author: SACKETT, C.J.

text:
    In re the MARRIAGE OF Mari R. HICKEY and Dennis M. Hickey. Upon the Petition of Mari R. HICKEY, Petitioner-Appellee, and Concerning Dennis M. Hickey, Respondent-Appellant.
    No. 99-1907.
    Court of Appeals of Iowa.
    June 13, 2001.
    Mark S. Beckman of Beckman Law Offices, Dubuque, for appellant.
    Darin S. Harmon of Kintzinger Law Firm, P.L.C, Dubuque, for appellee.
    Considered by SACKETT, C.J., HUITINK and STREIT, JJ.
   SACKETT, C.J.

Respondent Appellant Dennis M. Hickey appeals from an order increasing the child support he is required to pay Appellee Mari R. Hickey for their two daughters, Stephanie, born February 10, 1987, and Sara, born May 14,1989. Dennis contends that the district court (1) incorrectly determined the parties’ net income for purposes of applying the child support guidelines; (2) did not properly consider the issue of fixing retroactive child support; and (3) failed to make certain specific provision for his visitation. We affirm as modified.

The marriage of Dennis and Mari was dissolved in 1991, and the children were placed in Mari’s physical care. Dennis was ordered to pay child support of $720 a month.

On February 23, 1999, Mari filed a petition for modification of the 1991 decree. She contended that both Dennis’s and her income had increased and that the current child support deviated more than ten percent from the current child support guidelines. She requested a modification of child support. Mari also requested she be granted attorney fees and that the court costs be assessed against Dennis. On March 4, 1999, Dennis signed an acceptance of service of Mari’s petition. He subsequently answered her petition and counterclaimed, seeking additional visitation.

The matter came up for hearing, and on September 30, 1999, the district court entered an order. The court found Mari’s net monthly income for purposes of applying the child support guidelines was $1700 and Dennis’ income for the same purpose was $2500 a month. The district court determined Dennis should pay child support of $1096 a month. The court found Mari’s petition was filed on February 23, 1999, and that the support should be retroactive. The court then determined that Dennis should begin paying $1096 a month beginning March 11 , 1999, and that “the accrued arrearage created by the retroactive award was due and owing immediately.” The court also made certain adjustments in the visitation provisions of the original decree. Dennis was ordered to contribute $1200 towards Mari’s attorney fees. Court costs were taxed evenly to the parties.

In this equity action, our review is de novo. Iowa R.App.P. 4. We have a duty to examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Steenhoek, 305 N.W.2d 448, 452 (Iowa 1981). We give weight to the fact-findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R.App.P. 14(f)(7).

Dennis first contends that the district court incorrectly computed the parties’ “net monthly income” for purposes of applying the child support guidelines. Dennis contends that his income was about $300 less than the district court found and that Mari’s was about $80 more. Before applying the guidelines, there needs to be a determination of the net monthly income of the custodial and noncustodial parent. See In re Marriage of Powell, 474 N.W.2d 531, 534 (Iowa 1991) (court must determine the parents’ current income from most reliable evidence presented); In re Marriage of Lalone, 469 N.W.2d 695, 696 (Iowa 1991) (application of child support guidelines chart first involves determination of net monthly income of each parent); In re Marriage of Miller, 475 N.W.2d 675, 678 (Iowa Ct.App.1991) (first step in using the child support guidelines is to arrive at “net monthly income”). Yet the translation of income to “net monthly income” as defined by the guidelines is not an exact science. See In re Marriage of Gaer, 476 N.W.2d 324, 329 (Iowa 1991); State ex rel. Dep’t Human Servs. v. Burt, 469 N.W.2d 669, 671 (Iowa 1991); In re Marriage of Cossel, 487 N.W.2d 679, 682 (Iowa Ct.App.1992). We have considered Dennis’s arguments as to why the income amounts considered by the district court were not correct and we find no valid reason to modify the trial court determination of either Mari’s or Dennis’s “net monthly income.” See In re Marriage of Crotty, 584 N.W.2d 714, 718 (Iowa Ct.App.1998). Having so determined, we find the award made to be within the range provided for two children by the guidelines. See In re Marriage of McQueen, 493 N.W.2d 91, 93 (Iowa Ct.App.1992). We affirm on this issue.

Dennis next contends that the district court incorrectly computed retroactive support and ordered it due immediately. The legislature addressed the issue of making a child support order retroactive in Iowa Code section 598.21, which provides in relevant part:

... Judgments for child support or child support awards entered pursuant to this chapter, ... which are subject to a modification proceeding may be retroactively modified only from three months after the date the notice of the pending petition for modification is served on the opposing party.... Any retroactive modification which increases the amount of child support or any order for accrued support under this paragraph shall include a periodic payment plan. A retroactive modification shall not be regarded as a delinquency unless there are subsequent failures to make payments in accordance with the periodic payment plan....

We agree with Dennis that the district court incorrectly computed retroactive support. Dennis accepted service of the original notice of suit on March 4, 1999. His obligation for increased child support should not begin until three months from that date, or June 4, 1999. We modify the decree to provide that the increased support be due from that date. We also agree with Dennis that the district court erred in ordering the retroactive child support to be paid immediately. Dennis should have been afforded a periodic plan to pay those amounts. Mari contends that Dennis did not request a periodic payment plan. Because even with a periodic payment plan the amount of increased support would have been paid prior to this date, the issue is moot, and we choose not to address it further.

Dennis also challenges the district court’s order that the children be exchanged by the parties at the Iowa City police station. Dennis contends this makes for more driving and it is stressful for the children. Mari contends the place of exchange is necessary. Matters such as these are best left to the discretion of the district court who has viewed the parties firsthand. We affirm the district court on this issue.

Dennis also contends that Mari should have been ordered to sign an affidavit within ten days of his request to take the children on foreign travel. The affidavit would indicate her consent to the travel. Mari had objected to his taking the children out of the United States and has asked that Dennis be precluded from doing so. The district court denied Maid’s request and provided that Dennis could take the children on foreign trips. The district court did not order the requested affidavit. Mari should be required to comply with reasonable travel requests for the children.

At the hearing Dennis requested certain modifications of the visitation provisions. Some of his requests were granted by the district court, and others were denied. Dennis has been awarded reasonable and substantial visitation with the children. We will not interfere with the district court’s order in this regard.

Dennis’s last contention is that he should not have been ordered to pay $1200 towards Mari’s attorney fees. An award of attorney fees is not a matter of right but rests within the court’s discretion and the parties’ financial positions. In re Marriage of Kern, 408 N.W.2d 387, 390 (Iowa Ct.App.1987). The district court did not abuse its discretion in awarding the attorney fees. We affirm on this issue.

We award no appellate attorney fees. Costs on appeal are taxed one half to each party.

AFFIRMED IN PART; MODIFIED IN PART.

      . The order first filed set the date as March 1, but this was amended in response to a motion for a non pro tunc order.


source: Caselaw Access Project

author: /s/ Paul H. Anderson Associate Justice

license: Public Domain

text:
    IN RE PETITION FOR DISCIPLINARY ACTION AGAINST William C. PRIBBLE, Jr., an Attorney at Law of the State of Minnesota.
    No. C4-94-2134.
    Supreme Court of Minnesota.
    March 18, 2002.
   ORDER

On April 17, 1998, this court suspended petitioner William C. Pribble, Jr., from the practice of law for a period of six months. In re Pribble, 577 N.W.2d 713 (Minn.1998). Petitioner filed a petition for reinstatement with this court, and a panel of the Board of Lawyers Professional Responsibility conducted a hearing on the petition. The panel found that petitioner has completed all conditions for reinstatement and that petitioner has established his fitness and competence to resume the practice of law. The panel recommended that petitioner be reinstated to the practice of law and placed on supervised probation for two years subject to the following conditions:

(1) Petitioner shall abide by the Minnesota Rules of Professional Conduct.
(2) Petitioner shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Petitioner shall cooperate with the Director’s investigation of any allegations of unprofessional conduct that may come to the Director’s attention. Upon the Director’s request, petitioner shall provide authorizations for release of information and documentation to verify compliance with the terms of this probation.
(3) Petitioner shall not begin representing clients until a supervisor, approved by the Director, is appointed. Petitioner shall cooperate fully with the supervisor in [his or her] efforts to monitor compliance with this probation. Petitioner shall contact the supervisor and schedule a minimum of one in-person meeting per quarter during his probation. Prior to each meeting with the supervisor, petitioner shall submit to the supervisor an inventory of all active client files. With respect to each active file, the inventory shall disclose the client name, type of representation, the date the file was opened, the date and description of the most recent activity, a date and description of the next anticipated action and the anticipated closing date for the file. Petitioner’s supervisor shall file quarterly written reports with the Director or at such more frequent intervals as may reasonably be requested by the Director.
(4) Petitioner shall maintain books and records concerning law office income and expenses and funds held on behalf of clients in compliance with Rule 1.15, Minnesota Rules of Professional Conduct and LRPB Opinion No. 9. Each month, petitioner shall provide his supervisor with monthly trust account reconciliations including trial balances from client subsidiary ledgers. He shall also make all books and records pertaining to office and trust accounts available to his supervisor who shall review them to determine that they are being properly maintained. Such books and records shall also be made available to the Director upon request.
(5) Before accepting any clients, petitioner shall provide to the Director and to his probation supervisor a written plan outlining office procedures and an appropriate business and trust account books and record keeping system.

The Director of the Office of Lawyers Professional Responsibility agrees with the panel’s recommendation. This court has independently reviewed the file and approves the jointly recommended disposition.

IT IS HEREBY ORDERED that petitioner William C. Pribble, Jr., is reinstated to the practice of law in the State of Minnesota effective immediately and is placed on supervised probation for two years subject to the conditions set forth above.

BY THE COURT:

/s/ Paul H. Anderson Associate Justice


text:
    Mario THYER, Relator, v. DALLAS STARS HOCKEY CLUB, Respondent, American Home Assurance & AIG Claim Service, Inc., Respondents.
    No. C0-02-10.
    Supreme Court of Minnesota.
    March 20, 2002.
    Richard S. Eskola, Moore, Halsey & Iskola.L.L.C., Fridley, MN, John W. Lorentz, Lorentz & Associates, St. Paul, MN, for Employee Relator.
    Michael D. Miller, Nancy E. Lamo, McCollum, Crowley, Vehanen, Moschet & Miller, Ltd., Minneapolis, MN, for Employer Respondent & Insurer Respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed December 12, 2001, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01, subd. 1(b).

BY THE COURT:

/s/ Paul H. Anderson Associate Justice


author: ANDERSON, RUSSELL A., Justice.

text:
    STATE of Minnesota, Respondent, v. Mark Arthur IHLE, Petitioner, Appellant.
    No. C5-00-1262.
    Supreme Court of Minnesota.
    March 28, 2002.

      Michael A. Hatch, No. 42158, Attorney General, Timothy Kuntz, No. 58993, South St. Paul City Attorney, Ann C. O’Reilly, No. 269815, Asst. South St. Paul City At-tomey, LeVander, Gillen & Miller, P.A., South St. Paul, Respondent’s Attorneys’.
    Michael F. Crommett, No. 19896, Assistant State Public Defender, Minneapolis, Appellant’s Attorney.
   OPINION

ANDERSON, RUSSELL A., Justice.

Appellant Mark Arthur Ihle was arrested after an altercation with two police officers at his home in South St. Paul. He was convicted and sentenced for obstructing legal process with force or violence, a gross misdemeanor. On appeal he argues that his conviction must be reversed and a new trial granted because (1) the district court failed to instruct the jury that the obstruction statute prohibits only words or acts that physically obstruct an officer, in accordance with our decision in State v. Krawsky, 426 N.W.2d 875 (Minn.1988), and (2) because the district court did not require all jurors to agree upon which of appellant’s acts satisfied the elements of the offense. The court of appeals affirmed appellant’s conviction and we do likewise.

On November 24,1999, at approximately 9:50 p.m., South St. Paul police officer Leah Reyes was driving to work in her personal vehicle, dressed in full uniform. Reyes observed a minivan swerving and crossing over the center line of the highway. Suspecting the driver was intoxicated, she radioed for backup and followed the vehicle off the highway and through South St. Paul. Once the van stopped in front of a house, Reyes recognized the driver, Mary Anderson, from a previous encounter. Reyes got out of her truck, approached Anderson and asked if she had been drinking. Anderson explained she was very tired from driving to Kansas City and back again that day. Anderson agreed to take a breathalyzer test, which showed that she had no alcohol in her system. Police officer Lawrence Snaza arrived as backup in a squad car. He ran a check on Anderson’s driver’s license and discovered that it was suspended. Snaza told Reyes that the license was suspended and returned to his squad car to write a citation.

From here, the testimony presented by each party differs significantly. According to Officers Reyes and Snaza, as Reyes explained to Anderson that she was being cited for driving after suspension, appellant, Anderson’s fiancé, stormed out of his house, shouting “Why don’t you quit f_ing harassing Mary.” Reyes described appellant’s demeanor as “boisterous” and “totally irrational” and Snaza described appellant as “very belligerent, hostile, yelling, shouting” and “very irrational.” Reyes told him to calm down and leave, but appellant did not do so.

According to Reyes and Snaza, appellant swung his arms, raised his hands and pointed his finger at Reyes. He told her “Why don’t you come over later and I’ll take care of you. Let me get you over here when you’re not working.” Reyes interpreted the. statement as a “major” threat of assault. When Reyes asked appellant for his name he said, “None of your f_ing business, bitch.” Appellant came closer to Reyes and stuck his finger within inches of her face. Reyes put her open palm on his chest and pushed him back with a straight arm. Reyes testified “After I pushed him backwards, he came back towards me in a fighting stance like he was ready to punch me. At this time, you know, I — I said: ‘Back off, or stop, you’re under arrest.’ I was going to arrest him, and I knew that now, for obstructing legal process * * *. The legal process was our traffic stop * *

Snaza watched the scene from his car, and when he felt the situation become dangerous he radioed for backup and jumped out of the car. Appellant saw Snaza and ran into his house, and the two officers chased him up the steps. Appellant tried to close the door, but before it closed Snaza pushed it open with his shoulder. Inside the house appellant continued to swing at Snaza. The officers wrestled appellant to the floor, where he flailed about kicking and hitting. They told appellant he was under arrest and to calm down. Appellant continued to scream, kick and swear at the officers as they handcuffed him, put him in the squad car, and brought him to the county jail.

The testimony of defense witnesses differed from the state’s evidence in many instances. According to appellant, Anderson, and their two 11-year-old sons, appellant walked out of the house, watched the breathalyzer test, and asked Reyes why they were detaining Anderson. Anderson and appellant testified that Reyes ignored appellant’s questions, and then got very close to appellant and told him to return to the house. Appellant told Reyes he had a right to be there. Reyes swore at him, continued “badgering” him, hit his forehead with her palm, and repeatedly poked him in the chest, telling him she would impound his car if he didn’t get back inside. Appellant described Reyes’ behavior as “typical provocative police arrogance” that was designed to elicit a violent response from him. Appellant neither acted menacing nor raised his hands to Reyes, and never threatened to assault her later. The officers never told appellant on the street that he was under arrest, and appellant ran because he was afraid of the police assaulting him. Appellant ran into the house, locked the door, and was struck by it when Snaza broke it down. The officers pinned him against the couch in front of his children. Reyes threatened to mace appellant while trying to handcuff him.

Appellant was charged with obstruction of legal process with force or violence, a gross misdemeanor, in violation of Minn. Stat. § 609.50, subd. 2(2) (2000); and disorderly conduct, a misdemeanor, in violation of Minn.Stat. § 609.72, subd. 1 (2000).

At the close of trial, the court read CRIMJIG 24.25 and 24.26 virtually verbatim. As to the first two elements of the charge of obstructing legal process the district court instructed the jury in the alternative as follows:

First, Leah Reyes and/or Lawrence Snaza were attempting to lawfully execute legal process. The service of a citation on a party and/or the arrest of a party is the execution of legal process.
Second, the defendant obstructed, hindered or prevented the execution of legal process or the taking of defendant into custody.
Or first, Leah Reyes and/or Lawrence Snaza were attempting to take defendant into custody on a criminal charge.
And, second, the defendant obstructed, hindered or prevented the taking of defendant into custody.
Or first, Leah Reyes and/or Lawrence Snaza were peace officers engaged in the performance of official duties. A licensed police officer is a peace officer.
Second, the defendant obstructed, resisted or interfered with the officers in the performance of official duties.

See 10A Minnesota Practice, CRIMJIG 24.25, 24.26. The district court then instructed that the third element required that appellant acted with intent and the fourth element required that the offense occurred on November 24, 1999 in Dakota County. The jury was then told that if each of the elements had been proven beyond a reasonable doubt, the jury was to answer this question: “Was the defendant’s act accompanied by force or violence or a threat of force or violence?” The district court then told the jury to answer this question yes or no and if the jury had a reasonable doubt as to the answer, they were to answer the question no.

The district court’s instruction regarding the charge of disorderly conduct was read virtually verbatim from CRIMJIG 13.120 and 13.121 and included this explanation of “fighting words”:

If you find that the defendant’s conduct consisted only of offensive, obscene or abusive language, you must also find that the words used were fighting words. Fighting words are words that constitute personally offensive epithets that, when spoken to the ordinary person, under the particular circumstances of the case, are as a matter of common knowledge inherently likely to provoke a violent reaction or incite an immediate breach of the peace by whom such words are addressed. The offense may be based upon the utterance of fighting words alone without resulting in actual violence. The focus is upon the nature of the words and the circumstances in which they were spoken, rather than upon the actual response.

See 10 Minn. Dist. Judges Ass’n, Minnesota Practice-Jury Instruction Guides, Criminal, CRIMJIG 13.120, 13.121 (4th ed.1999).

Neither the state nor appellant objected to the instructions at the time they were given. The jury found appellant guilty of misdemeanor disorderly conduct and — by answering “yes” to the special verdict question — gross misdemeanor obstruction of legal process. At sentencing the district court entered a conviction only for the offense of gross misdemeanor obstructing legal process with force or violence and stayed imposition of sentence, placing appellant on probation.

On appeal, appellant argued that his conviction was the product of plain error that affected his substantial rights because the jury instructions for obstruction failed to adequately distinguish between legal behavior and illegal behavior. Specifically, appellant argued that in light of Krawsky, 426 N.W.2d at 877, where we held that section 609.50 prohibits only acts and words that have the effect of physically obstructing legal process, the instruction in his case was inadequate and misleading. Appellant also argued that the jury was not required to unanimously agree on the act he committed that constituted obstruction of legal process. The court of appeals affirmed his conviction, holding that appellant’s actions represent the type of behavior the statute is meant to penalize, and that unanimity is not required with respect to the alternative ways that a crime can be committed.

I.

The obstructing legal process statute provides in relevant part:

Whoever intentionally does any of the following may be sentenced as provided in subdivision 2:(1) obstructs, hinders, or prevents the lawful execution of any legal process, civil or criminal, or apprehension of another on a charge or conviction of a criminal offense; (2) obstructs, resists, or interferes with a peace officer while the officer is engaged in the performance of official duties; * * *.

Minn.Stat. § 609.50, subd. 1(1), (2) (2000). In State v. Krawsky, Krawsky argued the obstruction statute was unconstitutionally overbroad and vague. 426 N.W.2d at 876. Without making an explicit holding on its constitutionality, we construed the statute narrowly, holding that the statute required the state to prove that the defendant acted intentionally and that the statute was directed at words and acts that have the effect of physically obstructing or interfering with a police officer. Id. at 877. “The statute forbids intentional physical obstruction or interference with a police officer in the performance of his official duties.” Id. In distinguishing physical obstruction from mere interruption, we defined physically obstructing or interfering as “substantially frustrating or hindering the officer in the performance of his duties.” Id. We described the type of verbal conduct the statute prohibits:

The statute may be used to punish “fighting words” or any other words that by themselves have the effect of physically obstructing or interfering with a police officer in the performance of his duties — e.g., the statute may be used to punish a person who runs beside an officer pursuing a felon in a public street shouting and cursing at the officer if the shouting and cursing physically obstructs the officer’s pursuit and if the person intends by his conduct to obstruct or interfere with the officer.

Id.

In State v. Tomlin, 622 N.W.2d 546, 549 (Minn.2001), we applied the holding of Krawsky and concluded that Tomlin’s lies to the police did not constitute obstruction of legal process, because his lies and omissions did not physically obstruct the officers during their investigation. Id. at 549. We concluded that Tomlin’s lies did not rise to the level of “fighting words.” Id.

District courts are allowed considerable latitude in the selection of language for jury instructions. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn.1986). Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn.1988). An instruction is in error if it materially misstates the law. See State v. Pendleton, 567 N.W.2d 265, 268 (Minn.1997). Furthermore, it is well settled that the court’s instructions must define the crime charged and the court should explain the elements of the offense rather than simply read statutes. See Rosillo v. State, 278 N.W.2d 747, 749 (Minn.1979).

Appellant did not object to the instructions at trial, therefore we may only reverse if the instructions were misleading or confusing on fundamental points of law. See State v. Butler, 295 N.W.2d 658, 659 (Minn.1980). Under Minn. R.Crim. P. 31.02, we may consider a plain error not previously brought to the attention of the district court if the error affects substantial rights. To establish plain error, an appellant must show that a district court’s ruling (1) was error, (2) that the error was plain, and (3) that the error affected appellant’s substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn.1998). If these three prongs are satisfied, we assess whether to remedy the error to ensure fairness and the integrity of the judicial proceedings. Id.

Appellant first argues that the instruction given here failed to incorporate the holding of Krawsky and thus did not advise the jury that the statute prohibits only intentional physical acts or fighting or other words that have the effect of physically obstructing or interfering with a police officer in the performance of her duties. Without such an instruction, appellant asserts, the jury may have convicted him for conduct not prohibited by the statute.

The state responds that the conviction is proper because the jury, by its answer to the special verdict question, concluded that appellant used force or violence or the threat thereof in commission of the offense, and appellant’s acts are therefore prohibited by section 609.50 as limited by our holding in Krawsky. Furthermore, the jury unanimously found that appellant was guilty of disorderly conduct, after being instructed that in order to be convicted of that charge, appellant must have disturbed the peace with physical acts or fighting words.

The first prong of Griller ⅛ plain error test requires that we determine whether the instructions were in error. 583 N.W.2d at 740. When considered without the special verdict question, the instruction given here recited the elements of the obstruction statute but failed to reflect the narrow construction of that statute, as articulated in Kraiosky. As the instruction materially misstated the law, the first prong of the plain error test -is satisfied.

The second prong of Griller requires that the error was plain. 583 N.W.2d at 740-41. To satisfy the second prong “it is sufficient that the error is plain at the time of the appeal.” Id. at 741. “For purposes of plain error rule, ‘plain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.’ ” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (citations omitted). We conclude that the error of instructing a jury on the elements of obstructing legal process without including the parameters established 13 years ago in Krawsky renders the error clear and obvious.

Griller’s third prong requires that the error affected defendant’s substantial rights. 583 N.W.2d at 741. This prong is satisfied if the error was prejudicial and affected the outcome of the case. Id. Plain error is prejudicial if there is a “reasonable likelihood that the giving of the instruction in question would have had a significant effect on the verdict of the jury.” State v. Glidden, 455 N.W.2d 744, 747 (Minn.1990).

We conclude there is no reasonable likelihood that a more accurate instruction would have changed the outcome in this case. In order to find appellant guilty of gross misdemeanor obstruction of legal process, the jury was required — by their answer to the special verdict question — to find that appellant’s act was accompanied by force or violence or a threat of force or violence. The jury also found appellant guilty of disorderly conduct after being instructed that if appellant’s conduct consisted only of offensive, obscene or abusive language, the words used must have been fighting words. In light of the evidence presented and all of the jury instructions given, we hold that the district court erred when it failed to instruct the jury on the elements of obstruction of legal process in accordance with our decision in Krawsky, decided in 1988; however appellant, who made no objection at trial to the erroneous instruction, is not entitled to a new trial because it is not reasonably likely that the error had a significant effect on the verdict in view of the jury’s answer to the special verdict question.

II.

Appellant’s second argument is that the district court erred because it did not instruct the jurors that they must unanimously agree on the specific conduct appellant committed that constituted obstruction of legal process. He argues that because the court gave the jury three alternative possibilities to satisfy the first and second elements of the obstruction charge — the officers were (1) executing legal process by serving a citation or making an arrest, (2) taking appellant into custody, or (3) performing official duties' — the court did not require unanimity on the facts the state had to prove in order to return a verdict of guilty. Further, he contends that the instructions should have required the jury to agree on which of the appellant’s actions (the scene at the car, running away, or resisting in the house) constituted such obstruction. Thus he argues that the jury was not instructed that the state had to prove every fact necessary to constitute the crime with which he was charged. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Because appellant did not object to the instructions at trial, we also review this issue for plain error. See Griller, 583 N.W.2d at 740.

In Schad v. Arizona, the United States Supreme Court addressed whether jury unanimity is required as to the facts underlying an element of a crime charged, and a plurality of the court noted the following:

[W]e have never suggested that in returning general verdicts in [cases where alternative theories are presented] jurors should be required to agree upon a single means of commission * * *. In these cases, as in litigation generally, “different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line.” Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.

501 U.S. 624, 631-32, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (quoting) McKoy v. North Carolina, 494 U.S. 433, 449, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990) (Blackmun, J., concurring). Concurring, Justice Scalia noted that due process prevents a state from grouping inherently different types of conduct in the definition of a single criminal offense. Schad, 501 U.S. at 649. (Scalia, J., concurring in part and concurring in the verdict).

In Richardson v. United States, 526 U.S. 813, 817-18, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999), the Court elaborated upon the Schad analysis, holding that if the statute establishes alternative means for satisfying an element, unanimity on the means is not required. That is, a jury cannot convict unless it unanimously finds that the government has proved each element of the offense; however the jury need not always decide unanimously which of several possible means the defendant used to commit the offense in order to conclude that an element has been proved beyond a reasonable doubt. Id. at 817-18, 119 S.Ct. 1707. The Court in Richardson held that the constitution limits the legislature’s power to define crimes so broadly that juries could convict while disagreeing about the means of committing the crime, “at least where that definition risks serious unfairness and lacks support in history or tradition.” Id. at 820, 119 S.Ct. 1707 (citations omitted). We applied the reasoning of Schad and Richardson recently in State v. Crowsbreast, 629 N.W.2d 433, 438 (Minn.2001) (holding that jurors are not required to unanimously agree on which acts comprised the past pattern of domestic abuse).

Section 609.50 prohibits intentional conduct that physically obstructs or interferes with a police officer in the performance of official duties. See Krawsky, 426 N.W.2d at 877. According to the statute, a person commits obstruction if he “obstructs,” “hinders,” “prevents,” “resists,” or “interferes.” See Minn.Stat. § 609.50, subd. 1(1), (2). These behaviors are not inherently different types of conduct grouped under a single offense, and in this case they were committed as part of a single behavioral incident. Likewise, the various contexts delineated in the statute in which the defendant’s conduct arises, “execution of legal process,” “apprehension,” and the “performance of official duties,” are not so dissimilar under these facts as to result in fundamental unfairness to the defendant charged with obstructing those processes. In this case the facts were undisputed that the officers were at the residence to make a traffic stop, cited Anderson for driving after suspension, and then attempted to arrest appellant. The close similarity of the conduct described by the statute, coupled with the undisputed facts regarding the purpose for the officer’s presence in this case, leads us to conclude there is no risk of unfairness in not requiring unanimity. See Richardson, 526 U.S. at 820, 119 S.Ct. 1707. As such, appellant has established no due process violation as to jury unanimity.

Because the jury instructions were not defective regarding the requirement for a unanimous jury, the district court did not err and we need not determine whether the error was plain or whether it affected substantial rights.

Affirmed.

PAUL H. ANDERSON, J., took no part in the consideration or decision of this case.

      . The jury also found appellant guilty of disorderly conduct, a misdemeanor, but at sentencing the district court dismissed that offense, presumably on the basis of Minn.Stat. § 609.035 (2000) (providing that where person's conduct constitutes more than one offense, person may be punished for only one of the offenses).

      . See 10A Minn. Dist. Judges Ass’n, Minnesota Practice-Jury Instruction Guides, Criminal, CRIMJIG 24.25, 24.26 (4th ed.1999).

      . In 1989 the legislature amended Minn. Stat § 609.50 without altering the substance of the language pertinent to this case. See Act of March 9, 1989, ch. 5, § 4, 1989 Minn. Laws 17, 18-19.

      . While we characterized the "fighting words” discussion in Krawsky as dicta in Tomlin, 622 N.W.2d at 549, that characterization was not essential to our ruling in Tomlin. Under these facts, we reaffirm that if the obstruction amounts to verbal conduct, juries must be instructed that obstructing legal process requires that the words have the effect of physically obstructing or interfering with a police officer in the performance of her duties. See Krawsky, 426 N.W.2d at 877.

      . We recommend that the Minnesota District Judges Association Committee on Criminal Jury Instruction Guides review CRIMJIG 24.26 in light of our narrow interpretation of the obstruction statute in Krawsky and our continued adherence to Krawsky since 1988.

      . The instructions in this case, allowing the jury to decide whether appellant obstructed the officers in three alternate ways, is by no means a model of clarity, and illustrates well the basis for the court of appeals' attempt to discourage disjunctive "either/or” instructions. See State v. Day, 501 N.W.2d 649, 653 (Minn.App.1993); State v. Hart, 477 N.W.2d 732, 739 (Minn.App.1991), rev. denied (Minn. Jan. 16, 1992). We agree that such instructions can be confusing for jurors. While courts are constrained in the effort to avoid such instructions by the legislature’s definition of the offense, there may be due process limits on “umbrella” crimes that encompass widely divergent conduct. Schad v. Arizona, 501 U.S. 624, 650, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (Scalia, J., concurring).

      . Schad was decided by a four-member plurality, with Justice Scalia concurring in the judgment. Justice Scalia agreed that when a single crime can be committed in various ways, jurors need not agree on a single mode of commission. Schad v. Arizona, 501 U.S. 624, 649, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (Scalia, J., concurring in part and concurring in the verdict).


text:
    In the Matter of Lashawnda BROWN.
    No. C2-01-46.
    Supreme Court of Minnesota.
    March 28, 2002.

      Amy Klobuchar, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, Minneapolis, MN, for Appellant.
    Linda L. Bogut, Minneapolis, MN, for Respondent.
    Robert M.A. Johnson, Anoka County Attorney, Janice M. Allen, Assistant County Attorney, Anoka, MN, Amicus Curiae Minnesota County.
   OPINION

ANDERSON, RUSSELL A., Justice.

Hennepin County appeals from a decision of the court of appeals reversing a district court order extending the commitment of Lashawnda Brown as mentally ill. The district court initially entered a stayed order for commitment but later revoked the stay and ordered Brown to a treatment facility. The court of appeals determined that the initial commitment, which is limited by statute to six months, commenced upon the entry of the stayed order for commitment and terminated prior to the treatment facility’s recommendation that Brown’s commitment be extended for an additional 12 months. Because of its determination that the initial commitment terminated prior to the treatment facility’s recommendation for extension, the court of appeals concluded that the district court had no authority to extend the commitment to permit a review hearing. We conclude that when a stayed commitment is revoked, the six-month statutory limitation for an initial commitment begins when the commitment is executed and the order or warrant committing the patient to the treatment facility is issued. We also conclude that the district court did not abuse its discretion by extending the initial commitment pending a review hearing. We therefore reverse and reinstate the order of the district court.

On April 18, 2000, the district court found Lashawnda Brown eommittably mentally ill under Minn.Stat. § 253B.02, subd. 13 (2000) but stayed her commitment to Bristol Place and the Anoka Metro Regional Treatment Center (Anoka Metro), finding that a stayed commitment was the least restrictive appropriate disposition. Brown agreed to the written plan for services required of a stayed commitment under Minn.Stat. § 253B.095, subd. 1(d)(1) (2000). The order specifically provided that the stay would terminate without further order of the court on October 11, 2000, that is six months from the date of the April 18 hearing, unless the stay had been revoked prior to that date or the matter had been continued as permitted by law. On May 2, 2000, the district court revoked the stay and issued an order and warrant committing Brown to the head of Anoka Metro. The warrant identified the date of commitment as May 2, 2000. Brown was admitted to Anoka-Metro on May 15, 2000.

On October 30, 2000, Anoka Metro filed with the committing court a treatment report recommending that Brown’s commitment be extended. On ex parte motion filed by the county, the district court extended Brown’s commitment by six days to allow five days’ statutory notice of the review hearing scheduled for November 8, 2000. Following the hearing, the court extended Brown’s commitment by 12 months. On appeal, the court of appeals reversed, holding that the district court had no authority to extend the commitment where the initial commitment had terminated prior to the filing of the treatment report recommending continued commitment. In re Brown, 627 N.W.2d 113, 116-17 (Minn.App.2001). The court of appeals decided that the six-month statutory limitation on the initial commitment, Minn. Stat. § 253B.09, subd. 5 (2000), began on April 19, the date the district court filed the stayed order for commitment rather than on May 2, the date the stayed order was revoked and the commitment executed. 627 N.W.2d at 116. The court of appeals also concluded that the district court had no authority to grant a motion to extend the commitment pending a review hearing where the initial commitment had terminated. Id. at 117.

I.

This appeal requires that we determine whether the initial commitment, which by statute shall not exceed six months, begins on the day a stayed order for commitment is issued or whether it begins on the day the stay is revoked, the commitment executed and an order or warrant transferring custody to a treatment facility is issued. We interpret de novo the Minnesota Commitment and Treatment Act. Hince v. O’Keefe, 632 N.W.2d 577, 582 (Minn.2001). Before discussing the specific rulings under review, it is helpful to set out briefly the commitment process.

Civil commitment is initiated by filing a petition for commitment. Minn.Stat. § 253B.07, subd. 2 (2000). The court may not grant the petition unless there is clear and convincing evidence that the proposed patient is mentally ill and that there is no suitable alternative to commitment. Minn. Stat. § 253B.09, subd. 1. Accordingly, the court must determine that involuntary judicial commitment is the only suitable disposition. Reasonable alternative dispositions include dismissal of the petition, voluntary outpatient care, voluntary admission to a treatment facility, appointment of a guardian or conservator, and release before commitment. Id. Release before commitment includes a stayed commitment. Minn.Stat. § 253B.095, subd. 1(d) (2000). If commitment is found to be the only suitable disposition, the court must commit the person to the least restrictive treatment program or alternative programs that will meet the patient’s treatment needs. Minn.Stat. § 253B.09, subd. 1. The Act requires the court to find the facts specifically and to state separately its conclusions of law. Id., subd. 2. When the court orders commitment, its findings of fact and conclusions of law must specifically state the proposed patient’s conduct that forms the basis for determining that each of the requisites for commitment has been met. Id.

An initial commitment may be extended by up to 12 months. Minn.Stat. § 253B.13, subd. 1 (2000). If after the first such extension the patient continues to need civil commitment, the patient must be recommitted based on a new commitment petition. Id. The initial commitment period under the new petition is limited to 12, rather than 6, months. Id. The standard for commitment at the hearing on the new petition is the lesser standard of Minn.Stat. § 253B.12, subd. 4 (2000), which does not require a recent attempt or threat to harm. Minn.Stat. § 253B.13, subd. 1.

If, however, “[a]fter the hearing and before a commitment order has been issued,” the court determines that a release before commitment is appropriate, the court may-release the proposed patient to the custody of an individual or agency so long as the care and treatment of the patient are guaranteed. Minn.Stat. § 253B.095, subd. 1(a) (2000). The Act authorizes a continuance for dismissal for up to 90 days and a stay of commitment for up to six months. MinmStat. § 253B.095, subds. 1(c), 1(d) and 3 (2000). The court may continue the stay for a maximum of an additional 12 months. Minn.Stat. § 253B.095, subd. 3. The case manager must report to the court at least once every 90 days. Id., subd. 2. If the proposed patient has failed to comply with a material condition of release, the court may revoke the release and commit the patient, after notice and a hearing unless otherwise ordered by the court. MinmStat. § 253B.095, subd. 5 (2000).

Minnesota Statutes § 253B.10 (2000) sets forth the procedures required upon commitment of a person as mentally ill. The Act requires that, when a person is committed, the court issue a warrant or an order committing the patient to the custody of the head of the treatment facility. Id., subd. 1. The warrant or order must state that the patient meets the statutory criteria for civil commitment, and upon the arrival of the patient at the treatment facility, the head of the treatment facility must retain the duplicate of the warrant and endorse receipt on the original warrant or acknowledge receipt of the order. Id. In addition, the treatment facility is to be promptly provided with copies of the petition for commitment, the court’s findings of fact and conclusions of law, the court order committing the patient, the report of the examiners, and the prepetition report. Id. The Act expressly provides that the initial commitment commences “on the date that the court issues its order or warrant under section 253B.10, subdivision 1,” and the duration of the initial commitment is limited to six months. Minn.Stat. § 253B.09, subd. 5.

The Act provides that the treatment facility that has custody of a patient committed as mentally ill must complete and file written reports during the initial period of commitment. Minn.Stat. § 253B.12, subd. 1 (2000). If the patient is in treatment for more than 60 days, then a detailed, narrative report must be filed between 60 and 90 days after the issuance of the commitment order. Id., subd. 1(b). The treatment facility must also file a report prior to termination of the initial commitment order or final discharge. Id., subd. 1(c). If a report is not filed within the required time, or if the report indicates that no further institutional treatment or care is needed, then the proceedings must be terminated by the committing court and the patient must be discharged from the treatment facility. Id., subd. 1(e).

II.

We now turn to the issue of whether the initial commitment, which shall not exceed six months, begins on the day a stayed order for commitment is issued or whether it begins on the day the stay is revoked and the patient committed to a treatment facility. The county argues that the plain language of the statute, practical issues of implementation and public policy indicate that the initial commitment commences upon the revocation of the stayed commitment order and the commitment of the person to the custody of a treatment facility or program. It is Brown’s position, however, that the language of the statute reflects that either an executed or stayed commitment order commences the initial commitment, that any ambiguities must be construed in favor of the patient, and that the legislature intended to limit the operation of the initial commitment determination to six months.

In that civil commitment for mental illness is the curtailment of individual liberty, the legislature created a statutory scheme that for over 20 years has endeavored to provide for the treatment of mentally ill persons in the least restrictive manner. Minn.Stat. § 253B.09, subd. 1; County of Hennepin v. Levine, 345 N.W.2d 217, 219 (Minn.1984). To that end, the legislature requires that careful consideration be given to alternatives to judicial commitment, including a stayed order for commitment. Minn.Stat. §§ 253B.09, subd. 1, 253B.095. Clearly the legislature intended that a stayed order for commitment and the execution of an order for commitment be two separate and distinct options, and it has been commonly understood that the purpose of a stayed order is for the care and treatment of a proposed patient “without creating a record of a commitment.” Eric Janus, Civil Commitment in Minnesota 204 (2d ed.1991). Civil commitments, after all, have collateral consequences.

Minnesota Statutes § 253B.09, subd. 5 specifically provides that the initial commitment begins on the date “the court issues its order or warrant for commitment under section 253B.10, subdivision 1.” Section 253B.10, subdivision 1 requires that a warrant or order for commitment be provided to, and signed by, the head of the treatment facility upon receipt of the patient. When the order is stayed, however, the court does not furnish a warrant or order for commitment to the head of the treatment facility under Minn.Stat. § 253B.10, subd. 1, because the court is not, at that time, transferring custody of the proposed patient to the treatment facility. In the event of revocation of the stay and execution of commitment, the court then transfers custody of the proposed patient to the head of a treatment facility by means of an executed order or warrant under Minn.Stat. § 253B.10, subd. 1. It is evident, then, that the document that functions as the mechanism for transfer of custody under section 253B.10, subdivision 1 commences the commitment under section 253B.09, subdivision 5.

Here, the order signed by the court on April 18 and filed on April 19, 2000, was the order in which the court set forth its findings of fact and conclusions of law, as required by Minn.Stat. § 253B.09, subd. 1. Had the court determined commitment to be the only suitable disposition at that time, the court could have transferred custody by that order under Minn.Stat. § 253B.10, subd. 1 and commenced the initial commitment. Minn.Stat. § 253B.09, subd. 5. The court, however, did not transfer custody of Brown until May 2, 2000, when the stay was revoked and Brown was committed to Anoka Metro by order and warrant transferring custody under Minn.Stat. § 253B.10, subd. 1.

The legislature’s distinction between executed commitments and stayed commitments is reflected in the differences in the durations and reporting requirements. A stayed commitment may be continued only once, for an additional 12-month period. Minn.Stat. § 253B.095, subd. 3. An executed commitment may be continued for 12 months at the review hearing and thereafter by petition for recommitment. Minn. Stat. § 253B.13, subd. 1. A stayed commitment requires a report by a case manager at least once every 90 days. Minn. Stat. § 253B.095, subd. 2 (2000). An executed commitment requires a report by the treatment facility within 60 to 90 days of initial commitment and a report from the facility prior to the termination of the initial commitment or final discharge of the patient. Minn.Stat. § 253B.12, subd. l(b)-(c). While the reporting requirements for a stayed commitment are similar to those for a community-based treatment commitment, the community-based treatment commitment is an involuntary commitment. Minn.Stat. § 253B.097, subds. 1, 3 (2000). By contrast, a stayed commitment requires the proposed patient to agree to the plan for services or a stayed commitment will not be used. Minn.Stat. § 253B.095, subd. 1(d)(1) (2000). Finally, the distinction between an executed commitment and a stayed commitment is highlighted by the early intervention provisions which except persons with stayed commitments from that process: “For purposes of [early intervention], a proposed patient who was released under section 263B.095 and whose release was not revoked is not considered to have received court-ordered inpatient treatment under section 253B.09.” Minn.Stat. § 253B.065, subd. 5(b)(3)(ii) (Supp.2001).

Bearing in mind that our obligation is to ascertain legislative intent and to effectuate all of a law’s provisions when possible, Minn.Stat. § 645.16 (2000), we hold that for purposes of the six-month limitation on initial commitments under Minn.Stat. § 253B.09, subd. 5, upon the revocation of a stayed order for commitment, the initial commitment begins on the date the commitment is executed and the order or warrant under Minn.Stat. § 253B.10, subd. 1 is issued.

III.

We next consider whether the district court abused its discretion by extending the initial commitment six days so as to allow the five-day statutory notice of the review hearing. A treatment report must be filed with the committing court by the head of the treatment facility “[p]rior to the termination of the initial commitment order or final discharge of the patient.” Minn.Stat. § 253B.12, subd. 1(c). If the report is not timely filed, the proceedings must be terminated and the patient discharged from the treatment facility. Minn. Stat. § 253B.12, subd. 1(e). A review hearing must be held within 14 days of the court’s receipt of the report recommending continued commitment and before the initial commitment expires. Minn.Stat. § 253B.12, subd. 2a (2000). For good cause shown, the court may continue the review hearing for up to an additional 14 days and extend any orders until the hearing is held. Id. The Act also requires that five days’ notice of the time and place of the hearing be given the patient, the patient’s counsel, the petitioner, and other persons as the court directs. Id.

Here, the treating facility filed its report prior to the termination of the initial commitment; but given the timing of the report, there was insufficient time remaining in the initial commitment period in which to provide the required five days’ notice prior to hearing. Consequently, the district court extended the commitment by six days.

By analogy to In re Robledo, 611 N.W.2d 67 (Minn.App.2000), Brown argues that where Minn.Stat. § 253B.12, subd. 2a requires a review hearing before the initial commitment expires, the Act should be read to require the report to be filed in time to schedule and hold a hearing before expiration of the commitment. Robledo involved an ex parte order extending a continued commitment beyond expiration of that commitment pending a hearing on a petition for recommitment. 611 N.W.2d at 68. The court of appeals held that the extension was unauthorized and the ensuing recommitment in violation of statutory mandates for consecutive recommitment. Id. at 71.

An extension of a continued commitment is expressly prohibited unless a new petition is filed under MinmStat. § 253B.07. MinmStat. § 253B.13, subd. 1. By contrast, an initial commitment may be extended briefly pending a review hearing. MinmStat. § 253B.12, subd. 2a. It appears that the statutory provision permitting a 14-day extension on an initial commitment is aimed at accommodating precisely the situation that occurred here. There being nothing suggesting the delay in filing the report was deliberate, we con-elude that the district court did not abuse its discretion by ruling that there was good cause for the brief six-day extension of the initial commitment. Cf. State v. Friberg, 435 N.W.2d 509, 515 (Minn.1989) (concluding there was no abuse of discretion when district court found good cause for delay in scheduling trial).

Reversed and judgment of commitment reinstated.

      . Several provisions of the Minnesota Commitment and Treatment Act, including Minn. Stat. § 253B.02, subd. 13, were amended in 2001. Act of June 30, 2001, ch. 9, art. 9, §§ 20-36, 2001 Minn. Laws 2133, 2430-40 (codified as amended at Minn.Stat. §§ 253B.02-10 (Supp.2001)). However, none of the amendments are relevant to the case before us.

      . In Hennepin County, a proposed patient is sometimes dually committed to two treatment facilities, allowing commitment to a community-based facility, in this case Bristol Place, with a state regional treatment center as a backup.

      . The Act provides that only after careful consideration of reasonable alternative dispositions may the court commit the proposed patient, and the court then must commit the patient to the least restrictive treatment program or alternative programs that will meet the patient's needs. Minn.Stat. § 253B.09, subd. 1 (2000). Voluntary admission is preferred to involuntary commitment. Minn. Stat. § 253B.04, subd. 1 (2000). Here the court signed a stayed order for commitment on April 18, which was filed on April 19, 2000. A stayed order permitting administration of neuroleptic medication was issued simultaneously with the stayed order for commitment, to become effective if the stayed order for commitment were revoked.

      .The Act requires the head of the treatment facility that has custody or care of a patient who has been committed as mentally ill to file a written report with the committing court prior to the termination of the initial commitment order or final discharge of the patient. Minn.Stat. § 253B.12, subd. 1(c) (2000). Here, the treatment report detailed Brown's status and need for continued commitment and included a description of discharge planning.

      . The court of appeals concluded that the written report, which the head of the treatment facility to which Brown was committed was required to file with the committing court prior to termination of the initial commitment or final discharge under Minn.Stat. § 253B.12, subd. 1(c), was untimely, and Brown should have then been discharged, as provided by Minn.Stat. § 253B.12, subd. 1(e) (2000). Brown, 627 N.W.2d at 116.

      . The statute also provides for commitment of a person who is mentally retarded or chemically dependent. Minn.Stat. § 253B.09, subd •1.

      . When the court stays an order for commitment for more than 14 days beyond the date of the hearing, the court must issue an order that includes each of the following:
      (1) a written plan for services to which the proposed patient has agreed;
      (2) a finding that the proposed treatment is available and accessible to the patient and that public or private financial resources are available to pay for the proposed treatment; and
      (3) conditions the patient must meet to avoid revocation of the stayed commitment order and imposition of the commitment order.
      Minn.Stat. § 253B.095, subd. 1(d).

      . That part of section 253B.09, subdivision 5, specifying when the initial commitment begins was added to the Act by legislative amendment in 1997. Act of May 22, 1997, ch. 217, art. 1, § 59, 1997 Minn. Laws 2138, 2159 (codified as amended at Minn.Stat. § 253B.09, subd. 5).

      . For example, certain data regarding patients committed to regional treatment centers is public data under Minn.Stat. § 13.384, subd. 2(a) (2000) and commitment disqualifies a person from holding various professional licenses. E.g., Minn.Stat. § 147.091, subd. l(j) (2000) (medical doctors); Minn.Stat. § 148B.175, subd. 8(2) (2000) (marriage and family therapists).

      . The early intervention provisions allow a court to order involuntary treatment of a mentally ill person that is more limited in duration than a commitment. In re McCaskill, 603 N.W.2d 326, 329 (Minn.1999).

      . We do share Brown’s concern that a stayed commitment could be revoked and commitment executed following a substantial period of release under the stayed order. However, in apparent recognition of the need for due process protections of the liberty interest of a proposed patient released before commitment, the revocation statute generally contemplates notice and hearing. Minn.Stat. § 253B.095, subd. 5. Inasmuch as civil commitment is grounded on prediction-prevention principles and not on retribution-deterrence principles underlying the criminal justice system, Levine, 345 N.W.2d at 219, it may be that the necessity for, and extent of, the procedural protections upon revocation of the release under the stayed order increase in proportion to the length of time the person is on release. It must be remembered that prior to 1997, the sole method for transferring custody of a patient to a treatment facility was by warrant. While under the 1997 legislative revisions to the Act an executed commitment order may function as a mechanism for transfer, there is nothing in those revisions suggesting an intent to enlarge upon the reach of the involuntary commitment process, in derogation of the underlying policy of the Act to furnish mental health services in the least restrictive alternative manner, including alternatives short of commitment. A stayed commitment, as an alternative to commitment, occurs "before a commitment order has been issued." Minn. Stat. § 253B.095, subd. 1(a).

      . We note that the treatment facility here signed its final written report on October 25 but did not file the report with the committing court until October 30. We caution treatment facilities that implicit in the reporting scheme is a good faith effort to file these reports promptly following completion of the report and, whenever possible, in a manner that allows for the review hearing without an extension of the commitment.


text:
    In re Petition for DISCIPLINARY ACTION AGAINST George M. KADINGER, an Attorney at Law of the State of Minnesota.
    No. C7-01-768.
    Supreme Court of Minnesota.
    March 18, 2002.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent George M. Kadinger has committed professional misconduct warranting public discipline, namely, that respondent failed to diligently pursue client matters, failed to keep clients adequately informed as to the status of their legal matters, improperly contacted a represented party, improperly withdrew from representing a client in a criminal matter, failed to obtain written retainer agreements, failed to deposit unearned fees in trust account, and failed to cooperate with the Director’s investigations in violation of Minn. R. Prof. Conduct 1.1, 1.3, 1.4, 1.5(a) and (b), 1.15(a) and (c)(3), 1.16(c) and (d), 3.4(c), 4.2 and 8.1(a)(3), and Rule 25, Rules on Lawyers Professional Responsibility (RLPR).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, RLPR, and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is a three-month suspension and two years of supervised probation commencing upon reinstatement, compliance with Rule 26, RLPR, and payment of $900 costs and disbursements under Rule 24, RLPR.

The parties also agree that the reinstatement hearing under Rule 18(a) — (d), RLPR, be waived and that respondent be reinstated following the expiration of the suspension period, provided that at least 15 days before the expiration of the suspension period, respondent files an affidavit with the Clerk of Appellate Courts and the Director’s Office establishing that respondent is current with Continuing Legal Education, has fully complied with Rules 24 and 26, RLPR, and has satisfactorily completed all other conditions imposed by the court.

The parties recommend that respondent’s supervised probation be subject to the following conditions:

a. Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
b. Respondent shall abide by the Minnesota Rules of Professional Conduct.
c. Respondent shall be supervised by a licensed Minnesota attorney appointed by the Director to monitor compliance with the terms of this probation. Respondent shall provide to the Director the names of four attorneys who have agreed to be nominated as respondent’s supervisor within two weeks from the date [the] stipulation is executed. If, after diligent effort, respondent is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Until a supervisor has signed a consent to supervise, the respondent shall on the first day of each month provide the Director with an inventory of active client files. Respondent shall make active client files available to the Director upon request.
d. Respondent shall cooperate fully with the supervisor in his/her efforts to monitor compliance with this probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall submit to the supervisor an inventory of all active client files by the first day of each month during the probation. With respect to each active file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
e. Respondent shall initiate and maintain office procedures which ensure that there are prompt responses to correspondence, telephone calls, and other important communications from clients, courts and other persons interested in matters which respondent is handling, and which will ensure that respondent regularly reviews each and every file and completes legal matters on a timely basis.
f. Respondent shall maintain law office and trust account books and records in compliance with Rule 1.15, MRPC, and LPRB Amended Opinion No. 9. These books and records include the following: client subsidiary ledger, checkbook register, monthly trial balances, monthly trust account reconciliation, bank statements, canceled checks, duplicate deposit slips and bank reports of interest, service charges and interest payments to the Lawyer Trust Account Board. Such books and records shall be made available to the Director within 30 days of the approval of [the] stipulation and thereafter shall be made available to the Director at such intervals as he deems necessary to determine compliance.
g. Respondent shall employ fee agreements that comply with Rule 1.5(a) and (b) and Opinion No. 15 of the Lawyers Professional Responsibility Board, and his fee agreements shall expressly advise clients concerning the intended handling of advance fee retainers.
h. If at any time during the period of probation, after giving respondent an opportunity to be heard by the Director, the Director concludes that respondent has violated the conditions of the probation or engaged in further misconduct, the Director may file a petition for disciplinary action against respondent in the Minnesota Supreme Court without the necessity of submitting the matter to a Panel or Panel Chair. Respondent waives the right to such consideration by the Panel or Panel Chair.
i. If respondent complies with all the conditions of the probation as set forth above, the probation will be terminated.

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

IT IS HEREBY ORDERED that respondent George M. Kadinger is suspended from the practice of law for three months. Respondent may petition for reinstatement by affidavit under Rule 18(f), RLPR, as provided in the stipulation and set forth above. Upon reinstatement, respondent shall be placed on supervised probation for two years subject to the agreed-upon conditions set forth above. Respondent shall pay $900 in costs under Rule 24, RLPR.

BY THE COURT:

/s/ Paul H. Anderson Associate Justice


author: STRINGER, Justice.

text:
    STATE of Minnesota, Respondent, v. Charles Theo McINTOSH, Petitioner, Appellant.
    No. C9-00-1054.
    Supreme Court of Minnesota.
    March 21, 2002.

      Michael A. Hatch, Attorney General, Thomas R. Ragatz, No. 236822, Assistant Attorney General, St. Paul, MN, Raymond F. Schmitz, No. 97159, Olmsted County Attorney, Rochester, MN, Respondent’s.
    Michael F. Crommett, No. 19896, Assistant State Public Defender, Minneapolis, MN, Appellant’s.
   OPINION

STRINGER, Justice.

Appellant Charles Theo McIntosh was charged with and convicted of four controlled substance offenses for selling crack cocaine. On the fourth conviction, controlled substance offense in the second degree for the sale of 3 grams or more of cocaine as defined in Minn.Stat. § 152.022 (1998), the district court upwardly departed from the presumptive guideline sentence of 98 months and imposed a sentence of 122 months on the ruling that the sale was a “major controlled substance offense” as defined in Minnesota Sentencing Guidelines II.D.2.b(5). The court of appeals affirmed that ruling. We conclude that the record does not support the ruling that the sale constituted a major controlled substance offense. We therefore reverse, vacate the sentencing departure, and remand to the district court for the imposition of the presumptive guidelines sentence.

In late 1998 an informant notified Rochester, Minnesota police that appellant was selling crack cocaine and the informant agreed to purchase drugs as part of an investigation. Over the course of six weeks the informant purchased crack cocaine from appellant or his associates in five “controlled buys,” two of them with an undercover detective. The first purchase occurred on November 25, 1998, when the informant and appellant arranged to meet at a grocery store. At the store the informant met Jeremy Wiley who told the informant he was with “Bullet,” appellant’s street name. The informant purchased 1.3 grams of crack cocaine from Wiley. At trial Wiley testified that he received the crack cocaine from appellant, gave the informant’s money to appellant, and made the sale to the informant because appellant asked him to do so. Wiley also testified that he and appellant traveled to Chicago together to procure powder cocaine which appellant processed into crack cocaine upon their return, and that appellant sometimes had Wiley drive to drug transactions.

A second transaction took place on November 27, 1998, when Wiley drove appellant to the sale and the informant gave appellant $500 for 2.3 grams of crack cocaine.

The third transaction occurred on December 7, 1998, after the informant called appellant’s cell phone and spoke with appellant’s associate Lana Tzul. When appellant arrived at their designated meeting place the informant got into the back seat of the vehicle with Tzul who explained that appellant was not talking much because he was “just really crabby.” In the transaction appellant handed the two rocks, weighing 3.2 grams and 2.9 grams, to Tzul who then handed them to the informant.

The informant and an undercover police officer subsequently bought a total of 34.9 grams of crack cocaine from appellant’s associates in two transactions. Testimony relating to those sales revealed that Tzul told the informant “talking to me is like talking to [appellant].”

The state ultimately charged appellant with conspiracy to commit controlled substance offense in the first degree as defined in Minn.Stat. § 152.096, subd. 1 (2000) and Minn.Stat. § 152.021, subd. 1(1) (1998), controlled substance offense in the second degree as defined in Minn.Stat. § 152.022, subd. 1(1) (1998), and two counts of controlled substance offense in the third degree as defined in Minn.Stat. § 152.023, subd. 1(1) (1998).

Appellant waived his right to a jury trial and to the district court he denied ever selling drugs to the informant — he claimed that audio and video tapes of the transactions recorded by police establish that he was actually buying stolen merchandise from her. The court found appellant guilty of one count of conspiracy to commit controlled substance crime in the second degree for drug transactions between November 25, 1998 and January 8, 1999, one count of controlled substance offense in the second degree for the transaction on December 7, 1998 and two counts of controlled substance crime in the third degree for transactions on November 25 and 27, 1998.

At sentencing the state argued for an upward departure claiming appellant had committed a “major controlled substance offense” because his conviction met the factors in Minnesota Sentencing Guidelines II.D.2.b(5). The guidelines provide that a major controlled substance offense is “an offense or series of offenses related to trafficking in controlled substances under circumstances more onerous than the usual offense” and occurs where two or more of the following factors are present:

(a) the offense involved at least three separate transactions wherein controlled substances were sold, transferred, or possessed with intent to do so; or
(b) the offense involved an attempted or actual sale or transfer of controlled substances in quantities substantially larger than for personal use; or
(c) the offense involved the manufacture of controlled substances for use by other parties; or
(d) the offender knowingly possessed a firearm during the commission of the offense; or
(e) the circumstances of the offense reveal the offender to have occupied a high position in the drug distribution hierarchy; or
(f) the offense involved a high degree of sophistication or planning or occurred over a lengthy period of time or involved a broad geographic area of disbursement; or
(g) the offender used his or her position or status to facilitate the commission of the offense, including positions of trust, confidence or fiduciary relationships (e.g., pharmacist, physician or other medical professional).

Minnesota Sentencing Guidelines II. D.2.b(5).

In its motion for an upward sentencing departure the state argued that factors (a) three or more separate transactions, (b) sale of quantities substantially larger than for personal use, and (e) high position in the drug distribution hierarchy, were present in the charged offenses, but did not specify upon which charge the court should depart. The district court imposed a presumptive guidelines sentence for the second-degree conspiracy offense and both third-degree sale offenses. As to the fourth offense — second-degree sale of controlled substances — the presumptive sentence was 98 months. The court agreed with the state that factors (a), (b), and (e) of the major controlled substance offense sentencing guidelines criteria were present in the second-degree sale offense and upwardly departed from the presumptive sentence of 98 months by adding 24 months for a total sentence of 122 months on that count.

To the court of appeals appellant alleged several claims of district court error: allowing a prosecution witness to testify about appellant’s illegal drug activities that occurred before the charging dates of the criminal complaint; insufficient evidence to sustain his conspiracy conviction; erroneously calculating his criminal history score; concluding that the conspiracy offense and individual controlled substance offenses were not one behavioral incident for purposes of sentencing; and departing from the presumptive sentence on the second-degree sale conviction.

The court of appeals remanded for recalculation of appellant’s criminal history score but affirmed on all other issues. As to the sentencing departure, the court held that the departure was appropriate because the record supported the district court findings of three major controlled substance offense factors under II.D.2.b(5) of the Sentencing Guidelines. In its analysis however, the court of appeals considered factors (b), (c) and (e), having substituted factor (c) manufacture of controlled substances for other parties, for factor (a) three or more separate transactions, which was the factor relied upon by the district court. The court held that the record supported a finding that factors (b), (c), and (e) were present and that the district court did not abuse its discretion in imposing an upward departure on the second-degree controlled substance conviction for the drug transaction on December 7. We granted appellant’s petition for review only on the issue of the sentencing departure.

On appeal here appellant makes several arguments: that the record does not support the sentencing departure, that the major controlled substance offense aggravating factors duplicate the considerations incorporated in statutes relating to drug crimes and presumptive sentences, and that his sentence is disproportionate to his criminality and to sentences in similar cases. The state responds that the record adequately supports the factors cited by the court of appeals — the departure was warranted because more than double the amount of cocaine necessary for a second-degree conviction was involved in the offense, because appellant cooked powder cocaine and packaged it, and because appellant was a leader of an ongoing drug conspiracy. The state also argues that the departure guidelines do not duplicate the considerations of the drug statutes, and that if we find the record does not support a departure on the second-degree conviction for the December 7 transaction, we should remand to the district court for consideration of an upward departure from the presumptive sentence on the second-degree conspiracy conviction for drug transactions between November 25 and January 8 and upwardly depart on that charge.

Substantial and compelling circumstances must be present in the record to justify departures from the applicable presumptive sentences in the Minnesota Sentencing Guidelines. Rairdon v. State, 557 N.W.2d 318, 326 (Minn.1996). Our standard of review of such departures is abuse of discretion. Id. In Williams v. State, we established the following rules to ensure that departures comply with sentencing guidelines requirements:

1. If no reasons for departure are stated on the record at the time of sentencing, no departure will be allowed.
2. If reasons supporting the departure are stated, this court will examine the record to determine if the reasons given justify the departure.
3. If the reasons given justify the departure, the departure will be allowed.
4. If the reasons given are improper or inadequate, but there is sufficient evidence in the record to justify departure, the departure will be affirmed.
5. If the reasons given are improper or inadequate and there is insufficient evidence of record to justify the departure, the departure will be reversed.

361 N.W.2d 840, 844 (Minn.1985).

I.

We first consider whether the district court properly relied upon factors that qualified the second-degree sale conviction for departure as a major controlled substance offense under Minnesota Sentencing Guidelines II.D.2.b(5). At sentencing, the district court concluded that the December 7 sale was a major controlled substance offense based on findings that: (a) the offense involved three or more separate transactions; (b) it was an attempted or achieved sale or transfer of controlled substances in quantities substantially larger than for personal use; and (e) appellant occupied a high position in the drug distribution hierarchy. The court reasoned as follows:

As to the motion for an upward departure, * * * I believe a Second Degree Controlled Substance Crime is a major controlled substance offense. * * * The State has cited two or three [aggravating factors]: Major controlled substance crime involving three or more separate transactions; attempted or achieved sale or transfer of controlled substances in quantities substantially larger than for personal use; and the circumstance of the offense reveal the offender to have occupied a high position in the drug distribution hierarchy.
I believe that there was substantial evidence that all three of those factors exist here. It appeared from the statements that were admitted, the transcripts of phone conversations, that this was — this clearly was a conspiracy to sell and distribute drugs and that the defendant was, if not the leader or the mastermind, at least the major partner. In a business setting he might be considered the managing general partner as opposed to a regular or general partner.
Accordingly, I believe there is a basis for a departure and will depart from the guideline sentence of 98 for — to add an additional 24 months to the guideline sentence for a total of 122.

The court of appeals affirmed the ruling that factors (b) and (e) were present but without explanation substituted factor (c) manufacture of controlled substances for use by other parties for factor (a). We address each of the factors cited by the district court and court of appeals.

Factor (a) — Three or more separate transactions

Appellant argues that because he was found guilty of a second-degree controlled substance offense for the transaction on December 7 and the district court based the upward departure on this conviction, evidence pertaining to transactions on other days for which he was also convicted may not support a departure on the December 7 offense for purposes of factor (a). We agree. Appellant was convicted of a controlled substance offense in the second degree for the sale of 6.1 grams of crack cocaine on December 7. Because evidence of transactions on other dates pertains to separate charged offenses and not “the offense” of conviction, it cannot support a finding of factor (a) of the major controlled substance departure guidelines. See Minnesota Sentencing Guidelines II. D.2.b(5). In State v. Spaeth we held that the court may not rely on conduct underlying one conviction to support a sentencing departure for a separate conviction. 652 N.W.2d 187, 196 (Minn.1996). We conclude that other transactions on other dates for which appellant was convicted cannot be taken into account to support a departure on the conviction for the December 7 transaction. The district court improperly relied on factor (a) in departing on the sentence for the second-degree conviction.

Factor (b) — Sale of quantities substantially larger than for personal use

The district court made no specific findings to support a conclusion that the sale involved quantities substantially larger than for personal use, and the record provides no support for a finding that the 6.1 grams of crack cocaine sold on December 7 was a quantity substantially larger than for personal use. The state cites the presentence report which contains the following statement: “The amounts sold where [sic] for more than personal use; an eight ball would divide into approximately 12 rocks.” This conclusory statement fails to provide any basis to establish how much crack cocaine constitutes a quantity larger than for personal use however, and in particular, that 6.1 grams meets that standard. Therefore we conclude that the record does not adequately support a finding that the second-degree offense involved factor (b), the sale of quantities substantially larger than for personal use.

Factor (c) — Manufacture of controlled substances for use by other parties

The court of appeals held that the record supported a finding of factor (c), the manufacture of controlled substances for use by other parties. The court based its conclusion on evidence that appellant manufactured the powder cocaine he purchased by cooking it to make crack cocaine and presumably based on Jeremy Wiley’s testimony that he and appellant went to Chicago to procure powder cocaine and then cooked it to make crack cocaine. No particular sale of the manufactured crack cocaine was identified however, and there was no evidence that the crack cocaine sold on December 7 was manufactured by appellant. Wiley’s testimony relating to processing powder cocaine is insufficient to meet the threshold of factor (c) without further evidence establishing that the December 7 sale involved the manufacture of controlled substances for use by others. We find none and therefore conclude that the record fails to establish the presence of factor (c) in the December 7 drug transaction.

Factor (e) — High position in the drug distribution hierarchy

The district court also found that appellant held a high position in the drug distribution hierarchy for purposes of factor (e) presumably based on evidence that appellant supervised at least three others in drug sales and that he procured drugs in Chicago. But this is the only evidence in the record to support this conclusion. The district court noted that “the defendant was if not the leader or the mastermind, at least the major partner.” There is no evidence regarding appellant’s proximity to a source for the drugs however, and it is possible he made several small purchases of drugs in Chicago and simply processed and repackaged them for sale in Rochester. Something more than the procurement of drugs in Chicago and the supervision of three people must be shown in order to satisfy the “high position” factor (e) standard, however. Any conclusion as to appellant’s relative rank in the distribution hierarchy based on this record would be speculation and would fall short of our requirement of substantial and compelling circumstances to justify a departure. See Rairdon, 557 N.W.2d at 326.

We conclude that the record does not support findings as to the presence of factors (a) three or more separate transactions, (b) sale of quantities substantially larger than for personal use, (c) manufacture of controlled substances for use by other parties, or (e) high position in drug distribution hierarchy, and that the sentencing departure was therefore an abuse of the district court’s discretion.

II.

Appellant also argues that the major controlled substance offense factors are based upon considerations already taken into account by the legislature through its categorization of drug offenses by the quantity of drugs sold — thus, argues appellant, the sentencing guideline’s aggravating factors amount to a double-counting of the quantity of drugs present in a particular offense. The aggravating factors for a major controlled substance offense were established in 1981, but at that time drug offenses were not based on the quantity of the substance in the charged offense. See Minn.Stat. § 152.09 (1980); State v. Walters, 315 N.W.2d 590, 591 (Minn.1982). In 1989 the legislature revised the drug sale and possession offenses to focus primarily on the quantity of drugs possessed or sold but the aggravating factors for sentencing, also based on quantity, remained unchanged. See Act of June 1, 1989, ch. 290, art. 8, §§ 8-12, 1989 Minn. Laws 1580, 1596-1601, codified at Minn. Stat §§ 152.021-.025.

While we need not reach this issue because, as noted above, the record does not support the sentencing departure, we are concerned that one or more of the departure factors at issue in this case may be duplicative of elements of the offense. For example, factor (b) sale of quantities substantially larger than for personal use, is arguably duplicative of the quantity element of the first- and second-degree drug offenses in Minn.Stat. §§ 152.021, 152.022. Factor (c) relating to manufacture of controlled substances for use by others, and factor (e) applicable if defendant occupied a high position in the drug distribution hierarchy, could also implicate the quantity of drugs involved in an offense. If so, the elements that establish the offense might also be used to justify an upward departure violating our ruling in State v. Peterson, 329 N.W.2d 58 (Minn.1983). In that case we held that when aggravating factors used by the district court to support a sentencing departure “were considered by the legislature in determining the severity of the offense” and formed the basis for the conviction of the particular degree of offense, departure based on those aggravating factors is not proper. Id. at 60.

Therefore, we take this opportunity to caution courts against using quantity to support a departure under the major controlled substance offense departure criteria when to do so duplicates an element of the offense.

In summary, based on the record we hold that the substantial and compelling circumstances required to support a sentencing departure were not present in the December 7 offense and thus the departure from the presumptive guidelines sentence of 98 months to 122 months was an abuse of the district court’s discretion. We remand to the district court with instructions to vacate the sentencing departure and impose the presumptive guideline sentence.

Reversed and remanded.

      . The police believed that the informant bought 3.2 grams of crack cocaine at this time, but the Bureau of Criminal Apprehension (BCA) determined that the crack actually weighed 1.3 grams.

      . Lana Tzul was also known as Lana Daniels.

      . On December 18, 1998, the informant called appellant’s cell phone and arranged for her "friend,” an undercover police officer, to buy crack cocaine from Lana Tzul. The officer bought packages of crack cocaine, containing a total of 23.4 grams. On January 7, 1999, after a series of phone calls to appellant’s cell phone, the informant arranged with Tzul to buy 11.5 grams of cocaine from Tzul’s associate Sharet Williams. The next day police executed a search warrant of Williams's hotel room and found a digital scale, cash, a small amount of marijuana, and approximately 100 grams of crack cocaine.

      . In order to find appellant guilty of conspiracy to commit controlled substance crime in the first degree, the state was required to prove that appellant had conspired to sell 10 or more grams of cocaine on a particular occasion. See Minn.Stat. § 152.096 (2000) and Minn.Stat. § 152.021 (1998). At the end of the trial the court noted that the state had not adequately proved the elements of first-degree conspiracy because the evidence of the last two transactions, in which the informant and the undercover officer bought 34.9 grams of crack cocaine from appellant's associates, was not sufficiently connected to appellant.

      . In a pro se brief appellant also argued that he did not possess the cocaine, his counsel was ineffective, and he was a victim of racial profiling.

      . The court of appeals held that appellant's criminal history score may have been miscalculated because of confusion over whether a prior Illinois conviction for possession of a stolen vehicle should be considered a gross misdemeanor or a felony under Minnesota law, a ruling not appealed to this court.

      . The court of appeals affirmed the district court on factor (b), the court of appeals citing State v. Collard, 414 N.W.2d 733, 736 (Minn.App.1987), rev. denied (Minn. Jan. 15, 1988) for the proposition that 5 grams of cocaine is a quantity substantially larger than for personal use. Collard does not support that conclusion however, because the testimony that 5 grams of cocaine was a quantity larger than for personal use was substantially eroded by the witness conceding on cross-examination that a heavy user could consume 5 grams in one week. Collard, 414 N.W.2d at 735-36.
      Other decisions of the court of appeals have applied the phrase “quantities substantially larger than for personal use” without a discussion of its meaning. See, e.g., State v. Nelson, No. C5-98-2278, 1999 WL 735869 at *6 (Minn.App. Sept.21, 1999) (apparently relying not on actual weight of drugs but on visible size of drugs found to conclude that the quantities "far exceeded] what one would need for personal use”); See, e.g., State v. Lilly, No. C1-96-653, 1996 WL 745214 at *2 (Minn.App. Dec.31, 1996) (holding that because 5.2 grams of cocaine is only slightly greater than the 3 gram statutory minimum for offense, it was not a quantity substantially larger than for personal use); See, e.g., State v. Stevens, No. CO-94-221, 1994 WL 121607 at *1 (Minn.App. Apr.12, 1994) (concluding 13.1 grams of cocaine was a quantity substantially larger than for personal use, based on the conclusion in Collard that 5 grams is a quantity larger than for personal use).

      . The quoted statement was typed under the heading "Law Enforcement” and it is unclear whether the statement reflects an allegation by law enforcement or the view of the author of the report, an employee of the Department of Corrections.

      . Whether a certain quantity of controlled substances is an amount substantially larger than for personal use may be a matter subject to expert opinion. See, e.g., Collard, 414 N.W.2d at 736.

      . Compare 21 U.S.C. § 848c(2)A (1994) (requiring supervision of five or more people to qualify as a drug kingpin under federal continuing criminal enterprise statute); Garrett v. United States, 471 U.S. 773, 781, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985) (describing continuing criminal enterprise statute as intended to reach the "top brass" in drug rings, not lieutenants and foot soldiers). But see United States v. Becton, 751 F.2d 250, 254-55 (8th Cir.1984) (holding one need not be the dominant organizer or manager of a drug enterprise to be found guilty of the continuing criminal enterprise offense).

      . Minnesota Statutes § 152.09, subd. 1(1) (1980) provided in pertinent part, "it shall be unlawful for any person * * * to manufacture, sell, give away, barter, deliver, exchange or distribute; or possess with intent to manufacture, sell, give away, barter, deliver, exchange or distribute, a controlled substance," and makes no reference to the quantity of drugs involved in a particular offense.

      . In State v. Soto we noted the evolution of Minnesota's drug laws:
      In 1989, the legislature restructured the controlled substance statutes so that weight-based classifications applied to all drug offenses. Consequently, offenders selling greater quantities were classified under a more severe level than those selling lesser amounts.
      Furthermore, the testimony of a witness during legislative hearings suggests that the weight-based classifications were consistent with the amount that various levels of dealers would possess. Thus, the weight-based cutoff for third-degree sales was consistent with the amount that a street dealer would sell, whereas the weight-based cutoff for first-degree sales was consistent with what a wholesale dealer would sell.

        State v. Soto, 562 N.W.2d 299, 303 n. 7 (Minn.1997) (internal citations omitted).

      .Minnesota Statutes § 152.021, subd. 1(1) (1998) provides in pertinent part: "A person is guilty of controlled substance crime in the first degree if * * * the person unlawfully sells one or more mixtures of a total weight of ten grams or more containing cocaine * * ⅜.” Minnesota Statutes § 152.022, subd. 1(1) (1998) provides in pertinent part: "A person is guilty of controlled substance crime in the second degree if * * * the person unlawfully sells one or more mixtures of a total weight of three grams or more containing cocaine

      . On remand the district court should also recalculate appellant's criminal history score as the court of appeals directed.

      . Given our disposition we do not reach appellant’s claim that his sentence is disproportionate to the offense.