author: ANDERSON, PAUL H., Justice.

text:
    In re APPLICATION OF Mark James OLSON FOR PAYMENT OF SERVICES.
    No. C5-01-2132.
    Supreme Court of Minnesota.
    July 18, 2002.

      Stephen V. Grigsby, Minneapolis, for appellant.
    Michael Hatch, St. Paul, for District Court.
   OPINION

ANDERSON, PAUL H., Justice.

Appellant Mark James Olson was charged with third-degree assault and qualified for the services of a public defender. Olson requested public funding for a toxicology expert and investigative services under Minn.Stat. § 611.21(a) (2000). The district court denied funding for the expert and for investigative services. Olson took an immediate appeal under Minn.Stat. § 611.21(c) (2000). The court of appeals affirmed the district court on the issue of expert funding, but did not address funding for investigative services on the grounds that the issue was not briefed. Olson appealed the court of appeals’ decision. We affirm.

On July 9, 2001, Olson allegedly threw his roommate down the basement stairs of their apartment. Olson was subsequently charged with one count of third-degree assault in violation of Minn.Stat. § 609.223, subd. 1 (2000), and one count of domestic assault in violation of Minn.Stat. § 609.2242, subd. 1(2) (2000). Olson requested that a public defender be appointed to represent him. The district court found that he was eligible for such services. Olson then pleaded not guilty, requested a jury trial, and commenced discovery.

Olson made an ex parte request for services other than counsel under Minn.Stat. § 611.21(a). Specifically, Olson requested funds for “investigative services and an alcohol-effects expert/toxicologist.” The district court concluded that Olson lacked the ability to pay for the requested services, but denied funding for both the expert and the investigative services. The court denied funding for the expert on the grounds that the requested expert services of a toxicologist were not necessary for Olson’s defense. The court also denied funding for investigative services because “insufficient information was presented by the defendant as to the extent and cost of proposed investigative services to permit the Court to rule on that portion of the request.”

Olson immediately appealed under section 611.21(c) and moved for expedited review, which the court of appeals granted. The court first concluded that Olson did not brief the issue regarding funding for investigative services and therefore declined to address that issue. The court then went on to analyze Olson’s request for an expert and affirmed the district court.

We granted Olson’s petition for further review. Olson’s brief to this court discusses only the legal issue regarding whether the court of appeals erred by refusing to address the issue of investigative services on the grounds that it was not briefed. Thus, the issue regarding Olson’s request for an expert is not before us. Therefore, we will address only Olson’s claim that the court of appeals erred by refusing to address the issue of investigative services.

We have never specifically articulated the appropriate standard of review of a court of appeals’ decision not to address an issue on the grounds that it was not briefed. However, it is unquestionable that we have the power to regulate matters of procedure in all criminal actions in all Minnesota courts. See State v. Johnson, 514 N.W.2d 551, 554 (Minn.1994) (noting that the courts govern matters of procedure); see also Minn.Stat. § 480.059, subd. 1 (2000) (acknowledging that the supreme court regulates matters of procedure in all state criminal actions). Accordingly, we will apply a de novo standard of review to the court of appeals’ decision not to address an issue on the grounds that it was not adequately briefed.

It is axiomatic that issues not “argued” in the briefs are deemed waived on appeal. State v. Grecinger, 569 N.W.2d 189, 193 n. 8 (Minn.1997). While we have not defined what “argued” means in this context, we have indicated that the threshold is whether an issue was addressed in the “argument portion” of the brief. See McKenzie v. State, 583 N.W.2d 744, 746 n. 1 (Minn.1998). Although the Minnesota Rules of Civil Appellate Procedure also describe the formal requirements for a brief, the Rules do not specify the extent to which an issue needs to be addressed before it is sufficiently “argued.” See Minn. R. CivApp. P. 128,132.

Olson asserts that the court of appeals erred when it did not address the district court’s ruling regarding his request for investigative services. However, the text of the argument section of Olson’s brief does not discuss the investigative services issue and that issue is otherwise identified only tangentially in one argument heading and in one footnote. Here, after a thorough review of Olson’s brief, we conclude that the investigative services issue was not addressed in the argument section of the brief. Therefore, Olson’s brief fails to meet the threshold that we identified in McKenzie. See 583 N.W.2d at 746, n. 1. Accordingly, we hold that the court of appeals did not err when it did not address the investigative services issue on the grounds that it was not briefed.

Affirmed.


source: Caselaw Access Project

author: PAGE, Justice.

license: Public Domain

text:
    Peter SHOEN, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. C7-01-2018.
    Supreme Court of Minnesota.
    July 25, 2002.

      Joseph Margulies, Margulies & Rich-man, Minneapolis, Attorney for Appellant.
    Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, St. Paul, Lamar Piper, Watonwan County Attorney, St. James, Attorneys for Respondent.
   OPINION

PAGE, Justice.

This appeal is from the denial of Peter Shoen’s petition for postconviction relief. Shoen was convicted of first-degree premeditated murder and sentenced to life imprisonment for the March 1, 1996, murder of his wife, Kimberly Shoen. On direct appeal, Shoen argued that he was deprived of his constitutional right to a fair trial because he was forced to wear a leg restraint throughout the trial. Shoen also raised a number of other issues by way of a supplemental pro se brief.

While we rejected each of the claims raised in Shoen’s supplemental pro se brief, we held that the district court erred in ordering Shoen to wear the leg restraint and remanded the case to the district court for a Schwartz hearing to determine whether the jurors were aware of the restraint and, if so, whether the jury’s verdict was “surely unattributable” to the restraint. State v. Shoen, 578 N.W.2d 708, 716, 718 (Minn.1998). After holding the Schwartz hearing, the district court concluded that the jury’s verdict was surely unattributable to the error of requiring Shoen to wear the restraint during his trial. State v. Shoen, 598 N.W.2d 370, 374. On review, this court affirmed. Id. at 379.

In his petition for postconviction relief, Shoen alleged: (1) that his conviction violated the Fourteenth Amendment of the United States Constitution because he was incompetent to stand trial; (2) that the district court erred by failing to raise the issue of his competency on its own initiative; and (3) that his trial counsel was ineffective due to its failure to reasonably investigate or raise the issue of Shoen’s competency. In support of his claims, Shoen relied principally on a series of reports prepared by a licensed psychologist and a nurse, both of whom had contact with Shoen while he was in prison awaiting trial.

The postconviction court conducted an evidentiary hearing on Shoen’s petition. At the hearing, the psychologist’s and nurse’s reports were admitted as evidence. In addition, the postconviction court heard testimony from Shoen’s trial counsel and Dr. George Komaridis, a licensed psychologist hired by trial counsel to examine Shoen before his trial. The postconviction court made the following findings of fact regarding Shoen’s competence to stand trial: “[i]n preparation for [Shoen’s] trial * * *, [trial counsel] had [Shoen] examined by Dr. George Komaridis, who had performed over 100 Rule 20 examinations to determine competency to stand trial”; “Dr. Komaridis did not observe any conduct by [Shoen] at any time prior to or during trial, which would have alerted him to the possible need for a Rule 20 examination * * *. Nor did Dr. Komaridis at any time suggest to [trial] counsel that a Rule 20 examination should be performed”; Shoen’s “demeanor during the entire proceedings was rational, coherent, perceptive, and candid”; “[n]one of the parties involved in [Shoen’s] murder trial * * * considered [Shoen’s] behavior suspect, necessitating a Rule 20 psychological examination”; Shoen “did not have an inability to function, analyze, or respond appropriately to questions asked at anytime throughout the course of the entire proceedings in this matter”; Shoen’s “testimony was rational, responsive, coherent, and consistent with the facts presented and any inferences that were available to the jury”; Shoen “was aware of the seriousness of the charges before him and of the potential consequences of those actions if he was found guilty by a jury”; Shoen’s “reactions throughout these proceedings were the natural result upon his realizations of the consequences of killing his wife both for himself, his children, and other relatives”; Shoen “was obviously under stress before and during the murder trial, but at no time did this stress interfere with his participation in his defense”; and “[t]he record is devoid of any objective, competent evidence that [Shoen] was not competent to assist his trial attorneys during one or more critical stages of the proceedings against him.”

The postconviction court concluded that:

At all times prior to and during the trial, [Shoen] was competent to stand trial within the requirements of Minn. R.Crim. Proc. 20.01, because [Shoen] understood the proceedings against him, [Shoen] participated in his own defense, and [Shoen] was able to consult with his trial attorneys with a reasonable degree of rational understanding.

Similarly, the postconviction court concluded that Shoen “failed to show by a preponderance of the evidence that he was incompetent to stand trial or that he was unable to assist in his defense during any critical stage of the proceedings against him,” and that Shoen “also failed to show that he was incompetent during one or more critical stages of the proceedings against him.”

In this appeal, Shoen claims that the posteonviction court abused its discretion by deciding that he was competent to stand trial and that he received effective assistance of trial counsel. We affirm the postconviction court’s decision.

I.

A petition for postconviction relief is a collateral attack on a conviction that carries a presumption of regularity. Hummel v. State, 617 N.W.2d 561, 563 (Minn.2000); State ex rel. Kons v. Tahash, 281 Minn. 467, 474, 161 N.W.2d 826, 831 (1968). A petitioner for postconviction relief has the burden of establishing the facts alleged in the petition by a fair preponderance of the evidence. Minn.Stat. § 590.04, subd. 3 (2000); Voorhees v. State, 627 N.W.2d 642, 648 (Minn.2001). We afford great deference to a postconviction court’s findings of fact and will not reverse the findings unless they are clearly erroneous. Dukes v. State, 621 N.W.2d 246, 251 (Minn.2001); Robinson v. State, 567 N.W.2d 491, 495 (Minn.1997). The decisions of a post-conviction court will not be reversed absent an abuse of discretion, and we will consider only whether there is sufficient evidence to support the postconviction court’s conclusions. State v. Lindsey, 632 N.W.2d 652, 657 (Minn.2001); Fox v. State, 474 N.W.2d 821, 824 (Minn.1991). Each of Shoen’s claims must be reviewed under this standard.

II.

Shoen claims that his conviction violated the Due Process Clause of the Fourteenth Amendment because he was incompetent to stand trial and that he was deprived of his Sixth Amendment right to effective assistance of trial counsel. Resolution of both of these claims ultimately hinges. on whether Shoen was competent to stand trial.

A criminal defendant is incompetent to stand trial if he or she either (1) “lacks sufficient ability to consult with a reasonable degree of rational understanding with defense counsel” or (2) “is mentally ill or mentally deficient so as to be incapable of understanding the proceedings or participating in the defense.” Minn. R.Crim. P. 20.01, subd. 1; State v. Hunt, 615 N.W.2d 294, 300 (Minn.2000); see also Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam) (stating the test for criminal defendant’s competence to stand trial is “whether he has sufficient present ability to consult with [counsel] with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him”). Based on our careful and thorough review of the record and the standard of review we must apply in this case, we conclude that the findings made by the postconviction court relating to Shoen’s competency to stand trial are not clearly erroneous, and we therefore defer to those findings. See Dukes, 621 N.W.2d at 251; Robinson, 567 N.W.2d at 495. Furthermore, the evidence before us provides ample support for the postconviction court’s conclusion that Shoen was competent “[a]t all times prior to and during [his] trial.” We therefore hold that the postconviction court did not abuse its discretion in denying Shoen’s petition for postconviction relief. See Lindsey, 632 N.W.2d at 657; Fox, 474 N.W.2d at 824.

Affirmed.

      . A thorough statement of the facts and circumstances surrounding the murder can be found in State v. Shoen, 578 N.W.2d 708, 710-13 (Minn.1998), and State v. Shoen, 598 N.W.2d 370, 371-73 (Minn.1999). Only those facts necessary for the resolution of the issues presented on this appeal will be repeated here.

      . Shoen does not raise this second claim on appeal.

      . To prevail on his ineffective assistance of counsel claim, Shoen must demonstrate both that counsel's performance fell below an objective standard of reasonableness and that a reasonable probability exists that the outcome would have been different but for counsel's errors. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Rhodes, 627 N.W.2d 74, 86 (Minn.2001). An insufficient showing on either of these points defeats Shoen's claim. See Strickland, 466 U.S. at 698, 104 S.Ct. 2052. Because Shoen contends that, but for counsel’s allegedly deficient performance, he would have been found incompetent to stand trial, Shoen must demonstrate a reasonable probability that he was incompetent to stand trial. See Williamson v. Ward, 110 F.3d 1508, 1519 (10th Cir.1997); Bouchillon v. Collins, 907 F.2d 589, 595 (5th Cir.1990).


author: GILBERT, Justice.

text:
    STATE of Minnesota, Respondent, v. Elizer Eugene DARRIS, Appellant.
    No. C8-01-1587.
    Supreme Court of Minnesota.
    July 25, 2002.

      John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, Minneapolis, for Appellant.
    Mike A. Hatch, Minnesota Attorney General, Thomas Rolf Ragatz, Assistant Attorney General, St. Paul, for Respondent.
    Wayne H. Swanson, Polk County Attorney, Polk County Courthouse, Crookston, for Respondent.
   OPINION

GILBERT, Justice.

Elizer Eugene Darris, appellant, appeals from his conviction of first-degree murder during the commission of an aggravated robbery in violation of Minn.Stat. § 609.185(3) (2000) for the July 15, 1999, killing of Cornelius Rodgers. Appellant claims that there is insufficient evidence to support his conviction of first-degree felony murder or the jury’s verdict that he was guilty of second-degree intentional murder in violation of Minn.Stat. § 609.19, subd. 1(1) (2000). Appellant also claims that the trial court erred by instructing the jury on a defendant’s . right not to testify on his own behalf without first obtaining appellant’s permission on the record and that the state committed prosecu-torial misconduct during closing argument. For these reasons, appellant seeks reversal of his first-degree felony murder conviction and seeks a new trial on the charge of second-degree murder during the commission of an assault in violation of Minn. Stat. § 609.19, subd. 2(1) (2000), for which the jury also returned a verdict of guilty. Appellant alternatively requests that we remand this case for sentencing on second-degree felony murder. We reverse appellant’s conviction of first-degree murder during the commission of an aggravated robbery, affirm the trial court in all other respects, and remand for entry of conviction on the verdict of second-degree intentional murder and for resentencing.

The body of Cornelius Rodgers was discovered in a drainage ditch in Polk County on July 27, 1999, by a local crop farmer. The medical examiner who examined Rodgers’ body testified that Rodgers suffered both numerous lacerations to his head and depressed skull fractures. The medical examiner determined that Rodgers died as a result of traumatic head injuries due to an assault and that his death was a homicide.

Prior to his death, Rodgers belonged to a group of carnival workers in Grand Forks calling itself the “Gangster Disciples.” Appellant was also a member of the group. Before Rodgers was killed, he took some beer to drink that did not belong to him from a refrigerator in the motel room where appellant was staying with his girlfriend and another person. Appellant had to pay for the beer. Appellant was upset with Rodgers for taking the beer without paying for it. Multiple witnesses testified that taking the beer without paying for it was a violation of the rules of the Gangster Disciples and would result in Rodgers being beaten. Jeremy Langer, a new initiate to the Gangster Disciples, testified that as part of his initiation into the Gangster Disciples, appellant and two other members, David Johnson and Timothy Shanks, told Langer he was to beat up Rodgers. Langer testified that Shanks ordered “a hit” on Rodgers, which Langer believed to mean Rodgers was to be beaten. In addition, appellant’s girlfriend overheard appellant discussing beating up Rodgers with Anthony Eley, another member of the Gangster Disciples. Appellant also asked one of Langer’s friends whether the friend had ever killed anyone.

Members of the Gangster Disciples, including appellant, gathered at bunkhouses provided for the carnival workers one eve'ning after work to beat Rodgers, but the altercation was interrupted by carnival supervisors. A few days later, Rodgers went to a laundromat, where appellant and his girlfriend were doing their laundry. Appellant and Rodgers went outside the laundromat, and Eley drove up in a hatchback car. Rodgers and appellant got into the car with Eley. Appellant told his girlfriend that they were going to a local bar but that she could not accompany them, which she said was unusual because normally she would have accompanied them.

Appellant, Rodgers, and Eley drove a block away to a liquor store, where Rodgers bought vodka and beer. They then drove 5 to 6 miles out into the countryside. During the drive, appellant told Eley that appellant had to “toss [Rodgers] up,” and appellant and Rodgers argued about how each could whip the other. Eley pulled over onto the side of the country road and got out to urinate. Both Rodgers and appellant got out of the car as well. Eley observed appellant rummaging in the back of the car. After Eley was done urinating, he approached Rodgers and pushed him in the back, telling him either to whip appellant or to get back into the car, because Eley was leaving. Rodgers, who was intoxicated, fell. As Rodgers tried to get up, appellant struck him in the head three times with a car jack. Eley testified that he heard a popping sound, “like a bone break or something, a pop.” The second and third blows were delivered while Rodgers was on the ground. Appellant then pulled Rodgers’ body to the side of the road. The police later discovered a car jack in the car with blood on it. DNA testing of the blood showed that Rodgers’ DNA profile matched the DNA profile of the blood samples taken from the jack. The medical examiner testified that the jack could have been the source of Rodgers’ head injuries and also that she was able to place the jack precisely into one of the injuries to Rodgers’ head.

After appellant struck Rodgers and moved his body, Eley and appellant started to leave, but appellant stated that they had to return for Rodgers’ ID’s so that he could give them to David Johnson. Eley had driven approximately 50 yards, stopped when appellant told him to do so, and backed the car up. Appellant got out of the car and ran down into the ditch to the body, returning with two to three pieces of paper that appeared to Eley to be identification papers, as well as some other papers. Appellant gave one of the identification papers to Eley to give to Johnson. Eley then took appellant back to the laundromat. Appellant told his girlfriend that they had taken care of Rodgers and showed Rodgers’ identification to her. Appellant later either gave or attempted to give two forms of Rodgers’ identification to Johnson, though Johnson testified that he did not accept them.

Johnson, Eley, Langer, appellant’s girlfriend, and appellant were all arrested and charged with various offenses stemming from the incident. Johnson had charges against him dismissed and was given immunity for his testimony. Eley, Langer, and appellant’s girlfriend entered pleas to aiding and abetting an unintentional murder, conspiracy to commit an assault in the first degree for the benefit of a gang, and aiding an offender, respectively, and each agreed to testify against appellant. Appellant was indicted in Polk County District Court on one count of first-degree premeditated murder in violation of Minn.Stat. § 609.185(1) (2000), first-degree murder during the commission of an aggravated robbery in violation of Minn.Stat. § 609.185(3), and two counts of first-degree murder committed for the benefit of a gang in violation of Minn.Stat. § 609.229, subd. 2 (2000). The court dismissed Counts III and IV after the state conceded that the Gangster Disciples did not meet the statutory definition of a gang.

At trial, appellant waived his right to testify. At the conclusion of the trial, the trial court instructed the jury, without appellant’s express permission, that it was not to draw any inferences from appellant’s silence. The jury acquitted appellant of first-degree premeditated murder but returned verdicts of guilty of first-degree murder during the commission of an aggravated robbery, second-degree intentional murder, and second-degree murder during the commission of an assault. The trial court entered conviction of first-degree murder during the commission of an aggravated robbery and sentenced appellant to life in prison.

I.

We must first determine whether there is sufficient evidence to support appellant’s conviction of first-degree murder during the commission of an aggravated robbery and the jury’s verdict that appellant was guilty of second-degree intentional murder. In reviewing a claim of insufficiency of the evidence, we are limited to ascertaining whether, given the facts in the record and the legitimate inferences to be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the offense charged. State v. Merrill, 274 N.W.2d 99, 111 (Minn.1978). We take the view of the evidence most favorable to the state, and we must assume that the jury believed the state’s witnesses and disbelieved any contradictory evidence. Id. If the jury, giving due regard to the presumption of innocence and to the state’s burden of proving guilt beyond a reasonable doubt, could reasonably have found the defendant guilty, the verdict will not be reversed. Id.

A. Evidence of Intent

Appellant argues that the state failed to meet its burden of proving that appellant intended Rodgers’ death because there was overwhelming evidence that Rodgers was only to be beaten, and thus his conviction of first-degree felony murder and the jury’s finding of guilt on second-degree intentional murder are not supported by the evidence. The state argues that there was sufficient evidence for the jury to find that appellant intended to Mil Rodgers. Relying on State v. Cooper, 561 N.W.2d 175, 179 (Minn.1997), the state argues that the jury was not bound by statements made before the killing.

In order to secure a conviction of either first-degree murder during the commission of an aggravated robbery or second-degree intentional murder, the state had to prove beyond a reasonable doubt each of the following: (1) that appellant caused the victim’s death; and (2) that the action taken was with the intent to cause death. See Minn.Stat. § 609.185(3); Minn. Stat. § 609.19, subd. 1(1). In order to secure a conviction of first-degree murder during the commission of an aggravated robbery, the state also had to prove a third element, namely, that at the time of the act resulting in death appellant was involved in the act of committing or attempting to commit aggravated robbery. See Minn.Stat. § 609.185(3). The legislature has defined what is required when criminal intent is an element of a crime: “ ‘With intent to’ or ‘with intent that’ means that the actor either has a purpose to do the thing or cause the result specified or believes that the act, if successful, will cause that result.” Minn.Stat. § 609.02, subd. 9(4) (2000). Intent to kill may be inferred from the nature of the Mlling. State v. Gillam, 629 N.W.2d 440, 454 (Minn.2001).

Here, the jury found that appellant intended to Mil Rodgers. The jury’s determination that appellant intended to cause Rodgers’ death is supported by the nature of the killing — multiple blows to the head with a heavy tire jack. In addition, the jury’s determination is supported by other circumstantial evidence, including the hostilities leading up to the murder and the remoteness of the area where the murder occurred. There is sufficient evidence to support the jury’s determination that appellant caused the death of the victim with intent to effect his death. Thus, there is sufficient evidence to support the jury’s verdict that appellant was guilty of second-degree intentional murder. However, appellant’s conviction of first-degree felony murder also required the state to prove that at the time of the act resulting in death appellant was involved in the act of committing or attempting to commit aggravated robbery.

B. During the Commission of an Aggravated Robbery

Appellant argues that his conviction of first-degree felony murder must be reversed because there is insufficient evidence to support the jury’s finding that the killing occurred during the commission of an aggravated robbery. The state argues that it is irrelevant whether the killing took place before, during, or after the robbery, so long as the murder and robbery were both part of the same chain of events. The state also argues that because the murder and the robbery occurred at the same location and at virtually the same time, the jury was free to infer that killing Rodgers and removing his identification were part of one continuous transaction. Thus, the state argues that there is sufficient evidence to support the jury’s determination that appellant inflicted harm in order to take Rodgers’ personal property.

“Aggravated robbery” is a simple robbery committed by someone who is armed with a dangerous weapon or any article that the victim would reasonably believe was a dangerous weapon, or by someone who inflicts bodily harm upon another. Minn.Stat. § 609.245, subd. 1 (2000). A conviction for felony murder will be upheld only when the killing and the felony are part of “one continuous transaction.” See Kochevar v. State, 281 N.W.2d 680, 686 (Minn.1979). Here, it is not clear that the taking of victim’s personal property and the killing were part of one continuous transaction for purposes of Minn-.Stat. § 609.185(3). By its plain words, the statute prohibiting first-degree felony murder requires the defendant to have caused the death of the victim while committing or attempting to commit aggravated robbery. MinmStat. § 609.185(3).- “Whoever does any of the following is guilty of murder in the first degree and shall be sentenced to imprisonment for life: * * * * (3) causes the death of a human being with intent to effect the death of the person or another, while committing or attempting to commit * ⅝ ⅜ aggravated robbery * * *.” Id. The plain language of the statute indicates that it is generally aimed at prohibiting robberies that result in an intentional killing. See id. This is consistent with the historical purpose behind the unique category of homicide known as “felony murder,” which was to punish an unintentional killing that results from a, felony more severely than other unintentional killings in order to deter killings that might occur during the commission of a felony. See, e.g., People v. Washington, 62 Cal.2d 777, 44 Cal.Rptr. 442, 402 P.2d 130, 133 (1965); State v. O’Blasney, 297 N.W.2d 797, 798 (S.D.1980); see also 40 C.J.S. Homicide § 45 (1991) (“The ostensible purpose of the felony-murder rule is * * * to deter the negligent or accidental killings that may occur in the course of committing [the underlying] felony, by increasing the penalty for nonpurposeful killings during the commission of certain enumerated felonies by implying * * * premeditation and deliberation.”) (footnotes omitted).

Consistent with the language of Minn. Stat. § 609.185(3) and the common law roots of felony murder, we have upheld convictions for first-degree felony murder only when there was sufficient evidence for the jury to find that the defendant had formed intent to commit the underlying felony either prior to or during the commission of the act that resulted in the victim’s death. See, e.g., State v. Harris, 589 N.W.2d 782, 793 (Minn.1999); State v. Peon, 579 N.W.2d 471, 478 (Minn.1998); State v. Dukes, 544 N.W.2d 13, 15-16, 20 (Minn.1996) (affirming conviction when appellant shot and killed driver of car appellant was robbing); State v. Arrendondo, 531 N.W.2d 841, 843-45 (Minn.1995); State v. Ouk, 516 N.W.2d 180, 186 (Minn.1994) (affirming conviction when appellant and others set out to rob gas station and shot and killed two people during the robbery); State v. Russell, 503 N.W.2d 110, 112-14 (Minn.1993); State v. Nielsen, 467 N.W.2d 615, 618 (Minn.1991); State v. Bergeron, 452 N.W.2d 918, 925-26 (Minn.1990) (affirming conviction when killing occurred after appellant committed a burglary).

In Harris, we affirmed a conviction of felony murder and stated that “the evidence that [the defendant] ‘bug[ged]’ [the victim] for money earlier in the evening suggests that theft was his primary motive for entering the apartment and not, as [the defendant] asserts, merely an afterthought to the killing.” 589 N.W.2d at 793 (second brackets in original). In Peou, we concluded that “even though the robbery occurred after the murders, the jury could have believed that [the defendant] entered the store with a motive to commit robbery based upon evidence that he was badly in need of money and that he had quarreled with [the victim] over the value of previously pawned property.” 579 N.W.2d at 478. We held that there was no error in the instructions given to the jury regarding the intent required for felony murder when the trial court instructed the jury that the defendant must have been engaging in the act of aggravated robbery or must have been attempting aggravated robbery at the time of the killings:

[T]he trial court instructed the jury that “it does not matter if the aggravated robbery was attempted or committed before, during, or after the death of [the victim], as long as it was done as part of a continuous transaction.” The trial court also instructed the jury that [the defendant] must have intended to cause the deaths of the victims and also must have been engaging in the act of committing or attempting to commit the crime of aggravated robbery at the time of the killings to be found guilty of this charge.

Id. at 475-76 (emphasis added). We concluded that the trial court’s instruction to the jury was a “correct statement of the substantive law.” Id. at 476.

In Nielsen, we affirmed a conviction of first-degree felony murder — where the underlying felony was a sexual assault — because “the jury could have believed that the assault [that resulted in death] was sexually motivated and that the criminal sexual conduct and the homicide were one continuous transaction, making the crime first degree felony murder.” Id. at 618.

Our decisions are consistent with felony murder as developed at common law and in other jurisdictions:

The law does not require that the felony necessarily precede the murder in order to support the felony-murder conviction. It is enough that the murder facilitate the felony. However, in order to support a conviction of felony murder the evidence must establish that defendant harbored a felonious intent either prior to or during the commission of the acts which resulted in the victim’s death, and evidence which establishes that defendant formed the intent only after engaging in the fatal act cannot support a conviction of felony murder.

40 C.J.S. Homicide § 47 (1991) (footnotes omitted).

It is true, as the state contends, that the act that constitutes the underlying felony may occur before, during, or after the killing. See, e.g., Harris, 589 N.W.2d at 792. However, even though two crimes may have been committed at or about the same time and place, our decisions indicate that the “one continuous transaction” requirement of felony murder will not be satisfied automatically simply because the two events occur near each other in time and place. Instead, we have held that the causal relationship between the murder and the underlying felony is only satisfied when there is evidence to support a finding that the defendant formed the requisite felonious intent before or during the act resulting in death. See, e.g., Nielsen, 467 N.W.2d at 618.

Under the facts of this case, the evidence shows that appellant caused the death of the victim and left the scene of the crime for a few moments, driving approximately 50 yards before returning to the body to retrieve the victim’s identification. The short period of time and short distance between the two crimes are not enough to sever the single chain of events as pertains to the act of the underlying felony. See Harris, 589 N.W.2d at 793. However, a felony murder charge also requires sufficient evidence to support a jury determination that appellant had formed the intent to rob Rodgers by the time he intentionally killed him. See Minn.Stat. § 609.185(3); Peou, 579 N.W.2d at 475-76; Nielsen, 467 N.W.2d at 618.

The state offered no evidence that appellant intended to take the identification before or during the time appellant killed Rodgers. By the state’s own theory, the homicide was in retaliation for violating gang rules, and appellant likely returned to retrieve the identification cards either to offer proof of the deed to his fellow Gangster Disciples or to stymie the investigation. But the state offered no evidence that appellant had formed the intent to “rob” Rodgers when he set out either to beat up Rodgers or to kill him. It is at least as likely that appellant determined after he had killed Rodgers to take his identification in order to offer proof to Johnson and the other Gangster Disciples that he had taken care of Rodgers. See State v. Bias, 419 N.W.2d 480, 484 (Minn.1988) (concluding that conviction based on circumstantial evidence merits stricter scrutiny and may stand only when the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis other than that of guilt and form a complete chain that leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt).

We hold that the state failed to produce sufficient evidence that appellant had formed the intent to rob Rodgers at or before the time of the killing. Thus, the state failed to prove beyond a reasonable doubt that appellant caused the victim’s death “while committing an aggravated robbery.” We therefore reverse appellant’s conviction of first-degree murder during the commission of an aggravated robbery.

II.

Appellant further claims that the trial court committed reversible error when it instructed the jury on a defendant’s right not to testify on his own behalf without explaining to appellant the significance of the instruction and without getting appellant’s permission on the record for the jury to be so instructed. Appellant claims that the error entitles him to a new trial.

The trial court erred in giving the jury instruction on a defendant’s right not to testify without appellant’s permission on the record. State v. Thompson, 430 N.W.2d 151, 153 (Minn.1988); see also Minn.Stat. § 611.11 (2000) (“[A defendant’s] failure to testify shall not create any presumption against the defendant, nor shall it be alluded to by the prosecuting attorney or by the court.”) (emphasis added).

However, appellant did not object to the jury instruction that was given. Therefore, before we will review the giving of the instruction, three factors must be satisfied: (1) there must have been error (2) that was plain and (3) that affected substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn.1998). The defendant bears a heavy burden of showing that substantial rights have been affected. Id. at 741. In Griller, we stated that plain error is prejudicial when there is a reasonable likelihood that the giving of the instruction would have had a significant effect on the jury’s verdict. Id.

Here, giving the instruction without appellant’s permission on the record was error. See Thompson, 430 N.W.2d at 153. However, we have held the giving of this jury instruction to be harmless. See Thompson, 430 N.W.2d at 153; State v. Rosen, 280 Minn. 550, 550-51, 158 N.W.2d 202, 202 (1968) (per curiam); see also State v. Sandve, 279 Minn. 229, 233-34, 156 N.W.2d 230, 233-34 (1968). Appellant has not shown that the facts of this case make the error prejudicial, nor has appellant met his heavy burden of showing that there is a reasonable likelihood that giving the instruction had a significant effect on the jury’s verdict. We therefore conclude that, while it was error for the trial court to give an instruction on appellant’s right not to testify without appellant’s permission on the record, the error was not prejudicial and does not entitle appellant to a new trial.

III.

The final issue raised by appellant is whether the state committed prosecuto-rial misconduct during its closing argument. Appellant contends that the state committed misconduct by saying to the jury, “so I need not say to you what I might want to say to another jury, that a conviction on second degree murder unintentional alone might be tempting because it’s easy and it’s a compromise,” arguing that this was an improper attempt to influence the jury by implying that the jury was more intelligent or had a better sense of justice than an average jury. Appellant also argues that the state committed misconduct by the following argument: ‘We have proven our case beyond a reasonable doubt and it’s fair and just. You should come back with verdicts of guilty. Justice requires those verdicts. Justice in the abstract sense that we use the word. Justice for society. And yes, justice for Cornelius Rodgers * * *.” Appellant argues that this argument was improper because the prosecutor is not permitted to appeal to the passion and prejudice of law and order.

Appellant failed to object to the alleged misconduct and failed to seek a cautionary instruction. It is well-established that a defendant who fails to object to a prosecutor’s statements or to seek specific cautionary instructions is deemed to have forfeited the right to have the issue considered on appeal, although the reviewing court may reverse despite the defendant’s failure to preserve the issue if the court deems the error sufficient to do so. State v. Whittaker, 568 N.W.2d 440, 450 (Minn.1997); State v. Brown, 348 N.W.2d 743, 747 (Minn.1984); State v. Gunn, 299 N.W.2d 137, 138 (Minn.1980). We conclude that appellant has forfeited his right to have this issue considered on appeal and we decline to reach the issue.

In addition to first-degree murder during the commission of an aggravated robbery, the jury returned verdicts of guilty of second-degree intentional murder and second-degree murder during the commission of an assault. We have concluded that there was sufficient evidence to support the jury’s determination that appellant caused Rodgers’ death with intent to effect his death. Thus, the evidence supports the jury’s verdict that appellant was guilty of second-degree intentional murder in violation of Minn.Stat. § 609.19, subd. 1(1). We therefore remand for entry of conviction on second-degree intentional murder and for resentencing.

Affirmed in part, reversed in part, and remanded for resentencing.

      . Appellant's girlfriend testified that appellant produced two identification "cards” with Rodgers’ picture on them,

      . A simple robbery is the taking of another's personal property by force or threat of force and is defined under Minn.Stat. § 609.24 (2000) as follows:
      Whoever, having knowledge of not being entitled thereto, takes personal property from the person or in the presence of another and uses or threatens the imminent use of force against any person to overcome the person’s resistance or powers of resistance to, or to compel acquiescence in, the taking or carrying away of the property is guilty of robbery and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both.

      . 9A Henry W. McCarr & Jack S. Nordby, Minnesota Practice Series Criminal Law and

        Procedure § 49.3 (3d ed. 2001) ("The crime of 'felony' murder involves a killing that re-suits from the commission of another crime * * *

      . The instruction that the court gave the jury on a defendant's right not to testify was CRIMJIG 3.17, which provides:
      The State must convince you by evidence beyond a reasonable doubt that the defendant is guilty of the crime charged. The defendant has no obligation to prove innocence. The defendant has the right not to testify. This right is guaranteed by the federal and state constitutions. You should not draw any inference from the fact that the defendant has not testified in this case.
      10 Minn. Dist. Judges Ass'n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 3.17 (4th ed.1999).


author: G. BARRY ANDERSON, Judge.

text:
    In the Matter of the WELFARE OF J.R.Z.
    No. C4-01-1358.
    Court of Appeals of Minnesota.
    June 18, 2002.

      John Stuart, State Public Defender, Charlann Winking, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, Elizabeth V. Cutter, Assistant Hennepin County Attorney, Minneapolis, MN, for respondent.
    Considered and decided by LANSING, Presiding Judge, ANDERSON, Judge, and PORITSKY, Judge.

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

   OPINION

G. BARRY ANDERSON, Judge.

The district court denied appellant’s motion to stay adjudication for third-degree criminal sexual conduct, adjudicated appellant delinquent, and ordered him to register as a predatory sex offender and to complete a treatment program. Appellant argues the district court abused its discretion when it adjudicated him delinquent because the adjudication was not necessary for his rehabilitation, it did not serve his best interests, and the court applied the wrong law by requiring special circumstances or an abuse of prosecutorial discretion before it could stay adjudication. Appellant also argues the statute that requires mandatory lifetime registration of predatory sex offenders should not apply to him because he is under the age of 14. We affirm.

FACTS

In January 1998, the state filed a petition for a child in need of protective services alleging that appellant committed a delinquent act before his tenth birthday. Appellant’s parents admitted the petition, which arose from an incident where appellant placed his two-week-old stepsister in a freezer. His stepsister had to be revived by emergency personnel. Appellant was placed at Bush Memorial Home (Bush Memorial), a residential-treatment center in St. Paul, Minnesota.

In April 2000, the state filed a petition for delinquency alleging that appellant committed third-degree criminal sexual conduct, a violation of Minn.Stat. § 609.344, subd. 1(a) (1998), by engaging in sexual contact with another child at Bush Memorial. Appellant pleaded guilty to an amended petition of fifth-degree criminal sexual conduct and the district court adjudicated him delinquent. The court ordered him to remain at Bush Memorial and to provide a DNA sample.

On January 31, 2001, the state filed another petition for delinquency against appellant alleging that appellant, then age 11, again committed third-degree criminal sexual conduct by engaging in sexual contact with an eight-year-old girl at Bush Memorial. Appellant admitted the petition. Appellant requested the district court stay his adjudication because adjudication would compel him to register as a predatory sex offender under Minn.Stat. § 243.166, subd. 1 (2000). On June 5, 2001, the district court adjudicated appellant delinquent, ordered him to register as a predatory sex offender, and ordered him to complete a treatment program at Northwoods Treatment Facility in Duluth, Minnesota. This appeal followed.

ISSUES

I. Did the district court clearly abuse its discretion when it adjudicated appellant delinquent of third-degree criminal sexual conduct?

II. Does Minn.Stat. § 243.166 apply to an eleven-year-old juvenile who has been adjudicated delinquent for third-degree criminal sexual conduct?

ANALYSIS

I.

Appellant argues the district court abused its discretion when it adjudicated him delinquent for third-degree criminal sexual conduct because the adjudication was not the least drastic step necessary for his rehabilitation and does not serve his best interests. Appellant also argues the district court applied the wrong law by requiring special circumstances to order a stay of adjudication.

Under the rules of juvenile procedure, a court shall adjudicate a child delinquent or continue the case without adjudication “at the same time and in the same court order as the disposition.” Minn. R. Juv. P. 15.05, subd. 1. A district court “has broad discretion in determining whether to continue an adjudication in a delinquency proceeding.” In re Welfare of J.L.Y., 596 N.W.2d 692, 695 (Minn.App.1999) (citing Minn.Stat. § 260.185, subd. 3 (1998); In re Welfare of J.B.A., 581 N.W.2d 37, 39 (Minn.App.1998), review denied (Minn. Aug. 31, 1998)), review granted (Minn. Sept. 28, 1999) and appeal dismissed (Minn. Feb. 15, 2000).

When it is in the best interests of the child to do so and when the child has admitted the allegations contained in the petition * * * the court may continue the case for a period not to exceed 90 days on any one order. Such a continuance may be extended for one additional successive period not to exceed 90 days and only after the court has reviewed the case and entered its order for an additional continuance without a finding of delinquency.

MinmStat. § 260B.198, subd. 7 (2000) (emphasis added); see also Minn. R. Juv. P. 15.05, subd. 4(A) (“When it is in the best interests of the child and the protection of the public to do so, the court may continue the case without adjudicating the child.”). But such a stay of adjudication may not exceed 180 days. In re Welfare of M.A.R., 558 N.W.2d 274, 276 (Minn.App.1997).

Minn.Stat. § 260B.198, subd. 7, does not require the district court to explain why an adjudication of delinquency is the least restrictive alternative. In re Welfare of J.L.Y., 596 N.W.2d at 695. Most importantly, “[ijmposing an adjudication within the limits prescribed by the legislature is not an abuse of discretion.” Id. (citation omitted).

The district court concluded that a stay of adjudication was not supported by either the rules of juvenile procedure or case law. The court concluded that the public would not be protected if it were to grant appellant’s motion for a stay of adjudication because appellant has committed an act of attempted murder and at least two incidents of criminal sexual conduct. The court recognized that appellant has been in residential treatment for over three years and during those years appellant has exhibited behavior that constituted a danger to himself and to other children; consequently, he requires constant supervision. The court quoted a report written by Bush Memorial staff as part of appellant’s discharge from that facility that chronicled appellant’s resistance to therapy and the resulting ineffectiveness of that therapy. The court also referenced a report prepared by Mille Lacs Treatment Facility that recommended appellant be placed in a secured and structured treatment program with a psychiatric component to the program. The court acknowledged that the treatment required to rehabilitate appellant would take much longer than the 180-day statutory time limit for a stay of adjudication. The court found

that there are no special circumstances that would warrant a stay of adjudication in this case. Registration as a predatory sex offender may seem to be a harsh collateral consequence for an eleven year old boy. However, given his repeated behavior and response (or lack thereof) to treatment, it is not an unduly harsh consequence in this case.

We conclude the district court did not abuse its broad discretion by adjudicating appellant delinquent for committing third-degree criminal sexual conduct.

First, appellant incorrectly argues that a district court’s decision to adjudicate must be the “least drastic step necessary to restore law-abiding conduct in the juvenile.” In re Welfare of M.R.S., 400 N.W.2d 147, 151 (Minn.App.1987) (citation omitted). Appellant confuses the standard for staying adjudication with the standard for ordering a particular disposition. Each constitutes a distinct inquiry. As this court has previously stated, there is

nothing in the statute that requires particularized findings on the court’s decision to impose or withhold adjudication of delinquency. The particularized findings, including the finding on the least restrictive means for restoring a juvenile to law-abiding conduct, are required in determining a disposition, but not when deciding whether to adjudicate or stay adjudication.

In re Welfare of J.L.Y., 596 N.W.2d at 695 (emphasis added). Instead, the district court may stay adjudication “[w]hen it is in the best interests of the child to do so and when the child has admitted the allegations contained in the petition * * Minn.Stat. § 260B.198, subd. 7. The district court may also consider the protection of the public in determining whether to stay adjudication. Minn. R. Juv. P. 15.05, subd. 4(A). The district court considered both factors and decided not to continue appellant’s adjudication; it did not abuse its broad discretion by refusing to stay appellant’s adjudication.

Second, appellant’s argument that the district court abused its discretion when it adjudicated him delinquent because it applied the law governing adult criminal stays of adjudication is also misplaced. Although the district court did discuss the adult criminal cases that require “special circumstances” for a district court to properly order a stay of adjudication over a prosecutor’s objection, the district court also cited other provisions of Minnesota law that make it clear that there are unique considerations in connection with stays of adjudication in juvenile proceedings. The district court examined Minn. R. Juv. P. 15.05, subd. 4, when it acknowledged the state’s argument that appellant’s “offense history, his evident resistance to treatment and lack of impulse control and sexual acting out all support an adjudication of delinquency in this case.” The district court also acknowledged Minn.Stat. § 260B.198, subd. 7, when it stated that it could only stay adjudication for 180 days. Finally, the court also discussed In re Welfare of J.B.A., where this court concluded that the district court did not abuse its discretion by staying adjudication because the stay was in the juvenile’s best interests. 581 N.W.2d at 39. The district court specifically distinguished the present controversy from J.B.A. noting, among other things, that appellant exhibited a propensity for violent criminal activity and an adjudication requiring him to register as a predatory sex offender “is not a seriously disproportionate consequence.”

Therefore, the district court relied on proper statutory and case-law authority when it denied appellant’s motion to stay adjudication. The district court’s decision to adjudicate appellant delinquent was, therefore, within the limits prescribed by the legislature. Consequently, the district court did not abuse its broad discretion by adjudicating appellant delinquent for committing third-degree criminal sexual conduct.

II.

Appellant argues that Minn.Stat. § 243.166, subds. l(a)(l)(iii), 6(d)(1) (2000) (registration statute), should not apply to him because lifetime sex-offender registration, as applied to juveniles under the age of 14, is inconsistent with the goal of juvenile rehabilitation. Appellant argues that Minn.Stat. § 260B.125 (2000) (certification statute), which permits certification of juveniles as adults only if they are over the age of 14, is inconsistent with the provisions of the registration statute, and, therefore, the registration statute should be interpreted to contain an implicit requirement that a juvenile be over the age of 14 before the lifetime sex-offender registration provisions apply.

The interpretation of the predatory sex-offender registration statute, like interpretation of all statutes, is a question of law which we review de novo. Boutin v. LaFleur, 591 N.W.2d 711, 714 (Minn.1999). Generally, specific statutory provisions control general provisions when the two are in conflict. See, e.g., Minn.Stat. § 645.26, subd. 1 (2000). If the statutory language is plain and unambiguous, we only examine the plain meaning of the statutory language. Boutin, 591 N.W.2d at 715; Olson v. Am. Family Mut. Ins. Co., 636 N.W.2d 598, 604 (Minn.App.2001) (“The legislature * * * has made it clear that legislative intent and the spirit of the law, if any such intent or spirit can be ascertained, cannot override the plain language of a statute.” (citation omitted)). The registration statute provides, in part:

A person shall register under this section if * * * the person was charged with or petitioned for a felony violation of or attempt to violate any of the following, and convicted of or adjudicated delinquent for that offense or another offense arising out of the same set of circumstances: * * * criminal sexual conduct under section 609.342; 609.343; 609.344; 609.345; or 609.3451, subdivision 3.

Minn.Stat. § 243.166, subd. 1(a). The Juvenile Court Act defines “person” as “any individual.” Minn.Stat. § 260B.007, subd. 11 (2000). A person need not be convicted of, or adjudicated delinquent for, one of the enumerated offenses to invoke mandatory registration; rather, a person that is initially charged with, or the subject of a petition for, an enumerated offense must only be convicted of, or adjudicated delinquent for, “another offense which arose out of the same set of circumstances as the charged predatory offense.” Boutin, 591 N.W.2d at 716.

A person who is required to register under this section must comply with several statutory requirements. See generally Minn.Stat. § 243.166, subds. 1, 4; Boutin, 591 N.W.2d at 715. Ordinarily, a person need only remain registered under the statute for ten years after his initial registration “or until the probation, supervised release, or conditional release period expires, whichever occurs later.” In re Welfare of C.D.N., 559 N.W.2d 431, 433 (Minn.App.1997) (quotation omitted), review denied (Minn. May 20, 1997). Lifetime registration, however, is mandated in certain cases under Minn.Stat. § 243.166, subd. 6(d):

A person shall continue to comply with this section for the life of that person * * * if the person is convicted of or adjudicated delinquent for any offense for which registration is required under subdivision 1, * * * and the person has a prior conviction or adjudication for an offense for which registration was required under subdivision 1.

This court has previously concluded that mandatory sex-offender registration as applied to adult offenders is regulatory, not punitive, and thus does not violate the ex-post-facto clauses of either the United States or Minnesota constitutions. State v. Manning, 532 N.W.2d 244, 249 (Minn.App.1995), review denied (Minn. July 20, 1995). This court later extended the'principles articulated in Manning to juvenile offenders. In re Welfare of C.D.N., 559 N.W.2d at 438. In C.D.N., this court concluded “that the application of the registration statute to juveniles is nonpunitive.” Id. Consequently, this court held that the registration statute, as applied to juveniles, did not violate due process and was “not inconsistent with the rehabilitative purpose of the juvenile court system.” Id. at 434. Two years later, the supreme court agreed that the registration statute did not violate an adult’s substantive and procedural due-process rights because it was regulatory, not punitive, in nature. Boutin, 591 N.W.2d at 718-19; see also Kaiser v. State, 641 N.W.2d 900, 905 (Minn.2002) (stating that the consequences of registering as a predatory sex offender “are civil and regulatory in nature and are imposed in the interest of public safety”).

We conclude that the plain language of the registration statute compels appellant’s lifetime sex-offender registration. This may, as appellant suggests, be a harsh result. But harsh or not, the decision concerning the reach of the statute rests with the legislature.

First, it is undisputed that appellant has been petitioned and adjudicated delinquent for two of the offenses enumerated in the statute. A petition for delinquency was filed against appellant in April 2000 alleging third-degree criminal sexual conduct; the district court adjudicated appellant delinquent for fifth-degree criminal sexual conduct, an offense “which arose out of the same set of circumstances as the charged predatory offense.” Boutin, 591 N.W.2d at 716. Moreover, a petition for delinquency was filed against appellant alleging third-degree criminal sexual conduct for the January 2001 incident and appellant admitted he engaged in sexual contact with the eight-year-old girl. Therefore, appellant’s conduct has satisfied the statutory criteria requiring lifetime registration.

Second, the registration statute is mandatory and does not provide an explicit exception for juveniles under the age of 14. The general registration provision states that a person shall register if the person was petitioned and adjudicated delinquent for one of the enumerated offenses. Minn. Stat. § 243.166, subd. 1(a). The lifetime registration provision also provides that a person shall continue to comply with the registration statute for the life of the person if the person is adjudicated delinquent for an enumerated offense and the person has a prior adjudication for an enumerated offense. Minn.Stat. § 243.166, subd. 6(d). Generally, “shall” is mandatory unless another intention clearly appears in the statute. Minn.Stat. § 645.44, subd. 16 (2000); State v. Humes, 581 N.W.2d 317, 319 (Minn.1998) (“The canons of statutory construction provide that ‘shall’ is mandatory.” (citation omitted)); see also Kaiser, 641 N.W.2d at 910 (Page, J., dissenting) (noting that the statute “makes registration mandatory in all cases without exception” and “makes clear that the requirement may not be modified”).

Finally, appellant offers no reason why this court should not follow the plain language of the statute other than arguing that the registration statute is inconsistent with the certification statute and that lifetime registration is a severe consequence for an eleven-year-old boy.

The certification and registration statutes, however, are not in obvious conflict, and therefore need not be reconciled, because they address different legislative concerns. But see In re Registrant J.G., 169 N.J. 304, 777 A.2d 891, 910 (2001) (assuming that the New Jersey registration and certification statutes áre “conflicting statutory provisions that relate to a common subject” and therefore must be interpreted harmoniously). The certification statute permits the state to charge juveniles over the age of 14 as adults principally because a more lenient juvenile-court disposition may be inimical to public safety, and the punitive measures afforded by an adult criminal disposition more appropriately fit the offense. See generally Minn.Stat. § 260B.125, subd. 4 (2000). The registration statute, on the other hand, “is not punitive because it serves the regulatory purpose of assisting police investigations” and therefore “is not inconsistent with the rehabilitative purpose of the juvenile court system.” In re Welfare of C.D.N., 569 N.W.2d at 433, 434 (citation omitted); see also Minn.Stat. § 243.166, subd. 7 (2000) (stating that predatory sex offender registration information “may be used only for law enforcement purposes”); Kaiser, 641 N.W.2d at 907 (“The regulatory non-punitive nature of the statute is further reflected in its clear purpose — to keep law enforcement informed as to a predatory offender’s whereabouts.”).

Nevertheless, although we conclude that the registration statute’s lifetime registration provisions apply to appellant, at age 11, we again “invite the legislature to review the prudence of requiring all juveniles adjudicated for criminal sexual conduct to register as predatory sexual offenders.” In re Welfare of C.D.N., 559 N.W.2d at 435.

DECISION

The district court did not abuse its broad discretion when it refused to stay appellant’s adjudication for third-degree criminal sexual conduct. Moreover, the district court did not err by ordering appellant to register as a predatory sex offender under MinmStat. § 243.166, because the plain language of the predatory sex offender registration statute does not provide an exception for juveniles under the age of 14.

Affirmed.

      . Former Minn.Stat. § 260.185, which Minn. R. Juv. P. 15.05 still references as the underlying statutory authority for the rule, was repealed and recodified as Minn.Stat. § 260B.198, in 1999. See 1999 Minn. Laws ch. 139, art. 4, § 3 (repealer); 1999 Minn. Laws ch. 139, art. 2, § 30 (recodification). As the legislature stated in its bill to repeal and recodify Chapter 260, the changes were not intended to alter pre-existing law. See 1999 Minn. Laws ch. 139, art. 4, § 1.

      . This principle was derived through judicial interpretation of Minn.Stat. § 260B.198, subd. 1 (2000), which provides in part that
      [i]f the court finds that the child is delinquent, it shall enter an order making any of the following dispositions of the case which are deemed necessary to the rehabilitation of the child * * *.

        See generally In re Welfare of L.K.W., 372 N.W.2d 392, 398 (Minn.App.1985) (seminal case promulgating “the least drastic step necessary to restore law-abiding conduct” standard). As part of the district court’s disposition decision, it ordered appellant to attend the Northwoods Treatment Facility in Duluth. Appellant does not argue that this disposition was not the least drastic step necessary to restore him to law-abiding conduct, and this disposition was apparently agreed to by all of the interested parties.

      . E.g., State v. Foss, 556 N.W.2d 540, 541 (Minn.1996) (stating that the inherent judicial authority to stay adjudication should be exercised sparingly and in “special circumstances”); State v. Krotzer, 548 N.W.2d 252, 254-55 (Minn.1996) (district court's decision to stay adjudication over prosecutor's objection did not violate separation-of-powers principles); State v. Prabhudail, 602 N.W.2d 413, 414-15 (Minn.App.1999) (deportation as a collateral consequence of an adjudication not a "special circumstance”), review denied (Minn. Jan. 18, 2000); State v. Thoma, 569 N.W.2d 205, 208-09 (Minn.App.), aff’d mem., 571 N.W.2d 773 (Minn.1997).

      . Indeed, the legislature has not acted to ameliorate the arguably harsh consequences of the registration statute as applied to juvenile sex offenders; rather, it has acted to expand the number of individuals subject to mandatory lifetime registration. In 2002, the legislature enacted, and the governor signed, a bill that expanded lifetime registration to those who have been twice convicted of, or adjudicated delinquent for, any offense for which registration was "or would have been” required under the statute. 2002 Minn. Laws ch. 222, § 1 (approved Feb. 28, 2002) (amending Minn.Stat. § 243.166, subd. 6(d)(1) (Supp.2001)).


author: STONEBURNER, Judge.

text:
    Richard WEINBERGER, Respondent, and Independent School District No. 622, et al., Defendants, v. MAPLEWOOD REVIEW, et al., Appellants.
    No. C7-01-2021.
    Court of Appeals of Minnesota.
    June 18, 2002.

      Stephen W. Cooper, Stacey R. Everson, The Cooper Law Firm, Chartered, Minneapolis, for respondent.
    Mark R. Anfinson, Minneapolis, for appellant.
    Considered and decided by STONEBURNER, Presiding Judge, HARTEN, Judge, and ANDERSON, Judge.
   OPINION

STONEBURNER, Judge.

Appellant Wally Wakefield, a reporter, appeals from the district court’s order compelling him to disclose, pursuant to Minn.Stat. § 595.025 (defamation exception to the Free Flow of Information Act), which defendant, if any, is the source of statements in a news article. Because respondent Richard Weinberger has failed to establish that the exception applies, we reverse.

FACTS

The Maplewood Review employed Wally Wakefield as a reporter. Wakefield gathered information for an article authored by co-reporter Jason Tarasek concerning the school district’s decision not to retain Weinberger as the head football coach of Tartan High School. The article appeared in the Maplewood Review in January 1997 and contained quotations from, and information attributed to, named and unnamed sources.

Weinberger sued the school district and four school district employees (defendants) alleging breach of contract, tortious interference with a business advantage, defamation, tortious interference with a business opportunity, negligence, and intentional and negligent infliction of emotional distress. The complaint provides:

STATEMENT OF FACTS
* * * * * *
25. On or about December 22, 1996 Defendants requested that [Weinberger] resign as head football coach. [Wein-berger] refused to resign.
26. Around the same time a series of newspaper articles were published stating false and malicious comments regarding [Weinberger],
27. On information and belief, Defendants provided false and malicious information for the newspaper articles about [Weinberger],
* * * * * *
COUNT THREE DEFAMATION
* * * * * *
52. [Defendants] have published false, malicious and hurtful statements about [Weinberger],
53. Many of Defendants’ statements constituted defamation per se because they specifically disparage [Weinberger] about his profession.
54. Defendants’ statements were intended to and did have the effect of harming [Weinberger’s] business and personal reputation by placing [Wein-berger] in a false light.
55. Plaintiff has been forced to republish the false and hurtful statements and the reason he was terminated to potential employers.
56. As a direct and proximate result of Defendants’ false and misleading statements, [Weinberger] has suffered loss of job opportunities, damage to personal and professional reputation, emotional distress, loss of past, present and future income and benefits.

The article is not quoted in, or attached to, the complaint, and the complaint does not set out any specific statements from the article that Weinberger alleges to be defamatory.

In their depositions, three defendants testified that they spoke to a reporter. Defendant Hickey testified that he was the “former coach” quoted in the article as saying:

[G]ood things happened during [Wein-berger’s] tenure as Tartan football coach. But this whole situation has put him in somewhat of a desperate situation. * * * There are a lot of people sitting here waiting for the other shoe to drop.

Defendant Klingsporn testified that the following statement could have been interpreted based on what he said:

According to sources, the coach is known for his temper, inappropriate comments and foul language, which people claim he uses to intimidate players.

Defendant Lipetzky testified that he made only the statements that were attributed to him in the article. Defendants moved for summary judgment on all claims.

Before Weinberger filed his memorandum opposing the motion for summary judgment he served a subpoena duces te-cum on Wakefield. The subpoena ordered Wakefield to appear for a deposition and to bring “[a]ny and all documents, including but not limited to notes and recordings, concerning or related to [Wein-berger] in your possession and/or in the possession of the Maplewood Review.” When informed that Wakefield did not intend to respond, Weinberger moved to compel Wakefield’s deposition.

Wakefield opposed enforcement of the subpoena. The district court denied Wein-berger’s motion to compel. Weinberger brought a second motion to compel Wake-field’s deposition. While this motion was pending, Weinberger filed his memorandum opposing defendants’ motion for summary judgment. In that memorandum Weinberger alleges that defendants “fail to identify accurately all of the statements in the [article] that are attributable to them.” Weinberger says he “will await the Court’s ruling with respect to [Weinberger’s] Motion to Compel disclosure of the sources” of the remaining statements.

The district court granted partial summary judgment to defendants, dismissing Weinberger’s claims for breach of contract and negligence. The district court did not grant summary judgment on Weinberger’s defamation claims, stating that affidavits and deposition testimony contain “many statements alleged to have been made by defendants which, if made and if untrue, may be found by the jury to constitute defamation.”

Weinberger amended his motion to compel to request that Wakefield be compelled to identify the source of six specific segments from the article. This is the first identification by Weinberger of the specific statements in the article he claims to be defamatory.

In support of his motion to compel disclosure, Weinberger argued that although defendants took responsibility for some of the statements in the article:

[A]ll stop short of admitting all the statements. Instead, the deponents have testified that they are not sure of what they said, or forgot what they said to the reporters.

Weinberger admitted that he is unable to identify the source of several of the “most damaging statements” in the article but asserted that he has “reasonable cause to believe that these statements were, in fact, made by school district officials.”

The district court granted Weinberger’s motion to compel Wakefield to identify the source of the six specified segments. The Maplewood Review and Wakefield appealed. We reversed and remanded to the district court because the order lacked findings of fact required by the statute and case law. We directed the district court on remand to address and balance the factors set out in Bauer v. Gannett Co., Inc. (KARE 11), 557 N.W.2d 608, 611-12 (Minn.App.1997). See Weinberger v. Indep. Sch. Dist. No. 622, No. C5-00-1830, 2001 WL 741313, at *2 (Minn.App. June 22, 2001).

After rehearing, the district court ordered Wakefield to identify by written interrogatory “which defendant, if any, is the original source for each of the following statements” from the article:

a.But now school officials say they’ve had enough of Weinberger and his behavior. According to sources, the coach is known for his temper, inappropriate comments and foul language, which people claim he uses to intimidate players.
b. One source, however, pointed to an incident at Park High School in Cottage Grove as “the straw that broke the camel’s back.”
c. Weinberger reportedly gave a severe tongue-lashing to several of his players at halftime during Tartan’s loss, which knocked the team out of the playoffs.
d. “His language has been awful,” one person said on the condition of anonymity.
e. “People have talked to him numerous times. Both his superiors and peers.”
f. Weinberger’s cursing and his habit of berating his players is allegedly not anything new. For a while, after he was reprimanded, he improved his behavior, according to observers. However, several people said Wein-berger eventually sunk back into his old habits. The problem continued to linger because players, parents and even coaches were afraid to speak up — fearing that Weinberger would retaliate.
g. “First ... when there is an intimidating situation, kids have a tendency not to say nothing,” a source said. “Second, some parents are apprehensive about saying things because it will be held against their son or daughter.”
h. In the past few weeks several assistant coaches reportedly gave notice to Tartan officials that they would not return to coach under Wein-berger.
i. After Tartan officials repeatedly warned Weinberger to change his behavior, their patience apparently has run out.
j. “We all have to make changes and get better as a person,” a source said. “He (Weinberger) can’t admit that there is anything wrong.”

The district court’s analysis of the Bauer factors is contained in the memorandum attached to its order. This appeal followed.

ISSUES

I. What standard of review applies to a district court’s order compelling a newspaper reporter to disclose confidential sources pursuant to Minn.Stat. § 595.025?

II. Has Weinberger made a prima fa-cie showing that the statements alleged to be defamatory are false and made with actual malice?

III. Has Weinberger established, given the nature of this action and the fact that the reporter is not a party, the requisite relevance and need to compel, pursuant to Minn.Stat. § 595.025, disclosure of which defendant, if any, is the confidential source of statements that appeared in a news article?

ANALYSIS

I. The Standard of Review

The parties dispute what standard of review applies to our review of the district court’s order compelling Wakefield to identify which defendant, if any, made certain statements that appeared in the article. A motion to compel discovery is generally committed to the discretion of the district court and the scope of review is limited to a determination of whether the district court abused its discretion in entering the challenged order. Shetka v. Kueppers, Kueppers, Von Feldt & Salmen, 454 N.W.2d 916, 921 (Minn.1990); Zerilli v. Smith, 656 F.2d 705, 710 (D.C.Cir.1981) (stating that the standard of review for a denial of a motion to compel non-party media disclosure of sources is abuse of discretion).

But unlike Zerilli, the instant case involves statutory construction. We have applied a de novo standard to review denial of a motion to quash a prosecutor’s subpoena for a newspaper’s published photographs. State v. Knutson, 539 N.W.2d 254, 256-58 (Minn.App.1995); see also Heaslip v. Freeman, 511 N.W.2d 21, 22 (Minn.App.1994) (framing review of district court determination on reporter’s privilege as issue of statutory construction), review denied (Minn. Feb. 24, 1994). In addition, this case implicates the First Amendment rights of the media to protect confidential sources. “Construction of * * * constitutional provisions * * * is a question of law, and this court owes no deference to a lower court’s conclusions.” In re Conservatorship of Foster, 547 N.W.2d 81, 84-85 (Minn.1996). Because the construction of a statute and constitutional provisions are involved, we hold that the standard of review applicable to the district court’s order to compel a reporter to disclose confidential sources pursuant to Minn.Stat. § 595.025 is de novo.

II. The Free Flow of Information Act

The Supreme Court has recognized that newsgathering is essential to a free press and deserves some First Amendment protection. Zerilli, 656 F.2d at 711 (citing Branzburg v. Hayes, 408 U.S. 665, 707, 92 S.Ct. 2646, 2669, 33 L.Ed.2d 626 (1972)). In the civil context, federal circuit courts have ruled that a qualified reporter’s privilege under the First Amendment should be readily available and that a balancing test should be applied. Zerilli, 656 F.2d at 712. The protections of a reporter’s privilege are the same under the Minnesota and federal constitutions. State v. Turner, 550 N.W.2d 622, 628 (Minn.1996).

The Minnesota legislature enacted the Free Flow of Information Act (Act), Minn. Stat. § 595.021-.025 (2000), in 1973, one year after the Supreme Court’s decision in Branzburg, to provide statutory protection to reporters from compelled disclosure of their sources. Bauer, 557 N.W.2d at 610. The purpose of the act is “to insure and perpetuate * * * the confidential relationship between the news media and its sources.” Minn.Stat. § 595.022 (2000). To this end, the legislature determined that “the ireedom of press requires protection of the confidential relationship between the news gatherer and the source of information” and that this protection should consist of the news media having the benefit of a “substantial privilege” not to reveal sources of information or to disclose unpublished information leading to the identity of sources. Id.

The Act provides in relevant part:

595.023 DISCLOSURE PROHIBITED
[N]o person who is or has been directly engaged in the gathering * * * of information for the purpose of * * * publication to the public shall be required by any court * * * to disclose in any proceeding the person or means from or through which information was obtained, or to disclose any unpublished information procured by the person in the course of work or any of the person’s notes, memoranda, recording tapes, film or other reportorial data whether or not it would tend to identify the person or means through which the information was obtained
* * * * * *
595.025 DEFAMATION
Subdivision 1. * * * The prohibition of disclosure provided in section 595.023 shall not apply in any defamation action where the person seeking disclosure can demonstrate that the identity of the source will lead to relevant evidence on the issue of actual malice.
Subd. 2 * * * Notwithstanding the provision of subdivision 1, the identity of the source of information shall not be ordered disclosed unless the following conditions are met:
(a) that there is probable cause to believe that the source has information clearly relevant to the issue of defamation;
(b) that the information cannot be obtained by any alternative means or remedy less destructive of first amendment rights.

Minn.Stat. §§ 595.023 & .025 (2000).

III. The Bauer factors

In Bauer, we held that before disclosure of information identifying confidential sources can be compelled, courts must weigh five interrelated factors. Bauer, 557 N.W.2d at 611-12. Three of the Bauer factors address constitutional considerations: (1) the relevance of the source’s identity to the action; (2) the availability of the information from alternative sources; and (3) a compelling interest in the information or source. Id. The remaining two factors: (4) the nature of the litigation and (5) the prima facie demonstration that the alleged defamatory statements are false and made with actual malice, provide the structural foundation for the analysis. Id. The weight of each of the factors and the order in which they are considered depend on the circumstances of each case. See Consumer’s Union of United States, Inc., v. Am. Med. Ass’n, 495 F.Supp. 582, 586 (S.D.N.Y.1980) (noting that “resolution of the balance of interests implicated by subpoenas of non-party journalists should be approached on a case-by-case basis, with careful attention to the facts of each case”).

In this case we will examine first the prima facie demonstration; second, the nature of the litigation; third, the relevance of the source’s identity; fourth, whether Weinberger has a compelling interest in the information required to be disclosed; and fifth, the availability of the information from other sources.

Our analysis is impeded by the failure of the complaint or the summary judgment process to identify which statements in the article are allegedly defamatory. Although the district court ultimately identified specific statements in its order compelling disclosure, the record contains no statement-by-statement analysis of why these are defamatory. A number of the statements do not appear susceptible to a defamatory meaning on their face. But that issue has not been raised in this appeal. We are mindful that this is the second appeal in this matter and will therefore proceed with our analysis with a caution that by doing so we take no position on whether the statements constitute defamation.

1. Has Weinberger made a prima facie case that the alleged defamatory statements are false and made with actual malice?

Requiring plaintiff to make a prima facie case that the alleged defamatory statements are false and made with actual malice protects the fundamental principle that there must be a showing of prejudice before the reporter’s privilege is placed at risk. See Cervantes v. Time Inc., 464 F.2d 986, 993 n. 10 (8th Cir.1972) (stating that to compel a newsman to breach a confidential relationship merely because a libel suit has been filed would lead to excessive restraint on the scope of legitimate news-gathering activity).

In evaluating this factor, the district court noted its denial of defendants’ motion for summary judgment, stating in its memorandum:

[Tjhis court has previously ruled that plaintiff has shown sufficient facts that, if believed, would allow a jury to find that the statements were false and made with malicious intent. The statements in question, if made by the declarant with knowledge of their falsity, are such that in and of themselves they constitute evidence of actual malice.

But a review of the record reveals that the district court did not, in denying defendant’s motion for summary judgment, evaluate specific statements in the article for falsity or actual malice. The specific statements had not been identified at the time of the summary judgment motion and the issues of whether these statements are false or were made with actual malice have never been briefed, argued, or decided in this lawsuit.

Weinberger argues that he has

provided numerous sworn statements and deposition excerpts “which established the falsity of Appellants’ statements. [Weinberger’s] evidence indicates that the Defendants knowingly made false statements about him, with the intent to cause him harm.

Weinberger, however, has directed neither the district court’s attention nor this court’s attention to specific evidence that shows that any of the specific statements is false or was made with actual malice. The referenced affidavits and deposition excerpts do not mention these statements or the article. We conclude that Wein-berger has not demonstrated a prima facie case that any of the statements is false or was made with actual malice and that this factor weighs against the disclosure ordered.

2. What is the nature of the litigation and is the reporter or news organization from which disclosure is sought a party to the litigation?

This litigation includes multiple claims against the school district and individual employees of the district under • various legal theories and includes numerous unspecified allegedly defamatory statements by defendants. The disclosure ordered by the district court will have no effect on the non-defamation claims or on the numerous defamation claims that are unrelated to the news article.

Neither the reporter nor the news organization is a party to this litigation. Where the media are parties, courts have found that the balance may be tipped in favor of disclosure:

When the journalist is a party, and successful assertion of the privilege will effectively shield him from liability, the equities weigh somewhat more heavily in favor of disclosure * * * [T]his will be particularly true in libel cases involving public officials * * * Plaintiffs in those cases must prove both that the allegedly defamatory publication was false, and that it was made with ‘actual malice.’ Proof of actual malice will frequently depend on knowing the identity of the newspaper’s informant, since a plaintiff will have to demonstrate that the informant was unreliable and that the journalist failed to take adequate steps to verify his story. * * * We take care to point out, however, that disclosure should by no means be automatic in libel cases. Where other relevant factors suggest disclosure is inappropriate, the privilege should prevail.

Mitchell v. Superior Court, 37 Cal.3d 268, 208 Cal.Rptr. 152, 690 P.2d 625, 632 (1984) (quoting Zerilli, 656 F.2d at 714).

The fact that Wakefield is not a party to the litigation, however, does not prevent disclosure. See Bauer, 557 N.W.2d at 611 (noting that whether a reporter is a party to the litigation may tip the balance in favor of disclosure when determining whether the privilege applies). Courts in other jurisdictions have recognized that

if a source acting with actual malice furnishes defamatory material to a publisher with the expectation that the material (either verbatim or in substance) will be published, the source should be liable for the publication.

Mitchell, 208 Cal.Rptr. 152, 690 P.2d at 633. Weinberger candidly admitted to the district court that he does not suspect Wakefield or the Maplewood Review of falsely attributed statements, but believes that the newspaper published false statements made by school district employees. Weinberger argued to the district court that he needs the testimony of Wakefield to establish actual malice. Weinberger stated in his memorandum supporting his motion to compel Wakefield’s deposition:

In reality, absent a confession of ill will from the defendant itself in a defamation action there is no way to get the information but for the testimony of the reporter himself.

But even if Wakefield testifies that certain defendants were the source of certain statements, he cannot testify to a defendant’s intentions in furnishing the information. See Consumers Union of Untied States, Inc., 495 F.Supp. at 588 (declining to compel disclosure as to information received from sources where discovery represented unwarranted burden on publisher as balanced against the need for such material). It is clear that Weinberger seeks disclosure to make Wakefield his witness against defendants rather than to discover evidence of actual malice.

The media’s qualified constitutional privilege to protect sources “is rooted in the desire to promote effective newsgathering and to preserve the free flow of public information.” Bauer, 557 N.W.2d at 610.

Compelling a reporter to disclose the identity of a confidential source may significantly interfere with the press’s ability to gather news. * * * When the media are reporting a matter of public concern the interest in fostering effective newsgathering is particularly strong. The activities of public figures are matters of public concern.

Id. (citations omitted).

Compelling disclosure of confidential sources of statements in an article about a public official, for the purpose of making the reporter a witness against sources, has significant potential to interfere with a reporter’s ability to gather news. Given the nature of this case, the fact that Wakefield is not, by asserting the privilege, shielding himself from liability and the potential burden to the newsgathering process of using reporters to impeach or testify against their sources, we conclude that this factor weighs against disclosure.

3. Has the party seeking disclosure of a confidential source demonstrated that the source’s identity is clearly relevant to the action?

Several courts have described the relevance standard as requiring a showing that the information goes to “the heart” of the plaintiffs claim. * * * [W]hen the district court has “probable cause to believe that the source has information clearly relevant to defamation,” * * * the “heart of the claim” standard is satisfied.

Bauer, 557 N.W.2d at 611 (citations omitted). The district court stated in its analysis of this factor, “[t]hat the identity of these sources is relevant and goes to the heart of [Weinberger’s] claims cannot seriously be questioned.”

Wakefield, however, has not been ordered to identify the sources of the statements. Here the disclosure compelled may prove not to be relevant at all. If Wakefield confirms the defendants’ testimony that none of them is the source of the statements, Weinberger will have gained nothing relevant to his claim against defendants from the disclosure. The possibility of relevance is not the same as demonstrating that the compelled disclosure is clearly relevant to the action. We conclude that this factor does not support disclosure.

4. Is there a compelling interest in the information or source?

Where evidence of actual malice is available from non-confidential sources or where defendants have sufficient evidence of truth to prevail on a motion for summary judgment, there may be no need to compel disclosure of the identity of relevant confidential sources. Bauer, 557 N.W.2d at 612 (citations omitted). Here, although we have rejected his argument with regard to the specific statements at issue, Weinberger argues that he has demonstrated actual malice through non-confidential sources. Obtaining evidence of actual malice is not the focus of Wein-berger’s request for disclosure.

We agree with the district court that Weinberger has a compelling interest in knowing if defendants are the declarants. But:

[W]hen the information relates to matters of great public importance, and when the risk of harm to the source is a substantial one, the court may refuse to require disclosure even though the plaintiff has no other way of obtaining essential information.

Id. (quoting Mitchell, 690 P.2d at 634).

In evaluating this factor, the district court said: “the identities of the declarants are, for the most part, already known.” But the evidence does not support this finding. Three defendants admitted talking to a reporter. There is no indication that either of two additional school officials who were deposed was asked about being a source of information in the article. There is a possibility that non-parties will be harmed if Wakefield discloses that none of the named defendants is a source of the statements.

The district court rejected Wakefield’s claim that forced disclosure in this case will set a precedent that will greatly hamper his ability and the ability of newspapers to gather news. But the legislature has recognized that compelled disclosure of confidential sources is harmful to news-gathering:

In order to protect the public interest and the free flow of information, the news media should have the benefit of a substantial privilege not to reveal sources of information or to disclose unpublished information. To this end, the freedom of the press requires protection of the confidential relationship between the news gatherer and the source of information. The purpose of sections 595.021 to 595.025 is to insure and perpetuate, consistent with the public interest, the confidential relationship between the news media and [their] sources.

Minn.Stat. § 595.022 (setting out the purpose of the Free Flow of Information Act). And a federal circuit court stated:

[W]hen striking the balance between the civil litigant’s interest in compelled disclosure and the public interest in protecting a newspaper’s confidential sources, we will be mindful of the preferred position of the First Amendment and the importance of a vigorous press. * * * Indeed, if the privilege does not prevail in all but the most exceptional cases, its value will be substantially diminished. Unless potential sources are confident that compelled disclosure is unlikely, they will be reluctant to disclose any confidential information to reporters.

Zerilli, 656 F.2d at 712.

We have recognized that the public education system and the people responsible for its operation are matters of great public concern and for that reason we have defined public schoolteachers as public officials for the purposes of defamation law. Elstrom v. Indep. Sch. Dist. No. 270, 533 N.W.2d 51, 56 (Minn.App.1995), review denied (Minn. July 27, 1995). The article qualifies as having great public interest and the public would be harmed by any chilling effect on the free flow of this type of information to the public. Wakefield’s affidavit states that potential sources who worked for the school district told him that they would not be willing to provide information if they were going to be identified in the article and that they expressed concern about repercussions and retaliation if Weinberger knew they had provided information.

We conclude that Wakefield’s interest in and concern about the effect of required disclosure on the ability of the press to gather information about public officials is at least as great as Weinberger’s interest in the disclosure ordered in this case.

5. What efforts were made by Wein-berger to obtain the information from alternative sources?

The district court noted that not one of the defendants has “owned up to any of the statements in question or provided information as to the source.” The district court correctly concluded that only Wake-field and the declarant know the source of each specified statement.

In the more typical request for disclosure of confidential sources, the purpose of identifying sources is so that they can be examined. See Cervantes, 464 F.2d at 994 (stating that a district court must permit a plaintiff to cross-examine sources before reaching the merits of a motion for summary judgment when disclosure of a source will lead to “persuasive evidence on the issue of malice”). Weinberger has already deposed defendants but because Weinberger had not identified specific statements in the article that he claimed to be defamatory at the time he deposed defendants, defendants were not questioned about whether they believed any specific statement in the article was true or untrue, or the basis of such belief. For the most part, they were not even asked whether they were the source of the specified statements. If defendants are the declarants of the statements identified by the district court, Weinberger argues that the only means to get that information is by compelling disclosure by Wakefield. Although this dilemma has been, in part, created by Weinberger himself, we agree with the district court that this factor weighs in Weinberger’s favor.

IV. Weighing of Bauer factors

Under the unique facts and posture of this case, we conclude that Weinberger’s failure to make a prima facie showing that the statements at issue are false or were made with actual malice; failure to demonstrate that the disclosure ordered will clearly lead to relevant evidence of actual malice; and the chilling effect and burden on the media that will result from making a reporter a witness against sources to whom he promised confidentiality are more significant than Weinberger’s interest in the disclosure and his inability to obtain the information he seeks from other sources. Weinberger has not demonstrated that he is entitled to the application of MinmStat. § 595.025 to compel Wakefield to disclose which, if any, of the named defendants is the source of one or more of the statements specified by the district court.

DECISION

In a defamation action brought by a public official, Minn.Stat. § 595.025 does not require a non-party reporter to disclose which defendant, if any, is the source of one or more of the specific statements that appeared in a newspaper article if the primary purpose of disclosure is not relevant to obtaining evidence of actual malice but rather to make the reporter a witness against defendants, and there is no prima facie showing that the statements are false or were made with actual malice.

Reversed.

      . Only the article that appeared in the Maple-wood Review is involved in this appeal.

      . Lillie Suburban Newspapers, Inc., owner of the Maplewood Review, opposed the motion to compel on behalf of Wakefield.

      . The district court’s order sets out many of the statements as direct quotations. Many of the statements are not, in fact, quotations and are set out here as they appear in the article.

      . Klingsporn has taken responsibility for the first statement.