author: KALITOWSKI, Judge.

text:
    In the Matter of the WELFARE of D. W.
    No. A06-2069.
    Court of Appeals of Minnesota.
    May 15, 2007.

      Leonardo Castro, Hennepin County Public Defender, Barbara S. Isaacman, Assistant Public Defender, Minneapolis, MN, for appellant D.T.W.
    Lori Swanson, Attorney General, St. Paul, MN; and Michael O. Freeman, Hen-nepin County Attorney, Donna J. Wolfson, Michael K. Walz, Assistant County Attorneys, Minneapolis, MN, for respondent.
    Considered and decided by ROSS, Presiding Judge; KALITOWSKI, Judge; and HALBROOKS, Judge.
   OPINION

KALITOWSKI, Judge.

The state charged appellant D.W. with aiding and abetting a second-degree assault involving a dangerous weapon other than a firearm. Because D.W. was 17 years old at the time of the crime and the state believes this is a presumptive-certification offense, the state moved to certify the case for adult prosecution. The district court agreed that this is a presumptive-certification case but denied the motion to certify and instead designated the case as an extended-jurisdiction-juvenile (EJJ) case. Appellant challenges the EJJ designation order dated August 23, 2006, arguing that the district court erred in determining (1) that the presumptive-certification statute is constitutional; (2) that this case warranted a presumptive, rather than nonpresumptive, certification petition; and (3) that there was probable cause that appellant aided and abetted in a second-degree assault involving a dangerous weapon.

FACTS

On May 9, 2006, appellant D.W. and two other juveniles (B.J. and A.R.) allegedly assaulted the victim, M.A.M., a juvenile male. The victim identified all three individuals who assaulted him. The victim reported that he had been walking home when a vehicle that was occupied by the three identified juveniles turned around and followed him. The victim stated that B.J. stepped out of the car holding a baseball bat and that the three juveniles chased the victim over a fence and into a backyard where they hit and kicked him repeatedly. The victim stated that B.J. hit him with the baseball bat up to ten times, striking him on his right arm and right upper and lower leg. Appellant and the other juvenile attackers returned to the vehicle and fled following the assault.

During a show-up identification, the victim M.A.M., positively identified B.J. as the attacker who struck him with the bat, and A.R. and appellant as the ones who hit and kicked him during the assault. In his statement to police, B.J. admitted that he and appellant decided to jump the victim because of a physical confrontation that occurred about a month prior at school. B.J. claimed that he found the bat leaning against a house immediately prior to the assault but admitted taking the bat back with him to the car after the assault.

After he had been issued a Miranda advisory, appellant provided a statement in which he admitted to driving with B.J. and seeing the victim walking alone. Appellant stated that he was upset that the victim jumped into a fight about a month ago involving himself, B.J., and nine others, because the victim did not have to get involved. Because of this, appellant stated that he and B.J. jumped out of the car, chased the victim, and assaulted the victim repeatedly. Appellant claimed he did not see B.J. with a baseball bat but admitted witnessing B.J. kick and punch the victim. Two witnesses reported that they heard what sounded like an aluminum bat as the victim was being struck by one of the suspects. One witness saw the victim being hit with a bat.

Appellant was charged on May 12, 2006, with aiding and abetting a second-degree assault involving a dangerous weapon other than a firearm. On the same day, respondent filed a presumptive-certification motion, because appellant was 17 years old, and the crime with which he was charged carried a presumptive prison sentence if committed by an adult. At the hearing on May 12, appellant waived probable cause for the sole purpose of beginning the certification study and the psychological evaluation. Based on the evidence in the police reports, appellant moved to dismiss the petition for presumptive certification for lack of probable cause, and moved for an order to declare the presumptive-certification statute unconstitutional under Blakely, or in the alternative, to change the presumptive-certification motion to a non-presumptive-certification motion. Following appellant’s motion to dismiss the complaint for lack of probable cause, the court ordered a Florence hearing to examine the police reports on which the petition was based. At the Florence hearing, the court denied appellant’s request to dismiss and found probable cause, stating that it was difficult for the court to believe that appellant would not know that the victim was being hit by a bat, given that the neighbors could hear the bat being used. The district court also found that the victim’s claim that he saw B.J. step out of the car with a bat was enough to satisfy probable cause.

At a hearing on June 28, 2006, the court received written and oral arguments regarding appellant’s motion to dismiss the presumptive-certification motion or convert it to a nonpresumptive-certification motion. The court denied appellant’s motion to dismiss. After weighing the statutory factors, the district court denied the respondent’s certification motion. The district court reasoned that although the offense was serious and appellant was culpable for hitting and kicking the victim, appellant was not the person who allegedly used the weapon. The court also found that the police officer on the scene stated that the victim’s injuries did not appear to be life-threatening and that the victim refused medical attention at the scene. Finally, the court found that the remaining statutory factors, including the lack of a prior delinquency record and programming history weighed against certification of D.W.

ISSUES

1. Does the United States Supreme Court decision in Blakely make the presumptive-certification statute, Minn.Stat. § 260B.125, subd. 3 (2004), unconstitutional?

2. Did the district court err by ruling that this was a presumptive-certification case?

3. Did the district court err in finding probable cause that appellant aided and abetted a second-degree assault?

ANALYSIS

I.

Appellant challenges the certification scheme established by Minn.Stat. § 260B.125 (2004), asserting that “the entire statutory scheme is unconstitutional under Blakely because presumptive certification motions allow first the prosecutor and then the judge, rather than a jury, to determine what sentencing options will be available to the juvenile, should he later be found guilty.” Appellant argues that because certification orders are dispositional rather that procedural, they are unconstitutional under Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004).

This court presumes that Minnesota statutes are constitutional. State v. Barker, 705 N.W.2d 768, 771 (Minn.2005). A party challenging the constitutionality of a statute must demonstrate beyond a reasonable doubt that the statute violates a constitutional provision. Id. The court must invoke every presumption in favor of constitutionality and exercise its power to declare a statute unconstitutional with extreme caution and only when absolutely necessary. Walker v. Zuehlke, 642 N.W.2d 745, 750 (Minn.2002); Reed v. Bjornson, 191 Minn. 254, 257, 253 N.W. 102, 104 (1934). Whether a statute is constitutional is reviewed de novo. State v. Rewitzer, 617 N.W.2d 407, 412 (Minn.2000).

In its order of July 6, 2006, the district court applied In re Welfare of J.C.P., Jr., 716 N.W.2d 664 (Minn.App.2006), in determining that “[t]he process by which the [respondent] has brought its certification of [appellant] provides sufficient fundamental fairness under the due process clause.” Appellant argues that the district court erred in relying on J.C.P. because unlike J.C.P. the issue here involves a challenge to the presumptive-certification statute. We disagree.

In J.C.P., this court held that Blakely does not apply to adult-certification proceedings, because (1) Sixth Amendment rights are not automatically transferable to juvenile proceedings; and (2) certification proceedings are pretrial and jurisdictional in nature:

Because the constitutional guarantees afforded juveniles at certification and adjudication proceedings are based only on the Due Process Clause and its requirement for fundamental fairness, Blakely does not apply here.
[A]n order of certification is a pretrial determination that transfers jurisdiction from the juvenile court to the district court.... The pretrial, jurisdictional nature of certification therefore also renders Blakely inapposite.
Minnesota’s adult-certification procedure determines jurisdiction and is not a sentence-enhancement scheme.

716 N.W.2d at 668-69.

We further concluded that the constitutionality of the adult-certification statute is not affected by Blakely:

The state’s juvenile system is designed primarily to protect accused juveniles from criminal prosecution and to rehabilitate them. The state may not remove a juvenile from that protection except by due process. Inasmuch as the adult certification procedure is the method to expel a juvenile from the juvenile system’s protection and is not in itself a criminal prosecution, the Sixth Amendment has no direct bearing on it. We conclude that a juvenile facing adult certification does not have a Sixth Amendment right to a jury determination of the facts supporting certification. Blakely therefore does not render the adult-certification statute unconstitutional.

716 N.W.2d at 669. Although J.C.P. did not specifically address the presumptive-certification statute, we conclude that the reasoning in J.C.P. regarding the pretrial nature of the certification process and the inapplicability of the Sixth Amendment applies here.

Finally, this court has also held that a presumptive-certification proceeding does not result in a denial of a liberty interest because the statutory presumption “merely determines which court will try the case and evaluate the elements of the offense.” In re Welfare of L.J.S. and J.T.K., 539 N.W.2d 408, 413 (Minn.App.1995) (holding that the presumptive-certification statute does not violate equal protection or due process), review denied (Minn. Jan. 25, 1996). We thus conclude that appellant’s constitutional challenge of the presumptive-certification statute based on Blakely fails.

II.

Appellant contends that the district court erred by determining that based on the facts this was a presumptive-certification case. Appellant argues that under the Minnesota Sentencing Guidelines, conviction of second-degree assault carries a presumptive probationary sentence of 21 months stayed and therefore the certification proceedings should have been nonpre-sumptive under Minn. R. Juv. Delinq. P. 18.06, subd. 2. We disagree. The district court properly based its determination on Minn.Stat. § 609.11, subd. 4 (2004), which requires that a person convicted of second-degree assault involving a deadly weapon other than a firearm be sentenced to no less than a year plus one day in prison.

Whether a criminal statute or procedural rule has been properly construed is a question of law that we review de novo. Ford v. State, 690 N.W.2d 706, 712 (Minn.2005); State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996). The Minnesota certification statute provides that certification is presumed when a defendant is 16 or 17 years old at the time of the offense and the delinquency petition alleges an offense that would result in presumptive commitment under the sentencing guidelines. Minn.Stat. § 260B.125, subd. 3. The state bears the burden of showing that the juvenile is over 16 years old and that the offense alleged in the petition carries an adult sentence. See id.; In re Welfare of K.A.P., 550 N.W.2d 9, 12 (Minn.App.1996) (stating that “[i]n a presumptive certification case, the state can rest its argument on proof of the juvenile’s age at the time of the offense and on the seriousness of the offense”), review denied (Minn. Aug. 20, 1996).

When a defendant is convicted of an offense with a mandatory minimum sentence of more than one year and one day, the presumptive sentence is commitment to the commissioner of corrections. Minn. Sent. Guidelines II.E. The presumptive duration of the sentence is “the mandatory minimum sentence according to statute or the duration of the prison sentence provided in the appropriate cell of the Sentencing Guidelines Grid, whichever is longer.” Id.

Here, appellant was charged with aiding and abetting a second-degree assault in violation of Minn.Stat. § 609.222, subd. 1 (2004). A person convicted of second-degree assault, an offense listed in subdivision 9 of section 609.11, “in which the defendant or an accomplice, at the time of the offense, used, whether by brandishing, displaying, threatening with, or otherwise employing, a dangerous weapon other than a firearm, shall be committed to the commissioner of corrections for not less than one year plus one day.” Minn.Stat. § 609.11, subd. 4.

We reject appellant’s argument that because second-degree assault is a level VI offense on the Sentencing Guidelines Grid, the presumptive sentence here is only 21 months stayed. The executed one year plus one day mandatory minimum sentence prescribed in Minn.Stat. § 609.11 is longer than the recommended sentence of the sentencing grid. Therefore, because the presumptive duration of the sentence is “the mandatory minimum sentence according to statute or the duration of the prison sentence provided in the appropriate cell of the Sentencing Guidelines Grid, whichever is longer,” Minn.Stat. § 609.11 controls. Minn. Sent. Guidelines II.E. We thus conclude that the district court did not err in finding that the presumptive-certification petition was appropriate based on the charge in the petition and its statutory presumptive sentence.

III.

Appellant argues that the district court erred by finding probable cause for the charge of aiding and abetting a second-degree assault under Minn.Stat. § 609.222, subd. 1. We disagree.

Upon the filing of a motion for certification, the district court must first find that there is probable cause to believe that the juvenile committed the offenses alleged in the delinquency petition. Minn. Stat. § 260B.125, subd. 2(5). The facts establishing probable cause may be set forth in writing in the charging document or police reports may be attached to the charging document. Minn. R. Juv. Delinq. P. 6.05, subd. 1. For purposes of certification, courts presume that factual allegations in a delinquency petition are true. In re Welfare of U.S., 612 N.W.2d 192, 195 (Minn.App.2000). A court should deny a motion to dismiss for lack of probable cause if it is satisfied that if the facts in the record were established at trial, it would preclude the court from granting a motion for a directed verdict of acquittal. State v. Florence, 306 Minn. 442, 459, 239 N.W.2d 892, 903 (1976), modified on other grounds. The district court’s findings of probable cause “will not be disturbed on appeal unless they are clearly erroneous.” Welfare of Haaland, 346 N.W.2d 190, 193 (Minn.App.1984) (quotation omitted).

Here, the district court found probable cause after conducting a Florence hearing and reviewing the evidence and police reports. The district court stated that it did not find credible appellant’s allegations that he was unaware that B.J. was using a bat during the assault. The court noted that two witnesses “both said that they were able to hear somebody being hit by a bat. So it would be hard for me to believe that the [appellant], who was standing within three feet, would not be able to know that somebody was being hit by a bat.”

With regard to whether appellant was aware that B.J. had a bat the district court stated:

Now, that is the only place in which I saw where they stated that he left the car holding the bat, but it is in the police report, so combining the fact that the victim reported to the police that he saw [B.J.], one of the three young men, in the group, step out of the ear with the bat, and the neighbors were able to hear the victim being hit with the bat, that there certainly is probable cause to believe that the [appellant] knew that a bat was there being used, and that it also appears that there were admissions that he was hitting and kicking the victim at the same time.
Those items combined, and taken in total, the court will find probable cause exists to believe that the offenses were committed, and that the [appellant] in fact did commit those offenses.

We reject appellant’s argument that the record contains no evidence that appellant knew B.J. would be using a bat in the assault, and therefore he cannot be charged as an aider and abetter. Under Minnesota law, a person is criminally liable for the crime of another if the person intentionally aids the perpetrator. Minn. Stat. § 609.05, subd. 1 (2004). “Under this statute, liability attaches when one plays some knowing role in the commission of the crime and takes no steps to thwart its completion.” State v. Swanson, 707 N.W.2d 645, 658-59 (Minn.2006) (quotation omitted). Thus, appellant’s argument that appellant merely intended to commit a misdemeanor assault fails because the record indicates that he knowingly ran after the victim with the other two juveniles and participated in the assault.

The district court also found that appellant knew that B.J. was hitting the victim with the bat, and that appellant did not try to thwart his companion’s actions. Whether appellant was aware beforehand that B.J. was planning to use a bat m the assault is not determinative because intent may be inferred from factors such as, “[appellant’s] presence at the scene of the crime, [appellant’s] close association with the principal before and after the crime, [appellant’s] lack of objection or surprise under the circumstances, and [appellant’s] flight from the scene of the crime with the principal.” State v. Pierson, 530 N.W.2d 784, 788 (Minn.1995). The record indicates that these factors were present here. And because the factual allegations of the petition are presumed to be true, we conclude that the district court’s probable cause findings are reasonably supported by the record and are not clearly erroneous.

Finally, appellant argues that the bat was not a “dangerous weapon” based on the way it was used in this assault. Respondent contends that appellant waived this argument, because appellant did not raise the issue of whether the bat constituted a “dangerous weapon” at the Florence hearing. We agree. And because this court generally considers only those issues argued before and considered by the district court, Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988), we decline to address the issue.

DECISION

We conclude that the presumptive-certification statute does not violate Blakely and that the district court did not abuse its discretion by determining that (1) this was a presumptive, rather than nonpresump-tive, certification case; and (2) there was probable cause that appellant aided and abetted a second-degree assault involving a dangerous weapon.

Affirmed.


source: Caselaw Access Project

author: DIETZEN, Judge.

license: Public Domain

text:
    Sinuon LEIENDECKER, Appellant, v. ASIAN WOMEN UNITED OF MINNESOTA, et al., Respondents.
    No. A06-959.
    Court of Appeals of Minnesota.
    May 22, 2007.

      Stephen L. Smith, Carrie A. Doom, The Law Firm of Stephen L. Smith, PLLC, Minneapolis, MN, for appellant.
    Britton D. Weimer, Blackwell Igbanugo, P.A., Minneapolis, MN, for respondents.
    Considered and decided by DIETZEN, Presiding Judge; RANDALL, Judge; and HUDSON, Judge.
   OPINION

DIETZEN, Judge.

Appellant challenges a district court judgment dismissing her complaint against respondents. Appellant argues that the district court erred by concluding that the tort claims alleged in her complaint were barred because she failed to assert them as counterclaims in a prior lawsuit involving the same parties. Appellant also argues that the district court erred by concluding that her non-tort claims were barred because they were ripe when she answered respondents’ third party complaint. We reverse and remand.

FACTS

Respondent Asian Women United of Minnesota (“AWUM”) is a nonprofit corporation established in 1994. AWUM is committed to ending violence against Asian women and children, empowering Asian women and girls, and building stronger and safer communities. Appellant Sinuon Leiendecker was AWUM’s executive director from 1999 until she was terminated in February 2004.

During her tenure as executive director, Leiendecker raised concerns with AWUM’s board of directors that it was operating in violation of its bylaws. In November 2003, Leiendecker learned that the board of directors, which included respondents Sushila Shah (“Shah”) and Quoc-Bao Do (“Bao Do”) and five other individuals (“old board”), passed a resolution to terminate Leiendecker’s employment. Despite the resolution, however, the board continued to recognize appellant as its executive director.

A few weeks later, without notifying the old board, Leiendecker gathered some outside individuals not affiliated with AWUM to form a new board of directors (“new board”). The new board’s first action was to attempt to remove the members of the old board.

In December 2003, the old board sent a letter to the Minnesota Department of Commerce, the Minnesota Attorney General, and others, alleging that Leiendecker had engaged in “serious mismanagement of agency funds and questionable conduct.” The new board subsequently filed a complaint against the old board for declaratory and equitable relief, contending that the old board had been operating illegally and had improperly discharged Leiendecker. The complaint sought a declaration that the old board was not validly elected and was not, therefore, entitled to act on behalf of the corporation. It also sought a declaration that the new board was properly created and that Leiendecker was validly elected. The old board, in turn, filed an answer and third-party complaint seeking declarations that (1) the new board acted improperly, (2) the new board was not validly elected, and (3) the old board was the only valid AWUM board.

Following a hearing, the district court issued findings of fact, conclusions of law, and an order for judgment declaring the old board to be the proper governing body, excluding Shah and Bao Do from the board, and invalidating the resolution to terminate Leiendecker. Within an hour of receiving the order, AWUM summarily terminated Leiendecker’s employment.

Leiendecker then filed a motion to dismiss all claims against her. In August 2005, the district court granted her motion.

Later in August 2005, Leiendecker filed the present action, alleging defamation, breach of contract, tortious interference with contract, violation of the Nonprofit Corporation Act, and wrongful termination in violation of the Minnesota Whistleblower Act. AWUM moved for dismissal, and Leiendecker moved for partial summary judgment on her defamation claim. Following the hearing, the district court granted AWUM’s motion and dismissed the complaint. This appeal follows.

ISSUES

I. Were the tort claims alleged in Leiendecker’s complaint compulsory counterclaims within the meaning of Minn. R. Civ. P. 13.01?

II. Were the non-tort claims alleged in Leiendecker’s complaint barred by rule 13.01 because they were ripe when she answered respondents’ third-party complaint?

ANALYSIS

I.

Leiendecker first argues that the district court erred by concluding that her “tort claims” are barred in the current lawsuit because they were compulsory counterclaims under Minn. R. Civ. P. 13.01, and Leiendecker failed to assert them in a prior lawsuit involving the same parties. Initially, we note that because the parties submitted affidavits in connection with respondents’ motion to dismiss, the motion was converted into a motion for summary judgment. See Minn. R. Civ. P. 12.02; Minn. R. Civ.App. P. 110.01 (“The papers filed in the trial court, the exhibits and transcript of the proceedings, if any, shall constitute the record on appeal in all cases.”). Accordingly, we review the judgment of dismissal to determine whether genuine issues of material fact remain for trial and whether the district court erred in applying the law. See State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990).

Interpretation of the rules of civil procedure is a question of law, which this court reviews de novo. Smith v. Flotterud, 716 N.W.2d 378, 381 (Minn.App.2006), review denied (Minn. Sept. 27, 2006). Rules of court are to be “construed in the sense in which they were understood and intended at the time the rule was promulgated.” Nguyen v. State Farm Mut. Auto. Ins. Co., 558 N.W.2d 487, 490 (Minn.1997) (quotation omitted).

Minn. R. Civ. P. 13.01 provides that “[a] pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction that is the subject matter of the opposing party’s claim.” Minn. R. Civ. P. 18.01 differs from its federal counterpart. The federal rule applies to claims arising “out of the occurrence or transaction” giving rise to the opposing parties’ claims. Fed.R.Civ.P. 13.01(a). The Minnesota rule, by contrast, omits the word “occurrence” and applies only to claims arising from the same transaction.

The advisory committee comments indicate that the committee omitted the word “occurrence” deliberately, to avoid making tort claims compulsory counterclaims. See House v. Hanson, 245 Minn. 466, 472-73, 72 N.W.2d 874, 878 (1955) (citing Minn. R. Civ. P. 13.01 1951 advisory comm, note). Indeed, the committee twice rejected attempts to add the word “occurrence” to the rule. Recognizing the committee’s recommendation, our supreme court concluded that rule 13.01 does not embrace claims in tort and that a party’s failure to assert a tort claim as a counterclaim in a prior action does not estop that party from asserting such a claim in an independent action:

Consistent with the committee’s recommendations, Rule 13.01 was approved by this court with the express understanding and intent that the omission therefrom of the word “occurrence” would insure that tort counterclaims would not be compulsory. We hold therefore that the word “transaction” as used in Rule 13.01 does not embrace claims in tort and that therefore the failure of a defendant to assert as a counterclaim any claim he has against the plaintiff does not estop him from asserting such claim in an independent action against the plaintiff.

Id. (rejecting claim that plaintiffs action to recover for property damage arising out of collision was barred by plaintiffs failure to assert counterclaim for damages in two prior actions arising out of the same collision).

Respondents argue that House stands for the proposition that although all counterclaims are optional in tort cases, they are mandatory in non-tort cases. Thus, according to respondents, if the original lawsuit was a non-tort action, then “any [tort] claim” is a compulsory counterclaim and must be asserted under rule 13.01.

But we see no language in House supporting respondents’ argument that tort counterclaims must be asserted in a non-tort action under rule 13.01. More importantly, the supreme court advisory committee’s reasoning for omitting the word “occurrence” in rule 13.01, which the House court quoted with approval, expressly rejects respondents’ argument:

The Committee fears that compulsory counterclaims in personal injury and other tort actions may work a hardship in cases where, for instance, the defendant’s injury is presently unknown or where he is not represented by an attorney who appears primarily for him, and suggests that the compulsion be limited to counterclaims arising out of the “contract or transaction” which is the subject of the opposing party’s claim.

245 Minn. at 472, 72 N.W.2d at 878. Thus, House makes it clear that the word “occurrence” was omitted from rule 13.01 to avoid the potential hardships of making tort claims compulsory. Therefore, we conclude that the word “transaction” in rule 13.01 does not embrace counterclaims in tort, whether the prior action was a tort action or a non-tort action. Instead, the Minnesota version of rule 13.01 provides a blanket exclusion for tort counterclaims.

Leiendecker concedes that her claims for breach of contract, wrongful termination, and violation of the Minnesota Nonprofit Act are non-tort claims subject to rule 13.01. She argues, however, that her claims for defamation and tortious interference with contractual relations are tort claims and are not, therefore, subject to the compulsory-counterclaim rule. We agree. See, e.g., Church of Scientology of Minn. v. Minn. State Med. Ass’n Found., 264 N.W.2d 152, 156 (Minn.1978) (viewing defamation as a tort claim); Furlev Sales & Assocs., Inc. v. N. Am. Auto. Warehouse, Inc., 325 N.W.2d 20, 25 (Minn.1982) (recognizing wrongful interference with contractual relations as tort claim); see also W. Page Keeton, et al., Prosser and Keeton on Torts § 111, at 771, § 129, at 978-89 (5th ed.1984) (discussing tort of defamation and evolution of tort of interference with contractual relations).

Because we conclude that both defamation and wrongful interference with contract are tort claims and that tort claims are not subject to the compulsory counterclaim provision in rule 13.01, we reverse the summary dismissal of those claims.

II.

Leiendecker next argues that the district court erred by concluding that her non-tort claims were “ripe” when she answered respondents’ third-party complaint and were, therefore, barred under rule 13.01. Leiendecker argues that her claims were not ripe until AWUM terminated her employment in February 2004.

“Ripeness is a justiciability doctrine designed to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies....” Nat’l Park Hospitality Ass’n v. Dep’t of the Interior, 538 U.S. 803, 807, 123 S.Ct. 2026, 2030, 155 L.Ed.2d 1017 (2003) (quotation omitted). Thus, a justiciable controversy must exist in order for a litigant’s claim to be properly before a court. Lee v. Delmont, 228 Minn. 101, 110, 36 N.W.2d 530, 537 (1949) (“Issues which have no existence other than in the realm of future possibility are purely hypothetical and are not justiciable. Neither the ripe nor the ripening seeds of controversy are present.”). To establish the existence of a justiciable controversy, the litigant must show a “direct and imminent injury.” State v. Colsch, 284 N.W.2d 839, 841 (Minn.1979); see also 1 David F. Herr & Roger S. Haydock, Minnesota Practice § 13.3 (2002) (“Claims maturing after commencement of the action, but before service of the defendant’s answer is due must be pleaded by the defendant.”).

Thus, rule 13.01 contemplates that a counterclaim is compulsory only if the claim is ripe, i.e., if the claim is mature in the sense that a cause of action exists for which a lawsuit may properly be commenced and pursued.

A. Whistleblower Claim

Leiendecker contends that her whistle-blower claim did not become ripe until she was terminated as AWUM’s executive director in February 2004. We agree.

Minnesota’s “whistleblower” statute, Minn.Stat. § 181.932 (2006), provides that “[a]n employer shall not discharge, discipline, threaten, otherwise discriminate against, or penalize an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment” because an employee, acting in good faith, seeks to hold the organization accountable for its actions in some manner. A prima facie case of retaliatory discharge under Minn.Stat. § 181.932 “requires the employee to demonstrate statutorily protected conduct by the employee, an adverse employment action by the employer, and a causal connection between the two.” Gee v. Minn. State Colls. & Univs., 700 N.W.2d 548, 555 (Minn.App.2005). “To satisfy the adverse employment action element, the employee must establish the employer’s conduct resulted in a ‘material change in the terms or conditions of her employment.’ ” Lee v. Regents of Univ. of Minn., 672 N.W.2d 366, 374 (Minn.App.2003) (quoting Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir.1997)). Mere inconvenience without any decrease in title, salary, or benefits, or only minor changes in working conditions does not meet this standard. Sallis v. Univ. of Minn., 408 F.3d 470, 476 (8th Cir.2005).

Leiendecker did not suffer a decrease in her salary, title, or benefits before she was terminated in February 2004. Therefore, her whistleblower claim was not ripe when she answered the third-party complaint earlier that month.

Respondents argue that Leiendecker’s claim was ripe in 2003, well before she was terminated, because she complained about illegal board members and actions and suffered “retaliatory actions” at that time. Thus, respondents assert that Leiendecker suffered “some damage” in 2003 and that is when the cause of action accrued. See Herrmann v. McMenomy & Severson, 590 N.W.2d 641, 643 (Minn.1999) (holding that cause of action accrues in a legal malpractice claim when “some” damage occurs); see also Antone v. Mirviss, 720 N.W.2d 331, 336 (Minn.2006) (holding that “some” damage means “compensable” damage). During oral argument, however, Leien-decker unequivocally stated that her non-tort claims were for wrongful termination, and that she did not seek damages for AWUM’s alleged illegal conduct prior to her termination, even though that conduct was relevant to the underlying factual basis for her claim. Leiendecker thus unequivocally waived any claim for damages related to AWUM’s pre-termination conduct.

More importantly, a whistleblower claim ripens into a viable cause of action not when an employee suffers “some” damage in connection with her whistle-blowing activities, but when the employee suffers “adverse employment action” that effects a “material change in the terms or conditions of her employment.” Lee, 672 N.W.2d at 374 (quotation omitted). Leiendecker did not suffer a material change in the terms or conditions of her employment until she was terminated in February 2004. Accordingly, despite the fact that she may have suffered “some” damage in 2003 in connection with her alleged whistleblow-ing, her whistleblower claim was not ripe when she answered the third-party complaint.

B. Breach of Contract and Minn. Nonprofit Corporation Act Claims

Leiendecker’s complaint alleges that AWUM breached her contract when it wrongfully terminated her in violation of its bylaws. The complaint also alleges that AWUM violated the Minnesota Nonprofit Corporation Act, MinmStat. §§ 317A.001-.909 (2006), when it failed to comply with the statutory requirements for noticing the board meeting in which it terminated her employment. Respondents argue that because Leiendecker knew in November 2003 that AWUM had plans to terminate her, she could have asserted her wrongful-termination claim in her answer to the third-party complaint. The district court concluded that Leiendecker’s claims for breach of contract and violation of the nonprofit act were “ripe” well before she filed her answer to the third-party complaint.

Both Leiendecker’s breach-of-contract and statutory-violation claims are predicated on her assertion that she was wrongfully terminated. Leiendecker seeks no damages for AWUM’s pre-termination conduct. And despite Leiendecker’s knowledge of the November 2003 meeting at which the old board resolved to fire her, AWUM still maintained Leiendecker in her role as executive director and did not officially terminate her until after she filed her third-party answer. On this record, therefore, Leiendecker’s breach-of-eon-tract and statutory-violation claims were not ripe when she answered respondents’ third-party complaint.

Finally, AWUM argues that even if rule 13.01 did not estop Leiendecker from asserting her claims, the claims are barred by the doctrine of res judicata. See Erickson v. Comm’r of Dep’t of Human Servs., 494 N.W.2d 58, 61 (Minn.App.1992) (stating that the application of res judicata is in the discretion of the district court). But because the application of res judicata is discretionary and the district court did not address the issue, there is nothing for this court to review. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988) (stating that appellate courts review only those issues considered and decided by the district court). On remand, the district court may wish to consider whether to apply res judicata to the facts of this case.

DECISION

Because we conclude that appellant Leiendecker’s tort claims are not subject to rule 13.01 and that her non-tort claims were not ripe when she answered respondents’ third-party complaint, we reverse and remand for proceedings consistent with this opinion.

Reversed and remanded.

      . In Lee, this court adopted the Eighth Circuit's "ultimate employment decision” test for retaliatory actions applied in federal Title VII whistleblower actions. That approach was rejected by the Sixth Circuit in White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 801 (6th Cir.2004), which was affirmed by the United States Supreme Court in Burlington N. & Santa Fe Ry. Co. v. White, - U.S. -, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Because the Supreme Court applied the "materially adverse” standard to Title VII claims in White, the Eighth Circuit’s "ultimate employment decision” test was left in doubt by White.


author: WRIGHT, Judge.

text:
    Alissa Christine BEARDSLEY, petitioner, Appellant, v. Dant Antonio GARCIA, Jr., Respondent.
    No. A06-922.
    Court of Appeals of Minnesota.
    May 22, 2007.

      Shanda K. Pearson, Rider Bennett, and Diane B. Bratvold, Briggs & Morgan, Minneapolis, MN, for appellant.
    Danté Antonio Garcia, Jr., St. Cloud, MN, pro se respondent.
    Elizabeth J. Richards, Minnesota Coalition for Battered Women, St. Paul, MN, Amicus Curiae Minnesota Coalition for Battered Women.
    Considered and decided by MINGE, Presiding Judge; STONEBURNER, Judge; and WRIGHT, Judge.
   OPINION

WRIGHT, Judge.

This appeal arises from the district court’s decision to grant temporary parenting time in conjunction with a domestic-abuse order for protection under Minn. Stat. § 518B.01 (2006). Appellant-mother argues that the district court lacked subject-matter jurisdiction and statutory authority to award temporary parenting time to respondent whose paternity of the child has been acknowledged by the parties in a recognition of parentage under Minn.Stat. § 257.75 (2006). Appellant also argues that the district court’s actions denied her due process of law and are contrary to sound public policy. We affirm.

FACTS

On March 2, 2006, appellant Alissa Beardsley petitioned for an order for protection against respondent Danté Garcia, Jr. The petition states that Beardsley has two children, but she and Garcia do not have any in common. Beardsley did not file the petition on behalf of the children, nor did she request that Garcia be prohibited from having any contact with the children. The district court issued an ex parte order for protection and set a hearing on the petition. Two weeks later, the parties appeared pro se for the hearing. Garcia did not contest the issuance of an order for protection but requested parenting time with his child. Garcia produced a recognition-of-parentage form, in which he and Beardsley acknowledged his paternity of Beardsley’s younger child, D.G. Although she had executed the recognition-of-parentage form, Beardsley insisted that Garcia is not D.G.’s biological father. And she expressed her concern that D.G. would not be safe with Garcia.

Without making any findings of domestic abuse, the district court issued an order for protection in effect for one year. The order prohibited Garcia from having any contact with Beardsley and granted Garcia supervised parenting time with D.G. once each weekend for two hours. This appeal followed, and we granted the Minnesota Coalition for Battered Women leave to file an amicus brief.

ISSUES

I. In an action seeking a domestic-abuse order for protection under Minn.Stat. § 518B.01 (2006), was the district court without subject-matter jurisdiction or statutory authority to award temporary parenting time to respondent, whose paternity of the child has been acknowledged by the parties in a recognition of parentage under Minn.Stat. § 257.75 (2006)?

II. Did the district court’s actions violate the right to procedural due process of law?

ANALYSIS

I.

A.

Beardsley argues that the district court was without subject-matter jurisdiction to grant Garcia’s request for parenting time. Specifically, Beardsley contends that, although the district court ordinarily has subject-matter jurisdiction to establish parenting time in a domestic-abuse order-for-protection (OFP) proceeding under Minn.Stat. § 518B.01, subd. 6(a) (2006), the recognition-of-parentage (ROP) statute divests the district court of jurisdiction to award parenting time to a father whose paternity has been acknowledged by an ROP. See Minn.Stat. § 257.541, subd. 3 (2006) (providing that ROP father may bring independent action under Minn. Stat. § 518.156 (2006) seeking custody or parenting-time rights, but that those proceedings may not be combined with any chapter 518B proceeding). We review questions of subject-matter jurisdiction de novo. Burkstrand v. Burkstrand, 682 N.W.2d 206, 209 (Minn.2001).

Subject-matter jurisdiction “involves a court’s authority to decide a particular class of actions and its authority to decide the particular questions before it.” Herubin v. Finn, 603 N.W.2d 133, 137 (Minn.App.1999). As the Minnesota Supreme Court observed in Burkstrand, that the district court lacks statutory authority to take certain action in an OFP proceeding does not mean that the district court lacks subject-matter jurisdiction over the petition. 632 N.W.2d at 211-12 (holding that district court’s failure to hold OFP hearing within statutory time frame did not divest it of subject-matter jurisdiction over petition).

Under the OFP statute, a district court issuing an OFP may “establish temporary parenting time with regard to minor children of the parties on a basis which gives primary consideration to the safety of the victim and the children.” Minn. Stat. § 518B.01, subd. 6(a)(4). The OFP statute does not distinguish between adoptive and biological parents, nor does it distinguish between “adjudicated” or “married” fathers. Indeed, Beardsley concedes that the district court has the authority to award temporary parenting time to an “adjudicated” or “married” father in an OFP proceeding. Thus, regardless of whether the ROP statute precludes the district court from granting parenting time to Garcia, the district court had subject-matter jurisdiction over the issue raised in the OFP proceeding — whether to grant temporary parenting time to Garcia, who asserted his status as D.G.’s father under an ROP executed by the parties.

B.

Citing Minn.Stat. § 257.541, subd. 3, Beardsley argues that the district court in an OFP proceeding lacks statutory authority to award temporary parenting time to a respondent whose paternity has been acknowledged by an ROP. We review questions of statutory interpretation de novo. Burkstrand, 632 N.W.2d at 209.

Under the ROP statute, the mother and father of a child born to an unmarried mother may attest in writing that they are the biological parents of the child and wish to be recognized as such. Minn.Stat. § 257.75, subd. 1 (2006). The written acknowledgment of parentage must be made under oath, signed, notarized, and filed with the state registrar of vital statistics. Id. If the ROP is not revoked and if there is no other presumed father, the ROP “has the force and effect of a judgment or order determining the existence of the parent and child relationship.” Id., subd. 3 (2006). Such a “judgment or order of the court determining the existence or nonexistence of the parent and child relationship is determinative for all purposes.” Minn. Stat. § 257.66, subd. 1 (2006). When the ROP has been properly executed and filed, “if there are no competing presumptions of paternity, a judicial or administrative court may not allow further action to determine parentage,” and “[a]n action to determine custody and parenting time may be commenced pursuant to chapter 518 without an adjudication of parentage.” Minn.Stat. § 257.75, subd. 3.

The ROP father’s independent action under section 518.156 seeking custody or parenting-time rights “may not be cora-bined with any proceeding under chapter 518B,” which governs domestic-abuse proceedings. Minn.Stat. § 257.541, subd. 3 (emphasis added). Beardsley argues that section 257.541, subdivision 3, expressly forbids the district court from granting Garcia’s request for parenting time in the domestic-abuse proceeding. Therefore, Beardsley argues, the district court acted without statutory authority when it granted Garcia’s parenting-time request.

Indeed, the ROP statute prohibits an ROP father from combining his independent action for custody or parenting-time rights under chapter 518 with a domestic-abuse proceeding under chapter 518B. But contrary to Beardsley’s argument, Garcia neither sought nor received a custody or parenting-time order under chapter 518. Rather, he sought and received a temporary order for parenting time exclusively under section 518B.01. The district court’s OFP granting Garcia supervised parenting time is not the equivalent of a parenting-time order under chapter 518. The two are different in significant respects. Section 518B.01 “neither establishes nor terminates a legal relationship.” Baker v. Baker, 494 N.W.2d 282, 285 (Minn.1992), superseded by statute as stated in Burkstrand, 632 N.W.2d at 212. The OFP is temporary — lasting only for one year — and may be modified as set forth in Minn.Stat. § 518B.01, subd. 11 (2006). In contrast, an order granting parenting time or custody under chapter 518 is permanent unless a proper motion under that chapter results in a modification. See Minn.Stat. § 518.175, subd. 5 (2006) (providing for modification of order granting or denying parenting time); Minn.Stat. § 518.18 (2006) (addressing modification of custody). When it granted Garcia supervised parenting time under section 518B.01, the district court did not improperly combine a proceeding under section 518.156 with the OFP proceeding.

Beardsley’s attempt to distinguish Garcia as an ROP father from an adjudicated father is contrary to the ROP statute and controlling precedent. Without revocation of the ROP or the existence of a competing presumption of paternity, the ROP has the force and effect of an adjudication of the parent-child relationship. Minn.Stat. § 257.75, subd. 3; In re Custody of Child of Williams v. Carlson, 701 N.W.2d 274, 282 (Minn.App.2005) (holding that if “recognition of parentage was never properly vacated, it continues to have the force and effect of a judgment or order that [the father named on the ROP] is the adjudicated father”). Moreover, the Minnesota Supreme Court has cautioned against “muddling together” section 518B.01 and chapter 257 because they are “distinct and targeted statutory schemes,” and “the availability of extraordinary relief intended by the passage of the Domestic Abuse Act is utterly negated by tying to it unnecessary external procedural requirements.” Baker, 494 N.W.2d at 286. Section 518B.01 “is a substantive statute which is complete in itself,” and “[n]othing within the plain wording of the statute suggests that reference to any other statute is necessary.” Id. at 285.

Neither section 257.541 nor section 518B.01 precludes the district court from granting Garcia, an ROP father, supervised parenting time for the duration of the OFP. Even if construed together, the statutes do not support the conclusion that Beardsley urges us to reach. Because the district court has statutory authority to establish temporary parenting time in an OFP with regard to a child of the parties, and an ROP is determinative as to the existence of the parent-child relationship, the district court had statutory authority to grant Garcia supervised parenting time with D.G.

In light of the district court’s statutory authority, the decision whether to grant relief under section 518B.01 is discretionary. Mechtel v. Mechtel, 528 N.W.2d 916, 920 (Minn.App.1995). The district court also has broad discretion in making parenting-time decisions. Matson v. Matson, 638 N.W.2d 462, 465 (Minn.App.2002). A district court abuses its discretion by resolving the matter in a manner “that is against logic and the facts on record.” Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn.1984); see Chosa ex rel. Chosa v. Tagliente, 693 N.W.2d 487, 490 (Minn.App.2005) (reversing OFP because district court’s finding of domestic abuse was unsupported by evidence).

Wfiien deciding whether to grant parenting time in an OFP proceeding, the district court must give primary consideration to the safety of the victim and the child. Minn.Stat. § 518B.01, subd. 6(a)(4); see Baker, 494 N.W.2d at 290 (holding that district court need not make best interests findings when making custody and parenting-time decisions in OFP proceedings and that oral findings regarding safety under section 518B.01 are sufficient). Although the district court erred by failing to make express findings regarding safety, the award of two hours of supervised parenting time per week is very limited. WTien viewed in conjunction with the order for no contact with Beardsley, the grant of supervised parenting time implicitly credits Beardsley’s allegations of abuse and her safety concerns for D.G. and is within the district court’s discretion. See Vogt v. Vogt, 455 N.W.2d 471, 474 (Minn.1990) (stating that by issuing OFP, district court implicitly found probable cause of physical abuse).

II.

Beardsley argues that, even if the district court has the authority to address Garcia’s request for parenting time, the lack of notice that Garcia would request parenting time at the hearing along with “the abbreviated hearing and lack of sworn testimony” deprived her of the due-process right to a meaningful opportunity to be heard on the parenting-time issue. Beardsley acknowledges her failure to raise the due-process issue before the district court, but she requests that we address the issue in the interests of justice as authorized by Minn. R. Civ.App. P. 103.04. See In re Welfare of D.D.G., 558 N.W.2d 481, 485 (Minn.1997) (stating that issues not raised in district court are waived on appeal); see also Putz v. Putz, 645 N.W.2d 343, 350 (Minn.2002) (invoking Minn. R. Civ.App. P. 103.04). Citing Baker, Beardsley contends that the procedural safeguards in place in an OFP proceeding are inadequate to protect against the erroneous deprivation of her interests in a parenting-time decision regarding her child.

In Baker, the supreme court observed that due-process requirements “are flexible and call for such procedural protections as the particular situation demands.” 494 N.W.2d at 287. When assessing whether the procedural protections are constitutionally adequate, the relevant factors for our consideration are the private interests affected, the risk of erroneous deprivation of these interests, the probable value of additional safeguards, and the government interests involved. Id. When addressing the father’s due-process claim, the Baker court considered the interests of both parents in the custody and enjoyment of their child, “extensive” procedural protections in section 518B.01, which guard against the erroneous deprivation of those interests, the risk that additional safeguards may produce “unnecessary and possibly dangerous time delays,” and the public interest in a violence-free society. Id. at 287-88. Our consideration of the same factors leads us to conclude that Beardsley was not denied due process of law.

A district court may grant relief in an OFP proceeding, including establishing temporary parenting time, only “[u]pon notice and hearing.” Minn.Stat. § 518B.01, subd. 6(a); El Nashaar v. El Nashaar, 529 N.W.2d 13, 14 (Minn.App.1995) (holding that right to hearing in OFP proceedings includes right to present and cross-examine witnesses, produce documents, and have case decided on merits). Because the OFP statute expressly permits the district court to establish temporary parenting time, Beardsley’s notice argument is unavailing. See Sweep v. Sweep, 358 N.W.2d 451, 453 (Minn.App.1984) (affirming award of temporary custody of child to grandparents in OFP proceeding despite their failure to intervene or give notice of intent to seek custody).

The record does not demonstrate, nor does Beardsley show, how the district court deprived her of the right to a hearing on the parenting-time issue. In her OFP petition, Beardsley was advised:

NOTICE TO PETITIONER:
Be prepared for a hearing on the scheduled date. You may be asked to testify at that time.... You should bring any available documentation such as police reports, hospital and doctor reports, pictures, witnesses, or other items.

Beardsley received ample notice that she should be prepared to testify and bring any relevant evidence to the hearing. Furthermore, Beardsley explained to the district court the basis for her fear that D.G. is not safe with Garcia. When the district court advised Beardsley that it would “probably provide for supervised parenting time at an appropriate facility,” the district court asked Beardsley if there was “[a]nything else” that Beardsley wanted to say. Beardsley responded:

Just that I’m concerned about my child’s safety. Mr. Garcia has anger problems and he might get angry at somebody. I don’t — the way he was threatening me in front of my children, he might threaten somebody else in front of my children. And that’s a scary thought to me and it might escalate and anything could happen.
And I want my son to be safe because if [Garcia] gets angry he might not take my son into consideration ... and what my son has to see. My son has seen enough.... I’m just — we’re concerned about my son’s safety and my safety as well.

Beardsley contends that “the expedited nature of the proceedings [does] not allow parties to present evidence that would normally be considered when making initial determinations of custody or parenting time under section 518.516.” But an OFP is a temporary order and is not the same as an order for parenting time under chapter 518. See Section I.B. supra. And nothing in the record reflects that Beardsley was prevented from presenting any evidence to the district court. To the contrary, Beardsley had ample opportunity to address her safety and that of D.G., which are the primary considerations of the district court when determining whether to grant a parenting-time request in an OFP hearing. MinmStat. § 518B.01, subd. 6(a)(4).

Although a petitioner in an OFP proceeding is entitled to a hearing, the failure to request a particular procedure, such as cross-examination, constitutes waiver. See Barton Contracting Co. v. City of Afton, 268 N.W.2d 712, 716 n. 3 (Minn.1978) (noting that right of cross-examination was waived because transcript contains no indication that any request to cross-examine was made). Beardsley argues on appeal that she did not have an opportunity to cross-examine Garcia. But the hearing record establishes that she did not request an opportunity to cross-examine Garcia. And Beardsley’s status as a pro se party does not entitle her to more procedural protections than a represented party or relieve her of the responsibility to assert her rights before the district court in order to preserve issues founded on those rights for appeal. See Fitzgerald v. Fitzgerald, 629 N.W.2d 115, 119 (Minn.App.2001) (“Although some accommodations may be made for pro se litigants, this court has repeatedly emphasized that pro se litigants are generally held to the same standards as attorneys and must comply with court rules.”); Ronay v. Ronay, 369 N.W.2d 12,14 (Minn.App.1985) (“The right to represent oneself in legal proceedings does not entitle a party to modification of procedural rules.”). Because Beardsley had both notice and an opportunity to be heard, and because she fails to show how additional procedures were necessary to protect her interests, her due-process claim fails.

Nonetheless, it is with these due-process considerations in mind that we turn to the public-policy concerns raised by Beardsley and the amicus curiae. These concerns include whether an abuser is making a parenting-time request solely to harass or control the victim, whether the award of parenting time will result in a father having more access to the victim, and whether the victim’s or the child’s safety is compromised by a parenting-time order. We also are mindful of the policy concern that a mother may choose to forego seeking an OFP out of fear that a father will be awarded parenting time.

The purpose of Minn.Stat. § 518B.01 is “to provide speedy, effective relief to victims of domestic abuse.” Burkstrand, 632 N.W.2d at 213; see Baker, 494 N.W.2d at 285 (stating that section 518B.01 was enacted to protect victims of domestic assault and is designed to curtail harm). In an OFP proceeding, a district court “should consider the uniqueness of the remedies available under the statute, as well as the potentially devastating consequences if such relief is not granted.” Mechtel, 528 N.W.2d at 920. Thus, while recognizing that the district court has the authority to award fathers, including those with an ROP, parenting time in an OFP proceeding and that “both parents have strong interests in the custody and enjoyment of their child, a parent’s love and affection must yield to considerations of the child’s welfare.” Baker, 494 N.W.2d at 287; see In re Halverson ex rel. Halverson v. Taflin, 617 N.W.2d 448, 451 (Minn.App.2000) (stating that OFP addressing parenting time or custody, although temporary, may infringe on or deprive parent of fundamental interest in his or her child). To that end, a mother who fears for her child’s safety can petition for an OFP on behalf of the child, Minn.Stat. § 518B.01, subd. 4(a) (2006), and request that the OFP prohibit the father from having any contact with the child protected by the OFP.

It is indeed true that, even when there has not been physical abuse of the child, the child may suffer emotional distress in the presence of an abusive parent; and a child exposed to violence may perpetuate that behavior. Baker, 494 N.W.2d at 287-88 n. 8; see Hall v. Hall, 408 N.W.2d 626, 629 (Minn.App.1987) (affirming OFP against father imposing supervised visitation despite lack of allegations of abuse directed at children), review denied (Minn. Aug. 19, 1987). We also recognize that typically the most dangerous time for a victim in an abusive relationship is when the victim chooses to leave the abuser. Baker, 494 N.W.2d at 286 n. 4. Thus, if the district court finds that the victim or a child’s safety will be jeopardized by parenting time, “the court shall condition or restrict parenting time as to time, place, duration, or supervision, or deny parenting time entirely, as needed to guard the safety of the victim and the children.” Minn.Stat. § 518B.01, subd. 6(a)(4) (emphasis added).

On this record, however, there is no indication that Garcia made the parenting-time request solely to harass, control, or gain access to Beardsley. And while there is a troubling dearth of findings on the safety issue, we cannot conclude based on this record that an order awarding Garcia parenting time under the severely restricted conditions of two hours once per week with supervision is an abuse of discretion, particularly in light of the OFP provision forbidding any contact with Beardsley. If, for the public policy reasons advanced by Beardsley and the amicus curiae, the district court is to be divested of its authority in an OFP proceeding to award an ROP father temporary parenting time with his child on a basis that gives primary consideration to the safety of the victim and the child, it is the province of the legislature, not this court, to do so. See, e.g., Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn.1988) (“The function of the court of appeals is limited to identifying errors and then correcting them.”); Martinco v. Hastings, 265 Minn. 490, 497, 122 N.W.2d 631, 638 (1963) (“If there is to be a change in the statute, it must come from the legislature, for the courts cannot supply that which the legislature purposefully omits or inadvertently overlooks.”).

DECISION

The district court had both subject-matter jurisdiction and statutory authority to issue a domestic-abuse order for protection granting temporary supervised parenting time with the parties’ child to respondent whose paternity had been acknowledged by the parties in a recognition of parentage. And on the record before us, it was not an abuse of discretion to do so.

Affirmed.


author: ROSS, Judge.

text:
    STATE of Minnesota, Respondent, v. Timothy Kenbert ENGLE, Appellant.
    No. A05-2423.
    Court of Appeals of Minnesota.
    May 22, 2007.

      Lori Swanson, Attorney General, and Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, St. Paul, MN, for respondent.
    Steven J. Meshbesher, Meshbesher & Associates, P.A., Minneapolis, MN, for appellant.
    Considered and decided by HALBROOKS, Presiding Judge; TOUSSAINT, Chief Judge; and ROSS, Judge.
   OPINION

ROSS, Judge.

This case concerns the conviction of an armed security guard who shot a theft suspect while trying to apprehend him. Timothy Engle appeals from his conviction of reckless discharge of a firearm within a municipality. Engle contends that the state violated his due-process rights by failing to preserve digitally recorded surveillance video footage that might have shown an eyewitness, and that this failure prejudiced him. Engle also maintains that the district court misconstrued the reckless-discharge statute to not require proof that he intentionally discharged his firearm. Because police had no due-process duty to investigate and uncover unpre-served video recordings that might have contained exculpatory evidence, because we find that the state presented sufficient evidence to prove that Engle acted recklessly when he discharged his firearm, and because a reckless-discharge conviction does not require proof of intent, we affirm.

FACTS

Alan Walker, a private security guard, monitored a live surveillance video feed of a St. Paul apartment building’s parking lot in November 2003. At about 2:30 a.m., Walker noticed a car drive onto the lot. More than one person was in the car. The driver parked, got out alone, and walked to an unoccupied car parked nearby. Walker watched him appear to break into the parked car. Walker then quickly went to the parking lot, where he found fifteen-year-old Hussein Seid Musse emerging from the burgled car and holding a car stereo system. Walker looked inside and saw that the console had been broken apart. Musse asserted that the car belonged to his brother, whom he claimed to live in the apartment building. Dubious, Walker took Musse to the security office to verify his story.

Timothy Engle, also a security guard, arrived at the office to assist Walker. Walker searched Musse, but Musse then fled on foot. Engle and Walker pursued him. Musse ran to the parking lot, entered his car, and started to back out. But he stopped the car when Engle and Walker drew their weapons and ordered him to stop. Engle had a semiautomatic handgun, and Walker had an electric “stun gun” with a laser sight that he shined into the front windshield of Musse’s car. Musse put the car in park and raised his hands in surrender.

With his gun drawn and allegedly in what he described as the “up-and-ready” position, Engle opened the driver’s door and began to pull Musse from the car. Within seconds, Engle’s gun discharged, striking Musse in his lower back and paralyzing him. The parties do not agree concerning Musse’s actions immediately before the shooting, but Engle landed on his back and Musse fell to the ground near Engle’s feet. Engle testified that Musse lunged at him causing Engle’s gun to discharge by accident. A forensic investigator determined that Engle’s gun was between one-half inch and three inches from Musse’s back when it discharged.

Unviewed portions of video footage of other areas within the apartment building were automatically overrecorded over time. A grand jury indicted Engle on charges of first-degree assault and reckless discharge of a firearm within a municipality. Engle moved to dismiss the indictment based on prosecutorial and police misconduct, contending that the state failed to obtain and preserve exculpatory evidence consisting of the overrecorded portions of the security video footage that might have shown a potential eyewitness. Engle asserted that the state’s failure to secure the recording to allow the parties to identify the potential witness warranted dismissal because this witness might have provided exculpatory evidence. Following a hearing, the district court denied the motion, finding that Engle failed to show that any unpreserved portions of the video recording had exculpatory value, that the state knew or had reason to know that portions of the video recording contained potentially exculpatory information, or that the state had a duty to obtain and preserve the recordings.

Before the bench trial, the district court dismissed the first-degree assault charge for lack of probable cause that Engle intended an assault. At the close of the state’s case-in-chief and again at the close of all testimony, Engle moved for judgment of acquittal based on insufficient evidence. The district court denied both motions. It found Engle guilty of reckless discharge of a firearm. The court found specifically that Engle acted recklessly when pulling Musse from his car while positioning his gun in a manner that would allow it to discharge and cause harm. This appeal follows.

ISSUES

I. Does the state’s failure to investigate, uncover, and preserve potentially exculpatory evidence violate a defendant’s right to due process?

II. Did the state present sufficient evidence to prove that Engle recklessly discharged a firearm?

III. Does a reckless-discharge-of-a-firearm conviction require the state to prove that the defendant intended to discharge the firearm?

ANALYSIS

I

Engle first raises a due-process challenge. He argues that police and prosecutors violated his constitutional rights by failing to obtain and preserve alleged exculpatory evidence consisting of video-recorded surveillance footage from the apartment building’s security cameras focused on areas other than the parking lot.

We review the district court’s legal conclusions de novo but defer to its factual findings unless they are clearly erroneous. State v. Heath, 685 N.W.2d 48, 55 (Minn.App.2004), review denied (Minn. Nov. 16, 2004). In a criminal case, the state must disclose any evidence within its possession or control that “tends to negate or reduce the guilt of the accused as to the offense charged.” Minn. R.Crim. P. 9.01, subd. 1(6). The state’s intentional or bad-faith destruction of potentially exculpatory evidence implicates this rule and a defendant’s constitutional due-process rights. See Heath, 685 N.W.2d at 55-56 (discussing state’s obligation to preserve evidence).

In Brady, the Supreme Court held that prosecutorial suppression of evidence that is material to guilt violates due process. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). The Brady access-to-evidence line of cases has developed to include three basic categories in which prosecutorial conduct may constitute a due-process violation: failure to disclose, failure to preserve, and active interference. The first two categories, nondisclosure and nonpreservation, involve the state’s treatment of evidence it possessed, while the third category, active interference, concerns evidence that the state never possessed. The Supreme Court has described the elements of conduct in the first two categories, and has long held that such conduct may constitute due-process violations. More recently, the state supreme court has indicated the elements of the third category. Although the distinctions between these three types of due-process claims are occasionally confused, a close look demonstrates that En-gle’s due-process allegation falls afield of them all. Engle’s contention that the state violated his due-process rights by its failure to preserve the video recording faces a fundamental factual deficiency under the Brady line of cases: the state never possessed or prevented Engle from possessing the supposedly exculpatory evidence that Engle contends it failed to preserve.

The first two categories regard the state’s treatment of evidence that it possessed, but which it has rendered unavailable to the defendant by its actions or omissions. These categories are clearly defined in the caselaw. The test to determine whether a due-process violation has occurred regarding unavailable evidence that the state once possessed depends on the nature of the state’s conduct.

Concerning the first category, in which the state fails to disclose exculpatory evidence, the concealment violates a defendant’s due-process rights regardless of the state’s motive for the nondisclosure. Illinois v. Fisher, 540 U.S. 544, 547, 124 S.Ct. 1200, 1202, 157 L.Ed.2d 1060 (2004); Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97; State v. Williams, 593 N.W.2d 227, 234-35 (Minn.1999). To constitute reversible error in this traditional Brady situation, the evidence must be favorable to the defendant because it either is exculpatory or has impeachment value, the state must have suppressed the evidence, and its suppression must have prejudiced the defendant. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999); Brady, 373 U.S. at 87, 83 S.Ct. at 1196-98; see also Williams, 593 N.W.2d at 235-36 (holding that state’s failure to disclose evidence does not violate due process when defendant knows about the potential evidence and chooses not to investigate).

Concerning the second category, in which the state loses, destroys, or otherwise fails to preserve evidence, the state’s conduct may violate a defendant’s due-process rights depending on the circumstances. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988); California v. Trombetta, 467 U.S. 479, 486-87, 104 S.Ct. 2528, 2532-33, 81 L.Ed.2d 413 (1984). To establish a due-process violation requiring reversal in this traditional Youngblood, situation, a defendant must demonstrate that the unpre-served evidence had apparent exculpatory value, that he was unable to obtain comparable evidence by other reasonably available means, and that the state intentionally destroyed or allowed the destruction of the evidence in bad faith. Youngblood, 488 U.S. at 57-58, 109 S.Ct. at 337 (requiring showing of bad faith); Trombetta, 467 U.S. at 489, 104 S.Ct. at 2534 (requiring showing of apparent exculpatory value and inability to obtain comparable evidence); see also State v. Nelson, 399 N.W.2d 629, 633 (Minn.App.1987) (analyzing due-process claim based on destroyed police videotape of drunk-driving suspect’s field sobriety tests), review denied (Minn. Apr. 17, 1987).

The Supreme Court has recognized, without expressly defining, the third category. In Trombetta, it analyzed several defendants’ due-process rights concerning the state’s failure to retain breath samples that the defendants had provided to police during blood-alcohol-concentration tests. Because the Court expressly “accept[ed] the [state court’s] conclusion that the In-toxilyzer procedure brought respondents’ breath samples into the possession of California officials,” it analyzed the due-process claim as if the state had first possessed and then destroyed the evidence. Trombetta, 467 U.S. at 487-89 & n. 7, 104 S.Ct. at 2533-34 & n. 7; see also Youngblood, 488 U.S. at 56-58, 109 S.Ct. at 336-37 (explaining Trombetta holding as developing test to be applied in nonpreservation-of-evidenee cases). But the Court also observed, “Less clear from our access-to-evidence cases is the extent to which the Due Process Clause imposes on the government the additional responsibility of guaranteeing criminal defendants access to exculpatory evidence beyond the government’s possession.” Trombetta, 467 U.S. at 486, 104 S.Ct. at 2532. The Trombetta Court then referred to prior dicta to suggest possible due-process violations that might fit this additional Brady category concerning evidence never possessed by the government. It noted, as examples, deportation of a defense witness and pros-ecutorial delay in indicting a defendant to defeat his ability to mount an effective defense. Id. But the Court only highlighted the concern; it did not explain how to analyze claims that the government actively kept a defendant from obtaining evidence that the government has never possessed.

Although the Court has not returned to explain the due-process standard that applies in cases concerning governmental restriction on access to evidence that is not in the government’s possession, the Minnesota Supreme Court has. In State v. Larivee, 656 N.W.2d 226 (Minn.2003), the court considered and rejected a claim of a due-process violation arising in the context of blood-alcohol-coneentration testing. The facts in Larivee did not fit within the traditional Brady or Youngblood line because the state neither failed to disclose evidence nor failed to preserve evidence it possessed. Rather, the state denied the incarcerated defendant’s request to undertake and have access to “[his] own test” to independently develop evidence regarding his blood-alcohol concentration after he refused to submit to the state’s test. Larivee, 656 N.W.2d at 228. The Larivee majority tacitly accepted Trombetta’s dicta that had suggested that governmental interference with a defendant’s collection and use of evidence not possessed by the government may implicate due process. It applied the Trombetta-Youngblood test, analyzing whether the evidence had apparent exculpatory value, whether the defendant was able to obtain comparable evidence by other means, and whether the officers had acted in bad faith. Id. at 231. And the Larivee minority aptly pointed out that the case fit “the third category of cases set out in Trombetta” which concerned alleged governmental interference with a criminal defendant’s access to exculpatory evidence that is beyond the government’s possession. Id. at 234 (Meyer, J., concurring in part, dissenting in part).

With this understanding of the three branches of Brady, we conclude that En-gle’s situation fits none of them.

Engle’s challenge rests on treatment of video footage that might have once existed, but which the police have never seen or possessed. The preserved video footage shows an unidentified male leaving the lobby and following Walker and Engle as they chased Musse, and Walker testified that this man was standing 30 to 40 feet away seconds after the shooting. Because the apartment building’s surveillance system automatically overrecords the oldest footage to provide ongoing storage capacity for new footage, any unsaved footage was lost within days of the shooting. En-gle complains that the police failed to obtain the additional footage from the building’s other surveillance cameras before the footage was overrecorded, claiming that this lost footage might have pictured this person; that, if pictured, the person might have been identifiable; that, if identified, he might have been located; and that, if located, he might have delivered material, exculpatory testimony. This does not establish a due-process violation under any of the three recognized Brady theories.

Engle’s argument confuses the three Brady categories. He emphasizes that the state must disclose all evidence or information in its possession, as though he makes a Brady nondisclosure challenge; he applies some, but not all, factors that address claims under the Youngblood line, as though he makes out a nonpreservation challenge; and he notes Trombetta⅛ recognition of a third category of possible Brady violations, implying that he is asserting a Larivee challenge. But his due-process challenge arises only from the automatic erasure of unviewed portions of the security recording that he admits were never seen, let alone possessed, by police. The challenge therefore does not fall within either the nondisclosure or nonpreservation categories. As a unanimous supreme court emphasized, the reason a due-process violation does not arise from evidence that the state never possessed “is obvious, as it would be illogical to impose an obligation on the state to preserve evidence that it does not possess.” State v. Krosch, 642 N.W.2d 713, 718 (Minn.2002). There is a fundamental difference between cases that concern lost or destroyed evidence and cases “in which the state fails to collect evidence in the first instance.” Id. at 718-19 (finding no due-process violation when police did not collect evidence because state “could not possibly have had a duty to preserve it”).

Engle’s claim also does not give rise to a potential due-process violation under Lari-vee based on its acceptance of Trombetta’s dicta, because Engle fails to suggest any conduct that would constitute governmental interference with his opportunity to collect the lost footage. Indeed, when asked during oral argument why Engle did not obtain the footage based on his own knowledge of its existence, counsel responded, “I don’t really have a good answer ... I didn’t know the videotape would show this unidentified male.” When pressed as to why he did not conduct his own investigation and request the videotapes sooner, he responded, “[I]n my typical mode, I waited until the charges were brought.” Engle’s failure to assert that the police or any state agent acted to restrict him from acquiring the recording on his own is critical.

Engle’s claim cannot survive as a traditional Brady challenge because it does not involve the nondisclosure of evidence in police possession. Engle’s claim also fails as a traditional Youngblood challenge because it does not regard evidence that the state first possessed but then lost, destroyed, or otherwise failed to preserve. And his claim cannot survive as a challenge under the third category, active interference with a defendant’s right to obtain evidence that the state never possessed; the state’s role was, at most, passive as it regards the challenged evidence. There is no indication beyond speculation that the lost footage would actually show the unidentified man any clearer than he appears in the saved footage. Engle concedes that the lost footage might also have led to evidence that is neutral or inculpatory rather than exculpatory. Similarly, police had no reason to believe the footage would include or lead to exculpatory evidence and did nothing to interfere with Engle’s opportunity to obtain it. Engle argues in essence that the state must investigate to find conceivably exculpatory evidence. We hold that this evidentiary duty would exceed the duties that arise under the Due Process Clause. We therefore do not apply any of the tests that arise under the Brady line and affirm the district court’s decision not to dismiss the indictment.

II

Engle next argues that insufficient evidence supports his conviction. He claims that the only reasonable inference that could be drawn from the evidence is that Musse deliberately caused him to lose his balance by lunging out of the car at him, which, in turn, caused his gun to discharge unintentionally. We disagree that the evidence supports only that conclusion.

We review a claim of insufficient evidence to determine whether a jury could reasonably conclude that the defendant was guilty in light of the facts in the record and all legitimate inferences that can be drawn from those facts. State v. Merrill, 274 N.W.2d 99, 111 (Minn.1978). We consider the evidence in the light most favorable to the guilty verdict and assume that the jury believed the state’s witnesses and disbelieved contradictory evidence. Id. We will not reverse a guilty verdict if the jury, giving due regard to the presumption of innocence and to the state’s burden of proof, could reasonably have found the defendant guilty. State v. Thomas, 590 N.W.2d 755, 757-58 (Minn.1999). This standard of review applies also to bench trials. Davis v. State, 595 N.W.2d 520, 525 (Minn.1999).

Critical evidence in this case was circumstantial. Although circumstantial evidence is entitled to the same weight as direct evidence, we review it with greater scrutiny when considering a claim of insufficient evidence. State v. Bauer, 598 N.W.2d 352, 370 (Minn.1999). The factfin-der is in the best position to evaluate circumstantial evidence. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). “The evidence as [a] whole need not exclude all possibility that the defendant is innocent; it must only make such a theory seem unreasonable.” State v. Smith, 619 N.W.2d 766, 770 (Minn.App.2000), review denied (Minn. Jan. 16, 2001). Assessing the credibility of witnesses and weighing their testimony are within the exclusive province of the factfinder, and the factfin-der “is free to accept part and reject part of a witness’s testimony.” State v. Landa, 642 N.W.2d 720, 725 (Minn.2002). The factfinder is also entitled to believe the victim’s account of the events even when the testimony of the victim and the defendant differ sharply. State v. Folley, 378 N.W.2d 21, 26 (Minn.App.1985).

The district court, acting as fact-finder, expressly rejected Engle’s theory that Musse must have lunged at him and thereby caused his gun to discharge. The court was reasonably puzzled by Engle’s assertion, noting that “[i]f Mr. Musse lunged at Mr. Engle and was shot in the right side of his back, that means, as-sumedly, he lunged at him backwards.” The court was entitled to reject Engle’s theory as incredible, even if it was supported by expert testimony. Implausibility is ground enough for the rejection.

Given the district court’s rejection of Engle’s lunge theory, there was ample support for the conviction of reckless discharge. A person who “recklessly discharges a firearm within a municipality” commits a felony. Minn.Stat. § 609.66, subd. 1a(a)(3) (2002). A “reckless” act is a conscious and intentional act that the defendant knew or should have known would create an unreasonable risk of harm to others, though he need not have intended to cause harm. State v. Meany, 262 Minn. 491, 496, 115 N.W.2d 247, 251 (1962). A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that the element of an offense — here, the discharge of a gun — will result from his conduct. State v. Cole, 542 N.W.2d 43, 51 (Minn.1996) (construing portion of statute that prohibits reckless handling of a gun). The term “reckless” refers to the risk created by conduct and the consequences that flow from that conduct, not to the mental intent that resulted in an act that produced the injury. Id. at 52.

The state produced sufficient evidence to permit a rational factfinder to find that Engle consciously disregarded a substantial and unjustifiable risk that his gun could discharge and harm another. When Engle ordered Musse to stop his car at gunpoint, Musse put the car in park and raised his hands in surrender. Rather than order Musse to turn off the engine and exit the car, or request Walker to remove Musse while Engle stood holding the handgun, Engle approached the car, opened the driver’s door, and attempted to extract Musse by force, gun in hand. En-gle testified that positioning the gun in the “up-and-ready” position is “as close to being ready to shoot as you can get, but with the weapon still pointed safely towards the ground.” The record does not clearly indicate the gun’s exact orientation by reference to the “up-and-ready position,” but whatever Engle meant by it, the district court was free to find that it was not “pointed safely towards the ground”; we know that when the gun discharged Engle had failed to prevent it from being directed at Musse’s torso.

The district court could have reasonably inferred that Engle had his finger on the trigger while he struggled to pull Musse from the car, because a firearms instructor for the St. Paul Police Department testified that the gun could not discharge except by trigger depression. And the forensic evidence indicated that Engle’s gun was between one-half inch and three inches from Musse’s back upon discharge. So the facts in favor of the verdict tend to indicate that Engle falsely asserted that Musse lunged at him; that Engle had safer, effective options; that he chose to initiate a physical tussle with one hand while holding in the other a loaded semiautomatic handgun without the safety switch engaged; and that he did so while maintaining his finger on the trigger.

Engle’s defense buttressed the state’s evidence of recklessness. Engle testified that he kept a bullet in the chamber of his gun at all times while on duty, meaning that when the safety is disengaged the gun will discharge instantly by depressing the trigger. Although maintaining the weapon in a ready condition is not itself reckless, it emphasizes the known danger it might pose if handled during a struggle. Engle knew that Walker had searched Musse for weapons at the security office and found him to be unarmed, calling into question his need to draw the weapon during the apprehension. And Engle testified that he intended not only to pull Musse from the car but also to force him out “facedown,” so when the gun discharged Engle had only begun the physical encounter he had planned.

There was sufficient evidence for the district court to find beyond a reasonable doubt that Engle fired his gun by recklessly “having the weapon positioned so that it could be discharged and cause harm while extracting Mr. Musse from the car.” The record supports Engle’s conviction for reckless discharge of a firearm within a municipality. This conclusion depends also on our rejection of Engle’s legal construction, which we turn to next.

III

Engle last argues that the district court misconstrued the reckless-discharge statute. He contends that the statute also requires proof that he intentionally discharged his gun. We must therefore construe the statute, a legal analysis that we undertake de novo. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996). We find no misconstruction by the district court.

The statute declares that a person commits a felony if the person “recklessly discharges a firearm within a municipality.” Minn.Stat. § 609.66, subd. la(a)(3). Engle admits that the plain language of this statute does not require proof of intent to discharge. Engle’s argument relies primarily on dicta in State v. Richardson, 670 N.W.2d 267 (Minn.2003). Richardson involved charges of first-degree murder and first-degree assault, and the defendant argued that the jury should have been instructed on both intentional discharge of a firearm and reckless discharge of a firearm as lesser-included offenses of first-degree assault. Id. at 283. In summarizing the elements of each offense, the supreme court stated that reckless discharge “requires proof that the defendant intentionally discharged a weapon in a municipality in a manner that the defendant should have known created an unreasonable risk of harm to others.” Id. But the Richardson court’s summary cannot be taken as an exclusive definition of “reckless discharge” because, as such, it was unnecessary to the court’s analysis and holding.

As Engle recognizes, we have previously distinguished Richardson’s broad language in an unpublished opinion and rejected the argument he now asserts. In re Welfare of R.J.R., No. A04-370, 2004 WL 2939332, at *3 n. 1 (Minn.App. Dec.21, 2004). We adopt the reasoning of our unpublished opinion. Although intentionally pulling the trigger may constitute a conscious disregard of a substantial risk, we hold that intentionally pulling the trigger is not necessary for conviction in every circumstance. Insofar as Richardson refers to an intentional discharge, it is describing what may be the most common scenario in which reckless discharge may be proven — consciously pulling the trigger in a setting that demonstrates disregard of a known risk.

We construe statutes to ascertain and effectuate the legislature’s intent. Minn. Stat. § 645.16 (2006). The dangerous-weapons statute criminalizes both the intentional discharge of a firearm under circumstances dangerous to another and the reckless discharge of a firearm within a municipality. Id. § 609.66, subd. la(a)(2), (3) (2002). The two prohibitions, which are listed in immediate sequence within the same subdivision, must be read to address different conduct. See id. § 645.16 (“Every law shall be construed, if possible, to give effect to all its provisions.”)- -And if the location of the conduct were the only distinction, the legislature would have no need to employ different mens rea requirements. But Engle’s reading would result in two different prohibitions for identical conduct. A person would violate the prohibition against intentionally discharging a firearm by intentionally discharging a gun under circumstances that endanger another, and one would violate the prohibition against recklessly discharging a firearm only by intentionally discharging a gun under the same circumstances. Under Engle’s argument, either of the provisions becomes superfluous. We conclude that the legislature used different language to prohibit potentially different conduct. We therefore hold that the crime of reckless discharge of a firearm within a municipality does not under these circumstances require proof that the defendant intended to discharge the firearm.

DECISION

The district court properly denied En-gle’s motion to dismiss because the state did not violate Engle’s due-process rights by failing to investigate to find exculpatory evidence. The record contains sufficient evidence to show that Engle acted recklessly by consciously disregarding a substantial and unjustifiable risk that his gun would discharge and cause harm. The district court properly held that the reckless-discharge statute does not require proof that Engle intended to discharge his gun.

Affirmed.