author: PAGE, Justice.

text:
    STATE of Minnesota, Respondent, v. Anthony John PALUBICKI, Appellant.
    No. A04-1318.
    Supreme Court of Minnesota.
    July 28, 2005.

      John M. Stuart, State Public Defender, Steven P. Russett, Assistant State Public Defender, Office of the State Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, St. Paul, MN, Gregory D. Larson, Hubbard County Attorney, Hubbard County Courthouse, Park Rapids, MN, for Respondent.
   OPINION

PAGE, Justice.

Appellant Anthony John Palubicki was indicted by a Hubbard County grand jury for one count of first-degree premeditated murder in violation of Minn.Stat. § 609.185(a)(1) (2004) and two counts of first-degree felony murder in violation of Minn.Stat. § 609.185(a)(3) (2004) in connection with the January 25, 2003, death of Lorentz Olson. After a jury trial, Palu-bieki was convicted as charged and sentenced to life in prison for each of the three judgments of conviction. He also was ordered to pay a $200 public defender co-payment.

In this appeal, Palubicki argues that: (1) the trial court committed reversible error by admitting testimony about his conduct and statements on the night of the murder as observed and heard by his former wife without first determining whether evidence of the conduct and statements was protected by the marital privilege; (2) the trial court violated his constitutional right to present a defense by excluding “alternative perpetrator evidence” allegedly involving his former wife; (3) the trial court committed reversible error by refusing to instruct the jury that his former wife was an accomplice; (4) the trial court denied him a fair trial when it erroneously admitted character evidence; (5) prosecutorial misconduct during discovery and the trial denied him a fair trial; (6) the trial court erred by entering separate adjudications and sentences for each of his first-degree murder convictions; and (7) the trial court erred by ordering him to make a $200 public defender co-payment without a finding of his ability to pay. We affirm the convictions and remand for re-adjudication of the convictions and sentencing.

On January 25, 2003, 90-year-old Lorentz Olson was found dead in his Park Rapids, Minnesota, home by his son, Kim Olson. When police officers arrived, they found Lorentz Olson lying in bed, covered with a blanket, and with a pillow over his head, and blood spatter on the bedroom walls and ceiling. There was no evidence of forced entry into the home and nothing seemed to be missing. A neighbor had seen Olson alive at 7:30 p.m. the night before the day he was found dead, and another neighbor was awakened by a noisy car late that night. An autopsy determined that Olson died from multiple blunt-force trauma to his head.

After an initial investigation, the police had no suspects. At some point in May 2003, Joy Cantrell, the wife of appellant Anthony Palubicki, told her father that on the night of Olson’s murder Palubicki had come home with blood on his clothes, was angry, stated that things had not gone well, and then washed his bloody clothes. Cantrell’s father, a former police officer, advised Cantrell to tell the police what had happened, which she did on May 13, 2003.

Based on the discussions with Cantrell, the Olson murder investigation began to focus on Palubicki and his friend, Scott Fix. Fix, when interviewed by the police, initially denied involvement in Olson’s murder and provided the police with an alibi. When challenged, Fix admitted being involved in the murder and implicated Palubicki. Fix indicated that Palubicki had planned to rob Olson and take Olson’s car and that he had accompanied Palubicki as a lookout. Palubicki and Fix evidently wanted to use Olson’s car for a different robbery. According to Fix, they drove to Olson’s house in Fix’s truck, which had a loud muffler, and parked about 300 feet away behind St. Joseph’s Hospital. They walked from the truck to Olson’s garage and entered the garage from a back door that was partially ajar. Fix remained in the garage as a lookout while Palubicki went inside the house. From his vantage point in the garage, Fix could see Palu-bicki roaming around parts of the house. Fix said that he heard what he variously described as “thud sounds,” “twigs breaking,” and “bones crunching.” When Palu-bicki returned to the garage, he handed Fix a hammer, which was slippery and difficult to hold. Palubicki then reentered the house. After a while, Fix heard “gargling sounds.”

Fix testified that when he and Palubicki eventually left Olson’s house, they returned to Fix’s truck and, following Palu-bicki’s directions, Fix drove to a bridge over the Potato River where Palubicki disposed of the hammer. Fix directed the police to the bridge, but no hammer was found. Fix also led the police to a fire pit near his father’s house where, according to Fix, he and Palubicki burned clothes they had worn on the night of the murder. Although he originally told the police that Palubicki was wearing “Carhartt” overalls that night, at trial he testified that the overalls might be “Dickie” and not “Car-hartt.” Fix also wore Carhartt overalls the night of the murder. In the fire pit, the police found debris, including pieces of burned fabric, snaps, zippers, buckles, steel toes from shoes or boots, and buttons, some of which were Carhartt buttons. Fix eventually pled guilty to second-degree intentional murder and testified for the state at Palubicki’s trial. Except as noted, Fix’s trial testimony was consistent with his statement to the police.

Cantrell also testified at Palubicki’s trial. She did so over Palubicki’s assertion of the marital privilege. According to Cantrell’s testimony, one month before the murder, Palubicki gave Olson a ride home to get a spare set of car keys after Olson had locked himself out of his car outside a bar and, about a week before Olson’s murder, she had overheard Palubicki and Fix talking about stealing a car from an “old man.” She understood the “old man” to be Olson. On the night of the murder, Palubicki and Fix, who had been out drinking earlier that evening, continued drinking at Palu-bicki’s house in Cantrell’s presence. Cantrell heard them planning to rob Olson, but took no action to stop the robbery. When Palubicki and Fix left the house, Palubicki was wearing jeans and tennis shoes and carrying, his Carhartt, overalls. Sometime after she went to sleep, Cantrell was awakened by Palubicki’s return home. According to Cantrell, she heard the front door slam and Palubicki pounding down the hallway toward the bedroom screaming “something. about things getting fucked up.” When he entered the bedroom and turned on the light, Cantrell saw blood-like spatters on Palubicki’s face, wrists, and shoes. She also saw him take off his clothes and take them to the room where their washing machine was, and then she heard the washing machine’s lid close and the machine being turned on. The next day, she learned of Olson’s murder. When Fix came to their house later that day, Cantrell overheard Fix say that he had driven by the hospital to see what was happening at Olson’s house. Cantrell testified that Palubicki responded by calling Fix an “idiot” and “yelled at him for going back to the scene of the crime.” She also heard Palubicki say that he “did what he had to do” and “the old man deserved it anyway.” In addition, she heard Palubicki and Fix talk about burning clothes, which Fix agreed to do. Four or five days later, Cantrell heard Palubicki telling Fix that he was an “idiot” for not getting rid of the clothes as he had been told to do. Palu-bicki then said that he would burn the clothes himself and, according to Cantrell, she never again saw the tennis shoes that Palubicki wore or the Carhartt overalls that he carried the night of the murder. Although Fix testified that Cantrell was with Palubicki and Fix when they burned the clothes, Cantrell denied being present. She also denied asking Palubicki whether he got any money, which conflicted with Fix’s testimony. Finally, although she testified that she did not go to the police sooner because she was afraid, Cantrell admitted that before trial she had asked about a reward offered in connection with Olson’s murder.

Two forensic scientists testified at trial that the position of Olson’s body suggested that Olson had been lying down when he was killed and that the absence of blood spatter on a wall suggested that the killer had been standing between the wall and the bed at the time of the murder. The medical examiner who performed the autopsy testified that a hammer, similar to one that Fix described Palubicki as having at Olson’s house, matched Olson’s head wounds “fairly well.” The medical examiner further testified that Olson most likely was struck by somebody using his right hand. Palubicki is right-handed, while Fix is left-handed. Palubicki did not testify at trial. The only defense witness was a police investigator who testified that a search of Palubicki’s house produced nothing of evidentiary value.

Over defense objection, the trial court excluded evidence related to a robbery at Petro Pete’s, a gas station and convenience store where Cantrell worked, which occurred two days after Olson’s murder while Cantrell was on duty, as well as a statement by Fix’s brother that Fix had threatened to start killing people sometime during the week after Olson’s murder. The trial court also denied Palubicki’s request for an accomplice jury instruction with respect to Cantrell.

The jury found Palubicki guilty of one count of first-degree premeditated murder and two counts of first-degree felony murder. The trial court entered separate adjudications and life sentences for all three counts of first-degree murder. This appeal followed. For the reasons discussed below, we affirm Palubicki’s convictions and remand to the trial court for the re-adjudication of the convictions and sentencing.

I.

First, we address Palubicki’s claim that the trial court committed reversible error when it allowed Cantrell and her father to testify about what Cantrell heard Palubicki say and observed him do when he came home the night Olson was murdered without first determining whether the purported communications were protected by the marital privilege. The availability of a privilege is an evidentiary ruling to be determined by the trial court and reviewed on appeal for an abuse of discretion. State v. Gianakos, 644 N.W.2d 409, 415 (Minn.2002). With respect to the marital privilege, Minn. Stat § 595.02, subd. 1(a) (2004), provides in relevant part:

A husband cannot be examined for or against his wife without her consent, nor a wife for or against her husband without his consent, nor can either, during the marriage or afterwards, without the consent of the other, be examined as to any communication made by one to the other during the marriage.

Thus, the statute provides two distinct privileges: (1) the privilege to prevent a spouse from testifying against the other during the marriage; and (2) the privilege to prevent a spouse from testifying at any time concerning confidential interspousal communications made during the marriage. Gianakos, 644 N.W.2d at 416. In this case, because Cantrell’s divorce from Palubicki became final before the trial, only the confidential interspousal communication privilege is at issue.

We have defined the word “communication,” as used in Minn.Stat. § 595.02, subd. 1(a), to include “all written or spoken words, acts, and gestures which were intended by one spouse to convey a meaning or message to the other — such communication usually being denominated assertive conduct.” State v. Hannuksela, 452 N.W.2d 668, 676 (Minn.1990). In doing so, we recognized that it would not always be clear whether an act or gesture was intended to be an assertive communication. We said:

In some cases — those in which there is something in the way of an invitation by the husband of the wife’s presence or attention or there are other indications that he intends for her to acquire knowledge of his act — the act is as much a communication as his words to her describing the act would be. Such an act-falls within the policy of the privilege. In other cases, however — -those in. which the act is done solely for the sake of doing it, the indications being that the husband is indifferent to the presence of the wife — there is no communication and the marital confidence aspect of the act is likely to be slight. In such cases the privilege should not be allowed to deprive the court of the evidence.

Id. at 677 (quoting VIII J. Wigmore, Wigmore on Evidence, § 2337 at 658 (McNaughton rev.1961)) (emphasis added). The burden of proving the applicability of the marital privilege rests on the spouse who invokes the privilege. State v. Martin, 293 Minn. 116, 124-25, 197 N.W.2d 219, 225 (1972).

Palubicki argues that the scope of privileged communications includes his alleged statements to Fix that Cantrell claimed to have heard, as well as Palubieki’s statements and conduct upon returning home on the night of the murder. He bases this argument on his contention that, when viewed in the context of , Cantrell’s statement to the police, portions of which were excluded by the trial court as privileged, it suggests that the statements admitted at trial may have been a prelude to the privileged communications. Thus, he contends that his statements were intended to “convey a message” to her and are therefore privileged.

As a preliminary matter, the state notes that Palubicki argues only that the trial court failed to determine whether Cantrell’s testimony about what she heard and observed the night of the murder was protected by the marital privilege and “does not argue that any particular portion of * * * Cantrell’s testimony violated the privilege on the merits.” The state urges us to construe the marital privilege narrowly and argues that Palubicki did not satisfy his burden of proof for asserting the privilege.

Specifically, the state argues that Palu-bicki waived the marital privilege argument with respect to statements Cantrell heard when Palubicki arrived home by failing to make proper objections. The state further argues that Palubicki made no offer of proof at trial that those statements were covered by the privilege and therefore Palubicki did not meet his burden of establishing that the statements fall within the privilege. The state also argues that the marital privilege is inapplicable with respect to Cantrell’s testimony about seeing blood on Palubicki’s clothes and hearing him start the washing machine after he returned home the night of the murder. Finally, the state argues that testimony from Cantrell’s father regarding what Cantrell told him about what she heard and observed when Palubicki returned home the night of Olson’s murder was an admissible prior consistent statement.

We conclude that all of Palubicki’s statements that Cantrell overheard while Palubicki was speaking to Fix are not protected by the marital privilege and were properly admitted at trial. The statements were made as part of the communications between Palubicki and Fix and do not qualify as confidential communications made by one spouse to the other. See State v. Leecy, 294 N.W.2d 280, 283 (Minn.1980) (concluding that communications made in presence of others were not confidential communications for marital privilege purposes). To the extent that Palubicki might have intended those statements to be communications between Cantrell and him, those statements are not privileged because of Fix’s presence. See id.

With respect to Cantrell’s testimony about Palubicki’s statements upon his returning home the night of the murder, we conclude, based on the record before us, that Palubicki did not meet his burden of proving that those statements were directed at Cantrell or intended to convey a message to her. The mere fact that Cantrell overheard the statements does not by itself mean that the statements, when made, were communications intended to convey a meaning or message to her. See Hannuksela, 452 N.W.2d at 676.

Here, circumstances surrounding the statements do not indicate that Palubicki intended for Cantrell to acquire some knowledge from his words. The record suggests that when Palubicki made the statements he was angry with the way things had gone at Olson’s house and was indifferent to Cantrell’s presence. He did not specifically direct his words to Cantrell, nor is there an indication that he expected Cantrell to be awake when he entered the house, slammed the front door, pounded down the hallway, and screamed that things had gotten “fucked up.” Further, we note that the state is correct that Palubicki failed to make an offer of proof as to how Palubicki’s statements, as testified to by Cantrell, were connected to the privileged statements that were not admitted at trial.

Because we conclude that the challenged statements were not directed at or intended to convey a message to Cantrell, we also conclude that they were not protected by the marital privilege and therefore their admission was proper. Thus, we further conclude that any error by the trial court in admitting the statements without first formally determining whether the privilege applied is harmless.

Palubicki asserts that the marital privilege protects Cantrell’s observations of him having what she described as blood-like spatters on his face, wrists, and shoes, and of him taking off his clothes and taking them to the washing machine, and her hearing the washing machine lid close and the machine being turned on. But he does not explain how her observations constitute assertive conduct intended to convey a meaning or message or what meaning or message the conduct conveyed. Nor do we see anything inherent in what Cantrell observed or in the circumstances under which the observations were made that would provide such explanations. Absent such explanations, we conclude that there is nothing about Cantrell’s observations from which it could be reasonably inferred that what she observed was assertive conduct intended by Palubicki to convey to Cantrell some particular meaning or message. Merely having one’s appearance observed and being heard operating a washing machine does not constitute, without more, a communication intended to convey a message or meaning. Therefore, we conclude that the privilege is not implicated and that the admission of the testimony was not an abuse of discretion.

II.

We now turn to Palubicki’s claim that the trial court violated his right to present a defense by excluding alternative perpetrator evidence allegedly involving his former wife. Evidentiary rulings generally rest within the trial court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Johnson, 568 N.W.2d 426, 432 (Minn.1997). A criminal defendant may present alternative perpetrator evidence at trial in order to cast doubt on the. defendant’s guilt. State v. Hawkins, 260 N.W.2d 150, 158-59 (Minn.1977). “Alternative perpetrator evidence is admissible if it has an inherent tendency to connect the alternative party with the commission of the crime.” State v. Jones, 678 N.W.2d 1, 16 (Minn.2004). Alternative perpetrator evidence may include, but is not limited to, evidence of other crimes, wrongs, or acts that is separate from the charged crime. Id. We sometimes refer to this form of alternative perpetrator evidence as revers e-Spreigl alternative perpetrator evidence. See id.; see also State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965). The admission of alternative perpetrator evidence requires, first, that the defendant lay a foundation by establishing that the evidence has an inherent tendency to connect the alternative perpetrator to the actual commission of the charged crime. Jones, 678 N.W.2d at 16; see also State v. Gutierrez, 667 N.W.2d 426, 436 (Minn.2003). If the defendant fails to lay a proper foundation, the alternative perpetrator evidence is not admissible and the trial court need not consider any of the alternative perpetrator evidence further. Gutierrez, 667 N.W.2d at 436. If a proper foundation is laid, the defendant seeking admission of reverse-Spreigl alternative perpetrator evidence must then show: (1) by clear and convincing evidence that the alleged alternative perpetrator participated in the other crime, wrong, or act sought to be admitted; (2) that the evidence of the other crime, wrong, or act is relevant and material to defendant’s case; and (3) that the probative value of that evidence outweighs its potential for unfair prejudice. Jones, 678 N.W.2d at 16-17; see also Huff v. State, 698 N.W.2d 430, 436 n. 4 (Minn.2005) (explaining that clear-and-convincing standard is appropriate for reverse-Spreigl evidence).

In this case', Palubicki’s defense theory at trial was that Cantrell was an “alternative perpetrator” because she was connected to the commission of Olson’s murder and because she, along with Fix, engaged in a common scheme to steal money and property and then blame it on Palubicki. In responding to the state’s argument that Cantrell needed to be connected directly to the Olson murder, Palubicki argued that “liability for the crimes of another, along with conspiracy, is a valid connecting theory.” To support his argument, Palubicki made an offer of proof that Fix robbed Petro Pete’s two days after the Olson murder with assistance from Cantrell, who was on duty at the time. Palubicki offered Fix’s statement to the police that Cantrell had knowledge of and seemingly participated in the robbery. Palubicki also offered a police report in which a Petro Pete’s manager told the police of her suspicion that Cantrell was involved in the robbery.

The problem with Palubicki’s offer of proof is that the evidence relates solely to the other crime, wrong, or act, and not to Olson’s murder. The offer of proof did not include any evidence meeting the threshold requirement of laying a foundation for the admission of the alternative perpetrator evidence. To satisfy that requirement, Palubicki was required to present to the trial court evidence having an inherent tendency to connect Cantrell to the actual commission of Olson’s murder. See Jones, 678 N.W.2d at 16. Palubicki’s offer of proof involved evidence of Cantrell’s knowledge of plans to rob Olson and her alleged participation in the Petro Pete’s robbery along with Fix. While Palubicki argued that accomplice liability was a sufficient “connecting theory,” he did not explain then, nor has he explained in his brief or argument to this court, why that evidence has an inherent tendency to connect Cantrell to the actual commission of the Olson murder. The offer of proof did not involve any evidence placing Cantrell at or near the scene of Olson’s murder. Nor did the offer of proof involve any evidence from which it could be inferred that Cantrell was present at the time of the murder. During oral argument, counsel for Palubicki conceded that there was no evidence connecting Cantrell directly to Olson’s murder. Based on the record before the trial court when it declined to admit Palubieki’s alternative perpetrator evidence, including Palubicki’s offer of proof, we conclude that Palubicki failed to satisfy the threshold requirement that he lay a proper foundation for admission of alternative perpetrator evidence. As a result, we conclude that the trial court properly denied the admission of the proffered alternative perpetrator evidence and hold that the trial court did not abuse its discretion when it declined to admit that evidence.

III.

Palubicki further claims that the trial court committed reversible error by declining to give a jury instruction on accomplice testimony. • The decision to give a requested jury instruction lies in the discretion of the trial court and will not be reversed absent an abuse of that discretion. See State v. Daniels, 361 N.W.2d 819, 831 (Minn.1985). A conviction cannot rest on uncorroborated testimony from an accomplice because the accomplice’s credibility is inherently untrustworthy. State v. Strommen, 648 N.W.2d 681, 689 (Minn.2002); see also Minn.Stat. § 634.04 (2004). While an accomplice testimony instruction need not be given in every criminal case, the instruction must be given in any criminal case in which any witness testifying against the defendant might reasonably be considered an accomplice to the crime. State v. Shoop, 441 N.W.2d 475, 479 (Minn.1989). If it is unclear whether a witness is an accomplice, the jury should make the determination. Id.

The general test for determining whether a witness is an accomplice is whether the witness could have been indicted and convicted for the crime with which the accused is charged. State v. Pederson, 614 N.W.2d 724, 733 (Minn.2000). A person may be held criminally liable for a crime committed by another if the person aided and abetted the other in the commission of the crime. See Minn. Stat. § 609.05, subd. 1 (2004). When imposing liability for aiding and abetting, we distinguish between playing “a knowing role in the crime” and having “[a] mere presence at the scene, inaction, knowledge and passive acquiescence.” State v. Gates, 615 N.W.2d 331, 337 (Minn.2000). We have held that the “presence, companionship, and conduct before and after an offense is committed are relevant circumstances from which the jury may infer criminal intent.” Id.

In this case, Palubicki requested that the trial court give the following jury instruction:

If you find that Joy Cantrell is a person who could be charged with the same crime as the defendant, you cannot find the defendant guilty of a crime on that testimony unless that testimony is corroborated.

As an alternative, Palubicki proposed:

If you find that any person who has testified in this case is a person who could be charged with the same crime as the defendant, you cannot find the defendant guilty of a crime on that testimony unless that testimony is corroborated.

The court did instruct the jury that Palu-bicki could not be convicted on the uncorroborated testimony of an accomplice. The court further instructed the jury that Fix was an accomplice, but denied Palu-bicki’s request to give a similar instruction with respect to Cantrell.

Palubicki argues that there was ample evidence admitted at trial from which the jury reasonably could have concluded that Cantrell was an accomplice to Olson’s murder. Palubicki bases this argument on trial evidence indicating that before Olson’s murder Cantrell was aware of the plan to burglarize Olson’s home and knew Palubicki intended to use force against Olson if necessary. He also cites Cantrell’s testimony that she was present when Fix and Palubicki made the burglary plan and took no steps to prevent it. In addition, Palubicki references Fix’s testimony that Cantrell participated in destroying evidence and asked Palubicki whether he got any money. Further, Palubicki relies on testimony that he stated in Cantrell’s presence that things had gone wrong and that she saw him change and wash his clothes. At oral argument, counsel for Palubicki raised the additional argument that we should consider evidence related to Cantrell’s involvement in the Petro Pete’s robbery to determine whether he was entitled to the accomplice jury instruction. Based on the above evidence, Palubicki asserts that the jury could have inferred that Palubicki perceived Cantrell as someone who was aware of and supported his criminal activity.

We conclude that the evidence relied on by Palubicki is insufficient to create a question for the jury as to whether Cantrell reasonably could be considered an accomplice for purposes of requiring an accomplice jury instruction. None of the evidence relied on by Palubicki indicates that Cantrell was present at the time of the murder or participated in the murder in any way. While there was evidence that Cantrell was aware of the plan to rob Olson based on her presence when Fix and Palubicki were discussing those plans, there is no evidence from which it could be inferred that she participated in those plans; her mere knowledge of or passive acquiescence in the plan is insufficient to create accomplice liability. Gates, 615 N.W.2d at 337. Although it can be inferred, from Fix’s testimony that Cantrell participated in destroying evidence and inquired about whether Palubicki and Fix got any money from robbing Olson, that Cantrell could have some criminal liability for being an accessory after the fact, the evidence does not suggest that she played a knowing role in the commission of Olson’s murder. Id. Nor does the fact that Cantrell heard Palubicki say that things had gone wrong or that she saw him change and wash his clothes. Finally, with respect to Palubicki’s argument that evidence of Cantrell’s participation in the Pe-tro Pete’s robbery suggests that she was an accomplice to the Olson murder, we note simply that evidence of her involvement in the Petro Pete’s robbery, without more, does not implicate her in the Olson robbery or murder. Therefore, we hold that the trial court did not abuse its discretion when it declined to give an accomplice jury instruction with respect to Cantrell.

rv.

Palubicki also claims he was denied a fair trial when the state on two occasions elicited, irrelevant and prejudicial testimony about his character. Evidentia-ry matters are reviewed for abuse of discretion. State v. Willis, 559 N.W.2d 693, 698 (Minn.1997). When, as here, evidence is admitted without objection, this court reviews for plain error, which requires the defendant to show: (1) error, (2) that was plain, and (3) that affected substantial rights. Strommen, 648 N.W.2d at 686. “If those three prongs are met, we may correct the error only if it ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn.2001) (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (internal quotation marks and citations omitted)).

A prosecutor cannot attack the character of the defendant unless the defendant puts his or her character in issue. Minn. R. Evid. 404(a)(1). At trial, Cantrell, in response to the state’s questions about her divorce, testified that she divorced Palu-bicki because he was “a violent person.” Palubicki did not object to this testimony. The state argues and the record fairly reflects that the state did not purposely elicit Cantrell’s statement. On appeal, the state concedes that Cantrell’s statement about Palubicki being a violent person was irrelevant. Because the defense did not put Palubicki’s character in issue, the admission of Cantrell’s statement was error. Because the error was clear and obvious, it was also “plain.” See Strommen, 648 N.W.2d at 688. On the record before us, however, we conclude that admission of this one isolated unobjected-to statement did not affect Palubicki’s substantial rights. See Bernhardt v. State, 684 N.W.2d 465, 475 (Minn.2004) (holding that substantial rights are implicated when error was prejudicial and affected outcome of case).

Palubicki also challenges Cantrell’s response to a state’s question in which she agreed that Palubicki was a “leader” and 'that Fix was a “follower.” The transcript shows that Cantrell’s testimony was specifically sought by the state. One theory Palubicki raised at trial was that Fix planned the robbery and committed the murder. Fix testified that Palu-bicki proposed the robbery, led Fix to Olson’s house, told Fix to wait in the garage, and after the murder directed Fix to drive away. Thus, Cantrell’s testimony about Palubicki’s leadership was directly relevant to an issue in dispute at trial. Therefore, we conclude that the state’s elicitation of Cantrell’s testimony that Pa-lubicki was a leader did not constitute prosecutorial misconduct and the admission of the testimony was not error.

V.

Palubicki next claims that he was denied a fair trial because the state committed 'discovery violations and prosecutorial misconduct. Specifically, he claims that the state: (1) violated Minn. R.Crim. P. 9.01, subd. 1(2), when it refused to disclose certain communications between the state and its main witnesses; (2) violated Minn. R.Crim. P. 9.01, subd. l(l)(a), by calling witnesses who were not on the original witness list; (3) improperly elicited testimony that Palubicki had been “glaring” at a police officer; and (4) in closing argument, wrongfully urged the jury to infer Palubicki’s violent character from the state’s description of the murder.

Whether a discovery violation occurred is an issue of law which this court reviews de novo. State v. Bailey, 677 N.W.2d 380, 397 (Minn.2004). We review a trial court’s decision on whether to impose sanctions for discovery violations for an abuse of discretion. State v. Patterson, 587 N.W.2d 45, 50 (Minn.1998). Generally, without a showing of prejudice to the defendant, the state’s violation of a discovery rule will not result in a new trial. The determination of whether this court will grant a new trial due to prosecutorial misconduct “is governed by no fixed rules but rests within the discretion of the trial judge, who is in the best position to appraise its effect.” State v. Wahlberg, 296 N.W.2d 408, 420 (Minn.1980). A trial court’s determination should be reversed on appeal only when the prosecutor’s misconduct, “viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that [the] defendant’s right to a fair trial was denied.” Id. But the misconduct is harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error. State v. Hunt, 615 N.W.2d 294, 301-02 (Minn.2000).

The facts relating to the state’s alleged violation of Rule 9.01, subdivision 1(2), are as follows. At a pretrial hearing, defense counsel asked the state to identify all contacts the state had had with Cantrell and Fix. Defense- counsel argued, “under Rule-9.01, we’re'entitled to also any communications that they’ve had with these particular witnesses even if it’s only oral, at least the summary or the substance of what was spoken.” In response, the state argued that it was required to disclose only the substance of a witness’s oral statements when the witness discloses something “new or different” from previously disclosed statements. The trial court agreed with the state and denied defense counsel’s request.

Minnesota Rule of Criminal Procedure 9.01, subdivision 1(2), provides:

Statements. The prosecuting attorney shall disclose and permit defense counsel to inspect and reproduce any relevant written or recorded statements which relate to the case within the possession or control of the prosecution, the existence of which is known by the prosecuting attorney, and shall provide defense counsel with the substance of any oral statements which relate to the case.

(Emphasis added.) By using the words “shall disclose” and “shall provide,” the rule’s directions are mandatory. Moreover, we read the rule’s use of the word “any” to mean “every.” Therefore, to the extent that the state failed to disclose or to provide the substance of every oral statement required by the rule, the rule was violated and the trial court’s failure to require such disclosure was error.

Palubicki also alleges that the state engaged in discovery violations when it failed to disclose, before the court-imposed discovery deadline, the names of three witnesses it intended to call at trial. The witnesses were a Minnesota Bureau of Criminal Apprehension agent who had examined the site where Fix and Palubicki burned the clothing, the neighbor of Olson’s who heard the noisy vehicle the night of Olson’s murder, and Cantrell’s mother. At trial, Palubicki moved' to prohibit the state from calling these individuals to testify. The trial court denied the motions, finding that the state’s failure to disclose the witnesses was unintentional and resulted in no prejudice to Palubicki.

Minnesota Rule of Criminal Procedure 9.01 provides:

Subd. 1. Disclosure by Prosecution Without Order of Court. Without order of court and except as provided in Rule 9.01, subd. 3, the prosecuting attorney on request of defense counsel shall, before the date set for Omnibus Hearing provided for by Rule 11, allow access at any reasonable time to all matters within the prosecuting attorney’s possession or control which relate to the case and make the following disclosures:
(1) Trial Witnesses; Grand Jury Witnesses; Other Persons.
(a) The prosecuting attorney shall disclose to defense counsel the names and addresses of the persons intended to be called as witnesses at the trial together with their prior record of convictions, if any, within the prosecuting attorney’s actual knowledge. The prosecuting attorney shall permit defense counsel to inspect and reproduce such witnesses’ relevant written or recorded statements and any written summaries within the prosecuting attorney’s knowledge of the substance of relevant oral statements made by such witnesses to prosecution agents.

(Emphasis added.) Given the rule’s mandatory language, we conclude that the state violated Rule 9.01, subdivision l(l)(a), when it failed to timely disclose the witnesses. We also conclude, however, that the trial court did not abuse its discretion when it declined to impose a sanction for the violation.

Palubicki does not allege that either discovery violation resulted in prejudice to him, nor does our review of the record identify any such prejudice. Palubicki does ask that we exercise our supervisory powers as a prophylactic measure and grant him a new trial. We decline to do so on this record.

With respect to Palubicki’s remaining prosecutorial misconduct claims, we see no reason to labor over the question of whether such misconduct occurred. It is enough to note that we have thoroughly reviewed the record and conclude that any misconduct that may have occurred was not so serious or prejudicial that Palubicki’s right to a fair trial was denied.

VI.

Finally, the state concedes that the trial court erred when it ordered Palubicki to pay a $200 co-payment for public defender services without first determining Palu-bicki’s ability to pay. We agree. See State v. Tennin, 674 N.W.2d 403, 410-11 (Minn.2004) (holding that Minn.Stat. § 611.17, subd. 1(c) (Supp.2003), which directs that public defender’s client “shall be obligated” to pay fee, was unconstitutional because it contains no protections for the indigent or those for whom the co-payment would impose a manifest hardship); see also Fuller v. Oregon, 417 U.S. 40, 46, 54, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974) (affirming statute in which “ability to pay” for public defender services was required inquiry). The state also concedes that the trial court erred when it entered separate adjudications and sentences for each of Palubicki’s first-degree murder convictions. Again, we agree. See State v. Johnson, 616 N.W.2d 720, 730 (Minn.2000). Palubicki asks that we vacate the public defender co-payment and two of the three adjudicated convictions and sentences. The state asks that we remand so the trial court can: (1) determine whether Palu-bicki has the ability to pay the co-payment; and (2) decide which two of Palubicki’s three convictions and sentences should be vacated.

With respect to the $200 co-payment, in the interests of judicial economy we vacate the order requiring the payment. With respect to the question of which convictions and sentences to vacate, we remand to the trial court to make that determination.

Convictions affirmed and remanded for re-adjudication and sentencing.

      . Having concluded that the admission of Cantrell’s testimony regarding Palubicki's statements to Fix and his statements .upon his return home the night of Olson's murder as well as her testimony regarding her observations of Palubicki upon his return home that night does not violate the marital privilege, we also conclude that the admission of testimony by Cantrell’s father does not violate the privilege.

      . We note that Palubicki refined his argument on appeal, contending at oral argument that Cantrell was an accomplice, rather than an "alternative perpetrator,” in Olson’s murder and that the defense's theory was not necessarily that Cantrell actually committed the murder but rather that Fix committed the murder and Cantrell was the accomplice. Counsel argued that the Petro Pete’s robbery was relevant to show both a joint enterprise between Fix and Cantrell and a pattern that the two committed crimes and blamed Palu-bicki, and to rebut the state's argument that Fix and Cantrell were not capable of committing crimes together. This argument fails for at least two reasons. First, because the trial court did not have the argument before it when it excluded the evidence, the argument is not properly before this court on appeal. Thayer v. Amer. Fin. Advisers, Inc., 322 N.W.2d 599, 604 (Minn.1982). The argument also fails on the merits because it suffers from the same defect that affected the argument made to the trial court. Although in this argument it is suggested that Fix committed the murder and that Cantrell was his accomplice, Palubicki points to no evidence in the record placing Cantrell at the murder scene or that she aided or abetted the commission of the murder in any way. Because meeting the threshold requirement calls for the production of evidence having an inherent tendency to connect Cantrell to the actual commission of Olson's murder and Palubicki presented no such evidence, Palubicki failed to satisfy the threshold requirement.


source: Caselaw Access Project

author: TOUSSAINT, Chief Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. John VANG, Appellant.
    No. A03-1242.
    Court of Appeals of Minnesota.
    July 12, 2005.

      Steven V. Russett, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN, and Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, St. Paul, MN, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge, HUDSON, Judge, and DIETZEN, Judge.
   OPINION

TOUSSAINT, Chief Judge.

This appeal from a conviction of second-degree assault has been remanded from the United States Supreme Court for reconsideration in light of Smith v. Massachusetts, - U.S. -, 125 S.Ct. 1129, 160 L.Ed.2d 914 (2005). Because we conclude that the reinstatement of four of the assault counts following a midtrial dismissal ruling violated appellant John Vang’s protection against double jeopardy, we reverse.

FACTS

Appellant John Vang was involved in a “road rage” incident that occurred on the east side of St. Paul on July 14, 2002. The occupants of a Chevy Blazer called police to report that a person in a another vehicle, a Honda Accord, had a gun. Police were dispatched to the scene and followed both cars. They eventually stopped the Honda, identifying appellant as the rear-seat passenger. The driver of the Blazer told police that he saw the man in the back seat of the Honda pointing a silver revolver at him. Police questioned the occupants of the Honda, and 'one of them, the front-seat passenger, said that the “back passenger” had a gun but had thrown it out the window as police chased them. After a search along that route, police discovered a .38-caliber revolver on a sidewalk.

None of the passengers in the Blazer told police that they saw someone in the Honda with a gun. One of the passengers was a four-year-old child who was asleep at the time.

The state filed an amended complaint charging appellant with four counts of second-degree assault committed against the passengers, along with the original count charging the appellant with second-degree assault on the driver.

After the state rested in its case-in-chief, defense counsel made a motion outside the presence of the jury to dismiss the four counts involving the passengers or to direct a verdict on those counts. Counsel also moved to dismiss the entire complaint on the ground that the evidence was insufficient to tie appellant to the gun. That motion was denied. But the trial court granted the motion to dismiss the counts against the passengers. The court stated:

I think reason and common sense would dictate that people being assaulted would have to perceive some kind of threat of fear or bodily harm. I believe the testimony was at least the four-year-old child was asleep and the testimony of the other four occupants in the vehicle is that they did not see a gun.

The prosecutor objected to this ruling, pointing to the testimony that had been presented at trial. But the court, noting the state had to prove the elements beyond a reasonable doubt, reasserted its dismissal of the four counts.

The trial court then conducted an on-the-record inquiry of appellant, establishing that his decision to testify at trial was voluntary. After the jury returned, appellant testified, and the defense rested. After the jury was excused, there was a brief discussion concerning the jury instructions. The prosecutor then cited to the court State v. Hough, 585 N.W.2d 393 (Minn.1998), in which the supreme court held that a defendant may be guilty of assaulting victims who are unaware of the defendant’s acts, or even unconscious at the time. The prosecutor asked the court to reconsider its earlier dismissal of the four additional counts. The court immediately reinstated the four counts and submitted them to the jury. Appellant was convicted on all five counts.

On appeal, this court rejected appellant’s double-jeopardy argument that the midtrial dismissal barred a later, midtrial reinstatement of the four additional assault counts. State v. Vang, No. A03-1242, 2004 WL 1726229 (Minn.App. Aug.3, 2004), review denied (Minn. Oct. 27, 2004). This court held that the dismissal was based on a legal determination, and, because it was rescinded in the course of the same trial, there was no double-jeopardy bar to reinstating those counts. Id. at *3.

In February 2005, the United States Supreme Court issued an opinion addressing this same issue. Smith v. Massachusetts, - U.S. -, 125 S.Ct. 1129, 160 L.Ed.2d 914 (2005). Smith concluded that, under certain circumstances, the Double Jeopardy Clause could bar later reconsideration of a midtrial dismissal, even in the course of the same trial. The Supreme Court granted appellant’s petition for a writ of certiorari and remanded to this court for reconsideration in light of Smith.

ISSUES

1. Did appellant waive his double-jeopardy claim?
2. Did reinstatement of the four assault counts following the midtrial dismissal ruling violate appellant’s protection against double jeopardy?

ANALYSIS

I.

The state argues that appellant waived his double-jeopardy claim by failing to raise it in the district court. This court noted in its first opinion in this appeal that appellant had not raised the double-jeopardy issue in the district court, but chose to address it in the interests of justice. State v. Vang, No. A03-1242, 2004 WL 1726229, at *2 (Minn.App. Aug.3, 2004), review denied (Minn. Oct. 27, 2004). The state argues that this analysis did not represent a holding that the claim was not waived.

Waiver is a discretionary rule. See State v. Pinkerton, 628 N.W.2d 159, 161-62 (Minn.App.2001) (noting court may deviate from rule of waiver' in interests of justice if neither party is unfairly surprised), review denied (Minn. July 24, 2001). Because this court exercised its discretion to address the double-jeopardy issue in the first opinion in this appeal, and because the United States Supreme Court has granted certiorari and remanded the issue to us, we decline to hold that appellant has waived the issue.

II.

This court concluded in its first opinion that Vang’s motion to dismiss.was based “solely on a legal claim” and did not involve “resolution of any facts.” 2004 WL 1726229, at *3. Because the reinstatement, based also on a “legal conclusion,” occurred during the same trial and did not require a second trial, this court concluded that “Vang’s right to be protected from double jeopardy was not violated.” Id.

The Supreme Court’s opinion in Smith requires stricter scrutiny of a mid-trial dismissal than this court afforded in its first opinion. First, the, asserted grounds for the dismissal, even if solely legal in nature,, are not determinative. “[WJhat matters is that ... the judge ‘evaluated the evidence and determined that it was legally insufficient to sustain a conviction.’ ” Smith, 125 S.Ct. at 1135 (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 572, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977)); see also State v. Gurske, 395 N.W.2d 353, 356 (Minn.1986) (applying Supreme Court easelaw holding that label attached to ruling is not determinative and deciding that trial court’s conclusion that first-degree felony murder could not be proven was equivalent to judgment' of acquittal for double jeopardy purposes). Here, the trial court determined that the state, by presenting no evidence that the four passengers in the Blazer were aware of the gun, presented insufficient evidence to support convictions on the four added counts. It is immaterial, under Smith and Martin Linen Supply, that this ruling was based on a legal determination because it was in the end a finding of insufficient evidence.

Second, Smith requires that this court analyze the finality of the midtrial dismissal ruling without the presumption that a dismissal ruling, if rescinded before the end of trial, is not final. The Court in Smith stated its basic holding as follows:

If, after a facially unqualified midtrial dismissal of one count, the trial has proceeded to the defendant’s introduction of evidence, the acquittal must be treated as final, unless the availability of reconsideration has been plainly established by pre-existing rule or case authority expressly applicable to midtrial rulings on the sufficiency of the evidence.

125 S.Ct. at 1137. Thus, a midtrial dismissal ruling will be considered final unless it was (a) expressly qualified, or only tentatively stated, at the time it was made, or (b) made subject to a rule or case authority allowing the court to reconsider it. Cf. Price v. Vincent, 538 U.S. 634, 642-43, 123 S.Ct. 1848, 1851, 1854-55, 155 L.Ed.2d 877 (2003) (holding state court’s rejection of double-jeopardy claim was not “an objectively unreasonable application” of federal law when trial court expressed opinion on lack of evidence of premeditation but allowed further argument and ultimately reserved ruling, later permitting first-degree murder charge to go to jury).

The Court also implied a third exception: double jeopardy would not be violated if the dismissal ruling was reconsidered before the trial proceeded, particularly to the defense’s presentation of its case. 125 S.Ct. at 1136.

None of the exceptions to the Smith rule of finality applies here. First, the trial court did not indicate its dismissal of the four added “passenger” assault counts was tentative or conditional in any .way. Second, there appears to be no Minnesota rule or caselaw allowing for the reconsideration of midtrial dismissal rulings, and the state has cited none. In fact, the rule in Minnesota prevents the trial court from deferring decision on such a motion. See Minn. R.Crim. P. 26.03, subd. 17(2) (providing that if defense moves for judgment of acquittal at close of state’s case, court “may not reserve decision of the motion”). And finally, the trial proceeded, with appellant testifying in his own defense, before there was any reconsideration of the ruling.

The state attempts to distinguish Smith by noting that the trial court here did not dismiss the counts for lack of proof of an element of the offense and by arguing that the ruling was really a legal determination rather than a finding of insufficient evidence. But the state’s first argument goes to the merits of the midtrial ruling, which under Smith have no significance. The Smith Court cited a federal rule allowing the court to resolve “elements of the offense” in ordering a judgment of acquittal. 125 S.Ct. at 1134-35. But the Court rejected the argument that the Double Jeopardy Clause must be construed to allow for correction of error in the granting of directed verdicts. Id. at 1138. Although the trial court here may have erred in concluding there was insufficient evidence, that does not change the nature of its determination. As the Smith Court stated, what counts is whether the ruling “actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” Id. at 1134 (citations omitted) (emphasis added). The fact that the district court mistook the elements does not change the nature of its. determination.

Smith rejects the state’s second argument as well. The Court noted that the state court’s determination that the midtrial ruling was “a legal rather than factual determination” was not binding on it. Id. at 1135. The Court concluded that the trial judge’s dismissal of the charge of unlawful possession of a firearm was a judgment of acquittal. Id. Here, the trial court concluded that the state did not prove that the four passengers were assaulted because none of them was aware of the gun. As discussed above, the prosecutor’s immediate reaction was to treat this as a factual determination. Although infected by legal error, the court’s conclusion represented a finding that the elements of assault had not been met as to those four counts.

Thus, there is no basis for distinguishing Smith, which requires reversal of the conviction on the four earlier-dismissed counts of assault against the passengers.

DECISION

The Double Jeopardy Clause barred the reinstatement of the four counts of assault committed against the passengers that had earlier been dismissed by the trial court, and the convictions on those counts must be reversed.

Reversed.

      . The prosecutor*s immediate response to the ruling, pointing to the testimony at trial, indicates that the dismissal was perceived as a judgment of acquittal. Although the state later provided a legal citation to State v. Hough, there was no significant legal argument at the time of the ruling.


author: RANDALL, Judge.

text:
    STATE of Minnesota, Appellant, v. Jesus Antonio ESTRELLA, Respondent.
    No. A05-43.
    Court of Appeals of Minnesota.
    July 12, 2005.

      Mike Hatch, Attorney General, St. Paul, MN; and G. Paul Beaumaster, Rice County Attorney, Nathaniel J. Reitz, Assistant Rice County Attorney, Faribault, MN, for appellant.
    Mark D. Nyvold, St. Paul, MN, for respondent.

      Considered and decided by RANDALL, Presiding Judge; TOUSSAINT, Chief Judge; and KALITOWSKI, Judge.
   OPINION

RANDALL, Judge.

The state appeals from a pretrial order dismissing a charge of racketeering and denying its motion to add second-degree controlled substance offense charges. The state argues that the district court erred in ruling that respondent’s family could not provide the “organization” required for the existence of an “enterprise” under the racketeering statute. The state also argues that the court erred in ruling the mobile-home park where the cocaine sales occurred was not within the required proximity of a “park zone” so as to constitute second-degree controlled substance offense. The state argues that the court erred in construing the statutory term “city block” to require a street grid. Alternatively, the state argues that the’ mobile-home park, considered as a single entity because it had the same address, was within 300 feet of the park. We affirm the trial court.

FACTS

Respondent, Jesus Antonio Estrella, was charged with one count of Racketeering and three counts of Third-Degree Sale of a Controlled Substance (cocaine) on September 23, 2004. On December 3, 2004, the district court conducted an omnibus hearing. At the hearing, respondent challenged the existence of probable cause on the racketeering charge, and the state moved to amend its original complaint in order to include three additional charges of Second-Degree Sale of a Controlled Substance based on its allegation that the alleged cocaine sales took place in a “park zone.”

The state offered investigation reports compiled by the police along with its original and amended complaints as exhibits in support of the racketeering charge. The state also called the officer who arranged the alleged controlled drug buys that provided the basis for the complaints here. The officer’s testimony related only to the issue of whether the alleged cocaine sales took place in a “park zone.”

During his direct examination, the officer testified that there are 184 trailers in the Cannon River Trailer Park (Cannon River) and, of the three controlled buys at issue, two took place at trailer number 19 and one took place at trailer 162. The officer also stated that Cannon River sits directly west of a municipal park; railroad tracks separate Cannon River from the park; and some of the lots in Cannon River are within 300 feet of the park. As for the two trailers at issue here, the officer testified that neither trailer 19 nor trailer 162 is within 300 feet of the park. The officer also stated that each trailer in Cannon River shares the same address: 1407 Hulett Avenue.

On cross-examination, the officer agreed that the area between Cannon River and the park is not plotted into city blocks, and “there is no city block as such in between [the park] and [Cannon River].”

On January 4, 2005, the district court granted respondent’s motion to dismiss the racketeering charge for lack of probable cause. Then the court denied the state’s motion to amend the complaint (to include the “park zone” charges) based on a “lack of probable cause to support those proposed charges.” This appeal followed.

ISSUES

1. Is the district court’s dismissal of the racketeering charge appealable by the state?

2. Did the district court err in determining there is no probable cause to believe that the Cannon River Trailer Park lies within “one city block” of North Alexander Park under Minn.Stat. § 152.01, subd. 12a?

ANALYSIS

I. Jurisdiction

As a threshold issue, respondent argues that the state has no right to appeal the district court’s dismissal of the racketeering charge. Respondent bases his argument on the Minnesota Rules of Criminal Procedure, which prohibit the state from appealing a pretrial dismissal “if it is based solely on a factual determination dismissing a complaint for lack of probable cause[.j” Minn. R.Crim. P. 28.04, subd. 1(1)(a). A dismissal for lack of probable cause is appealable only if it is based on a question of law, such as the interpretation of a statute. Minn. R.Crim. P. 28.04, subd. 1(1); State v. Linville, 598 N.W.2d 1, 2 (Minn.App.1999).

At issue here is whether the district court’s primary finding that “there is no evidence of a criminal enterprise between [respondent] and his parents” is a legal determination. This court addressed the same question in State v. Duffy, 559 N.W.2d 109, 110 (Minn.App.1997). In Duffy, the district court dismissed four counts of controlled substance violations for lack of probable cause. Id. This court then dismissed the state’s appeal. The Duffy court stated:

By finding no evidence in the record that any cocaine was under the control or possession of respondent or that a transaction was possible, the [district] court was simply stating that the complaint lacked either direct evidence or sufficient circumstantial evidence of an overt act.... The district court’s dismissal of the charges for lack of probable cause was not based on a legal question; the district court made a factual determination that the conversation between the officer and respondent did not rise to the level of an overt act in furtherance of the goal of a cocaine sale. The district court relied on the lack of evidence showing that a transaction could have occurred. The order is not appealable. [The state] is attempting to find a legal issue where there is none.

559 N.W.2d at 111.

The language of Duffy is inescapable. We reject the state’s attempt to classify the issue as one “of law,” thus giving them a pretrial right of appeal. Simply put, all criminal cases involve factual and credibility determinations, whether by a judge or by a jury. All determinations revolve around some principle of law. That does not make all pretrial dismissals appealable by the state. Here, we have a district court that simply determined there were not enough facts to support a racketeering charge. This is the exact situation that Minn. R.Crim. P. 28.04, subd. l(l)(a) was designed for. We find no merit in the state’s attempts to create a legal issue here. Accordingly, we conclude that the state’s appeal from the district court’s dismissal of the racketeering charge for lack of probable cause is not appealable.

We point out that when dismissal is based on a factual determination, rather than a legal determination, the state is free to reissue the complaint if the state later obtains evidence that establishes probable cause. Duffy, 559 N.W.2d at 110. The state has the right to gather more evidence against respondent and re-file if it so chooses.

II. Zone

The state also challenges the district court’s denial of its motion to amend the complaint to include charges of Second Degree Sale of a Controlled Substance. Unlike its challenge to the district court’s dismissal of the racketeering charge, the state’s appeal on this issue presents a legal question. The district court based its denial on a finding that the state lacked probable cause to support the charge that the alleged drug sales took place in a “park zone,” as defined by MinmStat. § 152.01, subd. 12a (2002) (stating that “park zone” includes the area within 300 feet or one city block, whichever distance is greater, of the park boundary). The state argues that this court should find that the alleged drug sales by respondent took place within “one city block” of North Alexander Park (the park) and, thus, there is probable cause to charge him with a second-, rather than a third-degree controlled substance crime.

This is a question of statutory construction, and construction of a criminal statute is-a question of law subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996). The purpose of statutory interpretation is to give effect to the intention of the legislature. Minn.Stat. § 645.16 (2002); State v. Koenig, 666 N.W.2d 366, 372 (Minn.2003). Accordingly, a statute must be construed according to its plain language. Minn.Stat. § 645.16 (2002). But if a statute is ambiguous, the intent of the legislature controls. Id.

Minn.Stat. § 152.022, subd. 1(6) (2002) states that “[a] person is guilty of controlled substance crime in the second degree if: the person unlawfully sells [any amount of a schedule I or II narcotic drug] in a school zone, a park zone, a public housing zone, or a drug treatment facility.” Thus, where a controlled substance crime occurs in a “park zone,” the commission of the crime within the zone operates as an aggravating element that heightens the degree of the offense. At issue is whether the alleged drug buys took place in a “park zone” under the definition provided by Minn.Stat. § 152.01, subd. 12a. Subdivision 12a states:

“Park zone” means an area designated as a public park by the federal government, the state, a local unit of government, a park district board, or a park and recreation board in a city of the first class. “Park zone” includes the area within 300 feet or one city block, whichever distance is greater, of the park boundary.

The phrase “one city block” in subdivision 12a is undefined. Without defining “one city block,” the statute, by. its terms, implies that a distance of “one city block” could be greater than 300 feet. And, while the legislature’s inclusion of a distance of 300 feet implies that a distance of “one city block” should be in the neighborhood of 300 feet, the exact definition is not apparent based on the plain language of the statute. Accordingly, we conclude that the statute is ambiguous in its definition of how far from the actual park boundary a “park zone” extends.

The state argues for a broad construction of the term “park zone” in order to allow its charge of second-degree sale of cocaine here. The state first points to State v. Terrell, No. C1-95-1808, 1996 WL 330509 (Minn.App.), review denied (Minn. Aug. 20, 1996), an unpublished opinion where this court cited Black’s Law Dictionary’s general definition of a block as “a part of a city or town that is surrounded by streets or avenues on at least three sides.” Id. at *4. Based on this definition, the state asserts that “Cannon River Trailer Park and North Alexander Park are on the same block.” The state also asks that this court interpret the “park zone” to include the park and all of the surrounding land bounded by city streets. But, as the district court pointed out, “[i]t is unreasonable to construe the term ‘one city block’ to apply to a parcel of land that is at least 3075 feet by 2050 feet.” See Minn.Stat. § 152.01, subd. 12a (“Park zone” includes the area within 300 feet or one city block, whichever distance is greater, of the park boundary) (emphasis added). Rather than creating room for an argument that “one city block” includes any area surrounded by streets on three sides, no matter how large, the language of subdivision 12a indicates that “300 feet” and “one city block” are measures of distance used to determine proximity to a park’s boundary. We refuse to endorse the state’s proposed unlimited definition of the term “city block.”

The question of how far beyond the park’s boundary “one city block” extends is more problematic. As the state points out, “[i]f a ‘city block’ is to be considered to be no more than 300 feet long, and a ‘park zone’ includes the area within the greater of a city block or 300 feet, then the addition of the term ‘city block’ is meaningless.” But the state proposes no set limit on how far outside a park’s boundaries a “park zone” should extend. And, while the state points out that the Terrell court “accepted the fact that the definition of ‘city block’ would include ... a hypothetical suburban block extending for half a mile,” that language is distinguishable here. The Terrell court was discussing subdivision 12a in the context of a claim by a criminal defendant that the definition of “park zone” was unconstitutionally vague and did not provide adequate notice to criminal defendants.

Respondent argues that the legislature, when defining “park zone” in subdivision 12a, contemplated cases such as this— where the park and its “adjoining areas” are not laid out in city blocks — and therefore included the alternative measurement of 300 feet. We find this argument more reasonable than the state’s attempts to dramatically expand a “park zone” far beyond a distance of 300 feet. Respondent’s reading also comports with the settled principle that, when construing criminal statutes, a rule of strict construction applies and all reasonable doubt concerning legislative intent should be resolved in favor of the defendant. State v. Olson, 325 N.W.2d 13, 19 (Minn.1982).

Accordingly, we conclude that under circumstances where no actual grid system is present, the term “one city block” does not apply and, therefore, a drug transaction must take place within 300 feet of a park to come within the ambit of the “park zone” statute. While we recognize that this interpretation means the phrase “whichever distance is greater” is rendered meaningless where a standard grid system does not exist, this reading avoids constitutional complications and resolves the statute’s ambiguities in favor of the defendant. See id. Our legal conclusion is based on this narrow set of facts.

Here, the only evidence in the record regarding the actual distance between the property on which the alleged drug transactions took place and the park boundary is the testimony of Officer Cor-dova. And Cordova stated that neither trailer 19 nor trailer 162 is within 300 feet of the park. Thus, we affirm the district court’s denial of the state’s motion to amend the complaint, based on its finding that the state lacked probable cause to support a charge that the alleged drug sales by respondent took place in a park zone.

DECISION

Because the district court based its probable cause dismissal of the racketeering charge on a lack of evidence, the state has no right to appeal that factual determination.

On the issue of whether the alleged drug sales here took place in a “park zone,” as defined by MinmStat. § 152.01, we affirm the district court’s dismissal of that charge.

Affirmed.

      . The investigation reports and complaints refer to eight "controlled buy” drug transactions: two involving respondent's mother, three involving respondent's father, and three involving respondent. Based on evidence gathered during these eight transactions, the state filed racketeering charges against respondent.

      . The state did not address this issue in its brief.


author: KLAPHAKE, Judge. RANDALL, Judge

text:
    Lena M. HYATT, Respondent, v. ANOKA POLICE DEPARTMENT, et al., Appellants.
    No. A03-1707.
    Court of Appeals of Minnesota.
    July 19, 2005.

      Randall J. Fuller, William J. Marshall, Andrew J. Hippert, Babcock, Neilson, Mannella & Klint, P.L.L.P., Anoka, MN, for respondent.
    Paul D. Reuvers, Jason J. Kuboushek, Iverson Reuvers, Bloomington, MN, for appellants.
    Considered and decided by RANDALL, Presiding Judge, KLAPHAKE, Judge, and FORSBERG, Judge.

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

   OPINION

KLAPHAKE, Judge.

After she was bitten by a police dog during the arrest of her husband, respondent Lena M. Hyatt sued appellant City of Anoka and its police department under the “dog bite” statute, Minn.Stat. § 347.22 (2002). The city moved for summary judgment, arguing that (1) the dog bite statute does not apply to police dogs; (2) it is entitled to either statutory or vicarious official immunity; and (3) its police department should be dismissed because it is not a legal entity subject to suit. On appeal from the district court’s denial of the city’s motion, this court reversed, based on its determination that application of the dog bite statute to police dogs would lead to an “absurd” result, in part because such an application would conflict with the statute that allows police to use reasonable force. Hyatt v. Anoka Police Dep't, 680 N.W.2d 115 (Minn.App.2004), review granted (Minn. July 20, 2004).

On review, the supreme court reversed and remanded the matter to this court to consider the city’s alternative claims of immunity and whether the police department is a legal entity subject to suit. Hyatt v. Anoka Police Dep’t, 691 N.W.2d 824, 831 (Minn.2005). Because the police department is not a legal entity subject to suit, it is dismissed. Because the city is entitled to vicarious official immunity, but not to statutory immunity, we affirm in part and reverse in part.

FACTS

Although the facts are fully set out in the supreme court’s opinion, Hyatt, 691 N.W.2d at 825-26, the following facts are pertinent to the issues here.

On May 21, 2002, at approximately 1:30 a.m., police officers arrived at a residence to arrest appellant’s husband on outstanding warrants for controlled substance crime, fleeing a police officer, and driving after revocation. The homeowner told the officers that appellant and her husband were living in a two-story barn behind the residence. When the police officers entered the barn through an unlocked door, they heard movement upstairs. One officer called for appellant’s husband to come out. After receiving no response, Officer Mark Yates and his police dog, Chips, remained at the bottom of the stairs while two officers proceeded upstairs. Yates heard people yelling and scuffling, and ran upstairs after one of the officers called for his assistance.

When Yates arrived at the top of the stairs, he saw one officer with a bloody face. Yates released Chips either as appellant’s husband jumped out a window or immediately after he jumped; appellant was either standing between her husband and Chips, was pushed into the dog’s path by her husband, or stepped into the dog’s path of her own accord. As Chips took appellant down and apprehended her, Yates attempted to follow her husband out the window but caught himself before he fell two stories to the ground. The other two officers remained still, out of the dog’s way, until Yates returned to release him.

ISSUES

1. Should the police department be dismissed because it is not a legal entity subject to suit?

2. Did the district court err in determining that the city is not entitled to statutory immunity?

3. Did the district court err in determining that the city is not entitled to vicarious official immunity?

ANALYSIS

“On an appeal from summary judgment, this Court determines whether there are genuine issues of material fact and whether the district court erred in applying the law.” Watson v. Metro. Transit Comm’n, 553 N.W.2d 406, 411 (Minn.1996). “Summary judgment is appropriate when a governmental entity establishes its actions are immune from liability.” Gutbrod v. County of Hennepin, 529 N.W.2d 720, 723 (Minn.App.1995). The issue of whether immunity applies is a legal question subject to de novo review. Gleason v. Metro. Council Transit Operations, 582 N.W.2d 216, 219 (Minn.1998). The burden is on the party claiming immunity. Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn.1997).

I.

The city argues that the Anoka Police Department is not a legal entity subject to suit and that it should be dismissed as a party to this action. The district court did not address this issue.

While a municipal corporation such as the city has the authority to sue and be sued, its departments have not been given that specific authority. See Minn.Stat. §§ 412.111 (2002) (under chapter governing statutory cities, city council is granted authority to create departments and appoint officers and agents as deemed necessary for proper management and operation of city affairs), 412.211 (2002) (requiring every city to be municipal corporation having certain powers and rights, including right to “sue and be sued”). As a department or agent of the city, the police department is not a legal entity subject to suit. Maras v. City of Brainerd, 502 N.W.2d 69, 79 (Minn.App.1993) (holding that because Crow Wing County Sheriffs Department is not “person” subject to suit, claims against it must be dismissed), review denied (Minn. Aug. 16, 1993). We therefore dismiss the police department as a party to this case. See Galob v. Sanborn, 281 Minn. 58, 61-62, 160 N.W.2d 262, 265 (1968) (reversing judgment entered against public utilities commission as invalid, because commission was not legal entity that could sue or be sued, but noting that action could be maintained against village).

II.

The city argues that it is entitled to statutory immunity because the city’s decision to own, maintain, and use police dogs is a discretionary one entitled to protection under Minn.Stat. §§ 466.02, 446.03, subd. 6 (2002) (providing that cities are immune from claims “based upon the performance or the failure to exercise or perform a discretionary function or duty”). The district court determined that statutory immunity did not apply because “Officer’s Yates’ use of [Chips] under the circumstances may only be considered ‘operational’ as it does not bear the indicia of social, political, or economic motivation that are the hallmark of public policy decision making.”

When discussing statutory immunity, we must identify the exact governmental conduct that is being challenged. See Conlin v. City of St. Paul, 605 N.W.2d 396, 400 (Minn.2000). Statutory immunity does not protect operational conduct or the implementation of policy; rather, it protects' conduct and decision making, at the planning level, where cities evaluate factors involving the financial, political, economic, and social effects of its decisions. See Watson, 553 N.W.2d at 412-13.

The city characterizes the challenged conduct as involving the city’s decision to own police dogs because respondent’s claim is based solely on the dog bite statute, which imposes liability on the city merely because it owns these dogs. See Minn.Stat. § 347.22 (2002) (imposing liability on any dog “owner,” if dog “without provocation, attacks or injures any person who is acting peaceably in any place where the person may lawfully be”). The city further asserts that its decision to own police dogs was based on an evaluation of a number of policies, including officer safety, public safety, training issues, the expenses associated with owning dogs, and the effectiveness of police dogs.

While the city’s liability to respondent depends partially upon its decision to own police dogs, respondent’s claim challenges the conduct of Officer Yates and his decision to release Chips, despite the fact that respondent was standing between Chips and her husband. When the challenged conduct is examined in this way, Yates’ decisions to deploy Chips and pursue respondent’s husband must be viewed as operational level decisions that are not entitled to statutory immunity. We therefore affirm the district court’s determination that the city is not entitled to statutory immunity.

III.

The city alternatively argues that it is entitled to vicarious official immunity for the decisions made by its police officer to deploy his police dog during the apprehension of a fleeing felony suspect. “Official immunity is a common law doctrine that protects government officials from suit for discretionary actions taken by them in the course of their official duties.” Sletten v. Ramsey County, 675 N.W.2d 291, 299 (Minn.2004). A “[pjublic official charged by law with duties which call for the exercise of his judgment or discretion is not personally hable to an individual for damages unless he is guilty of a willful or malicious wrong.” Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn.1988).

Police officers are “classified as discretionary officers entitled to that immunity.” Johnson v. Morris, 453 N.W.2d 31, 42 (Minn.1990). A discretionary decision involves professional judgment balancing several factors, while a ministerial decision is absolute and certain, and involves the mere execution of a specific duty under designated facts; official immunity is not available when an officer is exercising a ministerial duty. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn.1998); Watson, 553 N.W.2d at 414.

“When the job is simple and definite,” as when a public official has a clear “duty to adhere to ordinances and statutes,” the official is not'entitled to immunity. Wiederholt, 581 N.W.2d at 316. Moreover, an official cannot “convert a ministerial decision into a discretionary one by refusing to comply with the mandate contained in a city ordinance.” Id.; see also Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 660 (Minn.2004) (stating that “ministerial-conduct bar to official immunity arises when the allegation is that a ministerial duty was either not performed or was performed negligently”).

The district court here concluded that it could not grant summary judgment to the city based on official immunity because “several fact issues remain,” including “whether Officer Yates exercised discretion by directing Chips to charge [respon-' dent] or whether Chips was acting in the perfunctory manner in which he had been trained”; “whether the other officers present were aware that Chips had seized [respondent] and whether Chips would follow a release command if given by another officer”; and “whether once Officer Yates realized that Chips had seized [respondent] he released Chips immediately or knowingly allowed Chips to continue to maul [respondent.]”

The issue, however, is not whether genuine issues of fact exist, but whether Yates’ decisions were discretionary, involving his individual professional judgment, or whether he was merely executing specific duties arising from fixed and designated facts. This requires examination of whether Yates’ decisions involved ministerial duties, which are often defined by statute, ordinance, or department regulation. See, e.g., Anderson., 678 N.W.2d at 659 (concluding that ministerial duty established by unwritten school policy); Nelson v. Wrecker Servs., Inc., 622 N.W.2d 399, 403 (Minn.App.2001) (finding that statute established ministerial duty for emergency vehicle to activate its lights and siren).

Respondent argues that Yates violated ministerial duties established by statute and by department policy. Department policy reminds officers, including those with police dogs, that they may “only use that amount of force which is necessary to make or maintain an arrest” and that “no employees shall use more force ... than is reasonable and necessary.” MinmStat. § 609.06 (2002) allows police to use reasonable force to effect a lawful arrest, and in this case, the supreme court determined that the statute applies to harm caused to an innocent bystander or to a third person “who is or reasonably appears to be impeding a lawful arrest.” Hyatt, 691 N.W.2d at 829.

Although Yates’ conduct is covered by the reasonable force statute and by department policy, that fact does not necessarily prove that a ministerial duty was involved. “[A] ministerial duty is one in which nothing is left to discretion; it is absolute, certain, and imperative, involving merely the execution of a specific duty arising' from fixed and designated facts.” Sletten, 675 N.W.2d at 306 (quotation omitted). For instance, a ministerial duty was found to exist where a municipal code provided that “it shall be the duty of the City Engineer to immediately repair” any broken sidewalk. Wiederholt, 581 N.W.2d at 316; see also Waste Recovery Coop. v. County of Hennepin, 517 N.W.2d 329, 333 (Minn.1994) (holding that duties fixed by requirements of statute or municipal policy are ministerial and not protected by official immunity).

Here, under department policy and the reasonable force statute, Yates was entitled to use Chips to effectuate the arrest of respondent’s husband. The critical question still involves whether the actions taken by Yates were “reasonable,” the resolution of which would require us to second-guess his discretionary decisions and professional judgment. The following facts are undisputed: (1) Yates knew that respondent’s husband had felony warrants out for his arrest; (2) Yates heard fighting upstairs and a woman screaming in a threatening tone; (3) Yates heard one of the officers call for assistance; and (4) when Yates arrived at the top of the stairs, he saw a woman standing.in the middle of the room and the two other officers off to the side, one with blood on his face. According to Yates, he released Chips when he saw respondent’s husband flee through a window, and he decided to pursue respondent’s husband rather than order Chips off of respondent.

While respondent testified that her husband was already out the" window by the time Yates and Chips reached the top of the stairs, her differing testimony on this point does not change the fact that Yates made a discretionary decision to use what he considered was reasonable force, the deployment of Chips, to assist in the arrest of respondent’s husband, whether he was still in the room or whether he had just fled. Yates’ decisions were made after considering the safety of the other officers, the immediacy of the situation, and the actions by respondent’s husband to flee and resist arrest. And, while respondent criticizes the failure of the other officers to assist her while Chips was biting her, the decisions of those officers similarly involved moment-to-moment decisions made by officers during the course of the arrest of a fleeing suspect. See Kuha v. City of Minnetonka, 365 F.3d 590, 608 (8th Cir.2003) (holding that under Minnesota law, “officers’ decisions to use a police dog, and the moment by moment decisions made in the course of that use, were, as a matter of law, discretionary acts, and the officers are entitled to official immunity”). We therefore conclude that Yates and the other officers are protected by official immunity for their actions.

Even if we conclude that the officers’ decisions involved discretionary acts, they are not entitled to official immunity if they acted maliciously. Malice is “the intentional doing of a wrongful act without legal justification” or the “willful violation of a known right.” Rico v. State, 472 N.W.2d 100, 107 (Minn.1991). “Malice in the context of official immunity means intentionally committing an act that the official has reason to believe is legally prohibited.” Kelly v. City of Minneapolis, 598 N.W.2d 657, 663 (Minn.1999).

Respondent insists that genuine issues exist as to whether Yates and the other officers acted with malice. But, as the city argues, the focus must be on whether the officers’ actions can be construed as an intentional effort to engage in behavior that they had reason to know was “prohibited.” Id. While respondent may criticize the officers’ decisions and suggest that those decisions were done carelessly or without reasonable care, she does not claim that the officers’ "knew that their actions were prohibited by department policy or by statute; nor does she claim that the officers chose to violate those regulations or otherwise made decisions in willful violation of known rights.

Finally, the. city argues that if its officers are entitled to official immunity, it .is entitled, to vicarious official immunity. The supreme court has noted that “it would be anomalous” to impose liability on a municipality for the very same acts, for which its official receives immunity. Wiederholt, 581 N.W.2d at 316 (quotation omitted). The city had policies regarding the use of force and the use of police dogs, and the immunity extended to the officers for their discretionary decisions involving those policies extends to the city. See Pletan v. Gaines, 494 N.W.2d 38, 43 (Minn.1992) (holding that with respect to police pursuits, police officer’s official immunity extends to officer’s public employer). We therefore conclude that the district court erred in determining that the city was not entitled to vicarious official immunity for the decisions made by its officers.

DECISION

While the district court properly denied summary judgment to the city on the issue of statutory immunity, it erred in denying the city’s motion for summary judgment on the issue of vicarious official immunity. We therefore affirm in part and reverse in part. We further conclude that the police department is not a legal entity subject to suit and is therefore dismissed from this action.

Affirmed in part and reversed in part.

RANDALL, Judge

(dissenting).

I respectfully dissent, and would remand to the district court for trial on genuine issues of material fact arising from the question of whether Officer Yates’s actions were willful or malicious. See Kelly v. City of Minneapolis, 598 N.W.2d 657, 664 n. 5 (Minn.1999) (“[wjhether an action is discretionary or ministerial is a question of law for the court, but whether an officer acted maliciously is usually a.question of fact for the jury”). (citing Elwood v. Rice County, 423 N.W.2d 671, 679 (Minn.1988)). I agree with the majority that if Yates’s actions are covered by official. immunity the City of Anoka is protected by vicarious official immunity. However, I cannot go along with the majority’s conclusion that, on this set of facts, the issue is ripe for summary judgment in favor of Anoka. I suggest the district court properly denied respondent’s motion for summary judgment, and set the case for trial on contested fact issues.

A determination of Yates’s official immunity (and, hence, Anoka’s vicarious official immunity) requires a two-step inquiry: (1) whether the act required the exercise of judgment and discretion and is therefore the sort of conduct covered by official immunity; and. (2) whether the alleged act, even though of the sort generally .covered by official immunity, was willful or malicious and therefore not, entitled to protection. Kelly, 598 N.W.2d at 664; Elwood, 423 N.W.2d at 677 (noting that there are two exceptions to the general rule precluding official liability).

As stated above, the question of whether an officer’s actions were willful or malicious is one for the jury. Kelly, 598 N.W.2d at 664 n. 5. Here, the district court refused to grant summary judgment on the official immunity question because it determined that “several fact issues remain,” including “whether the other officers present were aware that Chips had seized [respondent] and whether Chips would follow a release command if given by another officer;” and “whether once Officer Yates realized that Chips had seized [respondent] he released Chips immediately or knowingly allowed Chips to continue to maul [respondent].” These factual issues are unresolved and should not be determined by appellate review.

If the other officers stood by and watched while Chips mauled respondent, and they could have done something about it, it would be hard to say that those officers did not engage in conduct they knew to be prohibited, i.e., allowing a police dog to harm an innocent bystander. See id. at 663 (“[m]alice in the context of official immunity means intentionally committing an act that the official has reason to believe is legally prohibited”). If Yates knowingly allowed Chips to continue to maul respondent, he also engaged in prohibited conduct. A large, unresolved question lingers out there. In general, K-9 police/attack dogs are specifically trained to answer to only one officer, that dog’s master. The rationale is to avoid conflicting signals and allow the dog, in serious situations, to have a clear line of command. Yates was this dog’s controller. If he was the only one who could control the dog, the factual question arises as to whether there was willful conduct in Yates intentionally pursuing Hyatt’s husband and running out of the room after him, knowing that Chips was still attacking Hyatt, and knowing that the remaining officers at the scene could not do anything about that, short of drawing their pistols or batons and shooting or clubbing Chips. As the record shows, Hyatt’s husband jumped out a window, and Yates went through the window after him. As the majority points out, he “caught himself, before he fell two stories to the ground.” This is not a speculative scenario. This is a real scenario. What if Yates does not “catch” himself and falls two stories to the ground and is knocked unconscious or otherwise incapacitated. You still have Chips upstairs mauling Lena Hyatt, and you have two Anoka officers standing around who are helpless to do anything about it if Chips has been trained to respond to commands from only Yates. In that situation, the dog could easily have inflicted egregious injuries on Hyatt or caused her death, absent the other two officers using whatever they could find to stop the dog’s attack.

Respondent alleges willfulness; determination of the ultimate answers to these questions, as the district court properly held, is not appropriate at the summary judgment stage. Accordingly, I would remand for a trial on the factual issue of whether the officers on the scene engaged in willful or malicious behavior.