author: HANSON, Judge RANDALL, Judge

text:
    STATE of Minnesota, Respondent, v. Michael Daniel VANHOUSE, Appellant.
    No. C8-01-66.
    Court of Appeals of Minnesota.
    Oct. 16, 2001.

      Mike Hatch, Minnesota Attorney General, Robert A. Stanich, Assistant Attorney General, St. Paul, and Timothy R. Faver, Bemidji (for respondent).
    John M. Stuart, State Public Defender, Mark F. Anderson, Assistant State Public Defender, Minneapolis (for appellant).
    Considered and decided by TOUSSAINT, Chief Judge, RANDALL, Judge, and HANSON, Judge.
   OPINION

HANSON, Judge

On appeal from his conviction of first-degree criminal sexual conduct, appellant argues that the district court abused its discretion by ruling that the state could impeach him with his 1984 conviction of second-degree criminal sexual conduct. Because the district court did not abuse its discretion in admitting the conviction, and there is no reasonable possibility that the evidence would have affected the verdict, we affirm.

FACTS

Appellant Michael Vanhouse regularly provided day care to A.C. and M.C., who were in the fourth and fifth grades, at his trailer in Bemidji. On September 3, 1999, their mother made arrangements for Van-house to also care for ten-year old T.L., her niece, and seven-year old K.L., her nephew, who were visiting. After Van-house’s wife left for work and A.C. and M.C. left for school, T.L. and K.L. were left alone with Vanhouse and his preschool-age daughter and son.

When T.L. and K.L.’s aunt picked them up, T.L. reported that Vanhouse had taken her in his bedroom, performed cunnilingus on her and exposed her to an adult video that was playing on his VCR. During the ensuing police investigation, T.L.’s cousins, A.C. and M.C., also reported that Van-house had performed cunnilingus on them during the summer of 1999.

Vanhouse was charged with two counts of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct. The charges involving A.C. and M.C. were severed for trial purposes, but in the trial involving T.L., the state was permitted to introduce as Spreigl evidence the testimony of A.C. regarding the conduct of Vanhouse with her and her sister.

Prior to trial, Vanhouse indicated an intent to testify and made a motion in limine to preclude the state from impeaching his testimony by evidence of a 1984 conviction of second-degree criminal sexual conduct. The matter was thoroughly briefed and argued and the district court announced the decision to allow use of the conviction for impeachment purposes.

Vanhouse nevertheless testified in his own defense and denied all charges. Given the district court’s pretrial order allowing impeachment by the 1984 conviction, Vanhouse introduced evidence of that conviction in his direct examination. He was simply asked by his counsel whether he was “convicted of criminal sexual conduct in the second-degree in Aitkin County on July 20, 1984.” He reported that he was, based upon his plea of guilty. He then explained that this occurred several years ago, while he was abusing drugs, and that he had now been sober for 16 years. None of the facts involved in that conviction were described. Vanhouse was not cross-examined concerning the conviction and the district court later denied the prosecution’s request to place a certified copy of the 1984 conviction in evidence.

At trial, T.L. testified to the events of September 3, 1999, and the jury saw her videotaped police interview. K.L. testified that he witnessed Vanhouse taking T.L. into the bedroom. The jury was shown a segment of a pornographic video seized from Vanhouse’s bedroom that depicted the scenes that T.L. had described.

After submitting the case to the jury for deliberations, the jury returned with the following questions: (1) what behavior constitutes second-degree criminal sexual conduct? (2) does such an act involve a minor? and (3) what was the nature of Vanhouse’s conviction in 1984? The court replied that it could not answer the questions and that the jury could consider only evidence admitted at trial.

The jury convicted Vanhouse of first-degree criminal sexual conduct. He appeals.

ISSUE

Did the district court err in ruling that the state could use the 1984 conviction of criminal sexual conduct in the second-degree for impeachment?

ANALYSIS

The only issue raised by Vanhouse in this appeal is the propriety of permitting impeachment use of the 1984 conviction. We review a district court’s ruling on the impeachment of a witness by prior conviction under an abuse of discretion standard. State v. Ihnot, 575 N.W.2d 581, 584 (Minn.1998).

I

Vanhouse argues his 1984 conviction for second-degree criminal sexual conduct is stale, does not involve dishonesty or false statements and is more prejudicial than probative.

The district court made its decision to admit Vanhouse’s prior conviction under the heightened probative value — prejudice standard. Minn. R. Evid. 609(b). Under that standard, a conviction that is more than ten years old is not admissible “unless the court determines, in the interests of justice, that the probative value of the conviction * * * substantially outweighs its prejudicial effect.” In determining whether the probative value of admitting the evidence outweighs its prejudicial effect, the district court was required to evaluate five factors:

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant’s subsequent history, (3) the similarity of the past crime with the charged crime ⅜ * *, (4) the importance of defendant’s testimony, and (5) the centrality of the credibility issue.

Ihnot, 575 N.W.2d at 586 (quoting State v. Jones, 271 N.W.2d 534, 538 (Minn.1978)).

Our review of the district court’s evaluation of the Jones factors is impeded by the district court’s failure to enter its analysis on the record. While Minn. R. Evid. 609(b) and relevant comments (concerning convictions that are more than ten years old) are silent regarding whether the failure to enter this analysis on the record is error, the committee comment to Minn. R. Evid. 609(a) (concerning all other convictions) is instructive: “The trial judge should make explicit findings on the record as to the factors considered and the reasons for admitting or excluding the evidence.” It follows that the district judge should make similar record findings when admitting a conviction under Rule 609(b), given that the standard for admitting such impeachment evidence is stricter than that under Rule 609(a). We conclude, therefore, that the district court erred by failing to place its Jones-factor analysis on the record.

But when we have applied the harmless-error analysis to cases in which the district court failed to enter the Jones-factor analysis on the record, we have held that the error is harmless if the conviction could have been admitted after a proper application of the Jones-factor analysis. State v. Lund, 474 N.W.2d 169, 172 (Minn.App.1991). This approach is particularly appropriate where, as here, the Jones factors were thoroughly briefed and orally argued before the district court. See e.g. United States v. Holmes, 822 F.2d 802, 805 (8th Cir.1987) (upholding admission, under the comparable federal rule, of a conviction more than 10 years old, where the matter was briefed and orally argued). Based on consideration of the Jones factors discussed below, we conclude that the district court did not abuse its discretion in allowing use of the conviction for impeachment.

Impeachment Value

Vanhouse argues that criminal sexual conduct is not a crime of dishonesty and therefore his prior conviction has little impeachment value. A crime need not be one of dishonesty, however, to have probative value in allowing the jury to assess a witness’s credibility. State v. Brouillette, 286 N.W.2d 702, 707 (Minn.1979) (“Lack of trustworthiness may be evinced by his abiding and repeated contempt for laws which he is legally and morally bound to obey ⅞ * ⅜.” (quotations omitted)). Moreover, the impeachment of a criminal defendant by his past conviction allows the jury to “see the whole person and thus to judge better the truth of his testimony.” Id. (quotation omitted). In fact, the supreme court has specifically ruled that “evidence of past criminal misconduct involving children [a 1984 conviction for third-degree criminal sexual conduct] could have been of assistance to the jury in weighing the credibility of the defendant.” See Ihnot, 575 N.W.2d at 586. Accordingly, we conclude that the district court could properly determine that Vanhouse’s previous conviction for second-degree criminal sexual conduct has impeachment value.

Date of Conviction

Vanhouse argues that the conviction was inadmissible because it was stale. We examine the date of the conviction and the defendant’s subsequent history to determine whether the prior offense has lost its relevance over the passage of time. State v. Bettin, 295 N.W.2d 542, 546 (Minn.1980). In this case, Vanhouse’s post-1985 criminal record includes two driving after revocation offenses and a misdemeanor theft. The district court could reasonable conclude that this continuing misconduct somewhat prolongs the probative value of an otherwise stale conviction.

Similarity of Prior Conviction

Vanhouse argues that the similarity alone between the two crimes is prejudicial. It is true that a danger exists, in allowing impeachment by prior conviction of a similar offense, that the jury will convict the defendant based on the prior conviction regardless of the weight of the evidence in the pending offense. Despite this danger, Minnesota courts have allowed impeachment by prior conviction of similar crimes. See Ihnot, 575 N.W.2d at 588 (finding no abuse of discretion in admitting a third-degree criminal sexual conduct conviction for impeachment in a trial for first-degree criminal sexual conduct); State v. Frank, 364 N.W.2d 398, 399 (Minn.1985) (affirming decision to allow impeachment by two prior rape convictions in trial for first-degree criminal sexual conduct). Moreover, any prejudicial'effect of the 1984 conviction was minimal here because the facts underlying the conviction were not put in evidence and the district court did not admit the certified copy of the conviction. As a result, the only evidence of the conviction was Vanhouse’s own testimony, in which he was able to attempt to explain away its relevance. Finally, the district court gave the following cautionary instruction:

The evidence you heard concerning a prior conviction of the defendant was admitted only for your consideration in deciding whether the defendant is telling the truth in this case. You must not consider this conviction as evidence of the defendant’s character or conduct except as you may think it reflects on believability.

Under these circumstances, the district court could reasonably conclude that the similarity between Vanhouse’s prior conviction and the charged crime was not unduly prejudicial.

Importance of Defendant’s Testimony

Vanhouse made it clear that he intended to testify no matter what the outcome of his motion in limine. The district court, therefore, was not required to give substantial weight to this factor.

Centrality of Credibility Issue

Finally, Vanhouse argues that the jury did not need to hear the impeachment evidence to make a determination about his credibility because the jury would have readily inferred his self-interest in an acquittal without it. While it is true that the jury would have heard his testimony with a critical ear irrespective of the impeachment evidence, this fact alone is insufficient to render his credibility a remote issue. A defendant’s credibility is central “if the issue for the jury narrows to a choice between defendant’s credibility and that of one other person ⅜ * Bettin, 295 N.W.2d at 546. Where credibility is a central issue, “then a greater case can be made for admitting the impeachment evidence, because the need for the evidence is greater.” Id. Ultimately, the only witnesses to the alleged incident were T.L. and Vanhouse. The district court could reasonably conclude that the credibility issue was central in this case and the impeachment evidence was therefore necessary.

Accordingly, we conclude that the district court did not abuse its discretion by ruling that Vanhouse could be impeached by the 1984 conviction.

II

Even if the district court had abused its discretion by ruling that the conviction could be used for impeachment, that would not end our analysis. Respondent argues alternatively that any error in admitting the conviction was harmless. An error is harmless when there is no reasonable possibility that the wrongfully admitted evidence significantly affected the verdict. State v. Post, 512 N.W.2d 99, 102 n. 2 (Minn.1994).

We conclude that the evidence concerning the 1984 conviction did not significantly affect the verdict because (1) the state presented strong evidence of guilt; (2) the district court narrowly restricted the scope of the evidence concerning the 1984 conviction, allowing Vanhouse to mitigate its impact; (3) the district court gave cautionary jury instructions regarding the proper use of impeachment evidence; and (4) the 1984 conviction was essentially cumulative of the more damaging Spreigl evidence which is not challenged here. See State v. Walsh, 495 N.W.2d 602, 606 (Minn.1993) (finding harmless error in prejudicial admission of 15-year-old conviction where there was high likelihood of conviction without that evidence). We interpret the jury’s questions about the 1984 conviction to be a response to the minimal nature of the evidence allowed by the district court, not to reflect an inclination by the jury to misuse it as character evidence. A cautionary instruction “adequately protects [a] defendant against the possibility that the jury would convict him on the basis of his character rather than his guilt.” Brouillette, 286 N.W.2d at 708.

DECISION

Although the district court committed error by not placing its analysis of the probative value-prejudice factors on the record, our review of the record confirms that the district court did not abuse its discretion when it ruled that it would allow impeachment by the prior conviction. In addition, we conclude that there is no reasonable possibility that the evidence of the prior conviction had a significant affect on the verdict.

Affirmed.

RANDALL, Judge

(dissenting).

I respectfully dissent. I would reverse Vanhouse’s conviction based on the admission of the prior conviction. Vanhouse was on trial for first-degree criminal sexual conduct for acts he was accused of committing in 1999. At trial, the district court ruled that appellant could be impeached with a 1984 second-degree criminal sexual conduct conviction. I find that the evidence was stale, of little or no probative value, and highly prejudicial to a fault. Appellant’s jury confirmed that.

After submitting the case to the jury for deliberations, the jury returned with the following questions: What behavior constitutes second-degree criminal sexual conduct? Does such an act involve a minor? What was the nature of Van House’s conviction in 1984? The court replied that it could not answer the questions and that the jury could consider only evidence at trial.

First, by law, the 1984 conviction was stale. Evidence of prior convictions may be admissible to impeach if the underlying offenses are less than ten years old, punishable by imprisonment in excess of one year, and the “court determines that the probative value of admitting this evidence outweighs its prejudicial effect.” Minn. R. Evid. 609(a).

Fourteen years had passed between the prior conviction and the date of the acts involved in the current conviction. This lengthy time period between incidents makes the relevancy of the evidence tenuous at best. To guard against the danger of juries convicting criminal defendants of crimes based on the prejudicial effect of alleged prior misconduct, we have established reasonable time limit safeguards for impeachment of past crimes. See Minn. R. Evid. 609(b) (establishing ten-year time limit for admission of prior convictions for impeachment purposes). The assumption on which the ten-year limit is based is “that after such an extended period of time the conviction has lost its probative value on the issue of credibility.” Id. 1989 advisory comm. cmt.

That should have put the district court on guard and cautioned it to look at the next criteria, was the prior conviction one of dishonesty or just some generic felony. If the prior conviction involved dishonesty or false statement, it is admissible regardless of the punishment or probative value-prejudicial effect determination. Minn. R. Evid. 609(a)(2). Second-degree criminal sexual conduct is, by definition, not a crime of dishonesty and, thus, the district court was required to move on to the next criteria, “probative versus prejudicial.”

To determine whether the probative value outweighs the prejudicial effect, the court should consider:

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant’s subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant’s testimony, and (5) the centrality of the credibility issue.

State v. Jones, 271 N.W.2d 534, 538 (Minn.1978).

The length of time between the two incidents, 14 years, immediately red flags the issue of relevancy versus prejudice. What does something that happened 14 years ago have to do with what is charged today, other than to show that the accused actor today acted in conformity with something he did before? That is forbidden by the law. It has been settled law for decades that it is impermissible to introduce prior conduct to show conformity now on the pending charge.

Evidence of a prior crime may be used to show an element of the current crime such as motive, identity and intent. State v. Profit, 591 N.W.2d 451, 461 (Minn.1999). But it is impermissible to use such evidence as propensity evidence because it creates an undue prejudicial effect that the jury will convict appellant based on his prior bad acts. Old Chief v. United States, 519 U.S. 172, 180-82, 117 S.Ct. 644, 650-51, 136 L.Ed.2d 574 (1997) (holding evidence of prior bad acts transforms those acts into bad character, “raising the odds” that defendant did charged act “or, worse,” promotes “preventive conviction” regardless of guilt for alleged propensity to commit bad acts and noting “risk that a jury will convict for crimes other than those charged — or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment — creates a prejudicial effect that outweighs ordinary relevance” (quotation omitted)); Michelson v. United States, 335 U.S. 469, 475-76, 69 S.Ct. 213, 218-19, 93 L.Ed. 168 (1948) (holding evidence of prior bad acts “overpersuade[s]” jury to prejudge and deny defendant fair opportunity to defend against charged offense and noting courts exclude such evidence to “prevent confusion of issues, unfair surprise and undue prejudice”); State v. Townsend, 546 N.W.2d 292, 296 (Minn.1996) (holding prolonged description of pri- or-crimes evidence irrelevant and only improperly “inflame[d] the jury”); State v. DeWald, 464 N.W.2d 500, 504 (Minn.1991) (noting preventing “conviction based on prejudice created by evidence of other crimes is the underlying purpose” for excluding such evidence).

Then, the district court disregarded the third Jones factor, the similarity of the crimes. Simply because appellate courts have previously allowed impeachment by conviction of similar crimes does not mean that the exception swallows the rule. See State v. Ihnot, 575 N.W.2d 581, 588 (Minn.1998) (finding no abuse of discretion in admitting a third-degree criminal sexual conduct conviction for impeachment in a trial for first-degree criminal sexual conduct); State v. Frank, 364 N.W.2d 398, 399 (Minn.1985) (affirming decision to allow impeachment by two prior rape convictions in trial for first-degree criminal sexual conduct). Having acknowledged those cases, the third of the five Jones factors still cannot be ignored because of the above-stated danger that juries will use the prior convictions to assume that the defendant today acted in conformity with something wrong that he did before.

After examining the five Jones factors, it is clear to me that the evidence of the 1984 conviction was far more prejudicial than probative. I do not need to analyze the fabled judicial myth “harmless error.” Appellant’s jury tapped the judicial system on the shoulder and said, “Hey, it wasn’t harmless error, it was the whole case!”

The jury did not come back and ask the judge about how to consider impeachment evidence as it affects credibility. Instead, they wanted to know what 1984 behavior led to a charge of second-degree criminal sexual conduct; they wanted to know did that 1984 conviction involve a minor, as, of course, the present charge does; and then they wanted even more information about appellant’s 1984 conviction. The district court gave the jury the “non-answer,” stating it could not answer the questions, and the jury was instructed to consider only evidence admitted at trial. The jury, of course, knew that, evidence of the 1984 conviction had been admitted at trial and made the common sense assumption that, therefore, they could use it for whatever purpose they wanted, including the rationale that “if he did it before, it sure helps to prove (substantively) that he did it today.”

It is not often that a jury in a criminal case will come back into court and fill in the record as to whether the claimed error was “harmless” or not. Here, appellant’s jury did just that.

I dissent and would reverse the conviction and remand the case for a new trial without the admissibility of the 1984 prior conviction.

      . The prosecution is only allowed to introduce bad-character evidence if the defendant opens the door, which appellant did not, and the state makes no claim that he did. Thus, when the door is not opened by the defendant, the prosecution is forbidden to introduce bad-character evidence to show that if defendant did something wrong in the past, he is likely to have done it now (in the crime charged).


source: Caselaw Access Project

author: TOUSSAINT, Chief Judge.

license: Public Domain

text:
    In the Matter of Roger Lee KINDSCHY.
    No. C1-01-751.
    Court of Appeals of Minnesota.
    Oct. 23, 2001.

      Warren John Maas, Brooklyn Park, for appellant.
    Mike Hatch, Attorney General, Angela Mary Helseth, Assistant Attorney General, St. Paul, and David P. Honan, Cottonwood County Attorney, Windom, for respondent.
    Amy Klobuchar, Hennepin County Attorney, Peter J. Fransway, Assistant Hen-nepin County Attorney, Minneapolis, for respondent Minnesota Security Hospital.
    Considered and decided by TOUSSAINT, Chief Judge, KLAPHAKE, and HALBROOKS, Judges.
   OPINION

TOUSSAINT, Chief Judge.

The trial court committed Roger Lee Kindschy indeterminately as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP) pursuant to the Minnesota Civil Commitment and Treatment Act, Minn.Stat. §§ 253B.01.23 (2000). On appeal from the judgment of commitment, Kindschy challenges the constitutionality of two sections of the act and the trial court’s finding that Kindschy is “dangerous to others” within the meaning of the act. Because we conclude that the sections of the Minnesota Commitment and Treatment Act Kindschy challenges are constitutional and that the evidence in the record supports the trial court’s finding that Kindschy is dangerous to others, we affirm.

FACTS

Kindschy was born in December 1972. Because of extensive physical and sexual abuse by his stepfather and two of his brothers, Kindschy was removed from the home at age 14 and lived the remainder of his childhood in various foster homes and treatment facilities.

In June 1987, during a camping trip, Kindschy assaulted C.G., an eight-year-old boy who was a resident in Kindsehy’s foster home. Kindschy asked C.G. to show him his penis and threatened to hit him if he did not comply. Kindschy then rubbed his penis against C.G.’s, ordered him to turn around, and put his penis between C.G.’s buttocks. Although both boys provided similar accounts of the incident and a Cottonwood County social worker found the report substantiated, charges against Kindschy were not filed. Instead, Kindschy was sent to the psychiatric unit at Worthington hospital and then to Unity House, a residential treatment facility in Worthington, Minnesota.

In August 1987, Kindschy was transferred to a foster home. While there, he was suspended from school because of inappropriate sexual behavior with a female student. In late 1988, Kindschy became sexually aggressive with his girlfriend.

In January 1990, Kindschy moved in with the Wiederholt family. During his stay with the Wiederholts, Kindschy masturbated in a public area on at least one occasion and was reprimanded for kissing girls at school and grabbing a girl’s breast.

In May 1990, Kindschy was charged with fifth-degree criminal sexual conduct after touching a girl’s breast and vaginal area over her clothing. Kindschy was adjudicated delinquent and placed on probation. While on probation, Kindschy was discovered masturbating in front of other children.

In December of 1990, Kindschy was removed from the Wiederholts’ home after the Wiederholts heard him making sexual comments and suggestions to a vulnerable foster child. Several years later, Kindschy reported that, while at the Wiederholts, he had forced a ten-year-old boy to have anal sex after telling the boy that he would kill him if he did not comply.

In January 1991, Kindschy was admitted to the Lyon County Group Foster Home. In April, he was removed from the group home and charged with disorderly conduct for threatening to kill his roommate and for being verbally and physically abusive to staff. When removed from the home, Kindschy indicated he “did not give a shit.”

At age 19, Kindschy moved into his own apartment in Mountain Lake, Minnesota. In late September or early October 1991, Kindschy sexually assaulted two five-year-old twin boys, C.O.D. and C.L.D, on two different occasions. Kindschy admitted that he touched the boys’ penises, forced C.O.D. to jump up and down on his penis to make it hard, and then attempted to have anal intercourse with him. Kindschy stated he could not fully penetrate C.O.D. because the boy’s anal opening was too small. Kindsehy was charged with one count of first-degree criminal sexual conduct and four counts of second-degree criminal sexual conduct.

In May 1992, after a Rule 20 examination, Kindsehy was found incompetent to stand trial and was placed at the Willmar Regional Treatment Center (WRTC). Throughout his stay at WRTC, Kindsehy continued to engage in inappropriate sexual behavior with other patients despite repeated warnings. Kindsehy also admitted that he had fondled a 15-year-old girl and inappropriately touched two four-year-old girls, but these offenses were never charged.

Shortly after being placed at WRTC, Kindsehy was found competent to stand trial. In January 1993, he pleaded guilty to first-degree criminal sexual conduct. He was sentenced to 43 months at Minnesota Correctional Facility in St. Cloud, but his sentence was stayed, and he was placed on probation for 12½ years. Kindsehy’s probation included a requirement that he complete sex-offender treatment at Arrowhead House, a residential treatment center in Duluth.

At Arrowhead, Dr. Stephen Olmsted diagnosed Kindsehy with pedophilia, possible posttraumatic stress syndrome, borderline-personality disorder with prominent antisocial personality traits, and borderline intellectual functioning. In October 1993, Kindsehy was terminated from Arrowhead. His probation was revoked and he was returned to the Minnesota Correctional Facility in St. Cloud.

In January 1994, Kindsehy began the sex-offender-treatment program at the Minnesota Correctional Facility in Moose Lake. One day after signing a contract promising not to engage in sexual activities with other inmates, Kindsehy was found lying on a bed with another inmate. Four days later, the same inmate complained Kindsehy was always following him into the shower. One week later, the inmate was found in the shower holding Kindschy’s erect penis. Kindsehy was terminated from the program in January 1995 for having sexual contact with a different inmate.

In May 1995, Kindsehy finished his prison term at Minnesota Correctional Facility in St. Cloud and was placed on conditional release. Two days later, he violated the conditions of his release and was placed in jail.

In November 1995, Kindsehy was admitted to House of Hope, a chemical-dependency halfway house. In February 1996, he was readmitted to Unity House, where he described to therapist Greg Wasberg, 12 offenses against both boys and girls who ranged in age from 5 to 17 years old. The offenses included nonconsensual anal and vaginal sex and fondling, and many of the offenses involved violence. One of these offenses involved a seven-year old boy named Chad, whom Kindsehy lured into his home with cookies after meeting him at a restaurant. Kindsehy later denied all but three of these offenses.

In May 1996, Kindsehy sexually assaulted, D.B., a 35-year-old disabled woman. As D.B. was attempting to unlock her bike, Kindsehy walked up behind her and grabbed her breasts and vaginal area. Kindsehy admitted to this conduct. He was arrested for the offense but not charged.

In June 1996, the state filed a petition to civilly commit Kindsehy as a sexually dangerous person. The petition was later dismissed so that Kindsehy could attend Alpha House in Minneapolis. At Alpha House, Kindsehy admitted to having sexually assaulted 12 different people, and to having masturbated up to five times to thoughts of violent, noneonsensual intercourse with both male and female children ages 6 to 14.

In August 1997, the state filed a second petition to commit Kindsehy. Once again the petition was dismissed and Kindsehy was returned to Alpha House at the recommendation of a court-appointed examiner.

Kindsehy self-terminated from Alpha House in June 1999, claiming he was tired of all the rules. The clinic director indicated that Kindsehy would have been terminated regardless, because of “his persistent apathetic and defiant attitude and for not abiding by the rules.” During his stay at Alpha House, Kindsehy admitted to masturbating to deviant fantasies about children in the neighborhood. He also admitted to masturbating to thoughts of assaulting developmentally disabled women. Despite his 33-month stay at Alpha House, Kindsehy did not proceed past the first of five phases of the program. The clinic director indicated Kindsehy was at high risk to reoffend.

On June 9, 1999, Kindsehy returned to Arrowhead House. Dr. Olmsted, who evaluated Kindsehy, diagnosed him with pedophilia, mixed-personality disorder, expressive-language disorder, and borderline intellectual functioning. Dr. Olmsted viewed Kindsehy as a moderate risk to reoffend, but concluded that it was safe to place Kindsehy in the community as long as he attended a therapy group and was accountable for his whereabouts.

As Kindsehy was given more freedom at Arrowhead, his behavior worsened. Kindsehy missed meetings with Dr. Olmsted and refused to attend treatment. In October 1999, Kindsehy was terminated from Arrowhead because of his nonattendance and his negative attitude.

In November 1999, the attorney general filed a petition on behalf of Cottonwood County, seeking to commit Kindsehy as an SDP and an SPP. The trial court appointed Roger Sweet, Ph. D., as its first examiner. At Kindschy’s request, the trial court later appointed James Gilbertson, Ph.D., as a second examiner.

At trial, Dr. Olmsted testified he terminated Kindsehy from the program in 1999 because Kindsehy showed no insight into his behavior patterns, had no reoffense-prevention plan, no victim empathy, and did not accept of responsibility for his acts.

Richard Weinberger, a licensed psychologist who worked with Kindsehy at Alpha House in 1998 and had extensive experience working with low-intellect patients, testified that Kindsehy had a “powerful attachment to his deviant interests and an unwillingness to change.” He also stated that Kindsehy showed no insight into his behavior and demonstrated no victim empathy.

Both court-appointed examiners testified that Kindschy’s sexual offenses created a substantial likelihood of serious physical or emotional harm to others. The examiners based their opinion on the age of the victims and the frequency and type of abuse. Dr. Sweet explained that Kindschy’s victims were likely to suffer substantial harm in the form of “poor self image, acute anxiety, lack of trust, loss of control, repressed memories, depression, and possibly post-traumatic stress disorder and distrust of adults and authority.” He also stated that victims seven years and older who are sexually abused have an increased likelihood of depression, anxiety, and issues with sexual identity. Dr. Gilbertson added that male child victims who are sexually abused by an adult male often face more difficulties in dealing with the abuse. Both doctors agreed that sexual abuse as a child could lead to “becoming a perpetrator in later life.”

Kindschy testified that he did not need further sex-offender treatment. He also claimed that he was no longer sexually attracted to children because he knew it was wrong.

In June 2000, the trial court committed Kindschy as an SDP and an SPP to the Minnesota Sex Offender Programs at St. Peter and Moose Lake. The trial court credited the state’s witnesses and found that Kindschy did not understand his cycle of abuse and did not have an appropriate relapse-prevention plan. It also found that Kindschy’s deviant fantasies showed that he was still attracted to children. The trial court determined that Kindschy had engaged in a course of harmful sexual conduct within the meaning of Minn.Stat. § 253B.02, subd. 7a (2000), and in a habitual course of sexual misconduct within the meaning of Minn.Stat. § 253B.02, subd. 18b (2000). The trial court also found that Kindschy had failed to rebut the presumption of harm that arises from the commission of certain criminal-sexual-conduct offenses. Following a review hearing in February 2001, the trial court made Kindschy’s commitment indeterminate. This appeal followed.

ISSUES

1. Does Minn.Stat. § 253B.02, subd. 7a(b) (2000), unconstitutionally shift the burden of proof from the state to a person subject to civil-commitment proceedings as a sexually dangerous person by establishing a rebuttable presumption that certain criminal-sexual-conduct crimes create a substantial likelihood of serious physical or emotional harm?

2. Does Minn.Stat. § 253B.185, subd. 1 (2000), unconstitutionally place on a person subject to civil commitment as a sexually dangerous person or a sexual psychopathic personality the burden of proving that a treatment alternative less restrictive than commitment exists?

3.‘Is the trial court’s finding that Kindschy’s pattern of sexual misconduct makes him “dangerous to others” within the meaning of Minn.Stat. § 253B.02, subd. 18b (2000), supported by clear and convincing evidence?

ANALYSIS

I.

Kindschy first argues that by establishing ,a rebuttable presumption that certain criminal-sexual-conduct offenses create a substantial likelihood of serious physical or emotional harm to others, Minn.Stat. § 253B.02, subd. 7a(b) (2000), unconstitutionally shifts the burden of proof from the state to a person subject to civil-commitment proceedings. Specifically, Kindschy claims that because the rebuttable presumption places the risk of non persuasion on the person subject to commitment, it unconstitutionally shifts the burden of proof.

Whether a statute is constitutional is a question of law subject to de novo review. In re Blilie, 494 N.W.2d 877, 881 (Minn.1993). When considering the constitutionality of a statute, we are mindful that laws come to this court with a presumption of validity and may be declared unconstitutional only with great caution and if absolutely necessary. In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989). A person challenging the constitutionality of a statute has the burden of establishing beyond a reasonable doubt that the statute violates a claimed right. In re Conservatorship of Foster, 547 N.W.2d 81, 85 (Minn.1996). Kindschy has not met his burden of establishing that Minn.Stat. § 253B.02, subd. 7a(b), violates a claimed right.

Minnesota law defines a sexually dangerous person as a person who (1) has engaged in a course of “harmful sexual conduct” within the meaning of Minn.Stat. § 253B.02, subd. 7a; (2) has manifested a sexual, personality, or other mental disorder or dysfunction; and (3) is likely to engage in “harmful sexual conduct” as defined in subdivision 7a. Id., subd. 18c(a). Subdivision 7a defines “harmful sexual conduct” as “sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another.” Id., subd. 7a. The statute establishes a rebuttable presumption that conduct that constitutes criminal sexual conduct in the first through fourth degrees “creates a substantial likelihood that a victim will suffer serious physical or emotional harm.” Id., subd. 7a(b). Kindschy claims that this presumption unconstitutionally shifts the burden of proof from the state to the respondent in a civil-commitment proceeding.

We note first that the Minnesota Rules of Evidence provide that in all civil actions a presumption “imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof.” Minn. R. Evid. 301. A party does not have to rebut a presumption until the opposing party has established the facts that give rise to the presumption. Id., 1997 comm. cmt. Thus, Kindschy’s argument that the statute shifts the burden of proof is incorrect; rather, the statute allows the state to establish the element of likelihood of harm to others through proof that the respondent committed criminal sexual conduct in the first to fourth degrees. At all times the burden of proof remains with the state.

The state in this case proved by clear and convincing evidence the facts giving rise to the presumption that Kindschy’s conduct creates a substantial likelihood of serious physical or emotional harm to others' — namely, that Kindschy engaged in criminal sexual conduct in the first to fourth degrees. The state thus satisfied its burden of proof, and the burden shifted to Kindschy to rebut the presumption of harm. The trial court found that Kindschy failed to rebut the presumption. We can see no unconstitutional shifting of the burden of proof here, and Kindschy has submitted no authority to persuade us otherwise. On the contrary, the existing authority supports our conclusion that the statute does not unconstitutionally shift the burden of proof and fully comports with due process otherwise.

Kindschy’s argument in this case is similar to one rejected by the Supreme Court in Jones v. United States, 463 U.S. 354, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983). In Jones, the Supreme Court considered the constitutionality of the District of Columbia’s civil-commitment law adopted by Congress. Under that law, a defendant acquitted of an offense by reason of insanity is automatically committed to a mental hospital until the defendant proves by a preponderance of the evidence that he or she is no longer mentally ill or dangerous. Id. at 356-58, 103 S.Ct. at 3045-46. The defendant in Jones had been acquitted of misdemeanor theft by reason of insanity and was thereafter confined in a mental hospital under the District’s commitment law. Id. at 359, 103 S.Ct. at 3047. On appeal, he contended that the law unconstitutionally failed to require the District to prove present mental illness and dangerousness, as it would otherwise be required to do absent acquittal by reason of insanity. Id. at 362, 103 S.Ct. at 3048.

The Supreme Court rejected this argument, holding that Congress could constitutionally infer dangerousness from the criminal act itself for purposes of civil commitment, even if the criminal act was a non-violent act involving property. Id. at 364-65, 103 S.Ct. at 3049-50. The Court noted that the commission of a criminal act could reasonably be found to be “at least as persuasive as any predictions about dangerousness that might be made in a civil-commitment proceeding.” Id. at 364, 103 S.Ct. at 3049-50. Additionally, while recognizing the uncertainty inherent in psychiatric diagnoses and the tentativeness of professional judgments about dangerousness, the court concluded that the lesson to be learned “is not that government may not act in the face of this uncertainty, but rather that courts should pay particular deference to reasonable legislative judgments.” Id. at 364 n. 13, 103 S.Ct. at 3050 n. 13.

Here, the Minnesota Legislature made a judgment that a person who has engaged in conduct that constitutes criminal sexual conduct in the first to fourth degrees may be presumed, subject to rebuttal, to be substantially likely to inflict serious physical or emotional harm on others. As the Supreme Court said of Congress’s judgment in Jones, the Minnesota Legislature’s judgment here is at least as persuasive as any predictions about the likelihood of physical or emotional harm that might be made in a civil-commitment proceeding on the basis of expert testimony submitted by the state. It is also eminently reasonable and consistent with due process. See Lynch v. Overholser, 369 U.S. 705, 714, 82 S.Ct. 1063, 1069, 8 L.Ed.2d 211 (1962) (noting that finding that accused has committed criminal act is “strong evidence that his continued liberty could imperil ‘the preservation of public peace’ ”); cf. Jackson v. Indiana, 406 U.S. 715, 727-30, 92 S.Ct. 1845, 1852-54, 32 L.Ed.2d 435 (1972) (holding that person found incompetent to stand trial could not be committed indefinitely on the basis of an incompetency finding absent affirmative proof that accused committed criminal acts or was otherwise dangerous).

We thus conclude that the rebuttable presumption in Minn.Stat. § 253B.02, subd. 7a(b), does not unconstitutionally shift the burden of proof and otherwise comports with due process.

II.

Kindschy next argues that Minn. Stat. § 253B.185, subd. 1 (2000), unconstitutionally places the burden on a person subject to civil commitment to prove that a treatment option less restrictive than commitment is available. The statute provides that in proceedings for commitment of sexually dangerous persons or persons with a sexual psychopathic personality, “the court shall commit the patient to a secure treatment facility unless the patient establishes by clear and convincing evidence that a less restrictive treatment program is available.” Id. Contrary to Kindschy’s argument, and unlike statutes governing commitment procedures for persons with mental illness, mental retardation, or chemical dependency, Minn.Stat. § 253.185, subd. 1, does not require that commitments be made to the least-restrictive treatment program. In re Senty-Haugen, 583 N.W.2d 266, 269 (Minn.1998) (holding that person subject to commitment as sexually dangerous person or sexual psychopathic personality had no statutory right to receive treatment from least-restrictive alternative program). Under the current statute, patients have the opportunity to prove that a less-restrictive treatment program is available, but they do not have the right to be assigned to it. Minn.Stat. § 253B.185, subd. 1. Kindschy’s argument that the statute unconstitutionally shifts the burden of proof to him is, therefore, without merit.

III.

Kindschy last claims the state failed to present clear and convincing evidence that his acts of sexual misconduct involved sufficient violence to justify a finding that he is “dangerous to other persons” within the meaning of Minn.Stat. § 253B.02, subd. 18b (2000), the SPP commitment statute. We disagree.

In reviewing a mental-health commitment, this court accepts the trial court’s factual findings unless clearly erroneous. In re Joelson, 385 N.W.2d 810, 811 (Minn.1986). Whether the trial court’s factual findings justify commitment, on the other hand, is a question of law subject to de novo review. In re Linehan, 518 N.W.2d 609, 613 (Minn.1994).

A person may be committed as a sexual psychopathic personality on clear and convincing proof that he (1) has engaged in a habitual course of misconduct in sexual matters; (2) has an utter lack of power to control his or her sexual impulses; and (3) is, therefore, dangerous to others. See Minn.Stat. §§ 253B.02, subd. 18b, 253B.12, subd. 4 (2000). A person is “dangerous to others” and subject to commitment as a sexual psychopathic personality when the person’s pattern of sexual misconduct (1) creates a substantial likelihood of serious physical or emotional harm to others, and (2) is likely to recur because of an utter lack of power to control sexual impulses. In re Preston, 629 N.W.2d 104, 112-13 (Minn.App.2001) (holding that behavior involving coercion, physical force, and oral and vaginal sex with children as young as four years old supported finding that sex offender had utter lack of power to control his sexual impulses and justified SPP commitment); cf. In re Rickmyer, 519 N.W.2d 188, 190 (Minn.1994) (holding SPP commitment not justified when inappropriate sexual conduct, although repellent, included only spanking of young boys, fondling, and indecent exposure); In re Robb, 622 N.W.2d 564 (Minn.App.2001) (reversing SPP commitment of band teacher where sexual assaults included masturbation and fellatio but involved no physical injuries, and mental harm caused by assaults was no greater than mental harm typically associated with sexual assault), review denied (Minn. Apr. 17, 2001).

In determining if a person is “dangerous to others” courts must consider (1) the nature and frequency of the sexual assaults; (2) the degree of violence involved; (3) the relationship between the offender and the victims; (4) the offender’s attitude and mood; (5) the offender’s medical and family history; (6) the results of psychological and psychiatric testing and evaluation; and (7) other factors that bear on the predatory sex impulse and the lack of power to control it. In re Blodgett, 510 N.W.2d 910, 915 (Minn.1994).

The trial court considered the relevant factors and properly determined that Kindschy is “dangerous to others.” Unlike the assaults in Rickmyer and Robb, Kindschy’s sexual assaults involved much more than spanking, fondling, masturbation, and indecent exposure. They involved repeated oral and anal sex with children as young as five years old and were accompanied by threats of violence. As in Preston, the character and nature of Kindschy’s assaults alone justify a finding that Kindschy is substantially likely to cause serious physical and emotional harm and is, therefore, dangerous to others within the meaning of Minn.Stat. § 253B.02, subd. 18b.

DECISION

Minn.Stat. §§ 253B.02, subd. 7a(b), .185, subd. 1 (2000), do not unconstitutionally shift the burden of proof from the state to a person subject to civil-commitment proceedings as a sexually dangerous person or a sexual psychopathic personality. The evidence amply supports the trial court’s finding that Kindschy is “dangerous to other persons” within the meaning of Minn. Stat. § 253B.02, subd. 18b (2000).

Affirmed.


author: STONEBURNER, Judge.

text:
    STATE of Minnesota, Respondent, v. Levi William McMAINS, Appellant.
    No. C1-01-1270.
    Court of Appeals of Minnesota.
    Oct. 23, 2001.

      Samuel A. McCloud, Carson J. Heefner, Shakopee, for appellant.
    Pamela J. Converse, Scott Joint Prosecution Association, Shakopee, for respondent.
    Considered and decided by STONEBURNER, Presiding Judge, RANDALL and HALBROOKS, Judges.
   SPECIAL TERM OPINION

STONEBURNER, Judge.

This is an expedited appeal from a bail order denying appellant Levi McMains’ motion to set monetary bail without other conditions of pretrial release. Because we conclude the district court erred in refusing to set “money-only” bail, we reverse and remand.

FACTS

Appellant was arrested on March 16, 2001, and charged with gross misdemeanor DWI. The same day, appellant appeared before the district court, which set bail at $3,000 bond or $750 cash, and imposed various nonmonetary conditions of pretrial release, including abstention from alcohol and random drug and alcohol testing.

On July 23, 2001, appellant appeared for an omnibus hearing. Appellant’s counsel made a motion to set monetary bail without other conditions of release, arguing that “money only” bail must be set under Minn. R.Crim. P. 6.02, subd. 1. The district court denied the motion, finding that appellant posed a risk to the safety of others and to the community.

ISSUE

Did the district court err by failing to set money-only bail?

ANALYSIS

The district court has discretion in setting the appropriate amount of bail, and its decision will not be reversed absent a clear abuse of discretion. State v. Chamblee, 407 N.W.2d 721, 722 (Minn.App.1987). The issue appellant raises, however, involves an interpretation of -the rules of criminal procedure, which is reviewed de novo. State v. Nerz, 587 N.W.2d 23, 24 25 (Minn.1998).

Appellant does not contest the district court’s authority to impose nonmonetary conditions on his pretrial release. The DWI statute requires that certain nonmon-etary conditions be imposed on certain DWI defendants. Minn.Stat. § 169A.44(b) (2000). Appellant’s argument is that, under Minn. R.Crim. P. 6.02, subd. 1, the court must set an amount of monetary bail at which he may obtain his release without complying with nonmonetary conditions.

The rules provisions appellant relies on states:

In any event, the court shall also fix the amount of money bail without other conditions upon which the defendant may obtain release.

Minn. R.Crim. P. 6.02, subd. 1. The rule is stated in mandatory terms. See Minn. Stat. § 645.44, subd. 16 (2000) (providing that term “shall” is mandatory).

The district court declined to set “money only” bail because it concluded that appellant presented a risk to public safety. The court could have considered the risk to public safety in setting a higher amount of bail or more onerous nonmone-tary conditions. See Minn. R.Crim. P. 6.02, subd. 2 (providing that in setting conditions of release the court may consider the safety of others and of the community). But the district court was required by Minn. R.Crim. P. 6.02, subd. 1 to provide a setting of monetary bail by which appellant could obtain pretrial release without satisfying nonmonetary conditions.

We emphasize that the rule’s requirement of “money-only” bail does not prohibit the district court from imposing nonmonetary conditions of release. The court may still impose nonmonetary conditions as part of an alternative bail setting imposed as an option along with “money-only” bail. By means of such alternative bail settings, the district court may comply with Minn. R.Crim. P. 6.02, subd. 1 as well as with the DWI bail statute, Minn.Stat. § 169A.44(b), which mandates certain non-monetary conditions be imposed against certain DWI defendants except when the statutory maximum bail is set.

We emphasize that in this case, no issue is raised as to a conflict between Rule 6.02, subd. 1, and Minn.Stat. § 169A.44(b), nor is any separation-of-powers claim raised. Furthermore, we are not presented with any issue regarding conditions of release that may be required by statute in cases of domestic assault, or in other types of prosecution. See Minn. Stat. § 629.72 subd. 2 (2000) (providing for bail in cases of domestic assault or harassment). Finally, we must recognize that Rule 6.02, subd. 1, implements a constitutional right to bail for all noncapital offenses. See generally State v. Brooks, 604 N.W.2d 345, 350-51 (Minn.2000). The rule “establishes a preference for pretrial release with no monetary conditions.” Id. at 351. Our holding here should not be construed as limiting the district court’s discretion to release defendants on their own personal recognizance or on an unsecured appearance bond. See Rule 6.02, subd. 1 (stating preference for release on personal recognizance, on an order to appear or on execution of unsecured appearance bond). We hold only that, when the court has determined that additional conditions" are necessary, it must “fix the amount of money bail without other conditions upon which the defendant may obtain release.” Id.

DECISION

The district court erred in refusing to set monetary bail upon which appellant can obtain pretrial release without complying with nonmonetary conditions.

Reversed and remanded.

      . The state declined to file a brief in this appeal.


author: HALBROOKS, Judge.

text:
    Ryan Charles HARTUNG, Petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
    No. C4-01-419.
    Court of Appeals of Minnesota.
    Oct. 23, 2001.

      Richard L. Swanson, Chaska, MN, for appellant.
    Mike Hatch, Attorney General, Max A. Keller, Assistant Attorney General, St. Paul, MN, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge, KLAPHAKE, Judge, and HALBROOKS, Judge.
   OPINION

HALBROOKS, Judge.

Appellant Ryan Charles Hartung challenges the district court’s order sustaining the revocation of his driver’s license under the implied-consent law, arguing that he was denied meaningful consultation with his attorney when the arresting officer declined to provide him with the exact preliminary breath test (PBT) result. He further argues that this refusal violated his due-process right to potentially exculpatory evidence. Because appellant’s right to counsel was vindicated, we affirm.

FACTS

Elk River Police Officer Anthony Musa-tob arrested appellant for DWI after appellant failed a pre-arrest preliminary breath test (PBT). Appellant was taken to the Sherburne County Sheriffs office where he was read the implied-consent advisory. Appellant indicated that he understood the implied-consent advisory and indicated a desire to speak with counsel.

Appellant telephoned an attorney. While on the phone with his attorney, appellant asked Musatob for the result of his PBT. Musatob informed appellant that he had failed the PBT. Appellant continued to speak with his attorney. Appellant then asked Musatob if the PBT was a digital model, to which Musatob answered “yes.” After further consultation with his attorney, appellant asked Musatob for the precise result of the digital PBT. Musatob declined to provide it. Appellant subsequently ended his conversation with his attorney and agreed to submit to the breath test. The breath test yielded a result of .10 or more.

At trial, Musatob explained that he did not release the precise result of the PBT to appellant because he does not memorialize that information in his police reports. The trial court sustained the revocation of appellant’s driving privileges, specifically rejecting appellant’s argument that his right to counsel had been violated because he was not provided the exact result of the PBT. This appeal follows.

ISSUES

1. Was appellant denied his right to meaningful consultation with his attorney when the arresting officer refused to provide him with the exact result of his preliminary breath test?

2. Was appellant’s inability to obtain his exact preliminary-breath-test result a violation of his due-process right to exculpatory evidence?

ANALYSIS

I.

Appellant argues that he was denied his right to meaningful consultation with his attorney when Officer Musatob refused to provide him with the exact result of his PBT. While appellant was informed that he failed the PBT, he was not provided with the specific numerical result.

The determination of whether an officer vindicates a driver’s right to counsel is a mixed question of law and fact, “requiring the appellate court to apply the controlling legal standard to historical facts as determined by the trial court.” State v. Wiernasz, 584 N.W.2d 1, 3 (Minn.1998) (footnote omitted) (citation omitted). An appellate court reviews the district court’s factual findings under the clearly erroneous standard, but independently reviews the district court’s legal determination. Id. When the facts are not in dispute, as in this case, this court makes a legal determination whether or not the driver “was accorded a reasonable opportunity to consult with counsel based on the given facts.” Kuhn v. Comm’r of Pub. Safety, 488 N.W.2d 838, 840 (Minn.App.1992), review denied (Minn. Oct. 20, 1992).

A person arrested for driving while intoxicated (DWI) has a limited right to consult with an attorney before deciding whether to submit to chemical testing, provided the consultation does not unreasonably delay the testing. Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn.1991) (holding that right to counsel under implied-consent statute is limited because of the “evanescent nature” of alcohol).

A limited right to counsel means the right to consult with a lawyer of [the driver’s] own choosing. A police officer not only must inform the driver of the right to counsel but also must assist in vindicating this right. A police officer may vindicate a driver’s limited right to counsel by providing a telephone and a reasonable amount of time to contact and speak with an attorney.

Gergen v. Comm’r of Pub. Safety, 548 N.W.2d 307, 309 (Minn.App.1996) (citations and quotation omitted) (alteration in original), review denied (Minn. Aug. 6, 1996).

In this instance, appellant was informed of his right to counsel and given access to a telephone. He was permitted to call the attorney of his choice and received legal advice from that attorney. Appellant does not dispute that he was allowed to use the telephone for as long as he needed.

Appellant cites McNaughton v. Comm’r of Pub. Safety, 536 N.W.2d 912, 915 (Minn.App.1995), in support of his argument that he was deprived of a “meaningful consultation” with counsel because he was not provided with the exact PBT result. Appellant’s reliance on McNaughton is misplaced.

We held in McNaughton that a driver’s limited right to counsel was not vindicated when an officer provided a driver with a list of five pre-selected attorneys, but the driver did not have access to a telephone directory; was not allowed to personally dial the telephone to contact directory assistance, family, or friends; and ultimately spoke with one of the pre-selected attorneys who refused to represent or advise him. None of those factors exist in this case. Id.

Because we conclude that appellant’s limited right to counsel was vindicated, he was not denied meaningful consultation with his attorney when the officer refused to provide him with the exact PBT result.

II.

Appellant also contends that he was denied his due-process right to obtain exculpatory evidence in the form of the exact PBT result. Appellant maintains that Officer Musatob had an obligation to disclose any evidence in his possession that was potentially exculpatory. See Brady v. Maryland, 373 U.S. 83, 87-88, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963) (establishing due-process rights to exculpatory evidence). Providing the accused with exculpatory evidence “proteets[s] the innocent from erroneous conviction and ensures] the integrity of our criminal justice system.” California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984).

Appellant incorrectly assumes that Brady is applicable to a civil implied-consent proceeding. “[A]n implied consent hearing is not a de facto criminal proceeding and due process rights associated with criminal trials do not apply.” Brooks v. Comm’r of Pub. Safety, 584 N.W.2d 15, 20 (Minn.App.1998) (quoting Ruffenach v. Comm’r of Pub. Safety, 528 N.W.2d 254, 256 (Minn.App.1995) (addressing a constitutional right to exculpatory evidence)), review denied (Minn. Nov. 24, 1998). As we have previously held, “[b]ecause an implied consent hearing is not a criminal proceeding, Brady is inapplicable.” Brooks, 584 N.W.2d at 20.

DECISION

Appellant’s limited right to counsel was vindicated under Friedman. Therefore, appellant was not denied meaningful consultation with his attorney when the officer failed to provide him with the exact PBT result. The due-process right to potentially exculpatory evidence does not extend to civil implied-consent proceedings.

Affirmed.


author: HANSON, Judge.

text:
    Ralph PICHA, Relator, v. COUNTY OF McLEOD and McLeod County Board of Commissioners, Respondents.
    No. C4-01-727.
    Court of Appeals of Minnesota.
    Oct. 23, 2001.

      Eric J. Braaten, Nicklaus, Braaten & Hollenhorst, PLLC, Chaska, MN, (for relator).
    Michael K. Junge, McLeod County Attorney, Amy E. Olson, Assistant County Attorney, Glencoe, MN, (for respondent).
    Considered and decided by HANSON, Presiding Judge, RANDALL, Judge and STONEBURNER, Judge.
   OPINION

HANSON, Judge.

By writ of certiorari, relator-landowner appeals respondent-county’s decision to deny his application for a conditional use permit, asserting that the denial is arbitrary and capricious because the county failed to make adequate findings, the county had no legally sufficient reason to deny, and the denial is in violation of Minn.Stat. § 307.01 (2000). The county argues that relator’s petition for writ of certiorari is untimely. We conclude that the appeal is timely and, because the county had no legally sufficient reason to deny the permit, we reverse.

FACTS

Relator Ralph Picha filed an application for a conditional use permit (CUP) with respondent McLeod County (“County”) to establish a private cemetery on his family farm, which is zoned for agricultural use. The cemetery would occupy ⅜ of an acre of the approximately 120-acre farm.

When the planning commission met to discuss Picha’s application, various members expressed general concerns, including whether it would set a precedent for other requests for cemetery use, whether a cemetery would be a proper use of the land and whether problems of cemetery maintenance would arise. The meeting minutes note that: (1) the state has minimal guidelines for private cemeteries; and (2) one commissioner stated there were two cemeteries presently in his district and that they are only maintained

“as long as the person in charge has a personal commitment to that cemetery and there is funding available. When one or the other is missing, then there is trouble.”

However, after a motion to recommend denial of the CUP application failed, the planning commission passed the application on to the County Board of Commissioners with no recommendation.

At its meeting on February 20, 2001, with Picha in attendance, the County voted to deny Picha’s application “due to incompatibility with current use of the land and to avoid setting a precedent of allowing private cemeteries.” Subsequently, the County mailed a letter to Picha informing him of its decision. Picha received the letter on or about March 3, 2001. On April 26, 2001, Picha petitioned for a writ of certiorari.

ISSUES

1. Was relator’s petition for writ of certiorari timely filed?

2. Was the County’s denial of a CUP arbitrary?

3. Was denial of relator’s CUP application a violation of Minn.Stat. § 307.01?

ANALYSIS

I

The County contends that Picha’s petition for writ of certiorari is untimely because he had actual notice of the County’s decision at its February 20, 2001, meeting and did not file his petition for a writ of certiorari until more than 60 days later. A petition for a writ of certiorari must be filed within “60 days after the party applying for such writ shall have received due notice” of the adverse decision. Minn.Stat. § 606.01 (2000). The County argues that actual notice is “due notice.”

In 1925, the supreme court construed the “due notice” language of a predecessor statute to require written notice. In re Judicial Ditch No. 2, 163 Minn. 383, 202 N.W. 52 (Minn.1925). It reasoned that written notice would eliminate disputes about whether a party had actual notice and establish a uniform rule of practice for writs of certiorari. Id. at 385, 202 N.W. at 53; cf. Graham v. Itasca County Planning Comm’n, 601 N.W.2d 461, 465 (Minn.App.1999) (relying, in part, on Judicial Ditch No. 2 in construing a similar statute). Applying this construction, we conclude that relator’s petition for writ of certiorari was timely filed.

II

County Board decisions regarding a CUP are quasi-judicial and are reviewable by writ of certiorari. Interstate Power Co., Inc. v. Nobles County Bd. of Comm’rs, 617 N.W.2d 566, 574 (Minn.2000). Review of quasi-judicial decisions is limited to determining whether the decision was “arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it.” Molnar v. County of Carver Bd. of Comm’rs, 568 N.W.2d 177, 181 (Minn.App.1997) (quoting Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn.1992)).

Picha argues that the County’s decision was deficient because the County faded to make the necessary findings. We agree, and further note that the County failed to follow the procedures contained in its own ordinance.

Procedural Deficiencies

The County adopted an ordinance governing the disposition of CUP applications. Section 16, subdivision 6, of that ordinance provides as follows:

The County Planning Commission shall make its decision upon the application and forward its recommendations to the Board of County Commissioners. In reporting its recommendations to the Board of County Commissioners, the County Planning Commission shall report its findings with respect thereto and all facts in connection therewith, and may designate conditions and require guarantees deemed necessary for the protection of the public interest. Upon receipt of the report of the Planning Commission, the Board of County Commissioners shall make a decision upon the application for a Conditional Use Permit.

McLeod County, Minn., Zoning Ordinance § 16, subd. 6 (2000).

The planning commission erroneously forwarded Picha’s CUP application to the County Board without recommendation or findings. While this deficiency might warrant remand, we will focus our review on the legal sufficiency of and factual basis for the County’s denial. See In re Livin- good, 594 N.W.2d 889, 893, n. 3 (Minn.1999) (stating that when a quasi-judicial body states reasons for its denial, review of its decision “[i]s limited to the legal sufficiency and factual basis for those reasons” (quotation omitted)).

Inadequate Findings/Reasons to Support the Decision

Picha contends that the County did not provide adequate findings to support its decision to deny his CUP application. While it is not necessary to prepare formal findings of fact, a county board “must, at a minimum, have the reasons for its decision recorded or reduced to writing and in more than just a conclusory fashion.” Honn v. Coon Rapids, 313 N.W.2d 409, 416 (Minn.1981).

The County’s minutes are minimal and note only that: (1) there was a three to two vote by the planning commission to forward the request to the County with no recommendation; (2) comments were heard from Picha; (3) the board voted unanimously to deny Picha’s permit; and (4) the reasons for denying the CUP were: “incompatibility with current use of the land and to avoid setting a precedent of allowing private cemeteries.” We conclude that the County’s minutes do not adequately explain the reasons for its decision.

More importantly, the record before the County is devoid of evidence supporting the County’s decision. A denial of a CUP is arbitrary if it is “established that all of the standards specified by the ordinance as a condition to granting the permit have been met.” Zylka v. Crystal, 283 Minn. 192, 196, 167 N.W.2d 45, 49 (Minn.1969) (footnote omitted).

Section 16, subdivision 7, of the County’s zoning ordinance specifies the standards that must be met as a condition of the granting of a CUP:

[n]o conditional use shall be recommended by the County Planning Commission unless said Commission shall find:
1. [not applicable]
2. That the conditional use will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted, nor substantially diminish and impair property values within the immediate vicinity.
3. That the establishment of the conditional use will not impede the normal and orderly development and improvement of surrounding vacant property for uses predominant to the area.
4. That adequate utilities, access roads, drainage and other necessary facilities have been or are being provided.
5. That adequate measures have been or will be taken to provide sufficient off-street parking and loading space to serve the proposed use.
6. That adequate measures have been or will be taken to prevent or control offensive odor, fumes, dust, noise and vibration, so that none of these will constitute a nuisance, and to control lighted signs and other lights in such a manner that no disturbance to neighboring properties will result.

McLeod County, Minn., Zoning Ordinance § 16, subd. 7 (2000).

Picha’s application met all conditions. Picha’s request is for a private cemetery, which is a permitted conditional use. There is no evidence that such use would diminish the use or enjoyment of the surrounding property, impair property in the immediate vicinity or impede the normal and orderly development of the surrounding vacant property. Picha provided a permanent easement for maintenance and visitation access to the cemetery; placed $10,000 into a trust fund to provide for perpetual maintenance; and committed to compliance with Minn.Stat. § 307.01 relating to cemetery survey requirements.

We conclude that the County did not have a legally sufficient reason to deny the permit. “[W]hen a governmental body denies a permit with such insufficient evidence that the decision is arbitrary and capricious,” the general principle is that the appellate court should order issuance of the permit. Interstate Power Co., Inc. 617 N.W.2d at 577 (quotation omitted). We therefore reverse the decision of the County Board and remand with directions that the County issue the permit, subject to reasonable conditions.

Ill

We need not address Picha’s alternative argument that the denial of a CUP violated Minn.Stat. § 307.01 (2000).

DECISION

Because the petition for a writ of certio-rari was filed within 60 days after receipt of written notice of the County’s action, the petition was timely filed and this court has jurisdiction. Because the record does not support the County’s denial of the conditional use permit, we reverse the County’s decision and remand with directions that the County issue the permit, subject to reasonable conditions.

Reversed and remanded.


author: CADY, Justice.

text:
    FIRST STATE BANK, Nora Springs, Appellant, v. William CLARK and Mike Clark, d/b/a Johnson Chemicals, Appellees.
    No. 99-1995.
    Supreme Court of Iowa.
    Oct. 10, 2001.
    Ralph A. Smith of Noah, Smith & Schuknecht, P.L.C., Charles City, for appellant.
    Brian R. MePhail of Gross & McPhail, Osage, for appellees.
    Robert L. Hartwig, Iowa Bankers Association, Des Moines, and Thomas E. Sals-bery of Davis, Brown, Koehn, Shors & Roberts, P.C., Des Moines, for amicus curiae Iowa Bankers Association.
   CADY, Justice.

This appeal requires us to determine whether a creditor’s perfected security interest in crop proceeds continues under Iowa Code section 554.9306(2) (1999) when the proceeds were not received by the debtor. We reverse the decision of the district court and remand the case for further proceedings.

I. Background Facts and Proceedings.

First State Bank of Nora Springs financed the farming operation of Daniel Yezek. Yezek was a grain farmer and First State Bank had a perfected security-interest in his crop, as well as any proceeds from the crop. First State perfected its security interest by filing a financing statement with the Iowa Secretary of State, giving it a priority status over Yez-ek’s other creditors in the crop and proceeds.

In 1998, First State notified Yezek it would no longer finance his crop production. Yezek subsequently informed First State he intended to sell his corn to the elevator in St. Ansgar. On February 5, 1999, First State gave written notice to Grain Millers, Inc. in St. Ansgar of its security interest in the crop pursuant to Iowa Code section 554.9307(4)(a).

On April 9, 1999, Yezek sold his crop to St. Ansgar Mills, Inc. St. Ansgar Mills is a separate elevator from Grain Millers, Inc., and was not notified of First State’s perfected security interest in Yezek’s crop. Yezek directed St. Ansgar Mills to pay the proceeds from the sale of the corn to William and Mike Clark, doing business as Johnson Chemicals. Johnson Chemicals was an unsecured creditor of Yezek and was apparently unaware of First State’s security interest in the crop proceeds. St. Ansgar Mills paid Johnson Chemicals $6,758.80.

After learning of the transfer, First State promptly notified Johnson Chemicals of its security interest in the proceeds. Johnson Chemicals refused to deliver payment to First State.

First State filed a conversion action against Johnson Chemicals. Both parties filed motions for summary judgment. First State acknowledged it failed to give St. Ansgar Mills notice of its security interest in the corn. However, it claimed this did not release its security interest in the proceeds. Conversely, Johnson Chemicals claimed that First State lost its security interest in the proceeds when St. Ansgar Mills purchased the crops without notice of the First State security interest. Alternatively, Johnson Chemicals claimed any security interest held by First State failed to attach to the proceeds because the proceeds were never actually received by Yezek.

The district court granted Johnson Chemical’s motion for summary judgment and dismissed First State’s petition. The district court held First State lost its security interest in the collateral when St. Ans-gar Mills purchased the crop pursuant to section 554.9307(4)(a). Additionally, the court concluded First State’s security interest did not follow the crop proceeds because the proceeds from the sale were never in Yezek’s possession.

First State appeals. It acknowledges that the failure to adhere to the notice requirements of section 554.9307(4)(a) effectively extinguished its security interest in the collateral as to St. Ansgar Mills. However, it claims its security interest in the proceeds from the sale continued pursuant to section 554.9306(2).

II. Standard of Review.

Our review is for errors at law. St. Ansgar Mills, Inc. v. Streit, 613 N.W.2d 289, 292 (Iowa 2000). We will uphold the district court’s decision to grant summary judgment if there is no genuine issue of material fact. Id. Because the facts are not in dispute, the question we must resolve is whether the district court correctly applied the law to the facts. Id.

III. Proceeds.

Our uniform commercial code establishes the rights of a secured party to the proceeds from the disposition of collateral. Iowa Code section 554.9306(2) provides:

Except where this Article otherwise provides, a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof unless the disposition was authorized by the secured party in the security agreement or otherwise, and also continues in any identifiable proceeds including collections received by the debtor.

Thus, this section describes the general rule for secured parties, subject to exceptions identified in other sections of the Code. See Iowa Code § 554.9307 (protections for buyers of goods). Generally, a security interest not only continues in collateral following its sale or disposition, but it also continues in any identifiable proceeds. Id. § 554.9306(2). This section is identical to Uniform Commercial Code (U.C.C.) section 9-306(2). See Unif. Commercial Code § 9-306(2), 3A U.L.A. 162 (1992).

Section 554.9306(1) broadly defines “proceeds” to include “whatever is received upon the sale, exchange, or other disposition of collateral or proceeds.” However, there is a split in authority whether subsection (2) requires the debtor to receive the proceeds before the security interest will continue in the proceeds. As one court has recognized:

[U.C.C. § 9-306(2), ... ] is capable of being read to say that proceeds, which include collections, must be received by the debtor, or that the proceeds need not be received by the debtor but the security interest will in any event continue in identifiable proceeds regardless of who receives them and it will also continue in collections received by the debt- or.

Eastern Idaho Prod. Credit Ass’n v. Idaho Gem, Inc., 122 Idaho 946, 950, 842 P.2d 282, 286 (1992) (quoting Ray D. Henson, Secured Transactions Under the Uniform Commercial Code § 6-1, at 197 (2d ed.1979)).

Those courts that have determined that a security interest continues in proceeds from the sale of the collateral only if the debtor receives the proceeds construe the phrase “received by the debtor” in U.C.C. section 9-306(2) to modify the phrase “identifiable proceeds” as well as the term “collections.” See First Interstate Bank v. Arizona Agrochemical Co., 731 P.2d 746, 748 (Colo.Ct.App.1986); Eastern Idaho Prod. Credit Ass’n, 842 P.2d at 286-87; see also Scallop Petroleum Co. v. Banque Trad-Credit Lyonnais (France) S.A., 690 F.Supp. 184, 190 (S.D.N.Y.1988); Norfolk Prod. Credit Ass’n v. Bank of Norfolk, 220 Neb. 593, 597-98, 371 N.W.2d 276, 279 (1985); Lake Ontario Prod. Credit Ass’n v. Partnership of Grove, 138 A.D.2d 930, 932, 526 N.Y.S.2d 985, 986 (N.Y.App.Div.1988). Other courts find a security interest continues in the proceeds regardless of whether the debtor or someone other than the debtor receives the proceeds. See In re Reliance Equities, Inc., 966 F.2d 1338, 1340-41 (10th Cir.1992); Am. Nat’l Bank v. Cloud, 201 Cal.App.3d 766, 775-76, 247 Cal.Rptr. 325, 330 (1988); Producers Cotton Oil Co. v. Amstar Corp., 197 Cal.App.3d 638, 649-651, 242 Cal.Rptr. 914, 920 (1988); Famum v. C.J. Merrill, Inc., 264 A.2d 150, 156 (Me.1970); Vacura v. Haar’s Equip., Inc., 364 N.W.2d 387, 392 (Minn.1985); Prod. Credit Ass’n v. Melland, 278 N.W.2d 780, 788-89 (N.D.1979); Baker Prod. Credit Ass’n v. Long Creek Meat Co., 266 Or. 643, 650-51, 513 P.2d 1129, 1132-33 (1973); Cent. Washington Bank v. Mendelson-Zeller, Inc., 113 Wash.2d 346, 779 P.2d 697, 704 (1989). These courts have construed the phrase “received by the debtor” as only modifying “collections.” This appears to be the majority rule. See Centerre Bank, N.A. v. New Holland Div. of Sperry Corp., 832 F.2d 1415, 1419 (7th Cir.1987) (citing 9 R. Anderson, Uniform Commercial Code § 9-306:24, at 152 (3d ed.1985)). We have not previously considered this issue.

We recognize compelling arguments exist on both sides of the issue. On one hand, the Official Comment to U.C.C. section 9-306 indicates the section “states a secured party’s right to the proceeds received by a debtor on disposition of the collateral.... ” Unif. Commercial Code § 9-306, 3A U.L.A. 165 cmt. 1 (emphasis added); see Centerre Bank, N.A., 832 F.2d at 1419 (citing R. Hillman, J. McDonnell & S. Nickles, Common Law and Equity Under the Uniform Commercial Code ¶ 22.05[l][b], at 22-55 (1985)); First Interstate Bank, 731 P.2d at 748 (Official Code Comment indicates drafters’ intent to define proceeds as those actually received by the debtor); Eastern Idaho Prod. Credit Ass’n, 842 P.2d at 286 (same). Additionally, if the term “proceeds” in the last clause of section 554.9306(2) takes on its full meaning under section 554.9306(1) so that it is defined without reference to who receives the proceeds, then the definition would necessarily include “collections received by the debtor” and render the phrase superfluous. See 2A Norman J. Singer, Sutherland Statutory Construction § 47.17, at 284-85 (Clark Boardman Callaghan 6th ed.2000). We do not interpret statutes to render any part superfluous. State v. Jennie Coulter Day Nursery, 218 N.W.2d 579, 582 (Iowa 1974); see 2A Singer, Sutherland Statutory Construction § 47.17, at 283-84. These arguments, and • others, support a finding that a security interest continues in proceeds under section 554.9306(2) only if received by the debtor. See Eastern Idaho Prod. Credit Ass’n, 842 P.2d at 286-87.

On the other hand, the confusion that exists under the statute is essentially due to the placement of the modifying phrase “received by the debtor” in the last clause of section 554.9306(2). This phrase follows the word “collections,” and clearly modifies “collections” to mean those “received by the debtor.” See Producers Cotton Oil Co., 242 Cal.Rptr. at 920; Farnum, 264 A.2d at 150; Prod. Credit Ass’n, 278 N.W.2d at 788-89; Baker Prod. Credit Ass’n, 266 Or. at 650, 513 P.2d at 1132-33. Yet, if our legislature also wanted to further modify “any identifiable proceeds” to mean only those “received by the debtor,” it could have placed the modifier immediately following the word “proceeds.” See id. Moreover, if our legislature wanted the phrase “received by the debtor” to modify “identifiable proceeds,” it would have been unnecessary to include the phrase “including collections.” The term “proceeds” includes collections by definition. Iowa Code § 554.9306(1). Thus, just as one interpretation seems to render part of the statute superfluous, so does the other interpretation.

We also must consider the statute in its entirety. State v. DeCamp, 622 N.W.2d 290, 294 (Iowa 2001). Our legislature defined the term “proceeds” in a very broad manner, without any restriction on who must receive them. See Iowa Code § 554.9306(1); see also In re Munger, 495 F.2d 511, 513 (9th Cir.1974); Producers Cotton Oil Co., 242 Cal.Rptr. at 921; Farnum, 264 A.2d at 156; Farmers & Merchants Nat’l Bank v. Sooner Co-op., Inc., 766 P.2d 325, 327-28 (Okla.1988). The legislature then used this term in defining the scope of the rights of a secured creditor in section 554.9306(2), but provided a more definite meaning of the word by limiting it to “any identifiable proceeds.” See Iowa Code § 554.9306(2) (emphasis added). Thus, the phrase which follows “including collections received by the debtor” relates to the word “proceeds” only as modified by the adjective “identifiable.” See Farnum, 264 A.2d at 155. Therefore, we think our legislature intended the phrase “including collections received by the debtor” as1 a subset of “any identifiable proceeds” so that the concept of “any identifiable proceeds” includes “collections received by the debtor.” See State Pub. Defender v. Iowa Dist. Ct., 633 N.W.2d 280, 283 (Iowa 2001).

The argument for limiting a security interest in proceeds to only those received by the debtor would be stronger if the legislature had only used the term “proceeds” in section 554.9306(2) without reference to “any identifiable proceeds.” However, by modifying proceeds to restrict the security interest to “identifiable proceeds,” a purpose arises for including the clause “including collections received by a debt- or.” This purpose was to include collections received by the debtor within the concept of identifiable proceeds.

We think this interpretation gives meaning to all the words in the statute and best accomplishes the goal of the statute to trace proceeds subject to a security interest. See Waits v. United Fire & Cas. Co., 572 N.W.2d 565, 573 (Iowa 1997); see also Humboldt Trust & Sav. Bank v. Entler, 349 N.W.2d 778, 782-83 (Iowa Ct.App.1984). Moreover, a debtor should not be able to avoid a secured creditor’s right to proceeds by directing payment to an unsecured creditor. See In re Reliance Equities, Inc., 966 F.2d at 1341; Am. Nat’l Bank, 247 Cal.Rptr. at 330; Producers Cotton Oil Co., 242 Cal.Rptr. at 919; Metter Banking Co. v. Fisher Foods, Inc., 183 Ga.App. 441, 443, 359 S.E.2d 145, 147 (1987). “To rule otherwise would frustrate the Code’s priority rules by allowing a creditor who, as here, gets possession of the proceeds prior to the debtor to take priority over an otherwise superior security interest in those proceeds.” Cent. Washington Bank, 779 P.2d at 704. Such a rule would discourage lending institutions from providing financing to those offering farm products as collateral. See id. In addition, the underlying purpose of chapter 554 to create commercial certainty and reliability for secured creditors of farm products would be thwarted. See Fort Collins Prod. Credit Ass’n v. Carroll Dairy, 37 Colo.App. 536, 539, 553 P.2d 95, 98 (1976); Metter Banking Co., 359 S.E.2d at 147-48; Cent. Washington Bank, 779 P.2d at 705; see also Baker Prod. Credit Ass’n, 513 P.2d at 1135 (“Where, as here, the secured party has every reason to believe that its security interest will be recognized ... there is no reason to hold that the security interest has been extinguished.”). It is the role of the legislature, not the courts, to create further exceptions to the rules governing the priority of interests. Cent. Washington Bank, 779 P.2d at 705.

Finally, we observe that even those courts that limit the security interest in proceeds only when they are received by the debtor extend the section to also include persons “standing in the shoes of the debtor.” See Eastern Idaho Prod. Credit Ass’n, 842 P.2d at 287. We think this judicial extension by these courts illustrates a weakness in their interpretation of U.C.C. section 9-306(2), and is actually subsumed in our interpretation of the section as written by the legislature.

We conclude section 554.9306(2) does not require the proceeds to be directly received by the debtor. See Prod. Credit Ass’n, 278 N.W.2d at 788. The payment received by Johnson Chemicals constituted proceeds subject to First State’s security interest, even though it was paid to Johnson Chemicals rather than to Yezek. See Baker Prod. Credit Ass’n, 513 P.2d at 1132. Thus, the district court erred in sustaining Johnson Chemicals’ motion for summary judgment.

IV. Conclusion.

The district court granted the motion for summary judgment by Johnson Chemicals on the basis that First State lost its security interest in the collateral when Yezek sold the crop to St. Ansgar Mills, and the security interest did not continue in the proceeds because the proceeds were not received by Yezek. Although First State may have lost its security interest in the collateral under section 554.9307(4)(a), it did not lose its security interest in the proceeds under section 554.9306(2). Thus, we reverse the decision of the district court and remand the case for consideration of the motion for summary judgment filed by First State.

REVERSED AND REMANDED.

      . We note that our legislature has adopted, for the most part, the new version of Article 9 of the U.C.C., and section 554.9306 is now section 554.9315. See 2000 Iowa Acts ch. 1149, § 35 (codified at Iowa Code § 554.9315 (2001)). This act became effective on July 1, 2001. 2000 Iowa Acts ch. 1149, § 187. Under the new version, a security interest continues in collateral after disposal and "attaches to any identifiable proceeds of collateral.” Iowa Code § 554.9315(l)(a), (b) (2001). Moreover, the term "proceeds” is not defined by reference to who receives the proceeds. Id. § 554.9102(bl)(l)-(5). This new definition resolves the ambiguities in the former section and contains no requirement that the proceeds be received by the debtor. Unif. Commercial Code § 9-102, 3 (Part I) U.L.A. 52-53 cmt. 13(d) (2000) (revised Article 9). It is only necessary for the proceeds to be traceable to the original collateral. Id. Thus, the issue we decide today will only impact those cases, like the present case, which arise under the preamendment version of the statute.

      . It is significant that the Uniform Commissioners' 1953 version of section 9-306 limited the rights of a secured party to "proceeds received by the debtor.” See Centerre Bank, N.A., 832 F.2d at 1420. In 1956, the U.C.C. Editorial Board recommended the phrase "in-eluding collections” be inserted for clarification purposes. Id. This recommendation was adopted and is the version of section 9-306 that is at issue in this case. See id. Thus, an argument exists that the phrase "including collections” was likely inserted to clarify that "proceeds” included "collections.” Id. However, this interpretation was not written into the Official Comment to the U.C.C. See Ellefson v. Centech Corp., 606 N.W.2d 324, 332 (Iowa 2000) (relying on U.C.C. Official Comment in interpreting Iowa law); Meyer v. City of Des Moines, 475 N.W.2d 181, 184 (Iowa 1991) (finding comments to uniform law to be "persuasive authority" in interpreting Iowa law where Iowa law tracks with uniform law). There is no indication our legislature otherwise considered this history in adopting section 554.9306 in 1966. See 1965 Iowa Acts ch. 413, § 9306 (codified at Iowa Code § 554.9306 (1966)). In fact, subsequent amendments to section 554.9306 reveal it did not. If our legislature intended the phrase "including collections” to make it clear that the term "proceeds” encompasses "collections,” it would not have amended the definition of "proceeds” in 1974 to include collections or it would have removed the phrase at the time of the amendment. See 1974 Iowa Acts ch. 1249, § 46 (codified at Iowa Code § 554.9306 (1975)).


author: /s/ Paul H. Anderson Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST John M. STEELE, an Attorney at Law of the State of Minnesota.
    No. C2-00-2210.
    Supreme Court of Minnesota.
    Oct. 23, 2001.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent John M. Steele has committed professional misconduct warranting public discipline, namely, respondent failed to keep a client reasonably informed regarding (1) an arbitrator’s decision; (2) anticipated costs related to an appeal; (3) time lines regarding the appeal; and (4) failing to return the client file within a reasonable time that would allow the client to pursue an appeal through other counsel in violation of Minn. R. Prof. Conduct 1.4(a) and (b), and 1.16(d). The Director also alleges respondent’s history of prior discipline and the violations in the present matter constitute a pattern of related misconduct under Rule 19(b)(4)(i), Rules on Lawyers Professional Responsibility (RLPR), the cumulative effect of which is in violation of Minn. R. Prof. Conduct 1.4.

The referee found respondent’s conduct violated the Minnesota Rules of Professional Conduct, and respondent has waived his rights under Rule 14, RLPR, and has entered into a stipulation with the Director wherein they jointly recommend that the appropriate discipline is a public reprimand and payment of $900 in costs and disbursements under Rule 24, RLPR.

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

IT IS HEREBY ORDERED that respondent John M. Steele is publicly reprimanded. Respondent shall pay $900 in costs and disbursements under Rule 24, RLPR.

BY THE COURT:

/s/ Paul H. Anderson

Associate Justice


author: /s/ Alan C. Page, Associate Justice.

text:
    Paul L. BLOM, Respondent, v. SINGLE SOURCE TRANSPORTATION and Reliance Insurance/Crawford & Co., Relators.
    No. C2-01-1181.
    Supreme Court of Minnesota.
    Oct. 24, 2001.
    Leslie M. Altman, David M. Bateson, Rider, Bennett, Egan & Arundel, L.L.P., Minneapolis, for relators.
    Gary L. Manka, Katz & Manka, Ltd., Minneapolis, for respondents.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed June 14, 2001, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01, subd. 1(b).

Employee is awarded $600 in attorney fees.

BY THE COURT:

/s/ Alan C. Page,

Associate Justice.


author: /s/ Kathleen A. Blatz Chief Justice.

text:
    John FOWLER, Jr., Respondent, v. CITY OF ST. PAUL, SELF-INSURED/RISK MANAGEMENT DIVISION, Relator.
    No. C3-01-1237.
    Supreme Court of Minnesota.
    Oct. 24, 2001.
    Timothy S. Crom, Shari L. Johnson, Jardine, Logan & O’Brien, P.L.L.P., St. Paul, for relator.
    Michael Steven Krug, Krug & Zuzpke, P.C., St. Paul, for respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed June 27, 2001, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01, subd. 1(b).

Employee is awarded $600 in attorney fees.

BY THE COURT:

/s/ Kathleen A. Blatz

Chief Justice.


text:
    Ronald A. BERG, Relator, v. BAYPORT PRINTING HOUSE, INC., and Westfield Companies, Respondents.
    No. C9-01-1355.
    Supreme Court of Minnesota.
    Oct. 25, 2001.
    Charles M. Cochrane, Roseville, for relator.
    Susan M. Pasch, Cousineau, McGuire & Anderson, Minneapolis, for respondents.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed June 14, 2001, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01, subd. 1(b).

BY THE COURT:

/s/ Paul H. Anderson,

Associate Justice.