Opinion
No. A03-209.
Filed April 13, 2004.
Appeal from the District Court, Isanti County, File No. K8-00-200.
Mike Hatch, Attorney General, Elizabeth Wrobel, Assistant Attorney General, St. Paul, Mn, (for respondent)
Richard H. Kyle, Jr., Minneapolis, Mn, (for appellant)
Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
On remand from an appeal in which this court granted a new trial, a jury found Compassionate Home Care, Inc., (CHC) guilty of an amended charge of criminal neglect of a vulnerable adult in violation of Minn. Stat. § 609.233, subd. 1 (1996). CHC appeals from the judgment of conviction, challenging the district court's evidentiary rulings, its refusal to grant a mistrial, the jury instruction defining "neglect," and the sufficiency of the evidence. Because we find no abuse of discretion and sufficient evidence supports the conviction, we affirm. We also grant in part and deny in part the state's motion to strike portions of appellant's brief.
FACTS
CHC is a corporation licensed by the Department of Health to provide home-care services. Between 1989 and 1997, CHC provided services to Carol Forbes, a fifty-two-year-old woman who was quadriplegic and also suffered from cerebral palsy, osteoarthritis, scoliosis, degenerative joint disease, asthma, and severe allergies to cats, dogs, mold, and cigarette smoke. Forbes had a Harrington rod in her back and required special equipment, including a Hoyer lift and a hospital bed. She also required assistance with all daily functions and activities. Because heat, humidity, and allergens exacerbated Forbes's breathing difficulties, an air-conditioned environment was critical to her well-being.
Forbes was unable to speak; she communicated only by facial expressions and by pointing to letters and words on a word board with her eyes. The communication process was arduous, time consuming, and often frustrating for Forbes.
Forbes lived in an apartment complex for seniors and disabled adults where she was cared for by several personal-care attendants, including Kimberly Benjamin. Benjamin was a recently hired CHC employee.
In May 1997, Benjamin called Trina Asche, the person who administered CHC's day-to-day operations, to let her know that she would be taking Forbes camping at Benjamin's house in Isanti County for one or two weeks. Benjamin told Asche that Forbes would be staying in a tent in Benjamin's backyard, and assured Asche that Forbes's medications and special equipment would be provided for her. Asche approved the arrangement. Benjamin also told Roberta Parker, CHC's owner, and Forbes's nurse about the move. Benjamin then notified the manager of Forbes's apartment complex that Forbes would be going camping for a week or two. When the manager called CHC to express concern, Asche told her that CHC was aware of the arrangement and that she should stay out of it.
CHC did not obtain permission from Forbes's doctor before allowing Benjamin to move Forbes. Nor did it notify Forbes's mother or her social worker. And CHC did not go to Benjamin's house to determine if the tent in which Forbes would be living was adequate.
The tent was in a thickly wooded area "half a football field" away from Benjamin's house. It was approximately ten by twelve feet, was made out of mesh screening, and had a tarp over the top. It contained Forbes's hospital bed, a fan, a dresser, and a television, but it did not have a Hoyer lift. Nor did it have an emergency-communication device, even though Forbes could not be seen or heard from the house.
A friend who visited Forbes in early June 1997 testified that although Forbes appeared happy, she seemed isolated. Benjamin was not home when the friend arrived with her husband, and Benjamin did not return for another two hours. Because Forbes's friend did not have an opportunity to visit with Forbes outside the presence of Benjamin or her boyfriend, she was also concerned that Forbes had no way to communicate with her and her boyfriend about what was happening. Forbes's friend called Asche after her visit and expressed her concerns.
After spending nearly three weeks in the tent, Forbes was moved into an upstairs bedroom in Benjamin's house. The move took place after Parker told Benjamin that Forbes's social worker was "raising some stir." Forbes's supervising nurse visited the house shortly after the move and reported no problems with the living arrangement. But Forbes's mother testified that Forbes's room was small, had no lift by the bed, and had no air conditioning despite extremely hot weather. The room was also next to the bedroom of Benjamin's teenage son, a person whom CHC knew was a substantiated sexual offender. Forbes's mother also testified that despite her daughter's asthma and severe allergies, there were cats and a dog in the house, as well as three people who smoked. Forbes's mother called Parker and told her that Forbes wanted to go back to her apartment, but Parker did not appear concerned.
When Forbes's social worker first contacted Asche about Forbes's stay at Benjamin's house, Asche assured her that the arrangement was safe. But when the social worker and a representative of the office of the ombudsman for mental health and mental retardation visited Forbes, they discovered that Forbes was living in a small, cluttered room, with no air conditioning and no Hoyer lift. They also noticed that Forbes appeared scared and flushed and that her hair was damp with sweat.
In response to the social worker's concerns, CHC contacted Ken Gilchrist, an attorney who had represented Forbes in the past, and asked him to visit Forbes. Gilchrist visited Forbes and testified that Forbes seemed to be excited and exhilarated by the camping experience. But Gilchrist communicated with Forbes primarily through Benjamin, and Benjamin did not leave the room while Gilchrist was there.
An adult-protection worker who visited Forbes in late June testified that Forbes was unable to communicate with her, and indicated that she was immediately concerned about the lack of egress from the upstairs bedroom. She was also concerned that no background checks had been conducted on the members of Benjamin's household before Forbes moved there. In response to the protection worker's concerns, Benjamin agreed to install a stair glider and to look into getting an adult-foster-care license. She also stated that her son would no longer be staying in the house. Notwithstanding Benjamin's assurances, the protection worker, the social worker, and two representatives from the ombudsman's office concluded that Benjamin's house was not a safe environment for Forbes and decided unanimously to move her back to her apartment until Benjamin's home could be licensed. The move took place on July 1 or 2.
In late June Christina Baltes, a special investigator with the Department of Health, initiated an investigation in response to reports the department had received about Forbes. Baltes interviewed witnesses and reviewed CHC's business records, including CHC's internal reports and nursing records, Forbes's home-care service plan, and her health-status assessment. Baltes testified that CHC's records contained no mention of Forbes's new living arrangement and reflected that Forbes had not been seen by a nurse during the first two weeks she spent in the tent. Despite the conditions Forbes had been living under, the supervisory nurse's June 10 report indicated that Forbes's health-care situation was satisfactory. The records also contained no indication that CHC ever assessed Forbes's vulnerability to abuse and neglect in her new living situation; the last vulnerability assessment had been done in 1996. Baltes testified that Asche knew that Benjamin's son was staying at the house, and that notes from Asche's notebook referred to "18-year-old son, sexual offense."
Forbes died in August 1997 from a blood clot in her lungs. In February 2000, the state filed a criminal complaint charging CHC with neglect of a vulnerable adult in violation of Minn. Stat. § 609.233, subd. 1 (1996). The jury found CHC guilty. This court reversed and remanded, holding that the district court abused its discretion by not instructing the jury on corporate criminal liability. See State v. Compassionate Home Care, Inc., 639 N.W.2d 393 (Minn. App. 2002).
The state charged CHC again in August 2002. It then filed a motion in limine to exclude CHC's medical expert's proposed testimony and Forbes's out-of-court statements. The court granted the motion. CHC later moved for a mistrial, which the court denied. The jury found CHC guilty of criminal neglect of a vulnerable adult, and CHC appeals.
DECISION I
The district court granted the state's motion in limine to exclude the testimony of Susan Roe, a medical examiner who was prepared to testify that CHC provided Forbes with the necessary food, clothing, shelter, supervision, and health care. CHC challenges the ruling as an abuse of discretion. Whether to admit or exclude expert testimony is a matter within the district court's broad discretion. Dunshee v. Douglas, 255 N.W.2d 42, 47 (Minn. 1977). Expert testimony must nevertheless be "carefully monitored in criminal cases so that a jury is not dissuaded from exercising its own independent judgment." State v. DeShay, 669 N.W.2d 878, 885 (Minn. 2003).
An expert witness must be qualified by knowledge, skill, experience, training, or education to offer an opinion. Minn. R. Evid. 702. The expertise necessary to qualify as an expert witness may be acquired by education or by practical knowledge. Id. 1977 comm. cmt. Whether a witness qualifies as an expert is a preliminary question for the district court, whose decision will not be reversed absent an abuse of discretion. See Minn. R. Evid. 104(a); Gross v. Victoria Station Farms, Inc., 578 N.W.2d 757, 760-61 (Minn. 1998).
Expert testimony is admissible if (1) it assists the trier of fact, (2) it has a reasonable basis, (3) it is relevant, and (4) its probative value outweighs its potential for unfair prejudice. State v. Schwartz, 447 N.W.2d 422, 424 (Minn. 1989). Typically, expert testimony is admissible whenever "the subject matter of the inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance." Wyatt v. Wyatt, 200 Minn. 106, 110, 273 N.W. 600, 601-02 (1937).
The district court did not abuse its discretion by excluding Roe's testimony. First, Roe was not qualified by knowledge, experience, training, or education to render an opinion on whether, given Forbes's condition, CHC provided her with the necessary food, clothing, shelter, supervision, and health care during the time she spent with Benjamin. Roe is a highly accredited forensic pathologist. She is the chief deputy coroner at the Minnesota Regional Coroner's Office and a staff pathologist at Regina Medical Center. Before becoming a pathologist, Roe was a nurse in a neonatal unit. But Roe never practiced as a clinical physician and she had no experience with disabled adults, cerebral palsy, or any of the other medical conditions afflicting Forbes. She thus lacked the training and expertise necessary to qualify as an expert witness and render an opinion on the adequacy of the care Forbes received. See Teffeteller v. Univ. of Minn., 645 N.W.2d 420, 427 (Minn. 2002) (affidavit from doctor with experience in general pediatrics on standard of care applicable to physicians treating bone-marrow transplants, properly excluded because expert lacked experience in field of pediatrics oncology and with bone-marrow transplants); Swanson v. Chatterton, 281 Minn. 129, 135-36, 160 N.W.2d 662, 666-67 (1968) (testimony of medical expert witness proffered by plaintiff properly excluded, because witness, though chief of hospital medical staff and specialist in internal medicine, lacked experience in subject of testimony and had no familiarity with authorities or writings in particular field).
Second, even if Roe had been qualified to testify as an expert, her testimony was inadmissible because it was unlikely that it could assist the jury. An expert witness may offer an opinion if "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." Minn. R. Evid. 702. The helpfulness requirement is the rule's basic requirement. State v. Helterbridle, 301 N.W.2d 545, 547 (Minn. 1980). Testimony is not helpful if "the subject of the testimony is within the knowledge and experience of a lay jury and the testimony of [an] expert will not add precision or depth to the jury's ability to reach conclusions about that subject." Id. Expert testimony should thus be excluded "[i]f the jury is in as good a position to reach a decision as the expert." State v. Saldana, 324 N.W.2d 227, 229 (Minn. 1982) (excluding rape counselor's opinion about whether rape occurred).
The jury in this case was in as good a position as Roe to reach a decision about whether CHC provided Forbes with the necessary food, clothing, shelter, supervision, and health care. Forbes's medical condition was not at issue. Forbes was quadriplegic and had cerebral palsy. She required assistance with all daily functions and around-the-clock supervision. She was completely dependent on others for all her needs. The jury required no specialized knowledge to understand either Forbes's medical requirements or the kind of shelter, supervision, and health care that she needed. The jury was fully capable of evaluating the evidence on its own to determine if CHC provided Forbes with the necessary shelter, supervision, and health care. Accordingly, Roe's proposed testimony would not have assisted the jury, and its exclusion did not constitute an abuse of discretion.
II
CHC contends that the district court committed plain error by admitting special investigator Baltes's testimony. Baltes testified about the contents of several CHC records that were admitted into evidence under the business-records exception to the hearsay rule. The records contained information about Forbes's special needs, the kind of care she required, and the care she received while she was at Benjamin's house. CHC argues that because the court excluded Roe's testimony, it should also have excluded Baltes's testimony.
As a preliminary matter, we note that CHC failed to object to Baltes's testimony. Our review is therefore limited to determining whether the admission of Baltes's testimony amounted to plain error affecting substantial rights. See Minn. R. Crim. P. 31.02 (plain errors "affecting substantial rights may be considered by the court . . . on appeal although they were not brought to the attention of the trial court"). To establish plain error, a party must show that there was error, that the error was plain, and that the error affected substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). If a party succeeds in establishing all three requirements, we consider whether we should address the error to ensure fairness and the integrity of the judicial proceedings. Id.
CHC characterizes Baltes as the state's "chief medical witness." But Baltes was not a medical witness. Instead, she was a special investigator who, in response to expressions of concern registered with the Department of Health, investigated the circumstances surrounding Forbes's move to Isanti County. Most importantly, Baltes did not offer expert testimony, medical or otherwise. Unlike Roe, who was prepared to testify that CHC provided Forbes with the shelter, supervision, and health care she required given her medical condition (the same issue to be decided by the jury), Baltes merely described the content of records that had been properly admitted into evidence. Contrary to CHC's claim, therefore, the exclusion of Roe's proposed testimony did not render Baltes's testimony inadmissible.
III
CHC challenges the district court's exclusion of testimony that Forbes made statements that she was excited about going camping and wanted to remain at Benjamin's house. Determinations as to the admissibility of evidence are left to the discretion of the district court, and a decision to exclude evidence will not be reversed unless the court erred in exercising its judgment and the ruling is prejudicial. State v. Aubid, 591 N.W.2d 472, 478 (Minn. 1999).
Out-of-court statements offered as evidence for the truth of the matter contained in the statements are hearsay. Minn. R. Evid. 801(c). Hearsay is generally considered unreliable — and, therefore, inadmissible — because the declarant is neither under oath nor subject to cross-examination. 11 Peter N. Thompson, Minnesota Practice § 801.02 (2001). Hearsay evidence thus bypasses the protections that are built into the trial process to assist the jury in determining the truth. Id. Hearsay involving oral statements presents the added risk that the statement will not be accurately reproduced in court because of mistake or misunderstanding. Id.
The state disputes that Forbes actually made the statements CHC sought to introduce. Even if the statements had been made, however, the exclusion was not reversible error. First, the statements raised issues of reliability. They were made in Benjamin's presence and, because of Forbes's limited ability to communicate, they were interpreted by Benjamin, a person with a vested interest in convincing others that Forbes was happy at her house. Additionally, because the process of communicating with Forbes was difficult and often frustrating for Forbes, the risk of misunderstanding or misinterpretation was great. Most importantly, the alleged statements were irrelevant because consent is not a defense to criminal neglect of a vulnerable adult. See Minn. Stat. § 609.233 (1996); State v. Ohrtman, 466 N.W.2d 1, 3 (Minn. App. 1991) (stating that consent is irrelevant when not a defense). The district court did not, therefore, abuse its discretion in excluding testimony regarding Forbes's out-of-court statement.
IV
CHC next argues that the district court abused its discretion by admitting evidence that Benjamin's son, a substantiated sexual offender, was staying at Benjamin's house while Forbes lived there. We disagree.
The state charged CHC with knowingly permitting conditions to exist that resulted in the neglect of a vulnerable adult. See Minn. Stat. § 609.233, subd. 1. Among other things, the charge was premised on CHC's alleged failure to properly supervise Forbes while she was living with Benjamin. Evidence that CHC authorized a living arrangement that placed Forbes in the same house as a substantiated sexual offender was relevant to the issue of proper supervision. See Boland v. Morrill, 270 Minn. 86, 99, 132 N.W.2d 711, 719 (1965) ("evidence is relevant which logically tends to prove or disprove a material fact in issue").
CHC claims that the evidence is inadmissible because Benjamin's son committed only an "isolated incident" of sexual abuse and had no improper contact with Forbes. But the fact that Benjamin's son committed only an isolated incident of abuse and did not victimize Forbes does not diminish the probative value of the evidence. CHC was not charged with abuse; it was charged with knowingly allowing conditions to exist that resulted in neglect. The brief references to Benjamin's son confirmed CHC's failure to perform background checks, make reasonable inquiries, or interview residents of Benjamin's house. It is the risk of abuse that matters in this case, not the abuse itself.
We also reject CHC's claim that any probative value was outweighed by the danger of unfair prejudice. The evidence of the sexual offense undeniably has the potential for prejudice. In the context of rule 403, however, prejudice "does not mean the damage to the opponent's case that results from the legitimate probative force of the evidence but rather refers to the unfair advantage that results from the capacity of the evidence to persuade by illegitimate means." State v. Sanders, 376 N.W.2d 196, 200 n. 2 (Minn. 1985) (quotation omitted). We are not persuaded that unfair advantage resulted in this case because we conclude the evidence had legitimate probative value.
V
During the trial the prosecutor asked Benjamin, who was testifying for the state, if she had been charged with a crime in connection with the care she provided Forbes. Benjamin responded, "Yes," simultaneously with defense counsel's objection. Neither the court nor the attorneys heard Benjamin's answer. The district court sustained the objection nonetheless and offered a curative instruction. But counsel declined the instruction. Instead, he made a motion for a mistrial, which the court denied. Relying on Minn. R. Evid. 609, CHC now argues that the district court abused its discretion by denying its mistrial motion. We disagree.
A motion for a mistrial "should not be granted unless there is a reasonable probability that the outcome of the trial would be different." State v. Spann, 574 N.W.2d 47, 53 (Minn. 1998). We review the denial of a mistrial motion for abuse of discretion. Id. at 52.
For impeachment purposes, rule 609 allows evidence that a witness has been convicted of a crime, provided the crime involves dishonesty or false statement or is punishable by imprisonment for more than one year. In this case, rule 609 does not provide a basis for a mistrial, not only because Benjamin was not being impeached but also because she was not asked if she had been convicted of a crime; she was asked only if she had been charged with a crime. Furthermore, there was no reasonable probability that the outcome of the trial would have been different absent the prosecutor's question. The district court did not, therefore, abuse its discretion by denying CHC's motion for a mistrial.
VI
In instructing the jury, the district court omitted "food and clothing" from the definition of neglect. CHC contends that the omission was prejudicial because it prompted the jury to reach a harsher verdict than it might have otherwise reached. We do not agree.
The district court has broad discretion in selecting language for jury instructions. State v. Peou, 579 N.W.2d 471, 475 (Minn. 1998). If the instructions correctly state the law in language that can be understood by the jury, there is no reversible error. Id. "[T]he court's instructions should be construed as a whole, having in mind the evidence in the case. If the instructions so viewed convey to the jury a clear and correct understanding of the law, they must be upheld." Poppenhagen v. Sornsin Constr. Co., 300 Minn. 73, 81-82, 220 N.W.2d 281, 286 (1974) (quotation omitted).
The state charged CHC with knowingly permitting conditions to exist that resulted in the neglect of a vulnerable adult. "Neglect" means "a failure to provide a vulnerable adult with necessary food, clothing, shelter, health care, or supervision." Minn. Stat. § 609.233, subd. 1 (emphasis added). The charge against CHC was premised on its alleged failure to provide Forbes the necessary shelter, supervision, or health care. Accordingly, the court instructed the jury that "[n]eglect means a failure to provide a vulnerable adult with necessary shelter, health care, or supervision."
The court's instruction correctly stated the law in light of the charge and the evidence the state presented. The definition of neglect is written in the disjunctive, not the conjunctive. The court thus properly tailored the instruction to conform to the charge, which did not include failure to provide food or clothing, and to the evidence the state introduced, which did not include reference to the failure to provide food or clothing. The only references to food and clothing were elicited by defense counsel. Because the jury instruction conveyed a correct understanding of the law on neglect in light of the evidence and the state's theory of the case, the instruction was proper. Had the court left the statutory reference to food and clothing in, it would have arguably prejudiced CHC by providing two additional grounds on which the jury could have based a finding of guilt, grounds which were not charged and for which there was no evidence. The instruction was not, therefore, an abuse of the district court's broad discretion.
VII
The jury found CHC guilty of criminal neglect of a vulnerable adult in violation of Minn. Stat. § 609.233, subd. 1. To establish criminal neglect, the state had to prove beyond a reasonable doubt that (1) CHC was a caregiver, (2) Forbes was a vulnerable adult, (3) CHC knowingly permitted conditions to exist that resulted in the neglect of Forbes, and (4) CHC's acts took place between May 28 and July 4, 1997. See id.
Evidence is sufficient to support a conviction if, given the facts in the record and any legitimate inferences from those facts, a jury could reasonably conclude that the defendant committed the crime charged. State v. Folkers, 581 N.W.2d 321, 326 (Minn. 1998). We do not retry the facts on review; instead, we view the evidence in the light most favorable to the verdict and assume that the jury believed the witnesses whose testimony supported the verdict and disbelieved any evidence to the contrary. State v. Harris, 589 N.W.2d 782, 791 (Minn. 1999). Given the facts in the record, the jury could reasonably have concluded that CHC failed to provide Forbes with the necessary shelter, health care, or supervision.
Shelter
Multiple witnesses testified that for almost three weeks, Forbes lived in a tent with screen sidings, a tarp top, and no floor. On one occasion, heavy rains caused the tarp top to collapse. Despite extreme weather conditions, the tent had no heat or air conditioning. Nor did it have a Hoyer lift. Although Forbes could not be seen or heard from the house, the tent also lacked an emergency-communication device that would have allowed Forbes to seek help if needed. Electrical extension cords ran from the house to the tent, creating an additional safety risk for Forbes.
The evidence also showed that the second-floor room to which Forbes was later moved was similarly inadequate. The room was small, stuffy, and cluttered. Like the tent, it lacked a Hoyer lift, air conditioning, and an emergency-communication device. And the house did not have a glider or an elevator to evacuate Forbes safely and without pain. In addition, because of the presence of animals and smokers, the house contained animal dander and smoke, both of which aggravated Forbes's asthma and allergies. The lack of air conditioning during hot and humid weather also contributed to Forbes's respiratory problems.
Based on this evidence, the jury could reasonably have concluded that CHC failed to provide Forbes with the necessary shelter.
Health Care
Forbes was a quadriplegic woman who suffered from cerebral palsy, osteoarthritis, scoliosis, degenerative joint disease, severe allergies, and asthma. Forbes needed special equipment and daily assistance with bathing, dressing, grooming, skin care, mobility, positioning, bladder and bowel functions, medical appointments, medication management, etc. Neither the tent nor the house was equipped adequately to provide for Forbes's daily needs. Benjamin testified that Forbes was not seen by a nurse for "quite a few days" after she arrived in Isanti County, causing Benjamin and her boyfriend to wonder why. And Baltes testified that CHC's nursing notes indicated that Forbes was not seen by a nurse between May 27 and June 10, the first two weeks Forbes spent in the tent. Indeed, the notes for that period of time contain no mention of Forbes's new living arrangement.
The evidence presented at trial was thus sufficient to support the jury's finding that CHC knowingly failed to provide a vulnerable adult with the necessary health care.
Supervision
The testimony established that CHC authorized Benjamin to take Forbes camping in Benjamin's backyard. CHC did not consult with Forbes, her doctor, or her social worker before authorizing the arrangement. Nor did it conduct a health and safety assessment to ensure that the arrangement was safe. No one from CHC visited the tent or Benjamin's house before Forbes moved in, to determine if either place was adequate to meet Forbes's numerous health-care needs. And CHC failed to conduct background checks on the people staying at Benjamin's house while Forbes was there. As a result, Forbes was placed in the same house as a juvenile sexual offender.
CHC was well aware of Forbes's new living arrangement. Parker told Baltes that she knew of Benjamin's plan to take Forbes camping and of Forbes's subsequent move into a room in Benjamin's house. And Asche admitted that she had received calls from a number of people expressing concern about Forbes's safety. The evidence showed that the manager of Forbes's apartment building called Asche the day Benjamin moved Forbes and expressed concern about the proposed camping trip. After visiting her, Forbes's mother, friend, and social worker also called Asche to express concern about the conditions under which Forbes was living. CHC assured everyone that the arrangement was safe and did not follow up until multiple social agencies became involved and demanded that Forbes be moved.
The evidence presented at trial was thus sufficient to support a finding that CHC failed to provide Forbes with the necessary supervision.
VIII
The state moved to strike portions of CHC's brief that were not made part of the district court record. Specifically, the state sought to strike references to the number of service hours CHC provided personal-care assistants caring for Forbes; Forbes's attending family reunions, going white-water rafting, and running short on funds to pay for a trip; Benjamin's guilty plea to criminal neglect; Forbes's statements to Gilchrist; and Roe's curriculum vitae.
The appellate record consists of the papers filed in the district court, the exhibits, and any transcripts. Minn. R. Civ. App. P. 110.01. An appellate court may not base its decision on matters outside the record on appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). CHC, in its reply brief, withdrew its references to Forbes's white-water rafting and agreed that the references to Benjamin's conviction and Roe's curriculum vitae may be stricken. The state's remaining objections relate to characterizations of the evidence that, although disputed, have an arguable basis in the record. We therefore deny that part of the motion requesting that we strike the references to the number of service hours, attendance at family reunions, and the reasons for canceling a recreational trip.