noted that methamphetamine may be in a cylinder shape because it is commonly smuggled in pipes to further avoid detection. Nance noted that methamphetamine has a very distinctive odor and that the first thing he does while working undercover is “to take a smell of it.” Nance admitted, however, that he could not recognize the distinct methamphetamine smell on the substance that respondent presented to him. Nance testified that he had done three to four hundred undercover drug buys and had seen methamphetamine many times before. Nance thoroughly believed that the substance shown to him was methamphetamine; however, he also testified that he could not say that the packaged substance was methamphetamine with “100%” certainty. Nance further testified that he has only purchased one “turkey” buy, or a fake substance that was masked to look like drugs. To Nance’s estimate, the package weighed 1 pound or approximately 453 grams. Respondent’s counsel did not object to Nance’s testimony regarding his descriptions of the alleged methamphetamine that respondent was attempting to sell.

After looking at the package, Nance signaled to the surveillance officers to move in and arrest respondent. Before the officers could do so, Nance exited the vehicle, indicating to respondent that he was going to retrieve the money to complete the purchase. As the surveillance officers approached respondent’s car in unmarked squad cars, respondent accelerated his car forward, damaged a police car, and drove off. Several officers chased after respondent, but he managed to escape.

Respondent was arrested for an unrelated offense on December 22, 2000. After his arrest, respondent agreed to speak with law enforcement officials. Respondent said that he threw the alleged drugs out the window of his car during his escape from the scene. The alleged drug substance was never found. On December 31, 2000, in an apparent attempt to obtain' leniency, respondent contacted the police and stated that he would show them where he discarded the alleged drugs. Respondent showed the police the location, but officers could not locate anything on two separate occasions.

Respondent’s friend, Chantharath, was arrested at the scene. Respondent was arrested 9 days later. Nance interviewed respondent, who admitted that the substance he tried to sell Nance was methamphetamine he obtained from ' Chantharath. When Chantharath was arrested, no methamphetamine was found in his possession. He told the police that he had provided respondent with a pound of methamphetamine to sell. Chantharath never testified at respondent’s trial. Respondent’s counsel objected to Nance’s testimony about Chantharath’s ■ statement; however, the district court allowed it on re-direct because respondent’s counsel first entered into this line of testimony on cross-examination.

At the omnibus hearing on June 11, 2001, respondent moved the district court for an order dismissing the charges for lack of probable cause because the alleged methamphetamine was not actually in evidence, had not been scientifically tested or weighed, and no money had actually exchanged hands in the transaction. In denying respondent’s motion, the district court noted that there is “sufficient evidence that a rational fact finder could find the essential elements of a controlled substance and its one-pound weight notwithstanding the fact that the drug was never recovered.” On February 20 and 21, 2002, a jury trial was held. Respondent never testified at trial. At the close of trial, respondent’s counsel brought a motion for judgment of acquittal, arguing that the state failed to show that a drug substance existed and also failed to show the weight of the substance. The motion was denied, and the matter was submitted to the jury. The jury found respondent guilty of all counts. Respondent was sentenced on the first-degree possession count and for fleeing a peace officer.

On appeal, the court of appeals, in a 2-1 decision, reversed each of the first-degree counts and remanded the case to the district court. Olhausen, 669 N.W.2d at 393. The court of appeals upheld the conviction for fleeing a peace officer in a motor vehicle and criminal damage to property. Two members of the panel held that the evidence regarding the drug sale was insufficient because the alleged •methamphetamine was never recovered and thus unable to be scientifically tested or weighed. Id. In his dissenting opinion, Judge Forsberg argued that the evidence was sufficient due to respondent’s confession that was corroborated by his accomplice. Id. at 393-94. We reverse.

I.

In considering a claim of insufficient evidence, the record is reviewed to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach their verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). The standard for the sufficiency of the evidence to support a conviction is greater than probable cause. See, e.g., State ex rel. Hastings v. Bailey, 263 Minn. 261, 266, 116 N.W.2d 548, 551 (1962). We assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Steinbuch, 514 N.W.2d 793, 799 (Minn.1994); State v. Moore, 438 N.W.2d 101, 108 (Minn.1989). We will not disturb the verdict if the jury, while acting with, proper regard for the presumption of innocence and regard for the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. State v. Pierson, 530 N.W.2d 784, 787 (Minn.1995); State v. Alton, 432 N.W.2d 754, 756 (Minn.1988). ■.

Where direct evidence is not available, a conviction based on circumstantial evidence can be “entitled to the same weight as direct evidence.” State v. Bauer, 598 N.W.2d 352, 370 (Minn.1999). When a defendant is convicted based on circumstantial evidence, “[t]he evidence is entitled to the same weight as any evidence so long as the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of guilt.” State v. Bias, 419 N.W.2d 480, 484 (Minn.1988). A conviction may stand where the circumstances “form a complete chain which, in the light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than-that of guilt.” State v. Wahlberg, 296 N.W.2d 408, 411 (Minn.1980). This stricter standard, though, “still recognizes a jury is in the best position to evaluate the circumstantial evidence surrounding the crime * * *.” State v. Race, 383 N.W.2d 656, 662 (Minn.1986). As in all cases, the jury determines the credibility and weight given to the testimony of individual wit-, nesses. State v. Daniels, 361 N.W.2d 819, 826 (Minn.1985).

Minnesota Statutes § 152.021, subd. 1(1) (2002) provides that a person is guilty of a controlled substance sale crime in the first degree if “on one or more occasions within a 90-day period the person unlawfully sells one or more mixtures of a total weight of ten grams or more containing cocaine, heroin, or methamphetamine.” A person is guilty of a controlled substance possession crime in the first degree if “the person unlawfully possesses one or more mixtures of a total weight of 25 grams or more containing cocaine, heroin, or methamphetamine.” Minn.Stat. § 152.021, subd. 2(1) (2002). Where the identification of the drug is in question, we have not prescribed any minimum eviden-tiary requirements and the sufficiency of the evidence is examined on a case-by-case basis. State v. Vail, 274 N.W.2d 127, 134 (Minn.1979).

The state argues that, despite the fact that methamphetamine was never found, a combination of factors shows that respondent -is guilty of controlled substance sale and possession crimes in the first degree. We agree. These factors include: (1) respondent’s agreement to sell 1 pound of methamphetamine, (2) respondent’s phone calls to arrange the sale, (3) respondent’s representation of a small sample to Nance, a sample that Nance believed to be authentic methamphetamine, (4) respondent’s various statements, including an offer to sell “ten for one,” or 1 pound of methamphetamine for $10,000, (5) respondent’s various indications that the package he obtained from Chantharath was 1 pound of methamphetamine, (6) Chantharath’s representations to the police that he furnished respondent with 1 pound of methamphetamine, and (7) respondent’s dramatic flight from the scene of the incident.

The court of appeals readily acknowledged that the factual circumstances indicate that respondent believed he was selling 1 pound of methamphetamine. Olhausen, 669 N.W.2d at 391. It further noted that there is a “strong inference” that respondent’s' “ ‘sausage-shaped’ package in fact contained methamphetamine.” Id. The court of appeals focused on the possibility that respondent could have been misled into thinking that the substance was genuine methamphetamine, noting “[respondent’s] representations to Agent Nance are supported only by [respondent’s] belief that the package contained methamphetamine.” Id.

To support its line of reasoning, the court of appeals relied heavily on our opinion in Vail. Id. at 390-91 (citing Vail 274 N.W.2d at 127). There, a defendant was charged with selling 220 pounds of marijuana to an undercover officer. Vail, 274 N.W.2d at 133. The defendant obtained the alleged drug from a separate dealer and transported it to the undercover officer before being arrested. Id. To prove that the defendant was selling 220 pounds of marijuana, the state introduced scientific and circumstantial evidence. Id. at 130. We affirmed the district court’s finding that the scientific tests were insufficient to identify the substance beyond a reasonable doubt, noting that “[wjhether this court would draw the same conclusion from the evidence is not relevant; our role as a reviewing court is limited. The trial ⅜ * * was held following defendant’s written and informed waiver of his right to a jury. Under those circumstances, the judge’s findings of fact are entitled to the same weight on review as a jury verdict.” Id. at 133.

However, the district court considered “inferences identifying the substance from the nonscientific evidence.” Id. This included:

1. The amount of the [agreed] sale amounting to 220 pounds.
2. The sale price amounting to $120 per pound.
3. The statement of the Defendant * * ⅜ quoted by the State’s witness * * * identifying the product as not only marijuana, but identifying the product as ‘Mexican grade’ marijuana.
4. The inferred fact * * * that a seller of a product containing 220 pounds is probably sophisticated and competent and alert enough to have made his own tests before he himself bought the product for presumably a considerable sum of money from his supplier. Whether that task was simply smoking the product in order to test the substance or whether the product was otherwise analyzed is, of course, unknown to the court.

Id. at 133-34.

We held that, given the facts of that matter, the nonscientific evidence was im-permissibly used to sustain the state’s burden of proof. Id. at 134. We held so in part because “[t]he price charged and representations made by the defendant are, at best, only assertions of his belief.” Id. The defendant’s own personal belief of and representations of the substance as a controlled substance was “not sufficient” to prove identity. Id. (citing to State v. Dick, 253 N.W.2d 277, 278-79 (Minn.1977) (finding that a scientific microscopic analysis by an official criminalist was sufficient to identify marijuana)).

The court of appeals also relied on our opinion in State v. Robinson. Olhausen, 669 N.W.2d at 393 (citing State v. Robinson, 517 N.W.2d 336 (Minn.1994)). There, a defendant was found in possession of 13 packets of what appeared to be cocaine. Id. at 337-38. Together the 13 packets weighed 16.7 grams. Id. at 338. The state’s expert randomly tested 6 or 7 of the 13 packets by emptying them together into a container and testing samples of the resulting mixture. Id. We held that the random sampling and testing of less than 10 grams of the substance was insufficient to prove that the cocaine weighed more than 10 grams. Id. at 339. Determining weight by a random sample of separately packaged cocaine “does not take into account the fact that, in the case of substances not homogeneously packaged, drug dealers are known to substitute placebos for the real thing. Indeed, substitution is apparently common enough that it has achieved a criminal status of its own.” Id. (pointing to Minn.Stat. § 152.097 (2002) (simulated controlled substance crimes)). We emphasized that “[w]here a penalty as serious as 10 years’ imprisonment may hinge on a gram, it seems not too much to require scientific testing to establish the requisite weight.” Id. at 340.

The facts currently presented before us differ from the scenarios in Vail and Robinson. In both Vail and Robinson, the state had possession of the entire amount of controlled substance at- issue, but failed to use adequate procedures to scientifically test this -substance. Here, respondent discarded the alleged controlled substance, thereby preventing the state from performing scientific tests.' It was respondent, not the state, who prevented more thorough testing. Furthermore, in Vail, even though the state had possession of the alleged controlled substance, we were faced with the finding from the district court that the scientific evidence presented was inadequate to prove beyond a reasonable doubt the identity of the controlled substance. Vail, 274 N.W.2d at 133. Here, we are presented with a jury conviction, and must apply a standard that recognizes that the jury is in the best position to evaluate evidence surrounding the crime. Race, 383 N.W.2d at 662.

The circumstantial evidence surrounding respondent’s attempted sale and possession of a controlled substance is compelling. Despite the fact that respondent disposed of the alleged controlled substance, circumstantial evidence included numerous statements of respondent and his cocon-spirator about the contents and weight of the package. The package itself was visible to Nance who, through his experience, identified it as genuine methamphetamine. The officer rendered his opinion, without objection from respondent’s counsel, as to the alleged drug’s authenticity, size, weight, and dollar amount for the cost of a similar substance.

The court of appeals was correct in its assertion that it is difficult to decipher an absolute accurate weight of the substance in the present matter, as it is unknown how much of the substance was pure methamphetamine or how much;of the package weight was attributable to the. cinnamon or other substances that Nance • smelled. However, Nance testified that he estimated that the package that he saw and held weighed approximately 1 pound, or 453 grams. -The state only needed to prove the existence of 10 grams (or approximately 2.2% of the total estimated package weight) in order to satisfy the requirement of a first-degree sale offense per Minn. Stat. § 152.021, subd. 1(1).' Similarly, for the first-degree possession offense, the state had to prove the portion in possession weighed at least 25 grams (or approximately 5.5% of 1 pound) to qualify for a first-degree possession offense per Minn. Stat. § 152.021, subd. 2(1). There was a leeway of 443 grams for the first-degree sale and 428 grams for the first-degree possession count. -The margin of error, if there was an error, was great. Although the substance was not scientifically tested, circumstantial evidence and officer testimony may be presented to the jury to attempt to prove the identity of the substance.

Furthermore, it is uncontested that respondent fled the scene of the alleged crime. We have held that evidence of flight “suggests consciousness of guilt.” State v. Bias, 419 N.W.2d 480, 485 (Minn.1988). The court of appeals acknowledged respondent’s consciousness of guilt, but instead heavily cited to our opinion in Robinson, which held circumstantial evidence inadmissible because there was “no good reason why a sufficient quantity of the mixture should not be scientifically tested so as to establish beyond a reasonable doubt an essential element of the crime charged.” Olhausen, 669 N.W.2d at 393 (citing Robinson, 517 N.W.2d at 339). Unlike the situation in Robinson, where drugs held by the police were not properly tested, in the present matter there is a good reason that the alleged drugs could not be tested; namely, that respondent admittedly disposed of the package when he fled the police to avoid confiscation of the package.

The record in Robinson also contained evidence that the defendant in that case had a history of attempting to sell a placebo in place of a controlled substance. Id-at 338. In contrast to Robinson, there is nothing in the present record supporting an inference that the package produced was anything other than what it was represented to be. Prior to or during the sale, there were no indications by any parties involved that the drugs might be a placebo. Nance, for example, testified that in his vast experience with undercover methamphetamine purchases, it is extremely rare for a placebo tó be sold in place of methamphetamine. He further testified that his significant training would alert him ■ to recognize genuine or fake drugs and he believed that respondent was selling genuine methamphetamine. Nance, respondent, and his coconspirator all consistently indicated that the package respondent designated as methamphetamine was genuine. In addition, when respondent was attempting to sell the substance to Nance, respondent went to great lengths to substantiate his ability to sell genuine methamphetamine. These efforts included multiple phone calls, respondent’s representation of a small sample, and respondent’s various statements, including an offer to sell “ten for one,” or 1 pound of methamphetamine for $10,000. Nance’s testimony is consistent with the various other pieces of evidence pointing towards the genuine nature of the substance that respondent was attempting to sell.

A conviction based on circumstantial evidence may stand where the evidence forms “a complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.” Wahlberg, 296 N.W.2d at 411. This standard “still recognizes a jury is in the best position to evaluate the circumstantial evidence surrounding the .crime * ⅜ Race, 383 N.W.2d at 662. As we previously stated, where the identification of the drug is in question, the sufficiency of the evidence is examined on a case-by-case basis. Vail, 274 N.W.2d at 134. Accordingly, we hold that the evidence presented, when viewed in the light most favorable to the conviction, is sufficient to uphold the jury verdict relating to respondent’s first-degree controlled substance offenses.

Reversed.

      . Both respondent's counsel and the court of appeals referred to this motion as a "motion for directed verdict.” Olhausen, 669 N.W.2d at 389. However, motions for directed ver-diet have been abolished in criminal trials in Minnesota. The proper motion would be a motion for judgment of acquittal. See Minn. R.Crim. P. 26.03, subd. 17(1).

      . In Vail, the district found the state's scientific testing to be insufficient. Vail, 274 N.W.2d at 133. We upheld the district court's finding. Id. In Robinson, the court of appeals held, the state’s random drug testing of a partial amount of the evidence to be sufficient. Robinson, 517 N.W.2d at 339. We reversed the court of appeals decision and held that the random sampling and testing was insufficient. Id. at 340.


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Kenneth F. JOHANNSON, a Minnesota Attorney, Registration No. 5043X.
    No. A04-246.
    Supreme Court of Minnesota.
    June 15, 2004.
   ORDER

By order filed March 9, 2004, this court suspended respondent for 90 days, effective March 23, 2004. The suspension order authorized reinstatement by affidavit under Rule 18(f), Rules on Lawyers Professional Responsibility. Respondent has filed an affidavit stating that he has complied with the conditions imposed by the court and requests reinstatement. The Director of the Office of Lawyers Professional Responsibility has filed with this court an affidavit certifying that respondent has complied with the terms of the suspension order and that the Director’s Office does not object to reinstatement.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Kenneth F. Johannson is reinstated to the practice of law in the State of Minnesota effective June 21, 2004, subject to his satisfactory completion of the professional responsibility portion of the state bar examination by March 9, 2005.

BY THE COURT:

/s/ Paul H. Anderson Associate Justice

ANDERSON, RUSSELL A., J., took no part in the consideration or decision of this matter.


author: CRIPPEN, Judge.

text:
    STATE of Minnesota, Respondent (A03-739), Appellant (A03-1002), v. Henok HADGU, Appellant (A03-739), Respondent (A03-1002).
    Nos. A03-739, A03-1002.
    Court of Appeals of Minnesota.
    June 15, 2004.

      Mike Hatch, Attorney General, St. Paul, MN; and Greg Widseth, Polk County Attorney, Sqott A. Buhler,. Assistant County Attorney, Crookston, MN, for State of Minnesota.
    John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, Minneapolis, MN, for Henok Hadgu.

      Considered and decided by LANSING, Presiding Judge, TOUSSAINT, Chief ' • Judge, and CRIPPEN, Judge.
   OPINION

CRIPPEN, Judge.

This proceeding is a consolidation of appeals by both parties regarding Henok Hadgu’s fifth-degree controlled substance conviction, for which the imposition of his sentence was stayed for up to five years on conditions that included serving 90 days local incarceration. The primary issue in these appeals arises out of the state’s argument that the trial court erred in granting Hadgu credit for the time he spent in the custody of the United States Immigration and Naturalization Service (INS). Because we conclude that Hadgu was entitled to credit for the time he spent in the custody of the INS, we affirm. We also affirm on issues Hadgu raises, because the trial court did not abuse its discretion in admitting the evidence found in his room at the time of his arrest and because the evidence is sufficient to allow the jury to reach its verdict.

FACTS

In January 2003 a jury found Henok Hadgu guilty of a fifth-degree controlled substance crime. Before sentencing, Had-gu posted bail and thereafter the INS took him into custody and placed him in a jail in Sherburne County, where he was held from January 29 through February 11, 2003. On March 18, 2003, the trial court stayed imposition of Hadgu’s sentence and ordered him to serve 90 days. Shortly thereafter, Hadgu sent the trial court a letter asking for jail credit for the time spent in INS custody. After first denying the request, the trial court granted jail credit when the motion was renewed by Hadgu’s public defender. Hadgu challenges the judgment of conviction, and this appeal was consolidated with the state’s appeal from the order granting Hadgu jail credit for the time he spent in INS custody.

ISSUES

1. Is Hadgu entitled to jail credit for the time spent in INS custody?

2. Did the trial court err in admitting evidence discovered at the time Hadgu was arrested?

3. Did the jury err in convicting Hadgu without sufficient evidence?

ANALYSIS

1.

The state argues that the prosecution had no control over the actions of the INS and contends it is not unfair to require Hadgu to serve both the criminal sentence and the time in INS custody on charges that he violated federal immigration laws. When granting jail credit on the time Had-gu was held by the INS, the trial court noted that this time was “a direct result of his conviction” and that if Hadgu had not posted bail, he would have remained incarcerated locally and received jail credit for this time when he was sentenced.

The decision to grant jail credit is not discretionary with the trial court. State v. Doyle, 386 N.W.2d 352, 354 (Minn.App.1986). The general intra-jurisdictional rule is that a defendant is entitled to jail credit for all time spent in custody between his arrest on the charge in proceedings in which credit is sought and his sentencing for that offense. State v. Goar, 453 N.W.2d 28, 29-30 (Minn.1990). If time is spent in custody of another jurisdiction, the test is whether the jail time was spent “solely” in connection with the Minnesota offense. State v. Brown, 348 N.W.2d 743, 748 (Minn.1984). And the test for time spent in custody of Minnesota focuses on principles of fairness and equity, with regard for whether the denial of credit would result in a de facto consecutive sentence or would make the total time served turn on irrelevancies or matters subject to manipulation by the prosecutor. See Asfaha v. State, 665 N.W.2d 523, 527-28 (Minn.2003); Goar, 453 N.W.2d at 29.

The issue of jail credit for time spent in INS custody appears to be an issue of first impression. Federal immigration law permits the detention of deportable aliens who are on presentence release. 8 U.S.C. § 1226(c)(1) (2000). INS detention is intended to prevent deportable aliens convicted of a crime “from fleeing prior to or during their removal proceedings.” Demore v. Hyung Joon Kim, 538 U.S. 510, 528, 123 S.Ct. 1708, 1720, 155 L.Ed.2d 724 (2003). The INS does not impose detention for criminal or punitive purposes, as do other jurisdictions holding Minnesota defendants on their own criminal charges. Here, Hadgu’s INS custody time does not meet the “solely”-in-connection test because that time was not spent “solely” in connection with his Minnesota offense but serves the separate, non-penal purposes of the INS. In addition, Hadgu’s INS custody time does not meet the fairness-and-equity test, because that time was not served for the punitive purposes of criminal prosecution. The underlying concerns of the fairness-and-equity test, such as de facto consecutive sentencing and prosecu-torial manipulation, are not present.

But the more basic test for jail-credit awards under the criminal rules has remained whether the time was served “in connection with” the offense on which the jail credit is sought. Minn. R.Crim. P. 27.03, subd. 4(B). We conclude that this underlying test applies to INS custody situations. The trial court correctly noted that the time Hadgu spent in INS custody was “a direct result of his- conviction” and if he had not posted bail “he would have remained at the Northwest Regional Correctional Center and received jail credit for this time at sentencing.” Hadgu’s INS custody time was served “in . connection with” his Minnesota offense, and because of this the trial court correctly determined that he was entitled to jail credit for the time spent in INS custody. Our holding is consistent with those of other courts that have considered this issue and allowed a defendant to receive credit for the time the defendant spent in INS custody.. See United States v. Ogbondah, 16 F.3d 498, 500-01 (2nd Cir.1994) (allowing credit against sentence for time,spent technically on bail but actually in custody of INS).

2.

Hadgu argues that the trial court erred in admitting the evidence found in his room at the, time of his arrest. “Evi-dentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.” State v. Amos, 658 N.W.2d 201, 203 (Minn.2003).

The trial court did not abuse its discretion in- .admitting the evidence found in Hadgu’s room at the time of his arrest. Crookston police detective Gerardo Moreno set up a controlled buy with Charles Owensi Moreno gave Owens $150 in prerecorded buy-money and equipped him with an electronic transmitter to tape the transaction. At trial, Owens testified he went' to Hadgu’s dormitory room where Hadgu weighed out marijuana on a small hand-held scale and sold it to Owens for $130. The tape of the transaction was inaudible. Moreno went back to Hadgu’s dormitory room over four months later and arrested him on a warrant; Hadgu consented to-a search of his room. At the time of Hadgu’s arrest, Moreno discovered the same controlled substance and a small hand-held scale in the exact same location where the charged, sale of marijuana occurred. . .

The trial court correctly noted that these items were found in the same place as described in Owens’ testimony, and that the evidence, which is in the nature of Spriegl evidence, “goes to the issues of both identity [of Hadgu] and corroboration of the testimony of [Owens].” Furthermore, the trial court gave a limiting instruction prior to the admission of the evidence and again as part of the final jury instructions, instructions that “lessened the probability of undue weight being given by the jury to the evidence.” See State v. Kennedy, 585 N.W.2d 385, 392 (Minn.1998). The court did not abuse its discretion in admitting the evidence found in Hadgu’s room at the time of his arrest.

3.

Hadgu also contends that the evidence was insufficient for the jury to find him guilty of fifth-degree controlled substance crime. In considering this claim, our review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the fact finder to reach its verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). We must assume the jury believed the states witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn.1989). The verdict must be affirmed if the fact-finder, acting with respect for the principles of presumed innocence and proof beyond a reasonable doubt, could have reasonably found as it did. State v. Alton, 432 N.W.2d 754, 756 (Minn.1988).

The evidence, viewed in the light most favorable to the conviction, is sufficient to allow the jury to convict. Owens testified that Hadgu weighed out marijuana on a small hand-held scale and Owens gave him $130 in exchange for the marijuana. “It is well established that a conviction can rest upon the testimony of a single credible witness.” State v. Bliss, 457 N.W.2d 385, 390 (Minn.1990); see also State v. Hill, 285 Minn. 518, 518, 172 N.W.2d 406, 407 (1969) (“[A] conviction can rest on the uncorroborated testimony of a single credible witness.”). Although Had-gu contends that Owens’ reliability is questionable, that credibility was attacked on cross-examination, and it is the “exclusive function of the jury” to judge the credibility of witnesses. Dale v. State, 535 N.W.2d 619, 623 (Minn.1995). The jury convicted Hadgu despite attacks on Owens’ credibility, and this court must assume the jury believed Owens. Moore, 438 N.W.2d at 108.

Hadgu also contends the police failed to use available means to verify and corroborate Owens’ testimony. But there is no requirement that the state corroborate Owens’ testimony because he was not an accomplice to Hadgu. See State v. Swyningan, 304 Minn. 552, 556, 229 N.W.2d 29, 32 (1975) (holding that a person who obtains drugs from a seller is not an accomplice of the seller). There is merit in Hadgu’s contention that this record should be closely scrutinized, and it is significant that the evidence found in his room at the time of his arrest corroborates the testimony that Hadgu is the person who sold Owens the marijuana, that the controlled buy took place in Hadgu’s room, and that Hadgu weighed the marijuana on a small hand-held scale before selling it. Our survey of the record shows the evidence is sufficient to bring the matter within the prerogative of the jury to determine Hadgu’s guilt beyond a reasonable doubt. Because the evidence, viewed in the light most favorable to the conviction, is sufficient to allow the jury to reach its decision, we affirm.

DECISION

The trial court did not err in granting Hadgu credit for the time he spent in INS custody because Hadgu’s INS custody time was time served “in connection with” his Minnesota offense. We affirm on issues raised by Hadgu because the trial court did not abuse its discretion in admitting the -evidence found in his room at the time of his arrest, and because the evidence is sufficient to permit the conviction.

Affirmed.

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


author: HUDSON, Judge.

text:
    STATE of Minnesota, Respondent, v. Chad Allen ROURKE, Appellant.
    No. A03-1254.
    Court of Appeals of Minnesota.
    June 15, 2004.

      Mike Hatch, Attorney General, St. Paul, MN and Charles C. Glasrud, Stevens County Attorney, Morris, MN, for respondent.
    John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by LANSING, Presiding Judge; WILLIS, Judge; and HUDSON, Judge.
   OPINION

HUDSON, Judge.

Appellant challenges the district court’s decision to depart upwardly from the 98-month presumptive guidelines sentence to a sentence of 128 months for his first-degree assault conviction. Because we conclude that there were substantial and compelling circumstances to justify the upward durational departure, we affirm.

FACTS

On January 28, 2003, Erica Boettcher picked up her boyfriend, appellant Chad Rourke, in her van, and Rourke forced Boettcher into the passenger seat and took over operating the vehicle. Boettcher had worked hard to make enough money to afford the van, and Rourke knew how proud she was of it. Rourke began driving recklessly while threatening to kill Boettcher and threatening that she would never see her children again. He sped through a stop sign at approximately 60 miles per hour in a 30-mile-per-hour speed zone and smashed into a pole. Boettcher shattered bones in her ankle, requiring placement of 17 screws and a metal plate in her leg. Her medical expenses exceeded $20,000.

Stevens County charged appellant with assault in the first degree, assault in the second degree, assault in the third degree, criminal damage to property in the first degree, domestic assault, reckless driving, and careless driving. Pursuant to the parties’ joint recommendation to the district court, appellant pleaded guilty to the charge of assault in the first degree and agreed to a sentence of 128 months in prison, an upward departure from the presumptive 98-month sentence. In exchange, the district court dismissed the lesser charges and the state waived its right to seek a sentencing departure greater than the 128-month sentence. At the plea hearing, appellant admitted that he drove Boettcher’s vehicle in a reckless manner and that he did so with the intent of scaring and intimidating Boettcher. Appellant admitted that the collision caused Boettcher great bodily harm.

The pre-sentence investigation report identifies a five-year pattern of ongoing, escalating, violence by appellant toward Boettcher. Boettcher told the investigator that appellant started physically abusing her in 1999. At that time, appellant began controlling whom she associated with; if appellant did not like whom Boettcher was spending time with he would become phys-ieally violent. Boettcher stated that when she would try to leave their home, appellant would bite her nose and tell her “if you’re going to leave me, you aren’t going to be pretty any more.” Appellant would kick Boettcher in the stomach and the ribs and would not stop even at the point when she looked “lifeless.” . The violence and control escalated to the point where appellant would not allow Boettcher to see other people, and appellant threatened that he would kill Boettcher if she reported the violence. In connection with the pre-sen-tence investigation, appellant even described himself as a “control freak,” noting that if Boettcher was someplace he did not want her to be, he would physically pick her up and move her. Appellant admitted that he would often threaten and yell at Boettcher and that he had previously violated a domestic abuse order for protection.

Starting in September 2002, when appellant was released from jail, until the date of the incident in this case, appellant’s violence toward Boettcher became even worse. In September, appellant kicked his son and dragged him across the room by his arm. Appellant then began kicking Boettcher, who was pregnant, in the stomach and stated, “I hope the baby dies.” Boettcher explained that at times she would wake up in the middle of the night and have appellant’s hands around her throat choking her because her shoes were wet, and he thought she might have gone out. Boettcher described instances when, after appellant choked her, her throat would swell and she could barely talk. Boettcher stated that appellant’s violence affected her children because they observed the violence and at times watched appellant kick or break their toys. And in fact, when Boettcher returned from the hospital with a cast on her foot following this incident, her children made comments like “Daddy’s naughty.”

Boettcher acknowledged that for a long time she had “covered up” for appellant, paying his fines, asking the prosecutors to “go easy” on him, and lying for him. Boettcher stated that appellant had previously received treatment for domestic violence, but the classes only taught him how to be more manipulative. Before the assault in this case, Boettcher was planning to move to a domestic-violence shelter because she did not feel she could safely otherwise leave appellant.

Based on this evidence, the court sentenced appellant to 128 months, an upward durational departure from the 98-month presumptive guidelines sentence. This appeal follows.

ISSUE

Were there substantial and compelling circumstances to justify an upward dura-tional departure from the presumptive guidelines sentence?

ANALYSIS

The district court must order the presumptive sentence unless there are “substantial and compelling circumstances” that warrant departure. State v. Kindem, 313 N.W.2d 6, 7 (Minn.1981). The nonexclusive list of aggravating factors is “intended to describe specific situations involving a small number of cases.” Minn. Sent. Guidelines cmt. II.D.201. Thus, the trial court must decide whether a defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question. State v. Anderson, 463 N.W.2d 551, 553 (Minn.App.1990), review denied (Minn. Jan. 14, 1991). But absent an abuse of discretion, this court will not overturn a departure from a presumptive sentence. State v. Spain, 590 N.W.2d 85, 88 (Minn.1999).

Here, in support of its decision to depart upwardly from the presumptive guidelines sentence, the district court cited four aggravating factors: (1) appellant’s two prior gross-misdemeanor convictions involving the same victim; (2) appellant’s abuse of his position of power and control over the victim; (3) the particular cruelty of the offense; and (4) the plea agreement. Appellant argues that these factors, singly or collectively, do not provide an adequate basis for an upward durational departure.

Plea agreement

The plea agreement in this case included the parties’ joint recommendation for a 128-month sentence, an upward du-rational departure from the 98-month guidelines sentence. But appellant argues that a plea agreement cannot form the sole basis for a sentencing departure. We agree.

In State v. Givens, 544 N.W.2d 774 (Minn.1996), the supreme court held that a defendant could waive sentencing under the guidelines. But one year after this decision, the Minnesota Legislature amended Minn.Stat. § 244.09, subd. 5 (2002), to state:, “Sentencing pursuant to the sentencing guidelines is not a right that accrues to a person convicted of a felony; it is a procedure based on state public policy to maintain uniformity, proportionality, rationality, and predictability in sentencing.” Then, in State v. Misquadace, the supreme court acknowledged that the amended language in Minn.Stat. § 244.09 limited its holding in Givens. 644 N.W.2d 65, 67 (Minn.2002). The court determined that plea agreements only exist in the framework of rationality, predictability, and consistency when the negotiated agreements departing from the sentencing guidelines are based on substantial and compelling circumstances. Id. at 71. Accordingly,' “when reviewing a plea agreement that includes a sentencing departure, the court.must determine whether the offense of conviction reflects any aggravating or mitigating circumstances that warrant a departure.” Id.

Thus, a sentencing court cannot depart from the presumptive sentence based solely on the plea agreement. But in this case, the sentencing court cited three other aggravating factors justifying its upward durational departure. Therefore, because there were other aggravating factors independently supporting the district court’s decision to depart upwardly, the district court did not abuse its discretion by citing the plea agreement.

Particular cruelty

Next, appellant argues that the district court abused its discretion by basing its upward departure on the particular cruelty of the offense. Appellant contends that, while his actions were “stupid,” they were not so different in kind or degree from a “typical” first-degree assault offense, and therefore did not constitute “particular cruelty.”

Treating the victim with particular cruelty is one of a nonexclusive list' of factors allowing the court to depart from the presumptive sentence. Minn. Sent. Guidelines II.D.2.b.(2). Threats and gratuitous infliction of pain qualify as “particular cruelty” within the sentencing guidelines. State v. Schantzen, 308 N.W.2d 484, 487 (Minn.1981); see, e.g., State v. Cermak, 344 N.W.2d 833, 840 (Minn.1984) (holding that offender acts with particular cruelty when he threatens to break every bone in victim’s body if -victim reports sexual abuse); State v. Lamar, 474 N.W.2d 1, 3 (Minn.App.1991) (affirming upward dura-tional departure in sentence where offender made death threat after rape), review denied (Minn. Sept. 13, 1991); State v. Hines, 343 N.W.2d 869, 872-73 (Minn.App.1984) (threats of death and the cutting off victim’s finger were particularly cruel); State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981) (concluding that psychological terror is an aggravating factor supporting upward departure).

Here, appellant drove Boettcher’s van recklessly through town while verbally abusing Boettcher by threatening to kill her and telling her that she would never see her children again. At the plea hearing, appellant admitted that he did so with the intention of scaring and intimidating Boettcher. Appellant almost collided with another vehicle and accelerated to a high rate of speed before racing through a stop sign and slamming into a pole, severely injuring Boettcher.

We acknowledge that based on these facts, it is a close call whether appellant treated Boettcher with a level of cruelty beyond that typically associated with assault in the first degree. We are persuaded, however, that because appellant: (1) forced Boettcher into riding with him and terrorized her over an extended period of time; (2) severely injured her while using her van, which he knew she was very proud of and had worked hard to buy; and (3) threatened to kill Boettcher and keep her from her children, that the district court did not abuse its discretion by determining that the particular cruelty of the offense was an aggravating factor supporting an upward durational departure.

Prior convictions involving victim

Next, appellant contends that the district court abused its discretion by using his two prior gross-misdemeanor convictions as aggravating factors supporting an upward durational departure, because the sentencing guidelines only permit a departure when the victim is injured and there is a prior felony conviction. Respondent counters that because the list of aggravating factors is nonexclusive, the trial court properly used the prior gross misdemeanor convictions as grounds for an upward durational departure.

Minnesota Sentencing Guidelines II. D.2.b.(3) states that if the defendant’s conviction is of an offense in which the victim was injured, and there is a prior felony conviction for an offense in which the same victim was injured, the prior conviction is an aggravating factor supporting departure.

Here, appellant has two prior gross-misdemeanor convictions for assault in the fifth degree in 1999 and 2000; in both cases Boettcher was the victim. But the sentencing guidelines specifically state that a prior felony conviction is an aggravating factor that supports departure; the state has cited no case law to support its position that the sentencing court may use non-felony convictions as an aggravating factor.

The state also argues that the district court did not abuse its discretion by using the prior convictions as an aggravating factor because the intent of this factor is to punish individuals for committing repeated crimes against persons. State v. Larson, 379 N.W.2d 165, 167 (Minn.App.1985). “This is so because repeáted crimes against persons pose a greater threat to society than repeated property crimes.” Id. Therefore, the state contends that while appellant’s prior convictions were gross misdemeanors, they were crimes against a person, and indicate that he poses a greater threat to society.

But, again, the sentencing guidelines clearly state that this factor applies when there are prior felony convictions. We have no authority to add language to the sentencing guidelines, thereby supplying what the' sentencing guidelines commission purposely omitted or inadvertently overlooked. State v. Jones, 587 N.W.2d 854, 856 (Minn.App.1999) (prohibiting this court from imposing a limitation on sentencing that was not clearly intended by the sentencing guidelines commission), review denied (Minn. Mar. 16, 1999). Moreover, allowing courts to use prior misdemeanor convictions would significantly increase the number of cases in which this factor could be used as grounds for upward departure. Thus, we conclude that the district court abused its discretion by using appellant’s two prior gross-misdemeanor convictions as an aggravating factor to support the upward durational departure.

Abuse of a position of power

Finally, appellant argues the district court abused its discretion in departing from the presumptive guidelines sentence because appellant “utilized [his] position of power and control over the victim based upon [his] prior abusive conduct.”

Abuse of positions of trust and authority are aggravating factors justifying a dura-tional departure. See State v. Campbell, 367 N.W.2d 454, 460-61 (Minn.1985); Cermak, 344 N.W.2d at 839. Appellant contends, however, that generally, the cases that have used the defendant’s position of power as an aggravating factor involve victims who are children and defendants who are adult authority figures. See, e.g., State v. Carpenter, 459 N.W.2d 121 (Minn.1990) (church youth-group sponsor convicted of statutory rape); State v. Olson, 436 N.W.2d 817 (Minn.App.1989) (live-in boyfriend victimized and -murdered his girlfriend’s young daughter), review denied (Minn. Apr. 26, 1989); State v. Ahern, 349 N.W.2d 838 (Minn.App.1984) (step-father sexually abused step-daughter).

Respondent argues, however, that this ease is similar to State v. Lee, 494 N.W.2d 475 (Minn.1992), in which the supreme court affirmed the district court’s use of the defendant’s position of power' as an aggravating factor when a Hmong community leader, who was also a teacher at a vocational school, raped two women in the Hmong community.

Although this particular aggravating factor has not routinely been applied to victims of domestic abuse, we have found no cases that limit the application of this factor to child victims. Furthermore, as respondent notes, there are many relationships fraught with power imbalances that may make it difficult for a victim to protect himself or herself — teacher-student, clergy-parishioner, employer-employee — to name a few. Here, given the long history of egregious domestic violence perpetrated by appellant against Boettcher, and specifically the power and control appellant achieved by years of terrorizing the victim, we are persuaded that the' district court did not abuse its- discretion by considering appellant’s position of authority as an aggravating factor supporting the upward departure.

Our holding is further supported by the fact that there are additional grounds in the record that justify an upward departure. The Minnesota Supreme Court has held that if the reasons given for departure are “improper or inadequate, but there is sufficient evidence in the record to justify the departure, the departure will be affirmed.” Williams v. State, 361 N.W.2d 840, 844 (Minn.1985).

Accordingly, we note that the vulnerability of the victim is an aggravating factor supporting a departure upward. Minn. Sent. Guidelines II.D.2.b.(1); see also State v. Wickstrom, 405 N.W.2d 1, 6-7 (Minn.App.1987), review denied (Minn. June 30, 1987). In State v. Elvin, 481 N.W.2d 571, 576 (Minn.App.1992), review denied (Minn. Apr. 29, 1992), we held that the defendant’s repeated attacks and intimidation against his live-in girlfriend supported the district court’s decision to depart upwardly based on the particular vulnerability of the victim. Here, because of the level of extreme and escalating ongoing violence, appellant’s threats to kill Boettcher, and his efforts to control and intimidate Boettcher, we conclude that Boettcher was in a position of particular vulnerability. Thus, while not identified by the district court, this.was also a sufficient aggravating factor supporting the district court’s upward departure.

We acknowledge and caution that not every case involving domestic violence will or should provide grounds for finding that the offender held and abused a position of power or authority over the victim. But on these egregious facts, we will not disturb the district court’s decision to impose an upward durational departure.

DECISION

The departure upward was not supported by appellant’s prior gross-misdemeanor convictions. But because there were other substantial and compelling circumstances to justify the upward durational departure, the district court did not abuse its discretion in sentencing appellant to 128 months in prison.

Affirmed.

      . Before this offense, appellant was convicted 'of assault in the fifth degree for assaulting Boettcher in 1999 and 2000.