text:
    STATE of Minnesota, Respondent, v. Victor Donnell FIELDS, Appellant.
    No. C0-03-163.
    Supreme Court of Minnesota.
    May 20, 2004.

      Sharon Elizabeth Jacks, Assistant State Public Defender, Minneapolis, MN, for Appellant.
    Mike A. Hatch, Minnesota Attorney General, Amy Jean Klobuehar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

ANDERSON, RUSSELL A., Justice.

Appellant Victor Donnell Fields was convicted and sentenced in Hennepin County District Court for the crimes of first-degree murder, in violation of Minn. Stat. § 609.185(a)(1) (2002), and attempted first-degree murder, in violation of Minn. Stat. §§ 609.185(a)(1) and 609.17, subd. 1 (2002), in connection with the death of LeTerrance Paige and injury to Keinon Love. On appeal, Fields claims that he was denied a fair trial by the admission of various hearsay statements, that the evidence was insufficient to support the convictions and that the calculation of the duration of his sentence was erroneous. We affirm as modified.

On December 6, 2001, at approximately 3:45 in the afternoon, a city bus was picking up passengers at the bus stop located at 63rd and Zane Avenue in Brooklyn Park. As the driver was about to close the doors and leave, a young man leaned in the front door and fired four shots from a semiautomatic pistol into the full bus, killing 22-year-old LeTerrance Paige and critically wounding 21-year-old Keinon Love. The shooter fled, firing four more rounds into the side of the bus, and ran toward the entrance of the Eden Park Apartments complex north of the bus stop.

Law enforcement officers responded within minutes, tending to the victims and securing the scene. Officers from Brooklyn Park, the Hennepin County Sheriffs Department, Metropolitan Transit Commission police, North Hennepin County Drug Task Force and Brooklyn Center collected evidence, including eight spent .45-caliber cartridge casings ejected from the same semiautomatic, and interviewed witnesses who described the shooter as wearing a black “puffy” down jacket, black winter cap and tan boots. Based on information that the shooter had run to apartment 205 in the building located at 6345 Zane in the Eden Park complex, four officers went to that apartment but found no one who matched the description of the shooter. Other officers formed teams to methodically canvass the entire Eden Park complex for witnesses. The following day, officers rode the same bus route looking for witnesses who may have been overlooked or who had not yet come forward.

During the investigation, the police learned that there had been an earlier incident involving Paige that might lead to information concerning the shooting. Shortly after Thanksgiving, about a week before the shooting, three men robbed 16-year-old Dennis Johnson in front of the convenience store near the same bus stop at 63rd and Zane. Johnson was at that location with Fields’ cousin, Edward, and when Edward ran, the three men grabbed Johnson. One of the men pistol-whipped Johnson and took his leather coat, house keys and some money. There was testimony that Fields was later overheard saying that he “had something” for the person who “did the robbery”.

Based on this lead, police interviewed Johnson, who stated that he was sitting on the bench at the bus stop on the day of the shooting when Edward approached and, referring to Paige who was near the entrance to the Eden Park complex, said “isn’t that the guy who stuck us up?” Johnson said he thought so. Edward walked back toward the store. There was evidence that Edward then “rented” a cell phone for 50 cents and placed a call to the phone number listed to Fields in apartment 205. Johnson told police that, as the bus pulled up, Paige and his girlfriend started walking to the front of the bus and they were followed by Fields, who stopped near the bench to ask Edward and Johnson “like, where he at?” According to Johnson’s statement, after Edward and Johnson motioned toward Paige, Fields walked to the bus, pulled out a semiautomatic gun and started shooting.

As part of the investigation, the police gathered surveillance videotapes from the Eden Park Apartments complex, a check cashing business at a strip mall immediately south of the bus stop and from the convenience store near the bus stop. The surveillance tapes from the day of the shooting showed Fields running toward the bus stop shortly after the cell phone call that Edward placed to Fields’ apartment. The tapes showed the bus arriving^ people running from the bus stop and then Fields running through the back door of the apartment building and up the stairway to his apartment. The tapes showed Fields wearing clothing that matched the description of the clothing worn by the shooter.

On December 13, 2001, Fields was charged by complaint for murder and assault, an arrest warrant issued and law enforcement attempted to locate him “absolutely everywhere and anywhere.” On January 19, 2002, Fields was apprehended in Chicago Heights, Illinois and was subsequently indicted by a grand jury for first- and second-degree murder in the death of Paige, and attempted first- and second-degree murder and first- and second-degree assault in the injury to Love.

While in jail awaiting trial, Fields’ telephone privileges were limited to access to his attorneys after he had made threatening calls to several of the state’s witnesses, including a threatening call to Dennis Johnson, to the mother of a 10-year-old witness and to a former Hennepin County jail inmate who overheard Fields talk about shooting someone in Brooklyn Park in retaliation for a pistol whipping. At trial, Fields elected not to testify on his own behalf, and instead elicited the testimony of. a witness to the shooting to cast doubt on evidence of identity. The jury found Fields guilty as charged. The district court entered judgments of conviction for the first-degree murder of Paige and the attempted first-degree murder of Love and imposed consecutive sentences. This appeal followed.

I.

Fields initially challenges the admission of the statements to police and the grand jury testimony of Johnson, who refused to testify at trial. Fields’ asserts that the evidence was inadmissible under the evidentiary rules and was also barred by the Confrontation Clause. At trial Fields had objected to the admission of both Johnson’s grand jury testimony and his earlier statements to the police, but he requested' that the police statements be admitted if the court admitted the grand jury testimony. Consequently, the focus of his appeal is on the grand jury testimony. Evidentiary rulings are committed to the district court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Litzau, 650 N.W.2d 177, 182 (Minn.2002) (citing State v. Bjork, 610 N.W.2d 632, 636 (Minn.2000)). Although appellate courts review the presence or absence of historical facts for clear error, the surrounding circumstances relevant to a Sixth Amendment determination are reviewed de novo. Lilly v. Virginia, 527 U.S. 116, 136-37, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999).

Evidentiary Rules

Dennis Johnson testified before the grand jury and repeated some of the information contained in his statements to police. At trial, he testified briefly but refused to continue, • stating that he feared reprisals. After hearing evidence that was highly suggestive of threats and intimidating overtures directed toward Johnson by Fields, the district court concluded that the grand jury testimony, which was clearly hearsay, was admissible under Minn. R. Evid. 804(b)(5).

Rule 804 sets out those situations in which hearsay statements can be used when the declarant’s in-court testimony is unavailable. The rule includes four traditional exceptions to the hearsay rule and then the so-called “catchall” exception that provides:

Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name, address, and present whereabouts of the declarant.

Minn. R. Evid. 804(b)(5). Here, there is no dispute that Johnson’s in-court testimony was unavailable.

To be admissible under Rule 804(b)(5), a statement must have “circumstantial guarantees of trustworthiness” equivalent to those inherent in the other four exceptions of Rule 804(b). Such guarantees of trustworthiness must “be drawn from the totality of circumstances that surround the making of the statement and that render the declarant particularly worthy of belief.” Idaho v. Wright, 497 U.S. 805, 820, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990); see 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 506 (2d ed.1994).

Here, in finding a strong indication of reliability in Johnson’s testimony, the district court considered that while Johnson was a reluctant witness, his testimony was ultimately voluntary; that there was no relationship to Fields that would make the testimony suspect; that Johnson was relating facts based on personal knowledge so there was no reliance on possible erroneous secondary information; that the testimony was consistent with prior police statements; and that the testimony was never recanted. We conclude that Johnson’s statements to the police and his grand jury testimony were admissible under Minn. R. Evid. 804(b)(5).

Confrontation Clause

This conclusion does not end our inquiry, however, because statements that are admissible under an exception to the hearsay rule are nonetheless inadmissible under the Confrontation Clause unless the prosecution either produces the declar-ant for cross-examination or demonstrates both that the declarant is unavailable and that the statement bears adequate indicia of reliability. Wright, 497 U.S. at 814, 110 S.Ct. 3139. For testimonial statements, however, the only indicium of reliability is a prior opportunity for cross-examination. Crawford, v. Washington, — U.S. -, —, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004) (overruling Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)). The term testimonial applies to prior testimony before a grand jury. Crawford, — U.S. at -, 124 S.Ct. at 1374. Here, neither Johnson’s statements nor his grand jury testimony were subject to cross-examination.

Nevertheless, if a witness is unavailable because of the defendant’s own wrongful procurement, “he is in no condition to assert that his constitutional rights have been violated.” Reynolds v. United States, 98 U.S. 145, 158, 25 L.Ed. 244 (1878); see State v. Black, 291 N.W.2d 208, 214 (Minn.1980) (defendant forfeited his confrontation rights by intimidating the witness into silence). Crawford recognized that the rule of forfeiture is still valid. Crawford, — U.S. at -, 124 S.Ct. at 1370 (“[T]he rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability.”).

Here, the district court found that Fields forfeited his constitutional right to cross-examination. We have carefully and independently reviewed the record and are satisfied that, based on the evidence adduced at trial, the district court’s findings that Fields engaged in wrongful conduct, that he intended to procure the unavailability of Johnson and that the intentional wrongful conduct actually did procure the unavailability of Johnson, were not clearly erroneous. Accordingly, we hold that the admission of Johnson’s statements to the police and his grand jury testimony was not an abuse of discretion, nor did it violate the Sixth Amendment.

II.

Fields also challenges the admission of hearsay statements that a witness to the shooting, Galvin Coleman, made to his sister, and the contents of anonymous tips to the police. Coleman was at the bus stop at 63rd and Zane at the time of the shooting. At Fields’ trial, he testified that he saw Fields doing “a little speed walk” to the front of the bus, heard a gun go off and ran so fast he missed the entrance to the Eden Park Apartments complex. When he turned around to go back, he saw Fields trying to put a gun in his jacket as he ran. On cross-examination, defense counsel asked Coleman a series of questions aimed at suggesting that he was involved in the shooting. Later, Coleman’s sister was called as a witness by the state and, over objection, she testified that shortly after the shooting, Coleman told her that Fields “had came and shot a dude.”

Testimony that consists of a prior consistent statement of a witness is admissible if it may be helpful to the trier of fact in evaluating the witness’ credibility. State v. Nunn, 561 N.W.2d 902, 909 (Minn.1997). Before the statement can be admitted, however, the witness’ credibility must have been challenged and the statement “must bolster the witness’ credibility with respect to that aspect of the witness’ credibility that was challenged.” Id. Since Fields challenged the credibility of Coleman’s testimony, there was no abuse of discretion in the admission of the prior consistent statement.

Fields also asserts error in the admission of the substance of information relayed to the police during the initial stages of the investigation. Sgt. Eric Nelson, Brooklyn Park police, testified that within an hour and a half to two hours of arriving on the scene, he went to “6845 Zane, Apartment 205 [Fields’ apartment].” When asked “why,” the officer testified that “MTC police came in and advised that people were saying that the shooter had run to that apartment.”

A police officer testifying in a criminal case generally may not, under the guise of explaining how an investigation focused on the defendant, relate hearsay statements of others. State v. Cermak, 365 N.W.2d 243, 247 (Minn.1985). But no objection was interposed at trial, presumably because the response gave credence to Fields’ theory of the case that the police immediately and prematurely focused on him as the sole suspect. Accordingly, review of this issue is deemed to have been forfeited. State v. Litzau, 650 N.W.2d 177, 181 (Minn.2002) (“[W]here a defendant fails to object to a particular error at trial, the defendant is deemed to have forfeited his right to have the alleged error reviewed on appeal[.]”).

III.

Fields argues pro se that the evidence was insufficient to support the jury’s verdict. Specifically, he asserts that the evidence was insufficient as to (1) his identity as the shooter; (2) premeditation; and (3) intent. Our review of the sufficiency of the evidence is “limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn.1989).

An individual is guilty of first-degree murder if he “causes the death of a human being with premeditation and with intent to effect the death of the person or of another.” Minn.Stat. § 609.185(1) (2002). Premeditation means “to consider, plan or prepare for, or determine to commit, the act referred to prior to its commission.” Minn.Stat. § 609.18 (2002). Premeditation “does not require proof of extensive planning or preparation to kill, nor does it require any specific period of time for deliberation.” State v. Cooper, 561 N.W.2d 175, 180 (Minn.1997). But premeditation does require proof that after the defendant formed the intent and before the commission of the act, some appreciable amount of time elapsed during which the defendant considered, planned, or prepared for his or her actions. State v. Moore, 481 N.W.2d 355, 361 (Minn.1992). Intent “means that the actor either has a purpose to do the thing or cause the result specified or believes that the act, if successful, will cause that result.” Minn. Stat. § 609.02, subd. 9(4) (2002). Intent to cause death “may be inferred from the manner of shooting.” State v. Boitnott, 443 N.W.2d 527, 531 (Minn.1989) (citing State v. Harris, 405 N.W.2d 224, 229 (Minn.1987)).

Here there was ample evidence of Fields’ identity as the shooter, including eyewitness accounts of the shooting and consistent descriptions of the shooter; identifications from photographic lineups; telephone records; jailhouse admissions and surveillance videotapes. As for premeditation and intent, the evidence showed that Fields carried a semiautomatic pistol from his apartment to the bus stop, confirmed the identity of the person who allegedly had attempted to rob his cousin, leaned into a city bus full of people and opened fire, striking the alleged robber and a nearby passenger; and as he fled, Fields fired more rounds into the side of the bus in the direction of the alleged robber. Viewed in a light most favorable to the verdict, we hold that the evidence clearly supports the jury’s finding of guilt.

IV.

Finally, Fields challenges the denial of jail credit and calculation of the duration of his sentence for attempted first-degree murder. At the time of the current offenses, Fields was on probation with a stayed 84-month sentence for burglary that initially was part of an Extended Jurisdiction Juvenile (EJJ) disposition. After revoking probation and executing the 84-month burglary sentence, the court imposed permissive consecutive sentences for the current sentences. The court denied credit for the 571 days Fields spent at the Glen Mills treatment facility in Pennsylvania.

Fairness and equity require that jail credit be granted where a residential-treatment facility is the functional equivalent of a jail, workhouse, or regional correctional facility. Asfaha v. State, 665 N.W.2d 523, 527-28 (Minn.2003). In denying 571 days of confinement credit, the district court explained that it was “familiar with” the Glen Mills program, which “is an excellent program, but it is a structured residential treatment program and is not incarceration.” We agree with the district court. Accordingly, we hold that the denial of credit for time spent at Glen Mills was not clearly erroneous.

With regard to the attempted first-degree murder sentence, the district court imposed a 240-month prison term, an upward durational departure of 40 months based on a 200-month presumptive term. Fields argues, and the state concedes, that when calculated correctly, the presumptive sentence is 180 months. We conclude, as the sentencing court did, that this case presents substantial and compelling reasons for an upward departure of 40 months from the presumptive sentence of 180 months, and we therefore modify Fields’ consecutive sentence for attempted first-degree murder to 220 months. See State v. Mitjans, 408 N.W.2d 824, 834 (Minn.1987) (45-month departure from the presumptive sentence justified where defendant discharged a long-barreled .38-caliber revolver in a public bar).

Affirmed as modified.

      . The Sixth Amendment provides that in all criminal prosecutions, the accused “shall enjoy the right * * ⅜ to be confronted with the witnesses against him * * U.S. Const. amend. VI. Evidence admitted at trial must meet the requirements of the Confrontation Clause. State v. Aubid, 591 N.W.2d 472, 478 (Minn.1999).

      . The Federal Rules of Evidence provide that when a declarant is unavailable as a witness, "[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness” is not excluded by the hearsay rule. Fed.R.Evid. 804(b)(6). This rule, which became effective December 1, 1997, has "roots in cases holding that wrongful conduct making a declarant unavailable forfeits both constitutional protections ⅜ * * and hearsay objections themselves, which means that conduct satisfying FRE 804(b)(6) probably amounts as well to a forfeiture of an objection based on the right of confrontation.” 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 507.1, (2d ed. Supp.2003) (emphasis in original). The Minnesota Rules of Evidence, however, do not include a rule for statements by declarants who are unavailable because of wrongful procurement.

      . Rule 801(d)(1)(B) provides:
      A statement is not hearsay if—
      (1) The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is * * * (B) consistent with the declar-ant's testimony and helpful to the trier of fact in evaluating the declarant's credibility as a witness [.]
      Minn. R. Evid. 801(d)(1)(B).


source: Caselaw Access Project

author: MINGE, Judge.

license: Public Domain

text:
    Randall M. EGAN, Appellant, v. HAMLINE UNITED METHODIST CHURCH, Respondent, Kim S. Gruetzmacher, Defendant.
    No. A03-675.
    Court of Appeals of Minnesota.
    April 13, 2004.

      D. Clay Taylor, D. Clay Taylor, P.A., Minneapolis, MN, for appellant.
    William M. Hart, Leatha G. Wolter, Melissa Dosick Riethof, Meagher <& Geer, P.L.L.P., Minneapolis, MN, for respondent.
    Considered and decided by SHUMAKER, Presiding Judge; KLAPHAKE, Judge; and MINGE, Judge.
   OPINION

MINGE, Judge.

Appellant, music director for respondent church, challenges the dismissal of his claims against the church as his employer for violations of the Minnesota Human Rights Act based on sexual orientation. Because we determine that the Minnesota Human Rights Act exempts religious staff of religious organizations from its protections against adverse employment action based on sexual orientation and because respondent has not clearly and unequivocally waived the exemption, we affirm.

FACTS

Appellant Randall Egan served as music director for respondent Hamline United Methodist Church (Hamline Methodist) beginning in 1994. Egan was responsible for managing and rehearsing Hamline Methodist’s choir, selecting and preparing music for regular Sunday services and other special services, playing the organ, and supervising other church music groups, such as the children’s choir and the hand bell choir. Egan’s sexual orientation is bisexual.

In 1999, Hamline Methodist committed itself to be a reconciling congregation. A reconciling congregation is one that openly welcomes gay, lesbian, and bisexual parishioners into its membership. The process of formally adopting this policy at Hamline Methodist began in 1992 and was protracted and contentious.

On the evening of May 16, 2000, Egan observed respondent Kim Gruetzmacher and the church’s hand bell choir director, Marilyn Wahlstrom, engaged in a conversation in the church parking lot. Gruetz-macher is a member of Hamline Methodist and of its hand bell choir. Egan approached the two because he simply wished to be sociable. Unbeknownst to Egan, Gruetzmacher and Wahlstrom were discussing the church’s decision to identify itself as a reconciling congregation. After listening to Gruetzmacher express disagreement with the reconciliation policy and strong disapproval of homosexuals, Egan commented that he had not been aware that Gruetzmacher “was so homophobic.”

The following day, Gruetzmacher sent a letter to Hamline Methodist’s pastor expressing his disapproval of the congregation’s reconciling policy decision and demanding an apology from Egan for referring to him as “homophobic.” Egan was advised of the Gruetzmacher letter and ultimately told that unless he sent an acceptable letter of apology, he would be discharged. Egan responded that he could not in good conscience apologize for voicing support of Hamline Methodist’s reconciling policy. Egan was then discharged.

On June 22, 2001, Egan filed a charge of discrimination with the Minnesota Department of Human Rights (MDHR), alleging discrimination and retaliation by Hamline Methodist on the basis of sexual orientation under the Minnesota Human Rights Act (MHRA). The MDHR dismissed Egan’s claim, finding no probable cause to charge Hamline Methodist.

Egan then commenced this action alleging that Hamline Methodist’s demand that he write a letter of apology and his subsequent discharge constituted discrimination and retaliation on the basis of his sexual orientation in violation of the MHRA. Hamline Methodist moved to dismiss Egan’s claims on the ground that, as a church, it is not subject to the Act and that therefore the district court lacked subject matter jurisdiction. The district court granted Hamline Methodist’s motion and this appeal followed.

ISSUES

1. Does the Minnesota Human Rights Act require that sexual orientation be a bona fide qualification of employment in order for religious organizations to claim exemption?

2. Does the Minnesota Human Rights Act protect appellant as a church music director from discrimination and retaliation on the basis of sexual orientation?

3. Did the respondent church waive the exemption provided for in the Minnesota Human Rights Act for religious organizations with respect to employment discrimination on the basis of sexual orientation?

ANALYSIS

This case presents statutory, jurisdictional, and constitutional questions. These are questions of law that we review de novo. Kolton v. County of Anoka, 645 N.W.2d 403, 407 (Minn.2002) (statutory interpretation); Odenthal v. Minn. Conference of Seventh-Day Adventists, 649 N.W.2d 426, 434 (Minn.2002) (subject matter jurisdiction). On appeal from the grant of a motion to dismiss under Minn. R. Civ. P. 12.02, this court accepts the factual allegations in the complaint as true, views them in the light most favorable to the appellant, and reviews the district court’s legal conclusions de novo. See Granville v. Minneapolis Pub. Sch., Special Sch. Dist. No. 1, 668 N.W.2d 227, 229-30 (Minn.App.2003).

Egan brought his claims against Ham-line Methodist alleging employment discrimination on the basis of sexual orientation in violation of Minn.Stat. § 363.03, subd. l(2)(b) (2002), and retaliation in violation of Minn.Stat. § 363.03, subd. 7(1) (2002). Although the MHRA generally prohibits discrimination on the basis of sexual orientation, there are two exceptions for religious associations. One provides:

Nothing in this chapter prohibits any religious association ... from:
(2) in matters relating to sexual orientation, taking any action with respect to ... employment.... This clause shall not apply to secular business activities [of the religious association] ... unrelated to the religious and educational purposes for which it is organized.

Minn.Stat. § 363A.26(2) (Supp.2003). Another provides that the anti-discrimination provisions of the MHRA do not apply to

a religious ... association ... with respect to qualifications based on religion or sexual orientation, when religion or sexual orientation shall be a bona fide occupational qualification for employment.

Minn.Stat. § 363A.20, subd. 2 (Supp. 2003). In dismissing Egan’s claims, the district court found that Hamline Methodist, as a church, was exempt under the MHRA from claims of discrimination and retaliation based on sexual orientation, that the limit on this exemption for secular employees did not apply to Egan as a music director, and that the differences between two provisions of the MHRA did not limit the exemption.

I.

The first issue is whether the exemption for churches in Minn.Stat. § 363A.20, subd. 2, conflicts with and limits the exemption in Minn.Stat. § 363A.26(2). Egan notes that Minn.Stat. § 363A.20, subd. 2, only exempts situations where sexual orientation is a bona fide occupational qualification in the hiring context. He claims that this is a narrow or specific exemption. By contrast, he characterizes Minn.Stat. § 363A.26(2), which exempts religious employers from the prohibition against discrimination on the basis of sexual orientation, as a broad or general exemption. Egan claims that because the overriding purpose of the MHRA is to prohibit discrimination, the narrower exemption should be read as limiting the more broadly worded exemption. This interpretation would limit the exemption to situations where the complaining employee’s sexual orientation or religion had been a bona fide occupational qualification. Because sexual orientation is not often a clear occupational qualification, Egan’s reading of the law would substantially constrict the reach of the exemption in Minn.Stat. § 363A.26(2).

Egan has identified an apparent anomaly in the statutory exemptions for religious organizations in the MHRA. The two provisions are not congruent. Egan is correct in pointing out that when general statutory provisions conflict with specific provisions, the specific provisions prevail. See Minn. Stat. § 645.26, subd. 1 (2002). However, we do not agree that the bona fide occupational qualification is necessarily the more specific rule, or even if it is, that it should be transported into or prevail over Minn. Stat. § 363A.26(2). Minn. Stat § 363A.20, subd. 2, can be read as only applying to hiring situations. The legislature may craft a narrower exemption for hiring and a broader exemption for religious organizations when it comes to sexual orientation and employment more generally. As so read, there is not an irreconcilable statutory conflict between these provisions that would bar Hamline Methodist from claiming the exemption of Minn.Stat. § 363A.26(2). See Minn.Stat. § 645.16 (2002) (“Every law shall be construed, if possible, to give effect to all its provisions.”). We adopt this construction of the law and decline to limit the exemption in Minn.Stat. § 363A.26(2), as urged by Egan.

II.

The second issue is whether the district court erred in concluding as a matter of law that Egan, as a church employee, was exempt from MHRA protection. Egan argues that because the district court is required to accept each allegation in his complaint as true when resisting a motion to dismiss, and because the complaint alleges that the position of “music director” was secular, the district court erred. We agree with Egan that in a motion to dismiss, the district court must assume the facts as presented by the party opposing the dismissal effort. See Granville, 668 N.W.2d at 229-30. Thus, unless the facts as alleged in the complaint establish that the position of music director is religious, the district court is obliged to accept the secular characterization for the purposes of deciding the motion to dismiss.

The MHRA defines a secular activity as one “which is unrelated to the religious and educational purposes for which [the religious association] is organized.” Minn. Stat. § 363A.26(2). Minnesota has no caselaw that further defines who is a secular employee of a religious organization or that classifies a church music director as a religious, as opposed to a secular, position. But, “Title VII cases [under the federal Equal Employment Opportunity Act] are instructive and may be applied when interpreting the [MHRA].” Fahey v. Avnet, Inc., 525 N.W.2d 568, 572 (Minn.App.1994), review denied (Minn. Feb. 14, 1995).

Several decisions from other jurisdictions have addressed the problem of classifying church staff in the context of Title VII claims. Under the so-called “ministerial exception,” employment relationships between religious associations and their “ministerial staff’ are exempt from the requirements of Title VII. See Assemany v. Archdiocese of Detroit, 173 Mich.App. 752, 434 N.W.2d 233, 237 (1988). Whether an employee is covered by the ministerial exception or is secular depends upon “the function of the position.” Id. One need not be an actual ordained minister to fall within this exception. Starkman v. Evans, 198 F.3d 173, 176 (5th Cir.1999).

In Starkman, the Fifth Circuit denied a church music director’s claims of discrimination and retaliation, finding that the position fell within the Title VII ministerial exception. Id. at 177. That court developed a test that examined “the employment duties and requirements of the employee as well as her actual role at the church.” Id. at 175-76. Under the Stark-man test, the court first asks whether the employment decision was based largely on religious criteria. Id. at 176. Second, the court determines whether the employee was qualified and authorized to perform the ceremonies of the church. Id. Finally, the court asks whether the employee engaged in activities traditionally considered ecclesiastical or religious, including whether the plaintiff attends to the religious needs of the faithful. Id. The Fifth Circuit noted that the third factor is considered most important in its analysis. Id. In large part, these questions revolve around whether the employee’s duties consist of the propagation of religious faith or doctrine.

Using this analysis, other jurisdictions have found that the role of “music director” has a religious significance; it is not a secular role. See EEOC v. Roman Catholic Diocese, 213 F.3d 795, 802-03 (4th Cir.2000) (holding that a music director’s gender discrimination claim under Title VII was barred under the ministerial exception and noting “music is a vital means of expressing and celebrating those beliefs which a religious community holds most sacred.”); Starkman, 198 F.3d at 175-76 (determining that a music director’s claims fell within the ministerial exception because the plaintiffs employment duties and requirements, as well as plaintiffs actual role at the church, were traditionally ecclesiastical or religious); Miller v. Bay View United Methodist Church, Inc., 141 F.Supp.2d 1174, 1183 (E.D.Wis.2001) (holding that a church music director’s discrimination claims were barred by the ministerial exception because plaintiff “engaged in traditionally ecclesiastical or religious activities”).

Egan’s work at Hamline Methodist, as alleged by Egan himself, must be analyzed to determine whether his position as music director is secular. In his complaint, Egan describes his work for Hamline Methodist as including

building and maintaining choir membership; selecting and preparing music for Sunday services and other special services throughout the church year; rehearsing the choir; playing the organ for services, weddings, and funerals; arranging for visiting musicians to participate in church services and special events, supervising the directors of [Hamline Methodist’s] special musical groups (such as the children’s choir or the hand bell choir).

We acknowledge that the three-part Starkman test is not easily applied to this job description. It is not clear that the initial decision to hire a music director is based on religious criteria or that music directors are qualified to perform religious ceremonies. But we note that the federal Title VII test is more demanding than the Minnesota statutory test. The Minnesota law asks whether Egan’s work as a music director is “[]related to the religious and educational purposes for which [Hamline Methodist] is organized.” See Minn.Stat. § 363A.26(2). We recognize that music generally has a central and substantial role in expressing religious faith; it is often described as a “ministry of music.” Music addresses the religious needs of church members and plays an integral part of the worship program. Egan states that his responsibilities include “selecting and preparing” music for religious services. Clearly, Egan had to be familiar with the corpus of church music and theology to select the proper music for such services. In performing this task, he is expected to consider the time in the church year, the scripture readings, the sermon topic, the church’s basic faith principles, and other religious matters. That Title VII cases have considered music directors exempt from the protections of that act argues in favor of our concluding that a music director plays a religious role for MHRA purposes. Accepting the facts alleged in Egan’s complaint as true, we cannot say the district court erred in finding as a matter of law that Egan was a religious employee.

III.

The third issue is whether statements contained in Hamline Methodist’s Personnel Handbook and the United Methodist Church’s The Book of Discipline waived Hamline Methodist’s exemption from the MHRA. The Personnel Handbook, which sets forth Hamline Methodist’s employment policies, provides

Non-discrimination in Employment. It is the policy of the Church to afford equal employment opportunity to qualified individuals regardless of their race, color, national origin, age, sex, marital status, sexual orientation, handicap status or welfare status and to conform to applicable laws and regulations. This policy of equal opportunity takes into account all aspects of employment relationship, including hiring, promotion, retirement, termination, training and compensation.

The doctrinal principles of the United Methodist Church are set forth in The Book of Discipline, which states:

Human Rights Regardless of Sexual Orientation — -Certain basic human rights and civil liberties are due all persons. We are committed to supporting those rights and liberties for homosexual persons.

The question is whether these statements waive the statutory exemption of religious associations from the requirements of MHRA.

Although this is a case of first impression in Minnesota, the waiver issue, as it relates to Title VII, has arisen in other jurisdictions. In Hall v. Baptist Mem’l Health Care Corp., a plaintiff bringing a Title VII claim against a religious educational organization argued that the defendant waived its Title VII exemptions for such institutions because it represented itself as being an equal opportunity employer. 215 F.3d 618, 625 (6th Cir.2000). The Sixth Circuit held that Title VII “exemptions reflect a decision by Congress that religious organizations [are to be] free from government intervention. Once Congress stated that this title shall not apply to religiously-motivated employment decisions by religious organizations, neither party could expand the statute’s scope.” Id. (quotation and citation omitted). In Little v. Wuerl, the Third Circuit stated that the appellant’s waiver argument “incorrectly views the exemptions for religious [institutions] as a privilege or interest granted to those organizations. Instead, those exemptions reflect a decision by Congress that the government interest in eliminating religious discrimination by religious organizations is outweighed by the rights of those organizations to be free from government intervention.” 929 F.2d 944, 951 (3rd Cir.1991) (footnote omitted). See also Siegel v. Truett-McConnell Coll., Inc., 13 F.Supp.2d 1335, 1345 (N.D.Ga.1994) (holding that a religious college could not waive its exemption under Title VII).

Egan most heavily relies on Welter v. Seton Hall Univ., where the New Jersey Supreme Court held that the First Amendment did not bar the plaintiffs claims against a church-affiliated college for breach of contract where the employment contract did not raise questions of religious doctrine. 128 N.J. 279, 608 A.2d 206, 216 (1992). In that case, there was an express contract. Id. at 209. The New Jersey court noted that it could review the college’s employment manual to determine whether religious doctrine or policies precluded consideration of the employment dispute. Id. at 214. Although this raises the specter of entanglement, our case is different. Egan’s claims are based on the legislative policy as expressed in the MHRA and not solely on an allegation of breach of contract.

Egan points to other contexts in which Minnesota has permitted a waiver. See Holmquist v. State, 425 N.W.2d 230, 231 (Minn.1988) (addressing waiver of governmental immunity provided for in the State Tort Claims Act); Duluth Lumber & Plywood Co. v. Delta Dev., Inc., 281 N.W.2d 377, 383-84 (Minn.1979) (examining whether sovereign immunity was waived by the governing body of an Indian reservation by virtue of a “sue and be sued” clause contained in its housing ordinance); State ex rel. Shetsky v. Utecht, 228 Minn. 44, 50, 36 N.W.2d 126, 129 (1949) (holding that the voluntary absence of a criminal defendant from court proceedings amounted to a waiver of his statutory and constitutional rights to be present at the rendition of the verdict). We note that two of these settings involve an immunity doctrine that had created harsh, long criticized results. The third example is also not persuasive because waivers of constitutional rights in criminal proceedings are strictly scrutinized.

The question we face is whether we will follow the rule against waivers developed in federal Title VII cases. Egan asserts that the judicial reluctance to recognize waivers accords religious groups a privileged position and thus violates the Establishment Clause of the First Amendment to the United States Constitution. In reaching our decision, we note the reluctance of courts to become involved in the affairs of churches. [A] state action [challenged under the First Amendment] must have a secular purpose, must neither inhibit nor advance religion in its primary effect, and must not foster excessive governmental entanglement with religion. Odenthal, 649 N.W.2d at 435 (discussing Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971)). At issue in this case is the doctrine of avoiding excessive entanglements under which a state may not inquire into or review the internal decision making or governance of a religious institution. Id. at 435.

In balancing the establishment, free exercise, and entanglement concepts in a constitution analysis of freedom of religion, courts generally recognize that churches may decide for themselves matters of church government as well as those of faith and doctrine. Id. (quoting Presbyterian Church v. Hull Church, 393 U.S. 440, 448, 89 S.Ct. 601, 605, 21 L.Ed.2d 658 (1969)). Only if civil courts can resolve the issues by neutral application of law and by applying rules or standards without particular regard to religious institutions, is the entanglement problem avoided. Id. at 435. For example, in Black v. Snyder, we held that the district court could consider Black’s harassment claim against her church employer under the MHRA because the claim did not involve scrutiny of church doctrine or interfere in matters of an inherently ecclesiastical nature. 471 N.W.2d 715, 721 (Minn.App.1991), review denied (Minn. Aug. 29, 1991). But, at the same time, this court upheld the dismissal of Black’s retaliation claim because the claim was fundamentally connected to issues of church doctrine and governance and would require court review of the church’s motives for discharging Black. Id. at 720. This court has recently emphasized that [[alppointment and discharge] claims are fundamentally connected to issues of church doctrine and governance. J.M. v. Minn. Dist. Coimcil of Assemblies of God, 658 N.W.2d 589, 594 (Minn.App.2003) (citing Black, 471 N.W.2d at 720).

We conclude that the constitutional policy of avoiding entanglement controls in this case. As much as the MHRA represents a legislative decision to protect individuals from discrimination based on sexual orientation, it also recognizes that entanglement with religious employees of religious associations is a very delicate problem. Avoiding such a conflict does more to prevent an entanglement problem than it establishes any preferred position for religious organizations or creates an establishment problem. Thus, we conclude that the district court did not err in rejecting Egan’s claims that Ham-line Methodist waived its exemption from the MHRA.

However, we would not take the rule from the Title VII cases to its logical extreme. We do not hold that it is impossible for churches to waive their exemption from the MHRA. If the waiver is specific and unequivocal, and if the scope of that waiver is evident, then there is not a risk of entanglement. It ought to be recognized. It would be illogical and unjust to ignore such a waiver; however, a pronouncement by the religious organization that it will conform to the principle of nondiscrimination only indicates an intent to voluntarily embrace that principle. Without greater clarity, we would be compelled to conduct an examination and interpret statements of Hamline Methodist and the United Methodist Church on doctrinal policy as it relates to the alleged reasons for an employee’s discharge. This invites an unconstitutional entanglement of the church with the judicial and administrative branches of government. We conclude that there is not an effective waiver in this case.

In reaching our decision, we note that the debate over sexual orientation in religious bodies is highly contentious and the position of religious organizations on this subject may be revised from time-to-time. The legislature has decided to balance the prohibition against discrimination that deprives individuals of basic human dignity with a recognition of the importance of religious freedoms guaranteed in the First Amendment of the United States Constitution. The right to be free from discrimination and retaliation based on sexual orientation is provided by state statute. The legislature has authority to define the scope of the statutory protection. Embodied in the provisions of the MHRA is the legislature’s recognition that the government interest in eliminating such discrimination is outweighed by the rights of religious associations to be free from government intervention in matters of doctrine and governance and in matters related to the sexual orientation of religious staff. The decision of Hamline Methodist to invoke its statutory right to be exempt from the requirements of the MHRA may make its commitment to nondiscrimination appear hollow. But, when faced with such conflicts, it is for the religious organization, not the government, to resolve possible inconsistencies between Hamline Methodist’s policies in principle and its policies in practice. Absent a specific waiver, the legislature’s decision not to intrude upon this process does not violate the Establishment Clause of the First Amendment and should be respected.

DECISION

Because Minn.Stat. § 363A.20, subd. 2 and Minn.Stat. § 363A.26(2) of the MHRA are not in conflict, because Egan’s employment duties are related to the religious purposes for which Hamline Methodist is organized, and because the church’s statements of policy did not specifically waive its exemption from the Act, we affirm the district court’s dismissal of Egan’s claims.

Affirmed.

      . Egan also brought a claim against Gruetz-macher for tortious interference with his employment. Gruetzmacher sought to have this claim dismissed as having been initiated after the statute of limitations had run. The district court denied the motion to dismiss. Appellant's claim against Gruetzmacher is not at issue in this appeal.

      . Although the statute is substantively the same, the MHRA was renumbered subsequent to the commencement of this action. Minn. Stat. § 363.03, subd. l(2)(b) (2002) was renumbered as Minn.Stat. § 363A.08, subd. 2(b) (Supp.2003). Minn.Stat. § 363.03, subd. 7(1) (2002) was renumbered as Minn.Stat. § 363A.15(1) (Supp.2003). For ease of reference, we cite the current version of the statute.

      . Hamline Methodist does not concede that it discriminated against Egan on the basis of sexual orientation. Instead, for purposes of its motion, Hamline Methodist argues that even if it had discriminated on such a basis, Egan is barred from bringing suit under the MHRA. Thus, for the purposes of this appeal, we assume the facts alleged in Egan's complaints to be true and that the adverse acts by Hamline Methodist against Egan were solely based on his sexual orientation.


author: HALBROOKS, Judge.

text:
    STATE of Minnesota, Respondent, v. Noor Mohamed ALI, Appellant.
    No. A03-806.
    Court of Appeals of Minnesota.
    May 11, 2004.

      Mike Hatch, Attorney General, St. Paul, MN and Jay M. Heffern, Minneapolis City Attorney, Marcia A. Johnson, Assistant City Attorney, Minneapolis, MN, for respondent.
    Stephen V. Grigsby, Minneapolis, MN, for appellant.
    Considered and decided by PETERSON, Presiding Judge, LANSING, Judge, and HALBROOKS, Judge.
   OPINION

HALBROOKS, Judge.

Appellant challenges his conviction of speeding, arguing that the evidence is insufficient to support the conviction and the district court erroneously admitted the results of a laser-based speed-measuring device. Because we conclude that the laser evidence was properly admitted, and that the laser reading and the officer’s observations are sufficient to support appellant’s conviction, we affirm.

FACTS

On March 2, 2003, Officer Jerry Johnson of the Minneapolis Police Department was on duty near the intersection of Hennepin and Wilder in Minneapolis. The posted speed limit in the area is 30 mph. Officer Johnson noticed two vehicles approaching and observed that the vehicle in the center lane was overtaking the vehicle in the left lane. In order to verify his visual perception that the vehicles were speeding, Officer Johnson measured the speed of both vehicles with a Kustom Pro Laser III speed-measuring device. Officer Johnson determined that the vehicle in the left lane was traveling at 37 mph, while the vehicle in the center lane, driven by appellant Noor Mohamed Ali, was traveling 41 mph. Officer Johnson then stopped appellant and issued him a speeding ticket.

Officer Johnson was the only witness to testify at trial. In addition to explaining the events of March 2, Officer Johnson told the court that he has been employed in the traffic division of the Minneapolis Police Department for 17 years, where he routinely investigates accidents and enforces traffic laws. Officer Johnson is certified to use laser devices. In 1990, he received training in Arizona to become a laser instructor and received additional instructor’s training in 1994 through a laser manufacturer. Officer Johnson has been the laser instructor for the Minneapolis Police Department since 1990.

Officer Johnson testified that the laser unit he used on March 2 is tested annually to ensure that it meets the manufacturer’s specifications for output and detection and to make sure it can “clock” moving vehicles accurately. Laser testing is conducted by the police department’s radio shop; once a laser passes the tests, the department issues a Certificate of Testing and Accuracy in its ordinary course of business. The laser used by Officer Johnson on March 2 was certified in May 2002, which indicated that it had passed all the necessary tests, including the Scope Alignment Test, Display and Integrity Test, Fixed Distance Test, and the Delta Distance Velocity Test. Although appellant repeatedly objected to admission of this document on the bases of hearsay, lack of foundation, and unreliability, the court admitted the certificate into evidence.

Additionally, Officer Johnson testified how he routinely tests the laser devices on the same day that they will be used. Officer Johnson explained:

First thing I do is I turn the unit on. It goes through a series of internal checks, checking both the internal computer, which converts changes and distance to speeds, and collects all the lighting dial out segments to make sure [the laser is] lighting up correctly....
And then I, we have a course set up in our garage which we’ve measured out with steel engineering tapes with two different distances. We go through what’s called a Delta Distance Check, or Difference Test. Because the basic theory of separation for the laser is to determine speeds based on changes in distance over time, using the speed of light as a basis.
So we aim it at the first measurement, get that measurement, make sure it measures it what the steel tape measures it out. Second measurement, and make sure it gets the same measurement it was supposed to, and then we push a button, puts it in the mode which will determine the difference between those two and simulate a speed based on the doubling of that distance. If it passes that test, [we] use the [S]eope [Alignment [T]est to make sure there’s actually a red dot in the scope that you look through. It projects the dot on the vehicle, just like a rifle scope, and make sure the red dot is aligned properly with the laser beam that comes out. And one additional test that’s not even required but [we] do it as a part of course, the Zero Velocity Test. Aim it at a known point in regular speed mode and make sure it gets that distance, giving you a speed, to know it’s not going to detect or simulate movement on something that’s not moving.

Officer Johnson later explained the Scope Alignment Test in more detail, stating:

I ... put it in the range mode which gives, instead of pulsed light energy, it gives it steady light energy. And then I aim it at a narrow pipe about ... two inches in diameter at the end of the garage. And when it pass[es] over that pipe, you’ll hear a change in tone if the laser beam is striking the pipe at the exact same time as your dot moves over it. I do that both horizontally and vertically for wind and elevation and make sure it’s on the exact spot where it’s supposed to be.

Officer Johnson stated that it is the department’s practice for officers to record the results of these tests at both the beginning and end of the officer’s shift. The log sheet for March 2 was admitted into evidence over appellant’s hearsay objection. The log indicates that the laser was tested and was working properly at both the beginning and the end of Officer Johnson’s shift.

Finally, Officer Johnson testified that he received training in 1978 on how to visually estimate the speed of a moving vehicle. He can accurately estimate the speed of a vehicle traveling at 30 mph, 50 mph, and 65 mph, within five mph. The laser’s indication of 41 mph was consistent with Johnson’s visual observation of the speed of appellant’s vehicle. Officer Johnson also testified that he measured the speeds of numerous other vehicles on March 2, and the laser was consistent with his visual observations of the speed of those vehicles. Officer Johnson explained that

[t]he laser merely is used as a tool to verify my visual impressions and give me an actual number to put on paper here. I mean, as a driver, as a police traffic officer for a number of years, certainly a skill I’ve learned is to look at vehicles and determine which ones appear to be speeding.

After considering the testimony and the arguments of both parties, the district court found appellant guilty of speeding and imposed a fine. The court stated on the record:

I find that Officer Johnson’s testimony is credible with respect to the fact that he’s trained in determining speeds visually, that he observed [appellant] to be driving the vehicle which he believed to be driven in excess of the speed limit somewhere around 41 miles per hour, that he then used the laser [which] ... indicated it was 41 miles per hour. I also take note that, of course, the speed limit was 30 miles per hour. If this was a case in which Officer Johnson was here saying it was 31 miles per hour that [appellant] was going, maybe the arguments would be more persuasive; however, on the fact 11 miles per hour gap there, I find Officer Johnson’s testimony credible.

This appeal follows.

ISSUES

1. Did the district court abuse its discretion by taking judicial notice of the reliability of evidence from a laser-based speed-measuring device?
2. Does Minn.Stat. § 169.14, subd. 10(a), (b) (2002), violate the separation-of-powers doctrine?
3. Did the district court abuse its discretion by admitting the laser reading establishing appellant’s speed on March 2, 2003?
4. Did the district court abuse its discretion by admitting the Certificate of Testing and Accuracy?
5. Is Officer Johnson’s visual estimate of appellant’s speed sufficient to support the conviction?

ANALYSIS

Appellant contends that the evidence is insufficient to support his conviction for speeding on the grounds that (1) the laser-device evidence was erroneously admitted and (2) Officer Johnson’s visual observations alone cannot support the verdict. In considering a claim of insufficient evidence, this court reviews the record to determine whether the evidence, when viewed in the light most favorable to the conviction,- is sufficient to allow the court to reach the verdict that it did. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). We will not disturb the verdict if the district court, acting, with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn.1988).

When reviewing a district court’s evi-dentiary rulings, this court looks “at the record as a whole to determine whether, in light of the evidence therein, the district court acted arbitrarily, capriciously, or contrary to legal usage.” State v. Profit, 591 N.W.2d 451, 464 n. 3 (Minn.1999) (quotation omitted). Evidentiary rulings rest within the sound discretion of the district court, and will not be reversed absent an abuse of that discretion. State v. Smith, 669 N.W.2d 19, 26 (Minn.2003).

1. Judicial notice of the reliability of laser technology.

Appellant argues that “[t]he admission of the laser device without sufficient evidence of its reliability by a qualified expert amounts to a judicial noticing of the device’s reliability,” in violation of Minn. R. Evid. 201. While we do not agree that the court took judicial notice of the laser’s reliability in this case, even if it had, there would be no abuse of discretion. In State v. Gerdes, 291 Minn. 353, 191 N.W.2d 428 (1971), the Minnesota Supreme Court held that district courts could take judicial notice of the reliability of radar. Id. at 354,

We are in accord with the authorities which accept the reliability of radar speedometers where there is evidence they were operated by trained personnel who have adequately tested the accuracy of the particular device by which the defendant’s speed was determined. Consequently, we hold that it was proper for the trial court to take judicial notice of the reliability of radar as a means of establishing speed without requiring the operated to be qualified as an expert in the field.

Id. at 356, 191 N.W.2d at 430-31. This court has cited the Gerdes holding on several occasions. See, e.g., State, City of St. Louis Park v. Bogren, 410 N.W.2d 383, 385 (Minn.App.1987) (stating that “[r]adar is accepted as a reliable measure of speed when there is evidence of proper testing and operation by trained personnel”); State v. Dow, 352 N.W.2d 125, 126-27 (Minn.App.1984) (stating that “[rjadar speedometer results are reliable if the unit is properly tested and operated”). By analogy, so long as there is adequate evidence that a laser-based speed-measuring device used to support a conviction has been tested for accuracy and that officers using the device have been trained in its use, a district court does not abuse its discretion by taking judicial notice of the device’s general reliability of laser technology-

2. Constitutionality of Minn.Stat. § 169.14, subd. 10 (2002).

Minn.Stat. § 169.14, subd. 10(a), (b), sets forth the requirements for admitting evidence from a radar or other “speed-measuring device” to show that a defendant was speeding. The statute provides:

(a) In any prosecution in which the rate of speed of a motor vehicle is relevant, evidence of the speed as indicated on radar or other speed-measuring device is admissible in evidence, subject to the following conditions:
(1) the officer operating the device has sufficient training to properly operate the equipment;
(2) the officer testifies as to the manner in which the device was set up and operated;
(3) the device was operated with minimal distortion or interference from outside sources; and
(4) the device was tested by an accurate and reliable external mechanism, method, or system at the time it was set up.
(b) Records of tests made of such devices and kept in the regular course of operations of any law enforcement agency are admissible in evidence without further foundation as to the results of the tests. The records shall be available to a defendant upon demand. Nothing in this subdivision shall be construed to preclude or interfere with cross examination or impeachment of evidence of the rate of speed as indicated on the radar or speed-measuring device.

Minn.Stat. § 169.14, subd. 10(a), (b).

Appellant contends that Minn.Stat. § 169.14 (2002) is unconstitutional, asserting that it violates the separation-of-powers doctrine because the legislature has removed the judiciary’s power to regulate evidentiary matters. A statute is presumed to be constitutional, and a court’s power to declare a statute unconstitutional is exercised “with extreme caution and only when absolutely necessary.” State v. Machholz, 574 N.W.2d 415, 419 (Minn.1998) (quotation omitted).

While the power to establish rules of evidence lies within the inherent authority of the judiciary, State v. Willis, 332 N.W.2d 180, 184 (Minn.1983), courts have nevertheless enforced “reasonable statutory rules of evidence as a matter of comity where the rules were not in conflict with the Minnesota Rules of Evidence.” State v. Larson, 453 N.W.2d 42, 46 n. 3 (Minn.1990). Therefore, the statute may set guidelines for the admissibility of evidence from a speed-measuring device without violating the separation-of-powers doctrine so long as it does not conflict with the rules of evidence. See State v. McCoy, 668 N.W.2d 425, 427 (Minn.App.2003), revieio granted (Minn. Nov. 18, 2003).

Here, two rules of evidence are analogous: Minn. R. Evid. 402 (“relevant evidence is [generally] admissible”) and Minn. R. Evid. 803(6) (“data compilation ... if kept in the course of a regularly conducted business activity [is admissible] unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness”). Minn.Stat. § 169.14 does not conflict with rule 402, as evidence from a speed-measuring device is certainly relevant in establishing that a defendant was speeding, and none of the exclusionary rules apply. Furthermore, the statute does not conflict with rule 803(6) because the device’s readings are routinely written on speeding tickets in the regular course of the police department’s business, and there is nothing inherently untrustworthy about the evidence. Therefore, we conclude that because Minn.Stat. § 169.14 complies with, rather than conflicts with, the rules of evidence, it does not violate the separation-of-powers doctrine.

3. Admissibility of the results from the laser device used on March 2.

Although the admissibility of evidence from a laser-based speed-measuring device under Minn.Stat. § 169.14, subd. 10(a), is a case of first impression, we conclude that the existing caselaw concerning the admissibility of radar evidence is analogous. For example, in Dow, we concluded that radar evidence was admissible where the officer was a certified radar operator, was familiar with the radar device used, and had checked the accuracy of the radar unit by performing internal and external tests both before and after his shift. 352 N.W.2d at 126. Specifically, we stated that “[t]he external methods, consisting of a tuning fork and a calibrated speedometer on the squad car,” were sufficient to satisfy the condition that the device be “tested by an accurate and reliable external mechanism, method, or system at the time it was set up.” Id. at 127 (quoting Minn. Stat. § 169.14, subd. 10(a)(4)). Likewise, in State v. Putos, we held that the radar evidence was admissible under subdivision 10(a) where the police officer was a certified radar operator who conducted internal and external checks of the radar unit, and all tests indicated that the unit was in proper working order. 406 N.W.2d 75, 76 (Minn.App.1987). Additionally, in Bogren, we concluded that radar evidence was admissible where the officer performed external and internal calibration checks both before and after issuing the appellant’s ticket, records were introduced verifying the accuracy of both the radar unit and tuning forks used in testing, the officer was certified to operate the radar unit, and there was no evidence of outside interference. 410 N.W.2d at 384-85. The record here demonstrates that the results of the laser device used by Officer Johnson were admissible under Minn.Stat. § 169.14, subd 10(a).

While appellant contends that subdivision 10(a)(4) is not satisfied because Officer Johnson “failed to perform an external test of moving objects,” there is no requirement in the statute that the laser be tested in any particular manner. Rather, subdivision 10(a)(4) requires only that the device be tested by an “accurate and reliable” external method. The record shows that several external methods were routinely used to test the Minneapolis Police Department’s laser devices, and that those methods were reliable in determining whether the laser was working properly or experiencing accuracy problems. Therefore, subdivision 10(a)(4) has been satisfied, and we reject appellant’s argument that a test on moving objects was required. See Bogren, 410 N.W.2d at 385 (rejecting appellant’s claim that he was entitled to question the city about whether it was licensed by the FCC to operate radar units because section 169.14 does not require evidence of a valid FCC license).

4. Admissibility of Certificate of Testing and Accuracy.

Appellant also argues that the district court abused its discretion by admitting the Certificate of Testing and Accuracy, claiming that the document was hearsay and not admissible under the business-records exception. See Minn. R. Evid. 803(6). Minn.Stat. § 169.14, subd. 10(b), specifically contemplates that “[r]ec-ords of tests made of such devices and kept in the regular course of operations of any law enforcement agency are admissible in evidence without further foundation as to the results of the tests.” Nonetheless, while business records are generally admissible under rule 803(6), “[djocuments prepared solely for litigation purposes do not qualify under this exception.” Minn. R. Evid. 803(6) 1989 comm. cmt.

Officer Johnson testified that when a laser device passes the appropriate testing, the radio shop issues a certificate of accuracy for police officers to use “for purposes like today,” i.e., court proceedings. Officer Johnson also stated that the people who prepare the certificates know that the documents are regularly brought into court. But Officer Johnson also testified that the certification document was created in the regular course of the department’s business to ensure that the laser is accurately measuring speed and meeting the “manufacturer’s specifications for the output and detection circuits.” Therefore, we disagree with appellant’s contention that the certification was prepared “solely for litigation purposes.” The comments to rule 803(6) recognize that “[i]f the document is prepared in part for business purposes but with an eye toward litigation the court must decide if the interest in litigation sufficiently detracted from the trustworthiness of the report to preclude its admission.” Minn. R. Evid. 803(6) 1989 comm, cmt. Here, the district court specifically found that the document was “reliable” despite appellant’s concerns that the department knew it could be used in court proceedings. We conclude that the district court did not abuse its discretion in admitting the certificate under the business-records exception.

Appellant also contends that “[e]ven if the business records were properly introduced, [his] confrontations rights ... were denied by the reception of hearsay to establish an element of the crime.” See State v. Matousek, 287 Minn. 344, 350, 178 N.W.2d 604, 608 (1970) (recognizing that if business records “are offered to prove an essential element of the crime or connect the defendant directly to the commission of the crime, then they must be proved through persons having personal knowledge of the element or connection and such persons must be available for cross-examination”). But the certificate does not raise confrontation problems because it was not offered to prove an essential element of the crime or to directly connect appellant to the commission of the crime. In State v. Jensen, 351 N.W.2d 29, 32-33 (Minn.App.1984), this court concluded that business records establishing that a breathalyzer test was working properly did not pose a confrontation problem because they were “merely collateral evidence of the reliability of the breathalyzer test.” Similarly, in this case, the certification document was admitted only as collateral evidence of the reliability of the tests performed by Officer Johnson. Therefore, we conclude that the certificate was properly received into evidence.

5. Officer Johnson’s visual observations.

Appellant’s final argument is that Officer Johnson’s visual speed estimation is insufficient to establish that he was speeding. In Lemieux v. Bishop, 296 Minn. 372, 378, 209 N.W.2d 379, 383 (1973), the supreme court recognized that the estimation of “the speed of an automobile lies in a field in which a lay person gifted with reasonable intelligence, given a fair opportunity to observe, and having ordinary experience with moving vehicles may give opinion testimony.” Beyond having this type of “ordinary experience,” Officer Johnson testified that he was trained in 1978 to accurately estimate the speed of a moving vehicle within five mph, and that he has perfected that skill over the past 25 years. The laser’s indication of 41 mph for appellant’s speed was consistent with Johnson’s visual observation; the laser was also consistent with Johnson’s visual estimates of the speed of other vehicles that day. Officer Johnson explained that “[t]he laser merely is used as a tool to verify my visual impressions.” Based on this record, we agree with the district court’s conclusion that “Officer Johnson’s testimony is credible with respect to the fact that he’s trained in determining speeds visually [and] that he observed [appellant] to be driving the vehicle ... in excess of the speed limit somewhere around 41 miles per hour.”

Appellant also raises concerns that the district court entertained reasonable doubt by stating, “[i]f this was a case in which Officer Johnson was here saying it was 31 miles per hour that [appellant] was going, maybe the arguments would be more persuasive; however, on the fact 11 miles per hour gap there, I find Officer Johnson’s testimony credible.” But the state was required to prove only that appellant was exceeding the speed limit, not that he was driving 41 mph. See State v. Aanerud, 374 N.W.2d 491, 492 (Minn.App.1985). In Aanerud, the district court found the appellant guilty of speeding, stating, “there was reasonable doubt that [the appellant] was going fifteen miles per hour over the speed limit but there can be no doubt that he exceeded the limit by some amount.” We affirmed, reasoning that

[t]he court could have found that there was a margin of error in the radar unit’s readout, which would have meant that [the appellant’s] car was traveling either somewhat less or somewhat more than 45 mph [in a 30 mph zone]. This would have been sufficient to raise the reasonable doubt stated by the court without the total discrediting of the reading urged by appellant.

Id.

Here, Officer Johnson’s visual estimate was consistent with the laser’s determination that appellant was traveling 41 mph. Even if we presume a five mph margin of error, the testimony still demonstrates that appellant was traveling at least 36 mph. Therefore, Officer Johnson’s visual estimate alone is sufficient to establish that appellant exceeded the 30 mph speed limit.

DECISION

Although we disagree that the district court took judicial notice of the general reliability of laser technology, we conclude that where there is adequate evidence of the testing of the laser device and the training of the officer using the device to support the conviction, judicial notice is appropriate. Furthermore, we conclude that because Minn.Stat. § 169.14, subd. 10(a), (b) (2002), does not conflict with the rules of evidence, it does not violate the separation-of-powers doctrine and is, therefore, constitutional. Additionally, we conclude that the district court did not abuse its discretion by admitting the laser reading establishing appellant’s speed on March 2, 2003, under Minn.Stat. § 169.14, subd. 10(a), as the record demonstrates that Officer Johnson was trained to use the laser device and that the device was routinely tested for accuracy by reliable internal and external methods. We also find no abuse of discretion in the district court’s admission of the Certifícate of Testing and Accuracy under the business-records exception, as the record demonstrates that the certificate was reliable and was not prepared solely for litigation purposes. Finally, we conclude that Officer Johnson’s visual estimate of appellant’s speed was alone sufficient to support his conviction for speeding.

Affirmed.