text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST Richard G. DAY, a Minnesota Attorney, Registration No. 21659.
    No. A04-1046.
    Supreme Court of Minnesota.
    March 23, 2006.
   OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against respondent Richard G. Day on January 23, 2004, alleging three counts of misconduct, including misappropriation of client funds, practicing law while suspended, failure to notify clients of his suspension, failure to return client files, and failure to participate in the disciplinary process. Despite efforts to locate Day, the director has been unable to personally serve the petition. In response to a petition from the director, we prohibited Day on July 12, 2004, from applying for reinstatement while the disciplinary action remained pending and gave him one year to move for leave to answer the petition. When Day did not so move, we issued an order on September 21, 2005, deeming the allegations admitted, ordered the director to serve Day by publication, and set the matter on for hearing to show cause as to why we should not impose the appropriate discipline. Day neither responded nor appeared. We agree with the director’s assertion that the facts and circumstances of this case merit disbarment.

Day was admitted to the practice of law in Minnesota in 1974. He was suspended in July 2000 for 90 days for practicing law while suspended for nonpayment of his attorney registration fee and on OLE restricted status, failing to return a client’s file, failing to diligently pursue claims on behalf of two clients and misrepresenting the status of the matter to one of the clients, and failing to cooperate in the disciplinary proceedings. In re Day, 615 N.W.2d 275, 276 (Minn.2000) (Day I). Day admitted that his conduct violated the Rules of Professional Conduct and entered into a stipulation with the director that recommended a 90-day suspension with reinstatement conditioned on a number of terms, including notification to his clients of his suspended status. Id.

Day was indefinitely suspended in October 2001 for practicing law after suspension, failing to return client property, and failing to cooperate with the associated disciplinary proceeding. In re Day, 634 N.W.2d 173 (Minn.2001) (Day II). Day again entered into a stipulation with the director, recommending an indefinite suspension with reinstatement conditioned on a number of terms, again including notification to his clients that he had been suspended. Id. at 173-74.

Day has not applied for reinstatement since he was indefinitely suspended.

The allegations in the current petition, now deemed admitted, are described under three counts of misconduct.

Geer matter

In December 2002, while suspended from the practice of law, Day met with Gregory Geer regarding representation of Geer in a workers’ compensation matter. Geer gave Day documents related to the matter and $100 cash as a retainer. Day did not tell Geer that he was suspended and could not represent him. Subsequent to the meeting, Geer tried to contact Day by phone approximately 12 times, then opted to retain different counsel. Day never returned the $100 or the documents. A complaint was filed with the director in the Geer matter in March 2003.

The director asserts that Day’s conduct in the Geer matter represents a violation of the state law prohibiting unauthorized practice of law, Minn.Stat. § 481.02 (2004). In addition, the director argues that Day’s conduct violated the Minnesota Rules of Professional Conduct requiring a lawyer to keep his clients reasonably well informed, mandating transfer of client documents when representation is terminated, and prohibiting the unauthorized practice of law. The director further alleges that Day committed misconduct by committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness; engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and engaging in conduct that is prejudicial to the administration of justice.

Taylor matter

At the time of his suspension in July 2000, Day was representing Gloria Reese-Taylor and Clarence Taylor in a matter involving a Minneapolis neighborhood redevelopment organization. Day did not inform the Taylors that he had been suspended and did not encourage the Taylors to find another lawyer as required by our October 2001 suspension order. The Tay-lors paid Day $200 in May 2002 and another $200 in July 2002. Day neglected to return phone calls from the Taylors in the fall of 2002, and their letter seeking a status report sent by certified mail in December 2002 was refused by him. Day did not refund the $400 the Taylors paid him and did not return their client file.

The director asserts Day’s acceptance of fees from the Taylors for legal services when he was suspended constitutes a violation of the law prohibiting the unauthorized practice of law. Minn.Stat. § 481.02. Further, the director argues that Day’s conduct in the Taylor matter violated all of the same Minnesota Rules of Professional Conduct that he allegedly violated in the Geer matter, as well as Rule 26(a), RLPR, requiring a lawyer to notify his clients when he is suspended.

Noncooperation

Day did not respond to a notice of investigation or a followup letter sent by the director regarding the Geer complaint to the address listed for Day with Minnesota attorney registration. Both letters were returned undeliverable. The director’s staff subsequently contacted Day via a cell phone number provided by the complainant in the Taylor matter. In response, Day supplied a Largo, Florida, address. Notices of investigation regarding the Geer and Taylor matters were sent on May 22, 2003, to the Florida address, requesting written responses within 14 days. Day did not respond, nor did he respond to a followup letter sent July 23, 2003, to the Florida address.

The director served charges of unprofessional conduct and notice of a prehearing meeting by U.S. mail to Day’s Florida address on November 20, 2003; the documents were returned to the director marked “return to sender: attempted not known.” The director’s office added “north” to the street name in Day’s address and re-sent the materials with a cover note asking Day to call the director’s office upon receipt. At the same time, the director’s office left a phone message for Day, notifying him of the date and time of the prehearing meeting that had been scheduled for December 10, 2003. Day did not respond, nor did he attend the pre-hearing meeting or attempt to reschedule it.

The director moved for approval to file a petition for disciplinary action under Rule 10(d), RLPR, based on flagrant noncooperation. On January 23, 2004, the chair of the Lawyers Board Panel approved the filing of the petition for disciplinary action. Copies of the notice of Rule 10(d) motion and motion, along with the petition mailed to Day’s Florida address, were returned undeliverable. When contacted by the director’s office to obtain a forwarding address for Day, the Florida post office indicated that Day had “moved, left no forwarding address.”

The director argues that Day’s- noncooperation in the investigations in the Geer and Taylor matters constitutes misconduct involving dishonesty, fraud, deceit, or misrepresentation. He also argues that it represents violations of the rules requiring lawyers to provide information as requested and participate in such investigations.

The purposes of visiting disciplinary sanctions on attorneys found to have committed misconduct are to protect the public, to protect the judicial system, and to deter future misconduct. In re Oberhauser, 679 N.W.2d 153, 159 (Minn.2004). Factors we consider in determining the appropriate sanction to impose include the nature of the misconduct, the cumulative weight of violations of the rules of professional conduct, the harm to the public, and the harm to the legal profession. Oberhauser, 679 N.W.2d at 159.

We look to similar cases of misconduct for guidance as to the discipline to impose. In re Brooks, 696 N.W.2d 84, 88 (Minn.2005). But discipline is imposed case-by-case after consideration of both aggravating and mitigating circumstances. Oberhauser, 679 N.W.2d at 159 (citing In re Koss, 611 N.W.2d 14, 16 (Minn.2000)).

We have noted that we are “particularly concerned when [an] attorney misappropriates client funds and will often disbar an attorney for misappropriation unless the attorney presents clear and convincing evidence of substantial mitigating circumstances showing that the attorney did not intentionally convert the funds.” Brooks, 696 N.W.2d at 88. We also have stated that “[misappropriation occurs whenever funds belonging to a client are not deposited in a trust account and are used for any purpose other than that specified by the client.” In re Westby, 639 N.W.2d 358, 370 (Minn.2002). Under the admitted facts, Day took $400 from the Taylors and $100 from Geer, but provided no services in these matters. While the misappropriation of such a relatively small amount may or may not merit disbarment on its own, Day’s other misconduct makes such an analysis unnecessary. In re Grzybek, 567 N.W.2d 259, 264 (Minn.1997). We disbarred Grzybek for misconduct similar in degree to Day’s. Grzybek, like Day, misappropriated a small amount of money, but also, like Day, neglected client matters, neglected to inform clients that he had been suspended, failed to return client files, and failed to cooperate with disciplinary proceedings. Id. at 264-65.

We have imposed discipline on Day before for each of the other forms of misconduct deemed admitted in the current matter. See Day I, 615 N.W.2d at 276 (imposing a 90-day suspension for practicing while fee-suspended, failing to return a client file, and failing to cooperate with the disciplinary proceedings); Day II, 634 N.W.2d at 173 (ordering indefinite suspension for practicing law while suspended, failing to return client property, and failing to cooperate in the disciplinary proceedings). Of the repeated misconduct, practicing while suspended for disciplinary reasons (as opposed to administrative reasons) specifically merits disbarment. See Westby, 639 N.W.2d at 371; In re Ray, 610 N.W.2d 342, 346 (Minn.2000). Like Day, Westby practiced law while suspended for disciplinary reasons (and also misappropriated client funds, failed to communicate with a client, and failed to respond to requests for information from the director’s office). Westby, 639 N.W.2d at 363-66. Westby was disbarred. Id. at 371. And we disbarred Ray after he repeatedly engaged in the practice of law while under suspension, failed to timely surrender documents upon request, failed to cooperate fully with the disciplinary investigation, and presented no mitigating factors. Ray, 610 N.W.2d at 346-47. Day was initially suspended for administrative reasons (failure to complete OLE requirements and failure to pay his attorney fees) but was then suspended for practicing law during the initial suspension period — a disciplinary suspension. Day II, 634 N.W.2d at 173. The current petition cites further instances of practice while still suspended.

Finally, we have held that “[f|ailure to cooperate with the disciplinary process constitutes separate misconduct warranting discipline independent from the conduct underlying the petition.” Brooks, 696 N.W.2d at 88. In contrast with the proffered stipulated resolutions in the first two disciplinary matters that brought Day before us, Day has failed to respond at any stage of the current proceeding. Such nonresponsiveness, in addition to being a violation of professional responsibility rules on its own, means that we have no information on factors that might mitigate the misconduct Day has perpetrated. What is more, we have held that disbarment is appropriate for an attorney who, like Day, cannot be found and who fails to move for vacation of a suspension or leave to answer a petition for disciplinary action. In re Keller, 656 N.W.2d 398, 402 (Minn.2003).

Day has demonstrated a disregard for the ethical practice of law by failing to comply with the orders of this court, repeatedly engaging in the unauthorized practice of law, and failing to cooperate with the investigation of the director’s office. We order that respondent Day be disbarred.

GILDEA, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

      . The director petitioned under Rule 12(c)(1), Rules on Lawyers Professional Responsibility (RLPR), which states in relevant part:
      If the respondent cannot be found in the state, the Director shall mail a copy of the petition to the respondent's last known address and file an affidavit of mailing with this Court. Thereafter the Director may apply to this Court for an order suspending the respondent from the practice of law. * * * Within one year after the order is filed, the respondent may move this Court for a vacation of the order of suspension and for leave to answer the petition for disciplinary action.

      . Day was not suspended, as provided for by Rule 12(c)(1), RLPR, because he remained indefinitely suspended as a result of our order of October 1, 2001. In re Day, 634 N.W.2d 173 (Minn.2001).

      . Rule 13(b), RLPR, states, "If the respondent fails to file an answer within the time provided or any extension of time this Court may grant, the allegations shall be deemed admitted and this Court may proceed under Rule 15.” See also In re Crandall, 699 N.W.2d 769, 770 (Minn.2005). Rule 15(a), RLPR, describes the dispositional options available to this court, including disbarment.

      .Rule 12(c)(2), RLPR, states in relevant part that an order to show cause
      may be served on the respondent by publishing it once each week for three weeks in the regular issue of a qualified newspaper published in the county in this state in which the respondent was last known to practice or reside. * * * If the respondent fails to respond to the order to show cause, this Court may proceed under Rule 15.
      In October 2005, the director published the order to show cause in both Hennepin County and Pinellas County, Florida (in which Largo is located; Day had given the director a Largo address at one point during the investigation).

      . In addition to the past disciplinary action we have taken against him, Day was admonished in 1991 for use of an advertisement falsely implying that lawyers in his firm were specialists when they were not at the time certified as specialists. In 1999 Day was admonished for failure to pay professionally incurred indebtedness.

      . Minn. R. Prof. Conduct 1.4, 14 Minn.Stat. 1386 (2004) (amended June 17, 2005, eff. Oct. 1, 2005).

      . Minn. R. Prof. Conduct 1.16(d), 14 Minn. Stat. 1408 (2004) (amended June 17, 2005, eff. Oct. 1, 2005).

      . Minn. R. Prof. Conduct 5.5, 14 Minn.Stat. 1424 (2004) (amended June 17, 2005, eff. Oct. 1, 2005).

      . Minn. R. Prof. Conduct 8.4(b), (c), & (d), 14 Minn.Stat. 1434 (2004) (amended June 17, 2005, eff. Oct. 1, 2005).

      . Rule 10(d), RLPR states, in relevant part:
      In matters in which there are an attorney's admissions, civil findings, or apparently clear and convincing documentary evidence of an offense of a type for which the Court has suspended or disbarred lawyers in the past * * * the Director may * * * upon a motion made with notice to the attorney and approved by the Panel Chair, file the petition under Rule 12.
      Rule 12, RLPR, governs petitions for disciplinary action.

      . Minn. R. Prof. Conduct 8.4(d), 14 Minn. Stat. 1434 (amended June 17, 2005, eff. Oct. 1, 2005).

      . Minn. R. Prof. Conduct 8.1(a)(3), as it read at the time, stated in relevant part:
      [A] lawyer in connection with * * * a disciplinary matter, shall not:

      (3) knowingly fail to respond to an admissions or discipline authority's lawfully authorized demand for information by either providing the information sought or making a good faith challenge to the demand.
      Minn. R. Prof. Conduct 8.1(a)(3), 14 Minn. Stat. 1432 (2004) (amended June 17, 2005, eff. Oct. 1, 2005). Rule 25, RLPR, as it read at the time, stated in relevant part:
      (a) Lawyer's duty. It shall be the duty of any lawyer who is the subject of an investigation or proceeding under these Rules to cooperate with the District Committee, the Director, the Director's staff, the Board, or a Panel, by complying with reasonable requests, including requests to:
      (1) Furnish designated papers, documents or tangible objects;
      (2) Furnish in writing a full and complete explanation covering the matter under consideration;
      (3) Appear for conferences and hearings at the times and places designated.
      Rule 25, RLPR, 14 Minn.Stat. 1462 (2004) (amended Aug. 10, 2005, eff. Sept. 1, 2005).

      . Keller was a reciprocal discipline case; Keller already had been disbarred in North Dakota when we imposed disciplinary sanctions in Minnesota. 656 N.W.2d at 400-02.


source: Caselaw Access Project

author: KLAPHAKE, Judge.

license: Public Domain

text:
    In the Matter of the WELFARE OF D.S.M.
    No. A05-638.
    Court of Appeals of Minnesota.
    March 14, 2006.

      Leonardo Castro, Chief Fourth District Public Defender, Barbara S. Isaacman, Assistant Public Defender, Minneapolis, MN, for appellant D.S.M.
    Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuehar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, MN, for respondent State of Minnesota.
    Considered and decided by KLAPHAKE, Presiding Judge, PETERSON, Judge, and CRIPPEN, Judge.

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

   OPINION

KLAPHAKE, Judge.

Appellant D.S.M. was adjudicated delinquent for second-degree criminal sexual conduct based on admissions made during a police interrogation. He argues that the admissions should be suppressed because he was not informed of his Miranda rights before being interrogated. The district court concluded that the interrogation was not custodial and that appellant thus was not entitled to receive a Miranda warning. We reverse and remand for a new hearing, and vacate appellant’s extended jurisdiction juvenile (EJJ) status.

FACTS

In December 2001, Brooklyn Center Police learned that seven-year-old T.M.H. had reported that he had been sexually molested by then-14-year-old appellant, who lived with his mother and her fiancé, T.M.H.’s father. T.M.H. primarily resided with his mother in Douglas County, Wisconsin, but he visited his father during summers and holidays; the alleged conduct occurred during late 2000 and the summer of 2001, while T.M.H. was visiting his father.

Detective Peggy Broberg of the Brooklyn Center Police contacted appellant’s mother and requested to speak with appellant. On January 15, 2002, appellant’s mother and T.M.H.’s father brought appellant to the Brooklyn Center police station. Broberg conducted a private interview of appellant, although Broberg and appellant knew that his mother was in a waiting room. Broberg said to appellant, “If you don’t want to talk to me, just tell me so and I’ll take you downstairs.” They spoke for 25 to 35 minutes about the allegations of sexual molestation, and appellant denied having any sexual contact with T.M.H.

Thereafter, at Detective Broberg’s suggestion, a Wisconsin social worker conducted a second interview of T.M.H. During the interview, T.M.H. elaborated on his original allegation that appellant had touched his penis with his hand, and alleged that appellant had twice put his mouth on T.M.H.’s penis and had twice anally penetrated him.

On January 28, 2002, Dr. Chris Campbell examined T.M.H. Dr. Campbell’s medical report indicated that T.M.H. had an “anal fissure at the six o’clock position” that appeared “very small.” Dr. Campbell concluded that he “could not state one way or the other whether there has been past history of anal intercourse or sexual abuse.”

Detective Broberg interviewed appellant a second time on February 17, 2002. Again, his mother and her fiancé brought him to the police station, and again they were not invited to attend the interrogation. Without giving appellant a Miranda warning, Broberg intensely questioned appellant for 55 minutes, shouting at him, suggesting that he would not be able to leave until he confessed and that the interview could continue all day, and causing appellant to break down sobbing several times. Broberg did not inform appellant that he was free to leave the interrogation. Eventually, appellant admitted to some sexual contact with T.M.H., although he strongly denied that sexual penetration had occurred. After being asked numerous times, however, whether penetration had occurred and denying it numerous times, appellant finally conceded with a “sigh” that he guessed it had occurred if that was what T.M.H. said.

Appellant was charged with first- and second-degree criminal sexual conduct under Minn.Stat. §§ 609.342, subd. 1(a), 609.343, subd. 1(a) (2000). The district court granted the state’s motion for EJJ designation under Minn.Stat. § 260B.130, subd. 1(3) (2002), a decision that was affirmed by this court in an unpublished opinion. See In re Welfare of D.S.M., No. A03-949, 2004 WL 771680 (Minn.App. Apr. 13, 2004), review denied (Minn. June 29, 2004).

After the district court denied appellant’s pretrial suppression motions, appellant agreed to submit the case to the district court on stipulated facts. The district court found appellant guilty of second-degree criminal sexual conduct and adjudicated him delinquent. The court later denied the state’s motion for reconsideration based on a claim that the facts found by the court would have supported a finding of guilt on the first-degree criminal sexual conduct charge and denied appellant’s motion to vacate the EJJ designation. Appellant received a stayed prison term of 21 months, was ordered to complete sex-offender treatment, provide a DNA sample and register as a sex offender, and was placed on probation until he reached the age of 21.

ISSUE

Did the district court err in declining to suppress appellant’s admissions, even though they were elicited without a prior Miranda warning?

ANALYSIS

“[W]hethér a defendant was ‘in custody’ at the time of an interrogation is a mixed question of law and fact, requiring the appellate court to apply the controlling legal standard to historical facts as determined by the trial court.” State v. Wiernasz, 584 N.W.2d 1, 3 (Minn.1998). The appellate court reviews the district court’s findings of fact under the clearly erroneous standard of review but reviews de novo the district court’s custody determination and the need for a Miranda warning. Id.

Before being subjected to a custodial interrogation, a defendant must be given a Miranda warning to advise the defendant of his Fifth Amendment protection against self-incrimination. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The test for determining whether a person is in custody is objective-whether the circumstances of the interrogation would make a reasonable person believe that he was under formal arrest or physical restraint akin to formal arrest. State v. Rosse, 478 N.W.2d 482, 484 (Minn.1991). The fact that an interrogation occurs at a police station does not always lead to the conclusion that it was custodial. Wiernasz, 584 N.W.2d at 3. However, the determination of whether a juvenile would reasonably believe he or she was in custody must be made from the perspective of the juvenile. See In re Welfare of G.S.P., 610 N.W.2d 651, 657 (Minn.App.2000).

The circumstances surrounding appellant’s interrogation support a conclusion that he reasonably would have believed that he was in custody at the time he made his admissions. Appellant had some experience with police when he was part of a diversion program resulting from a 1997 burglary charge, but the record does not indicate any other criminal conduct or that appellant had ever been interrogated by police or been to a police station. Appellant’s mother and her fiancé brought him to the police station at Detective Broberg’s request, but they were asked or told to sit in a waiting room while he was escorted to a private room on a different floor of the station.

Detective Broberg launched the interrogation by telling appellant that she had “talked to a whole bunch of people” and “the results” showed that “something happened between [appellant] and [T.M.H.].” She also informed appellant that T.M.H. had been injured and limited her questions to gaining an admission that appellant had caused these injuries. In the first part of the interview, Broberg said, ‘You know I have all the time in the world ... [s]o don’t think that with you being silent it’s going to help the matter because it’s not. I want you to tell me what happened.” Nearly every question thereafter was accusatory, and many of the questions and hypothetical scenarios were coercive. Bro-berg’s insistence on her version of the facts through repeatedly accusing appellant of sexually penetrating T.M.H. clearly led appellant to conclude that her version was the only one she was willing to accept. Finally, while Broberg told appellant during the first interview that he could leave if he did not want to talk to her, it was clear from the questions and tone of the second interview that appellant was not free to leave. Given these facts, we conclude that appellant was improperly subjected to a custodial interrogation without receiving a Miranda warning. See, e.g., In re Welfare of R.J.E., 642 N.W.2d 708, 709-10 (Minn.2002) (affirming suppression of confession made by high school student interrogated in school office by uniformed school liaison officer, where officer did not give juvenile Miranda warning and did not inform juvenile he could decline to answer questions, could ask for parents, and was free to leave); G.S.P., 610 N.W.2d at 657-58 (12-year-old juvenile with no prior criminal justice experience summoned to principal’s office where principal and police officer conducted interrogation without telling juvenile he was free to leave, tape-recorded interrogation, and told juvenile he must answer questions; court reversed conviction because officer failed to give juvenile Miranda warning).

We must next determine whether the harmless error doctrine applies to appellant’s adjudication of delinquency after the district court refused to suppress the illegally gained confession. The supreme court recently held that the harmless error rule may not be applied to review of juvenile adjudications of delinquency that were submitted to the district court on stipulated facts. R.J.E., 642 N.W.2d at 712-13. When a juvenile is improperly subjected to a custodial interrogation without receiving a Miranda warning, and then stipulates to the facts in order to expedite appellate review of the issue, the proper disposition of the case is reversal of the adjudication of delinquency and remand for a new trial. Id. at 713 (stating that problem with applying harmless error review to trials on stipulated facts is evidence goes unchallenged). Here, the record included challenges to the victim’s veracity and evidence that suggested that others within the extended family could have been involved in sexual misconduct. We therefore reverse the adjudication of guilt and remand for a new trial.

We also conclude that vacation of appellant’s EJJ designation is mandated under the facts of this case. Without D.S.M.’s confession, there is minimal evidence to support the primary factors for his initial EJJ designation: the serious offense of first-degree sexual misconduct or appellant’s high culpability. See Minn.Stat. § 260B.130, subd. 2 (2002); D.S.M., 2004 WL 771680, at *1-*2, *4.

DECISION

We reverse the district court’s adjudication of guilt because appellant’s confession was gained without a proper Miranda warning, and remand for a new trial. We also vacate appellant’s EJJ designation as now unsupported by the record.

Reversed and remanded.


author: LANSING, Judge.

text:
    In the Matter of the WELFARE OF the CHILD OF T.T.B. and G.W., Parents.
    Nos. A05-1615, A05-1631.
    Court of Appeals of Minnesota.
    March 21, 2006.

      Jacqueline M. Beaulieu, Minneapolis, MN, for appellant T.T.B.
    Leonardo Castro, Chief Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, Minneapolis, MN, for appellant G.W.
    Thomas J. Vollbrecht, Guy-Uriel E. Charles (pro hac vice), Faegre & Benson, L.L.P., Minneapolis, MN, for appellant Yankton Sioux Tribe.
    Amy Klobuchar, Hennepin County Attorney, and Mary M. Lynch, Assistant County Attorney, Minneapolis, MN, for respondent Hennepin County Human Services and Public Health Department.
    Jonathan G. Steinberg, Minneapolis, MN, for respondent guardian ad litem.
    Considered and decided by LANSING, Presiding Judge; KALITOWSKI, Judge; and HALBROOKS, Judge.
   OPINION

LANSING, Judge.

In these consolidated appeals from the district court’s permanent-placement order for an Indian child, the child’s father and tribe challenge the district court’s subject matter and personal jurisdiction and its denial of their motion to transfer jurisdiction to the tribal court. The father also appeals the child’s placement in a non-Indian, nonrelative home and the denial of an intervention motion by a prospective placement. We affirm the district court’s exercise of jurisdiction but conclude that the absence of good cause for transfer of jurisdiction to the tribal court requires reversal.

FACTS

■GW and TTB are the parents of XTB, who was born in Rhode Island on November 15, 2003. GW is a member of the Yankton Sioux Tribe (the tribe), and TTB is a member of another tribe. XTB is eligible to be a member of both tribes.

Four days after XTB’s birth, the Rhode Island Department of Child, Youth, and Families took him into custody under a forty-eight-hour emergency hold. The department took these actions based on information that TTB, who was a minor at the time of XTB’s birth, had previously been diagnosed with depression and post-traumatic stress syndrome, had provided inconsistent information about her reason for being in Rhode Island, and might have an open juvenile-protection case in Minnesota. The department contacted Hennepin County (the county) the same day and confirmed that the county had an open termination-of-parental-rights case for TTB’s older child. The county was unaware of TTB’s pregnancy and was intending to request a default judgment on the pending termination-of-parental-rights case for TTB’s older child.

Based on the information received from the department, the county filed a petition for an emergency hold, and Hennepin County District Court issued an ex parte emergency hold on XTB. Although TTB opposed the county’s efforts to obtain custody of XTB, the dispute was apparently resolved in the Rhode Island courts, which “recognized Minnesota’s jurisdiction in this matter and ... returned [XTB] to the child welfare authorities in Minnesota.” Although this determination is not disputed, the file does not contain the operative order in the Rhode Island proceeding.

The county initially added XTB to TTB’s ongoing termination-of-parental-rights proceeding, but the district court dismissed XTB from the petition. On December 31, 2003, the county filed a separate petition to terminate parental rights or transfer legal custody of XTB. Neither GW nor TTB objected to the transfer of legal custody; they indicated that they preferred XTB be placed with AGM, TTB’s foster mother, in Rhode Island. Other possible placements included BW, GW’s mother, and SG, the paternal grandmother of TTB’s older child.

In February 2004 TTB voluntarily terminated her parental rights to her older child. The tribe intervened in XTB’s proceeding in April 2004. AGM and her husband, NM, also filed a motion to intervene as participants in the proceeding. The district court denied their motion, ruling that it was premature and that permitting AGM and NM to intervene as participants would require intervention by the other potential placements.

Three months later, the district court issued a scheduling order, which required that all pretrial motions be filed by July 22, 2004. On July 16, 2004, the county amended its petition to allege that both parents wanted to transfer custody of XTB and that neither parent participated in their respective case plans or set up a visitation schedule. The amended petition also indicated that GW was a noncustodial parent and that he had chemical-health issues.

On July 22, 2004, GW and TTB filed a joint petition requesting that the district court transfer jurisdiction to the tribal court. GW also filed a motion to dismiss under Minn. R. Juv. Prot. P. 15.04. In the pretrial hearing held on August 12, 2004, the district court denied GW’s motion to dismiss because it concluded that the petition established a prima facie case. It then continued the transfer-of-jurisdiction issue to allow the tribe to provide a written statement on whether it would accept the transfer. On September 24, 2004, the tribe filed an independent motion to transfer jurisdiction to the tribal court. The district court, however, denied the motion to transfer jurisdiction on the grounds that the motions were filed at an advanced stage in the proceeding and that the 400-mile distance between the tribal court and the district court would cause undue hardship for the parties and participants.

In October 2004 the parties stipulated to the facts and record supporting transfer of legal custody and indicated their preference that custody of XTB be transferred to AGM. As part of this stipulation, the parties included a Rhode Island Interstate Compact Home Assessment, which determines the suitability of a proposed placement. This assessment denied XTB’s placement with AGM, based in part on AGM’s involvement with the questionable circumstances that led to TTB giving birth in Rhode Island instead of Minnesota.

In February 2005 the district court issued an order transferring legal custody to SG. The court concluded that the child’s best interests would be served by placement with SG because of her willingness to provide for XTB and because TTB’s older child lived in her home. It also concluded that BW had not demonstrated sufficient interest in either the child or the proceedings and that AGM was not a valid placement option based on the conclusion of the Rhode Island home assessment.

GW filed a motion for a new trial, and the district court denied his motion. GW and the tribe both appeal from the order denying transfer of jurisdiction to the tribal court, and GW appeals from the district court’s denial of his motion to dismiss, its denial of AGM’s motion to intervene as a participant, and its order transferring custody to SG. We consolidated GW’s and the tribe’s appeals for purposes of review.

ISSUES

I.Does the district court have subject matter jurisdiction to transfer legal custody?

II. Does the district court have personal jurisdiction over an Indian child who was born in Rhode Island and had not been in Minnesota?

III. Is a petition to transfer jurisdiction of a child-protection case to a tribal court filed at an advanced stage in the proceeding when the petition was filed six days after the amended child-protection petition and before the deadline for pretrial motions?

ANALYSIS

I

Subject matter jurisdiction is “a court’s power to hear and determine cases of the general class or category to which the proceedings in question belong.” Bode v. Minn. Dep’t of Natural Res., 594 N.W.2d 257, 259 (Minn.App.1999) (quotation omitted), aff'd, 612 N.W.2d 862 (Minn.2000). A juvenile court in Minnesota has “original and exclusive jurisdiction in proceedings concerning any child who is alleged to be in need of protection or services.” Minn.Stat. § 260C.101, subd. 1 (2004). Because the issue of subject matter jurisdiction addresses the court’s authority to hear a particular class of actions, the issue may be raised at any time, including for the first time on appeal. Minn. R. Civ. P. 12.08(c). We review challenges to subject matter jurisdiction de novo. Johnson v. Murray, 648 N.W.2d 664, 670 (Minn.2002).

GW and the tribe assert that the district court lacked subject matter jurisdiction because it did not make adequate findings that XTB was in need of protection or services. This argument, however, mistakenly combines the issue of subject matter jurisdiction with a determination of the underlying elements of the action. See Arbaugh v. Y & H Corp., — U.S. -, -, -, 126 S.Ct. 1235, 1238, 1242, 163 L.Ed.2d 1097, -, - (2006) (explaining that subject matter jurisdiction should not be confused with challenge to essential ingredients of claim). The county need not prove its prima facie case to establish subject matter jurisdiction, but must simply set forth sufficient allegations that a child is in need of protection or services to demonstrate that the case is within the class of cases the court has authority to hear.

The record in this case includes the required allegations. Both the initial and amended petitions allege that XTB is in need of protection or services. The petitions also indicate that, because neither parent intends to exercise custody over XTB, the child has no place to live. A child who has no place to live is a child in need of protection or services. See Minn. Stat. § 260C.007, subd. 6(3), (6), (2004) (providing child is in need of protection or services when child lacks necessary care or parent wishes to be relieved of custody). The district court therefore had subject matter jurisdiction.

This determination does not exclude the existence of subject matter jurisdiction in the Rhode Island courts at the time of XTB’s birth. Rhode Island and Minnesota had concurrent jurisdiction in this case, and Rhode Island ceded jurisdiction to Minnesota. See Id. § 518D.206(a) (2004) (providing that, in cases involving concurrent jurisdiction of states, one state may stay its jurisdiction on determination that other state is more convenient forum).

II

GW and the tribe assert that the district court lacks personal jurisdiction over XTB because he was born in Rhode Island, was never a resident of Minnesota, and was not in Minnesota before this action began. The determination of whether personal jurisdiction exists is a question of law subject to de novo review. Patterson v. Wu Family Corp., 608 N.W.2d 863, 866 (Minn.2000). A party waives the defense of personal jurisdiction if the issue is not raised as a defense, made by motion, or included in a responsive pleading. Minn. R. Civ. P. 12.08(a); see also Comm’r of Natural Res. v. Nicollet County Pub. Water/Wetlands Hearings Unit, 633 N.W.2d 25, 31 (Minn.App.2001), review denied (Minn. Nov. 13, 2001).

The issue of personal jurisdiction has been waived. Neither GW nor the tribe included the defense in a responsive pleading or raised it as a defense. GW filed a motion to dismiss under rule 15.04, which provides for dismissal for lack of subject matter jurisdiction, personal jurisdiction, or the failure to establish a prima facie case. Minn. R. Juv. Prot. P. 15.04. The motion papers, however, do not identify a specific basis for dismissal. The transcript from the motion hearing does not contain any reference to personal jurisdiction. GW and the tribe argued, instead, that the petition failed to set forth a prima facie case. Because personal jurisdiction was not raised in the district court, the issue is waived.

Ill

A transfer-of-legal-custody proceeding is a child-custody proceeding under the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-1963 (2000), and the Minnesota Indian Family Preservation Act, Minn. Stat. §§ 260.751-.835 (2004). When the court does not terminate parental rights, the parents retain their visitation rights and the power to request modification of custody, and the transfer-of-legal-custody proceeding qualifies as a foster-care placement proceeding. See 25 U.S.C. § 1903(l)(i) (defining “foster care placement” as “any action removing an Indian child from its parent or Indian custodian for temporary placement in ... the home of a guardian [where the parent] cannot have the child returned upon demand, but where parental rights have not been terminated”); see also Minn.Stat. § 260C.201, subd. l(a)(2)(ii) (2004) (referring to transfer of legal custody as foster-care placement).

In a proceeding for the foster-care placement of an Indian child who does not reside on the reservation of the child’s tribe, the district court, on the petition of either parent or the Indian child’s tribe, shall transfer the proceeding to the jurisdiction of the tribe unless either parent objects or good cause to the contrary exists. 25 U.S.C. § 1911(b). The presumptive transfer absent good cause or parental objection reflects the congressional intent in the ICWA to ensure that, as a general principle, Indian tribes would have authority to determine custody issues involving Indian children. See Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 52, 109 S.Ct. 1597, 1610, 104 L.Ed.2d 29 (1989). Although good cause is not statutorily defined, the Bureau of Indian Affairs (BIA) guidelines provide direction for interpreting the ICWA. In re Welfare of S.N.R., 617 N.W.2d 77, 81 (Minn.App.2000), review denied (Minn. Nov. 15, 2000).

Under the BIA guidelines, the party opposing transfer has the burden of establishing good cause. BIA Guidelines, 44 Fed.Reg. 67,584, 67,591 (Nov. 26, 1979). Good cause exists if the “proceeding was at an advanced stage when the petition to transfer was received and the petitioner did not file the petition promptly after receiving notice of the hearing.” Id. at 67,591. The guidelines note that a last-minute transfer may have a disruptive effect on the proceeding and that long periods of impermanent placement may be harmful to a child’s well-being. Id. at 67,590-92.

Good cause also exists when the “evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship to the parties or the witnesses.” Id. at 67,591; People ex rel. J.L.P., 870 P.2d 1252, 1257 (Colo.Ct.App.1994). A party seeking to prevent transfer on the basis of undue hardship must present evidence of the hardship. J.L.P., 870 P.2d at 1257. The distance between the district court and the tribal court is not alone sufficient to establish undue hardship because, under this reasoning, “almost every case involving a child not residing on a reservation could be denied transfer.” In re Guardianship of J.C.D., 686 N.W.2d 647, 650 (S.D.2004).

No published Minnesota case specifies the applicable standard of review that applies to a motion to transfer an ICWA case to a tribal court or analyzes the good-cause requirement for denial of a motion to transfer. The participants in this appeal agree that abuse of discretion is the appropriate standard for reviewing a decision on a motion to transfer. This standard is consistent with the BIA guidelines, which also indicate that transfer of jurisdiction is a discretionary decision. BIA Guidelines, 44 Fed.Reg. at 67,591 (discussing court’s discretion in applying criteria for transfer). Other jurisdictions have generally recognized that the decision on whether to transfer an ICWA case to a tribal court is reviewed under an abuse-of-discretion standard. See, e.g., People ex rel. A.T.W.S., 899 P.2d 223, 225 (Colo.Ct.App.1994) (“The determination of good cause is within the discretion of the juvenile court.”); In re D.M., 685 N.W.2d 768, 770 (S.D.2004) (“Denial of a motion to transfer jurisdiction under [ICWA] is reviewed under the abuse of discretion standard.”). We conclude that an abuse-of-discretion standard is appropriate when considering a district court’s decision to deny transfer of jurisdiction to a tribal court.

Both parents and the tribe petitioned the court to transfer jurisdiction to the tribal court, and neither parent objected to the transfer. The court, however, concluded that good cause existed to deny the transfer because the tribal court is approximately 400 miles away and the petitions were made at an advanced stage in the proceeding. Neither reason supports a discretionary decision to deny transfer.

First, the distance between Hennepin County and the tribal court is insufficient on its own to establish undue hardship. No participant stated that they would be unable to attend a hearing in the tribal court because of the distance or indicated how the distance would adversely affect an ability to participate. Without evidence of undue hardship, distance alone cannot defeat a transfer of jurisdiction to a tribal court.

Second, the court did not receive the petitions at an advanced stage in the proceedings. The initial petition to transfer jurisdiction was filed on July 22. This filing occurred only six days after the filing of the amended petition for transfer of legal custody. Significantly, the petition for transfer of jurisdiction was filed by the deadline for filing pretrial motions. When the district court considered the motion for transfer of jurisdiction at the August 12 pretrial hearing, it did not indicate that the motion was untimely. The court only requested that the tribe provide a written statement of its willingness to accept jurisdiction. The tribe provided this statement on September 24. Because the petition was filed shortly after the amended petition for transfer of legal custody, complied with the scheduling order of the district court, and occurred before any permanency trial, the petition for transfer of jurisdiction was not filed at an advanced stage in the proceedings, and good cause does not exist to deny the transfer of jurisdiction to the tribal court.

The remaining two issues relate to the district court’s determination of the participants in the proceeding and the preferences to be applied in the ultimate placement decision. Both of these determinations occurred after the district court’s denial of the petition to transfer jurisdiction. Because we conclude that the law requires transfer of jurisdiction to the tribal court, these determinations extended beyond the district court’s right to adjudicate and are therefore invalid.

DECISION

We affirm the district court’s exercise of subject matter jurisdiction to consider a petition to transfer legal custody of a child alleged to be in need of protection or services, and we conclude that the issue of personal jurisdiction was waived. We reverse the district court’s denial of the motion to transfer jurisdiction to the tribal court and remand for transfer of jurisdiction to the Yankton Sioux Tribal Court.

Affirmed in part, reversed in part, and remanded.


author: MARING, Justice.

text:
    2006 ND 48
    Melvin FISCHER and Antonia Fischer, Plaintiffs and Appellants v. Adam P. BERGER, Clara Berger, Ronald G. Berger, and all other persons unknown claiming any estate or interest in, or lien or encumbrance upon, the property described in the Complaint, Defendants Ronald G. Berger, Defendant and Appellee.
    No. 20050182.
    Supreme Court of North Dakota.
    Feb. 28, 2006.

      Lawrence R. Klemin (argued) and David D. Schweigert (on brief), Bueklin, Klemin & McBride, Bismarck, ND, for plaintiffs and appellants.
    Thomas D. Kelsch, Kelsch, Kelsch, Ruff & Kranda, Mandan, ND, for defendant and appellee.
   MARING, Justice.

[¶ 1] Melvin and Antonia Fischer appeal from a judgment dismissing their quiet title action against Ronald Berger seeking a prescriptive easement for a road across Berger’s land and damages. We conclude the district court did not clearly err in finding Fischers failed to prove their use of a trail across Berger’s land was adverse. We affirm.

I

[¶ 2] Berger and his predecessors in interest (“Bergers”) own the north half of the north half of a section of land in Morton County which is situated between two separate tracts of land owned by the Fischers and their predecessors in interest (“Fischers”). The Fischers’ tracts of land consist of the south half and the south half of the north half of the land in the same section owned by the Bergers, and the southeast quarter of a section immediately to the northwest of the Bergers’ land. The section line connecting the Fishers’ two tracts of land is not passable, and since at least 1947, the Fischers have used a trail across the Bergers’ land to move between their two tracts of land. In the 1950s, the Fischers and the Bergers had a disagreement about the location of the property line between their tracts of land in the same section. The property was surveyed, and each owner erected a fence on their side of the property line, with a gate in each fence where the trail was located. The fences were about three feet apart. The Bergers also erected a fence and a gate on the north property line adjacent to the Fischers’ land. In 1960, the Bergers notified the Fischers they were not to use the gates and trail for access across the Bergers’ land. However, the Fischers continued to use the gates and the trail across the Bergers’ land from 1960 to 1975.

[¶ 3] In 1975, the Bergers locked the gate on the south fence line after Melvin Fischer repeatedly failed to close the gate. The Fischers complained to the Morton County Commission, and in 1976, the Commission surveyed the trail and installed cattle guards on the property line between the Fischers’ property and the Bergers’ property. The cattle guards were located next to the wire gates in each of the fences. Although an easement for the trail was prepared, the Bergers did not sign the easement. The Fischers continued to use the trail from 1976 until 2000 when the Bergers locked the gates. The Bergers subsequently removed the cattle guards and gates.

[¶ 4] In 2003, the Fischers sued the Bergers, claiming a prescriptive easement for a right-of-way over the land now owned by Ronald Berger. The Fischers claimed an easement by prescription to use the trail over the Bergers’ land for access between their two tracts of land immediately to the northwest and to the south of the Bergers’ land. The Fischers alleged they had used the trail on the Bergers’ land for more than 20 years to travel between their parcels of land. The Fisch-ers sought a prescriptive easement for a right-of-way across the Bergers’ land and damages for loss of access between their two tracts of land. The Bergers denied the Fischers had a prescriptive easement for a road across their land.

[¶ 5] After a bench trial, the district court found the Fischers had proven continuous and uninterrupted use of the trail for more than 20 years. However, the court further found the Fischers had failed to establish their use of the trail was an adverse use. The court decided the Ber-gers had allowed the Fischers permissive use of the trail and not an adverse use. The court concluded the Fischers were not entitled to a prescriptive easement and dismissed their complaint.

II

[¶ 6] The Fischers argue the district court erred in determining they were not entitled to a prescriptive easement for a road across the. Bergers’ land. They argue the court clearly erred in finding they failed to prove their use of the trail across the Bergers’ land was adverse. They argue the evidence established their use of the trail was adverse, or the Bergers had acquiesced in the Fischers’ use of the trail.

A

[¶ 7] Under North Dakota law, a use of land creates an easement by prescription if the use is adverse, continuous and uninterrupted, and for the 20 year period of prescription. Gajewski v. Taylor, 536 N.W.2d 360, 362 (N.D.1995); Nagel v. Emmons County Water Res. Dist., 474 N.W.2d 46, 48 (N.D.1991). Except for the requirement of public use for establishing a road by prescription, that approach is consistent with the requirements for establishing a road by prescription under N.D.C.C. § 24-07-01, which requires the general, continuous, uninterrupted and adverse use of a road by the public under a claim of right for 20 years. Hartlieb v. Sawyer Twp. Bd., 366 N.W.2d 486, 488 (N.D.1985); Mohr v. Tescher, 313 N.W.2d 737, 739 (N.D.1981); Backhaus v. Renschler, 304 N.W.2d 87, 89 (N.D.1981); Berger v. Berger, 88 N.W.2d 98, 100 (N.D.1958).

[¶ 8] Here, the primary disagreement between the parties is whether the Fischers’ private use of the trail was adverse or permissive. The determination whether or not there has been an adverse use is a question of fact subject to the clearly erroneous rule of N.D.R.Civ.P. 52(a). Hartlieb, 366 N.W.2d at 488; Mohr, 313 N.W.2d at 739; Backhaus, 304 N.W.2d at 90. A finding of fact is clearly erroneous if there is no evidence to support it, if, on the entire record, a reviewing court is left with a definite and firm conviction a mistake has been made, or if the finding was induced by an erroneous application of the law. Brandt v. Somerville, 2005 ND 35, ¶ 12, 692 N.W.2d 144. A choice between two permissible views of the weight of the evidence is not clearly erroneous. Id. On appeal, this Court does not reweigh conflicts in the evidence, and we give due regard to the district court’s opportunity to judge the credibility of the witnesses. Id.

[¶ 9] The district court found the Fischers’ use of the trail was not adverse and instead was permissive based, in part, on the fences and gates on the property line leading to the trail. The court cited Berger, 88 N.W.2d at 100-04, to support its determination that the fences and gates across the trail were strong indications the use was permissive and evidenced an intent by the Bergers to assume and assert ownership and possession of the land over which the road ran. See also Mohr, 313 N.W.2d at 739-40 (holding existence of a gate across a road is indicative of permissive use); Backhaus, 304 N.W.2d at 89 (same). The court also cited other factual circumstances to support its determination of a permissive use, including that the Bergers did not sign the easement in 1976, the Bergers continued to allow the Fisch-ers to use the trail, and the Bergers threatened to withdraw permission to use the trail if the Fischers did not close the gates. The court found the Fischers did not prove adverse use of the trail and failed to establish they were entitled to an easement over the Bergers’ land.

[¶ 10] We conclude there is evidence to support the district court’s finding there was no adverse use of the trail. On appeal, we do not reweigh conflicts in the evidence, and we give due regard to the district court’s opportunity to judge the credibility of the witnesses. Brandt, 2005 ND 35, ¶ 12, 692 N.W.2d 144. We are not left with a definite and firm conviction the court made a mistake in finding no adverse use. We therefore conclude the court’s finding is not clearly erroneous.

B

[¶ 11] Relying on James v. Griffin, 2001 ND 90, 626 N.W.2d 704, Manz v. Bohara, 367 N.W.2d 743 (N.D.1985), and Production Credit Ass’n v. Terra Vallee, Inc., 303 N.W.2d 79 (N.D.1981), the Fisch-ers also argue they were entitled to an easement by prescription under the doctrine of acquiescence. They argue an easement by prescription may be acquired under the doctrine of acquiescence as well as by adverse possession.

[¶ 12] Our cases recognize the doctrine of acquiescence applies to the location of a boundary between adjacent property. See James, 2001 ND 90, ¶ 10, 626 N.W.2d 704; Knutson v. Jensen, 440 N.W.2d 260, 262 (N.D.1989); Manz, 367 N.W.2d at 746; Ward v. Shipp, 340 N.W.2d 14, 16-17 (N.D.1983); Terra Vallee, 303 N.W.2d at 83-84; Trautman v. Ahlert, 147 N.W.2d 407, 412 (N.D.1966); Bernier v. Preckel, 60 N.D. 549, 555-57, 236 N.W. 243, 246 (1931). The doctrine of acquiescence allows a person to acquire property when occupying part of a neighbor’s land due to an honest mistake about the location of the true boundary, because the adverse intent requirement of the related doctrine of adverse possession could not be met. Terra Vallee, at 83-84.

[¶ 13] The American Law Institute recognizes that acquiescence does not apply to servitudes created by prescription, because modern prescriptive doctrine is based on theories of acquisitive prescription and the running of the statute of limitations, and because acquiescence of the owner cannot be distinguished from permission of the owner, which is fatal to a claim for prescriptive use. Restatement (Third) of Prop.: Servitudes § 2.17 cmt. g (2000) (citing Restatement (Third) of Prop.: Servitudes § 2.16(1) (2000)). We agree with the rationale that for purposes of acquisitive prescription, acquiescence of an owner cannot be distinguished from permission of an owner. Because permission of an owner is fatal to a claim of prescriptive use, we conclude the doctrine of acquiescence is not applicable to a claim for an easement by prescription for a trail across another’s property. We therefore reject Fischer’s claim that they were entitled to an easement by prescription under the doctrine of acquiescence.

III

[¶ 14] The Fischers also argue the district court clearly erred in finding they were not entitled to damages. The Fisch-ers’ damage claim is dependent upon their claim for a prescriptive easement, and because of our resolution of that issue, we conclude the court did not err in finding they were not entitled to damages.

IV

[¶ 15] We affirm the judgment dismissing the Fischers’ claim for a prescriptive easement.

[¶ 16] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, and CAROL RONNING KAPSNER, JJ„ and ZANE ANDERSON, District Judge, concur.

[¶ 17] The Honorable ZANE ANDERSON, District Judge, sitting in place of SANDSTROM, J., disqualified.


text:
    2006 ND 49
    STATE of North Dakota, Plaintiff and Appellee v. Danny Ray HOVERSON, Defendant and Appellant.
    No. 20050237.
    Supreme Court of North Dakota.
    March 2, 2006.

      Kelly Ann Dillon, Minot, N.D., for plaintiff and appellee.
    Chad Rory McCabe, Bismarck, N.D., for defendant and appellant.
   MARING, Justice.

[¶ 1] Danny Hoverson appeals from an amended judgment of conviction for unlawful delivery of a controlled substance. We affirm, concluding: (1) the district court did not err in denying Hoverson’s motion to dismiss based upon his claim o.f outrageous government conduct; (2) the court interpreted the law too narrowly when it refused to allow Hoverson to cross examine a witness on the underlying facts of a prior conviction, but the error was harmless; (3) the court did not abuse its discretion in refusing to allow Hoverson to cross examine a witness on specific instances of conduct; and (4) the court did not substantially rely on an impermissible factor in sentencing Hoverson.

I

[¶ 2] On October 24, 2003, law enforcement officers, including North Dakota Bureau of Criminal Investigations Agent Michael Marchus, set up a controlled purchase of methamphetamine from Hoverson. A confidential informant called Hoverson to set up the purchase. The confidential informant went to Hov-erson’s automotive shop to purchase the drugs. Upon completing the purchase, the confidential informant left the shop and met with law enforcement officers. The confidential informant gave the officers a small zip lock bag, decorated with dollar bill signs, containing .69 grams of methamphetamine. In June 2004, the State charged Hoverson, under N.D.C.C. § 19-03.1-23, with a Class A Felony for unlawful delivery of a controlled substance.

[¶ 3] Hoverson moved to dismiss the charge, arguing the State was guilty of outrageous conduct and asking the district court to exercise its inherent powers and dismiss the charge to protect the integrity of the judicial process. Hoverson claimed Agent Marchus was stalking and harassing him. In support of his motion, Hoverson offered evidence that between April 5, 2002 and September 8, 2004, Agent Mar-chus was involved in arresting Hoverson on eight separate occasions for driving under suspension. Four arrests occurred after Agent Marchus saw Hoverson driving around town. Two other arrests were the result of tips Agent Marchus received from members of the community. Agent Mar-chus also saw Hoverson driving on two other occasions while conducting surveillance on Hoverson’s shop in connection with the drug investigation. On all eight occasions, Agent Marchus verified that Hoverson’s license was suspended. During one encounter with Hoverson, Agent Marchus told Hoverson, “Now look at this face ... you’ll get to know it. You are my project boy.” Another encounter occurred after Hoverson drove by Agent Marchus’ home and made a comment about Agent Marchus’ children. In response, Agent Marchus drove by Hoverson and said, “You drove by my place so I drove by your place.” During the eighth arrest for driving under suspension, Hoverson accused Agent Marchus of harassing him and Agent Marchus said if he arrested Hover-son one more time he would get a free toaster or microwave. Agent Marchus admitted making all those statements to Hoverson.

[¶ 4] The district court denied Hover-son’s motion to dismiss, concluding there was no outrageous government conduct because Agent Marchus was doing his duty as a law enforcement officer when he arrested Hoverson eight times for driving under suspension.

[¶ 5] A jury found Hoverson guilty of unlawful delivery of a controlled substance. After considering the sentencing factors in N.D.C.C. § 12.1-32-04, the district court sentenced Hoverson to ten years in the State Penitentiary, with four years suspended, and five years of supervised probation.

II

[¶ 6] Hoverson argues the district court erred in not dismissing the prosecution based upon outrageous government conduct or the court’s supervisory powers. Hoverson argues Agent Marchus’ conduct, specifically his involvement in Hoverson’s eight arrests and the comments he made to Hoverson, constituted harassment and stalking and deprived him of due process.

[¶ 7] An argument for outrageous government conduct usually arises in cases where government agents have been involved in sting operations and is used in place of an entrapment defense. See United States v. Kummer, 15 F.3d 1455, 1459-60 (8th Cir.1994). The defense is reserved only for “the most intolerable government conduct.” United States v. Musslyn, 865 F.2d 945, 947 (8th Cir.1989). “Government conduct is not outrageous simply because it may be somewhat offensive.” Id. In order to succeed with an outrageous government conduct defense, the defendant must show that the government’s conduct is “so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). The level of outrageous conduct necessary to prove a due process violation is quite high and must shock the conscience of the court. Id. The outrageous government conduct argument is usually used in place of an entrapment defense and it is extremely rare to conclude that a defendant’s due process rights were violated by the government’s outrageous conduct. United States v. Berg, 178 F.3d 976, 980 (8th Cir.1999) (stating the United States Supreme Court and the Eighth Circuit Court of Appeals have yet to see a case where the government’s conduct rose to that level). Whether the government’s conduct is so outrageous that it bars prosecution is a question of law, fully reviewable on appeal. Musslyn, at 947.

[¶ 8] The government conduct in this case is not so outrageous that due process principles absolutely bar the government from invoking judicial processes to obtain a conviction. Agent Marchus was involved to some degree in all eight of Hoverson’s prior arrests for driving under suspension. In each case, Hoverson was arrested on valid charges after Agent Mar-chus witnessed him engaging in illegal activity. Agent Marchus witnessed Hover-son violating the law and had a duty as a law enforcement officer to uphold and enforce the law by arresting Hoverson for the illegal acts. Although some of Agent Marchus’ statements to Hoverson were inappropriate and unprofessional, we conclude Agent Marchus’ conduct does not rise to the level of outrageous government conduct that would bar this prosecution. We reject Hoverson’s due process claims.

Ill

[¶ 9] Hoverson argues he was severely prejudiced when the court refused to allow him to cross examine the confidential informant regarding the underlying details of the informant’s prior theft conviction and other specific instances of conduct not resulting in a conviction.

[¶ 10] During trial, Hoverson asked the district court to allow him to cross examine the confidential informant regarding his past convictions, including a 1997 felony conviction for failure to appear and a 2004 theft of property conviction. The court admitted evidence of the felony conviction for failure to appear under N.D.R.Ev. 609(a)(i), concluding the probative value of the conviction was not substantially outweighed by the unfair prejudicial effect. The court also admitted evidence of the theft of property conviction under N.D.R.Ev. 609(a)(ii) after looking at the underlying facts of the conviction and concluding that it involved dishonesty or deceit. The court allowed Hoverson to cross-examine the informant about those convictions, but limited questioning to the name of the crime, the time and place of the conviction, and the punishment. Hov-erson asked the court to allow him to cross examine the confidential informant regarding the underlying facts of the theft of property conviction under N.D.R.Ev. 608(b). The court denied Hoverson’s request, concluding it circumvented the limitations imposed by Rule 609.

[¶ 11] Hoverson also sought to cross examine the confidential informant regarding allegations that the informant stole a car and broke into a house. Hoverson argued N.D.R.Ev. 608(b) allows questioning of specific instances of conduct not resulting in a conviction. The court denied Hoverson’s requests, concluding the confidential informant could not be questioned about those instances of conduct because they were mere allegations and did not result in a conviction. The court also concluded that theft of a vehicle and breaking into a house were not probative of truthfulness or untruthfulness.

A

[¶ 12] A witness’s character for truthfulness may be impeached through cross examination regarding specific instances of conduct under N.D.R.Ev. 608(b), or through evidence of a conviction under NJD.R.Ev. 609(a).

[¶ 13] Rule 608(b), N.D.R.Ev., governs the admissibility of evidence of specific instances of conduct by a witness for impeachment purposes and states:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ character for truthfulness, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. However, in the discretion of the court, if probative of truthfulness or untruthfulness, they may be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness ...

A court has discretion to permit cross examination of a witness regarding specific instances of conduct under N.D.R.Ev. 608(b), and we review the court’s decision under the abuse of discretion standard. State v. Moran, 474 N.W.2d 77, 78 (N.D.1991). “A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned decision, or it misinterprets or misapplies the law.” State v. Hernandez, 2005 ND 214, ¶ 8, 707 N.W.2d 449.

[¶ 14] Rule 609(a), N.D.R.Ev., governs the admissibility of evidence of prior convictions for impeachment purposes and states:

For the purpose of attacking the credibility of a witness, (i) evidence that a witness other than an accused has been convicted of a crime must be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime must be admitted if the court determines that the probative value of admitting that evidence outweighs its prejudicial effect to the accused; and (ii) evidence that any witness has been convicted of a crime must be admitted if it involved dishonesty or false statement, regardless of the punishment.

Under N.D.R.Ev. 609, a court has discretion to permit a party to impeach a witness through use of a felony conviction; however, if the court determines the conviction involves dishonesty or a false statement, the evidence is automatically admissible. State v. Eugene, 340 N.W.2d 18, 30-31 (N.D.1983).

[¶ 15] Hoverson argues the district court erred when it precluded him from cross examining the confidential informant regarding the underlying facts of the theft conviction. The court determined the confidential informant’s prior theft conviction was admissible under N.D.R.Ev. 609(a)(ii), finding the theft involved dishonesty or deceit based upon the underlying facts of the crime. The court limited Hoverson’s questioning under N.D.R.Ev. 609(a)(ii) to the name, date, place, and punishment of the crime. Hoverson argues the district court abused its discretion in refusing to allow him to cross examine the confidential informant under N.D.R.Ev. 608(b) regarding the underlying facts of the theft conviction.

[¶ 16] Admissibility of a prior conviction under Rule 609(a)(ii) is limited to “crimes that bear directly upon the accused’s propensity to testify truthfully, that is, ‘crimes that involve some element of misrepresentation or other indicium of a propensity to lie and not to those crimes which, bad though they are, do not carry with them a tinge of falsification.’ ” Eugene, 340 N.W.2d at 32 (quoting United States v. Ortega, 561 F.2d 803, 805-06 (9th Cir.1977)). Although theft of property is not generally considered a crime of dishonesty or deceit, this Court has recognized that if a prior conviction is not included under Rule 609(a)(ii) by its definition, it may fall under the automatic admissibility provision if the underlying facts of the conviction involve dishonesty or a false statement. Eugene, 340 N.W.2d at 32.

[¶ 17] In this case, the district court concluded the confidential informant’s prior theft of property conviction involved deceit or dishonesty, because he stole from his employer by writing checks and making charges in the name of the employer, knowing he was not authorized to make them. Hoverson adequately showed that the confidential informant’s conviction for theft of property is a crime that qualifies for impeachment under Rule 609(a)(ii), and the court’s decision to allow cross examination of the confidential informant regarding the theft of property conviction was appropriate. However, the court limited Hoverson’s cross examination of the confidential informant regarding that prior theft of property conviction to the name of the crime, the time and place of the conviction, and the punishment.

[¶ 18] This Court has previously held that the scope of the inquiry under Rule 609(a) is limited, “ ‘[w]e are of the opinion that for the purpose of impeachment the most reasonable practice ... minimizing prejudice and distraction, is that beyond the name of the crime, the time and place of conviction, and the punishment, further details may not be inquired into.’ ” Dugas v. Felton, 249 N.W.2d 215, 217 (N.D.1976) (quoting McCormick, Evidence § 43, at 92-93 (1954)). Both Rules 608 and 609 are substantially derived from the corresponding federal rules and when interpreting them, it is appropriate to consider the federal courts’ construction and interpretation of the Federal Rules, although we are not bound by their decisions. Eugene, 340 N.W.2d at 31.

[¶ 19] In some cases, federal courts have allowed cross examination of a witness under Fed.R.Evid. 608(b) regarding the facts underlying a conviction. See, e.g., Elcock v. Kmart Corp., 233 F.3d 734, 751-754 (3d Cir.2000). In affirming a trial court’s decision to allow cross examination under Fed.R.Evid. 608(b) of the underlying facts of a conviction to which a defendant pled guilty, the Sixth Circuit Court of Appeals explained:

the statutory name of the offense to which a defendant pleads guilty is rarely informative, and often misinformative, about the nature of the offense to which guilt is acknowledged as the plea allocation. It is often appropriate, indeed necessary, if the fact finder is to be able to evaluate the significance of the prior conviction to the witness’ credibility, that some details of the truthfulness-related offense be described.

United States v. Hurst, 951 F.2d 1490, 1501 (6th Cir.1991).

[¶ 20] That rationale is applicable to convictions where the court looks at the underlying facts and concludes evidence of a prior conviction is admissible under Rule 609(a)(ii). We conclude that under Rule 608(b), it is within the discretion of the court whether to allow cross examination of a witness regarding the underlying facts of a conviction if probative of truthfulness or untruthfulness. In cases where the court looks to the underlying facts to determine if the crime involves dishonesty or deceit, the facts underlying the conviction may explain the crime in a more accurate and complete manner and cross examination may be more probative of untruthfulness than a simple reference to the name of the crime.

[¶ 21] When exercising its discretion whether to allow this type of questioning under Rule 608(b), a court must also consider N.D.R.Ev. 403 and 611. See Elcock, 233 F.3d at 753. Rule 403 provides, “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Rule 611 requires the court “exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to ... (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.”

[¶ 22] The cases in which a court may allow cross examination of a witness regarding the underlying facts of a conviction are strictly limited to those cases where the court looks to the underlying facts of the conviction to determine whether evidence of the conviction is admissible under N.D.R.Ev. 609(a)(ii). Allowing cross examination of a witness under Rule 608(b), regarding the underlying facts of a Rule 609(a)(ii) conviction should be used cautiously. In these cases, the court should keep the questioning narrow and brief, limiting it to that which bears directly on the witness’s truthfulness or untruthfulness. See Hurst, 951 F.2d at 1501. The court should consider issuing a cautionary instruction to the jury immediately following the questioning, informing the jury that the evidence bears solely on the issue of the witness’s credibility and should be considered only for that purpose. Id. The court should also keep in mind that Rule 608 and 609 are exceptions to Rule 404, which is the general prohibition against the use of character evidence to prove conduct. N.D.R.Ev. 404(a)(3).

[¶ 23] Here, the district court properly admitted evidence of the confidential informant’s theft of property conviction under Rule 609(a)(ii). Under Rule 608(b), the court had discretion to permit limited cross examination of the confidential informant on the specific acts of misconduct underlying his theft of property conviction to impeach his character for truthfulness. The court denied Hover-son’s request to cross examine the confidential informant on the specific acts of misconduct underlying that conviction, concluding Hoverson’s request circumvented the limitations imposed by Rule 609. We conclude the court misinterpreted the interplay between Rule 608 and 609 and therefore, erred as a matter of law when it failed to exercise its discretion in deciding whether to allow this type of cross examination. If the court had correctly applied the Rules, exercised its discretion and still not allowed cross examination, we would have reviewed the court’s decision under the abuse of discretion standard. However, the court did not exercise its discretion, therefore, we must examine whether its error of law affected the substantial rights of Hoverson. We conclude the court’s narrow application of Rule 608(b) was harmless.

[¶ 24] Under N.D.R.Crim.P. 52(a), “[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” The harmless error doctrine “ ‘serves a very useful purpose insofar as [it] blocks setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial.’ ” Neder v. United States, 527 U.S. 1, 19, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (quoting Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). To determine if an error was harmless, we review the entire record and evaluate the error in the context of the circumstances in which it was made to determine if substantial injury occurred as a result and whether a different verdict would have resulted without the error. See State v. Schimmel, 409 N.W.2d 335, 339 (N.D.1987).

[¶ 25] When initially discussing the confidential informant’s theft of property conviction, the district court said:

You are basically lying to your employer about what you are doing to his property and I think that is a crime that involves dishonesty and deceit. Some inquiry into that would be allowed. However, I don’t want this to turn into a criminal trial for that so I think the State’s point is well taken, that the only thing that we get into is the fact of the conviction and what the conviction was for.

The court could have reasonably concluded the underlying facts of the confidential informant’s theft of property conviction were too prejudicial or would have resulted in a waste of time under N.D.R.Ev. 403. However, the court later concluded it did not have that discretion.

[¶ 26] Moreover, although the confidential informant was the prosecution’s main witness and his credibility was an issue, abundant evidence was presented to the jury to judge his credibility. The confidential informant was cross examined regarding two prior convictions, one felony for failure to appear and one misdemeanor for theft of property. Hoverson cross examined the confidential informant regarding the name, date and place, and sentence for these convictions, including that the confidential informant served thirty days in jail and was required to pay $1,600 in restitution to the victim for the theft of property conviction. There was also opinion testimony from other people who knew the confidential informant and considered him untruthful. The jury heard a conversation between Hoverson and the confidential informant in which the confidential informant discussed having someone else get a liquor license in his or her name so the confidential informant could use the license. Law enforcement officers also testified that the confidential informant had been paid for his role in the controlled buy. The information presented to the jury was sufficient to determine the confidential informant’s credibility, and additional information regarding the underlying facts of the theft of property conviction would have had very little impact on the jury’s decision.

[¶ 27] We must also consider the strength of the evidence supporting the conviction. See State v. Demery, 331 N.W.2d 7, 12 (N.D.1983). Law enforcement officers testified about the procedure they used during the controlled buy. This included evidence of a thorough search of the confidential informant and his vehicle before the buy occurred and evidence that a wireless microphone was placed on the confidential informant so law enforcement could listen to the entire transaction. Officers followed the confidential informant’s vehicle to Hoverson’s automotive shop and they conducted surveillance of the area while the purchase was taking place. Videotape shot from a helicopter showed the confidential informant arriving at the shop. During the controlled purchase, officers listened to and recorded the entire conversation between the confidential informant and Hoverson. After the purchase, the confidential informant left the building and drove to a nearby location to meet the officers, where his person and vehicle were searched a second time.

[¶ 28] Although the district court’s application of Rule 608(b) to the confidential informant’s theft of property conviction was too narrow, we believe allowing cross examination of the confidential informant regarding the underlying facts of his theft of property conviction would have had very little impact upon the jury’s verdict. We therefore conclude the error was harmless and does not constitute grounds for reversing Hoverson’s conviction.

B

[¶ 29] Hoverson argues the district court erred in precluding him from cross examining the confidential informant under N.D.R.Ev. 608(b) about specific instances of conduct not resulting in conviction. The court concluded that mere allegations of a crime cannot be used to impeach a witness and that the crimes alleged to have been committed by the confidential informant were not probative of his truthfulness or untruthfulness. Hoverson argues the court abused its discretion.

[¶ 30] This Court has said, “it is well-established that mere accusations of a crime cannot be used to impeach the credibility of a witness.” State v. Hilsman, 333 N.W.2d 411, 412 (N.D.1983) (citing State v. Glavkee, 138 N.W.2d 663 (N.D.1965); United States v. Kirk, 496 F.2d 947 (8th Cir.1974); and C.J.S. Witnesses § 515 (1957)). Although Hilsman was decided after adoption of the rules of evidence, the eases it cited as authority for this “well-established” rule pre-date the Federal Rules of Evidence, adopted January 2, 1975, and the North Dakota Rules of Evidence, effective February 15,1977.

[¶ 31] Prior to the adoption of N.D.R.Ev. 608(b), many courts endorsed a “conviction only” rule. 3 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 264, at 153 (2d ed.1994). Rule 608(b), Fed. R. Ev., was adopted to address when a witness’s credibility can be impeached using specific instances of conduct not resulting in a conviction and changed the prior well-established rule. The Advisory Committee note to Rule 608(b) explains:

Effective cross-examination demands that some allowance be made for going into matters of this kind, but the possibilities of abuse are substantial. Consequently safeguards are erected in the form of specific requirements that the instances inquired into be probative of truthfulness or its opposite and not remote in time. Also, the overriding protection of Rule 403 requires that probative value not be outweighed by danger of unfair prejudice, confusion of issues, or misleading the jury, and that of Rule 611 bars harassment and undue embarrassment.

See Fed.R.Evid. 608 advisory committee’s notes (remoteness in time was later deleted as being unnecessary and confusing). Rule 608, N.D.R.Ev., was adopted from Fed.R.Evid. 608, to allow impeachment of a witness’s credibility through specific instances of conduct not resulting in a conviction, replacing the prior well-established legal precedent.

[¶ 32] Here, the district court concluded that mere allegations of a crime cannot be used to impeach a witness and that the allegations of breaking and entering and stealing a car were not probative of the confidential informant’s truthfulness or untruthfulness. To the extent the court refused to allow Hoverson to cross examine the confidential informant about specific instances of conduct not resulting in a conviction, the court’s application of Rule 608(b) was too narrow. However, the district court also refused to allow Hoverson to cross examine the confidential informant regarding the specific instances of conduct because the court concluded they were not probative of the confidential informant’s truthfulness or untruthfulness under Rule 608(b). This was a proper application of the rule and we conclude the court’s decision was not arbitrary, unreasonable, or unconscionable, and the court therefore did not abuse its discretion.

IV

[¶ 33] In challenging the district court’s sentence, Hoverson argues the court relied on an impermissible factor of unproven conduct when the court considered evidence that Hoverson was engaged in an ongoing drug enterprise.

[¶ 34] Appellate review of criminal sentencing is limited to determining whether the court acted within the temporal limits prescribed by statute, or substantially relied on an impermissible factor. State v. Bell, 540 N.W.2d 599, 601 (N.D.1995). A court is allowed the widest range of discretion in sentencing, and we will vacate a sentencing decision only if the court “ ‘substantially relied on an impermissible factor in determining the severity of the sentence.’” Id. (quoting State v. Cummings, 386 N.W.2d 468, 469 (N.D.1986)).

[¶ 35] This Court has held that a sentencing court may not rely upon an impermissible factor to determine the severity of the sentence, such as a pending criminal charge or a prior conviction resulting from an uncounseled guilty plea without evidence that the right to counsel was waived. State v. Orr, 375 N.W.2d 171, 178-179 (N.D.1985) (uncounseled guilty plea without waiver of counsel); State v. Smith, 238 N.W.2d 662, 673 (N.D.1976) (pending criminal charge).

[¶ 36] In Orr, the sentencing court enhanced the statutory limits for the defendant’s term of imprisonment based upon a prior uncounseled guilty plea for driving under the influence. Orr, 375 N.W.2d at 177-79. The increase in sentencing was based on the consideration that a second crime is more serious and requires a harsher punishment and therefore the statutory limits within which the sentence is determined increase. Id. at 177. The Court concluded an uncounseled conviction, without a valid waiver of the right to an attorney, is too unreliable to base enhancement of a term of imprisonment for a subsequent offense. Id. at 178-79. The issue in Orr was not whether the sentencing court relied upon an impermissible factor in sentencing the defendant within the statutory limits, but whether the statutory limits were enhanced based upon a prior uncounseled conviction.

[¶ 37] In Smith, the sentencing court discussed the defendant’s pending criminal charges, but concluded it could not increase the defendant’s prison sentence based upon a pending charge. Smith, 238 N.W.2d at 671. Smith argued the district court violated his constitutionally protected right to trial by jury on the pending charge. Id. This Court concluded the district court did not consider the pending charge, but if it had it would be an impermissible factor. Id. at 672-73.

[¶ 38] In this case, the district court considered the sentencing factors set out in N.D.C.C. § 12.1-32-04. In considering whether Hoverson made restitution to the victim under N.D.C.C. § 12.1-32-04(6), the court said:

If we look at just this case, that’s not a factor but if I think I can make the leap of faith that in fact you engaged in an ongoing enterprise of sale of methamphetamine the way this stuff is packaged, and information that came in to the jury that this person had bought meth from you before and knew that you were one who sold meth. There may be a lot of damage to the community out there that we don’t know about. I think I can take that into account.

Hoverson contends the district court relied on unproven conduct, which he argues is similar to a pending criminal charge or an uncounseled guilty plea and should also be considered an impermissible factor. We disagree.

[¶ 39] This Court has held a sentencing court may make reasonable inferences based upon evidence presented at trial, and those inferences may be a factor the court considers in setting the defendant’s sentence within the statutory limit. See State v. Steinbach, 1998 ND 18, ¶ 24-26, 575 N.W.2d 193; Bell, 540 N.W.2d at 601.

[¶ 40] In Steinbach, the court heard evidence that the victim was abused by the defendant on multiple occasions over the course of their relationship up until the victim’s murder. Steinbach, 1998 ND 18, ¶ 25, 575 N.W.2d 193. The court considered that evidence along with nine other factors during sentencing. Id. at ¶ 26. This Court held Steinbach failed to demonstrate the district court substantially relied upon an impermissible factor during sentencing. Id.

[¶ 41] In Bell, the court was presented with evidence including photographs and clothing suggesting Bell planned and prepared for his encounters with young girls, and other evidence that indicated Bell tried to enter the home of two other young girls who lived nearby. Bell, 540 N.W.2d at 601. During sentencing the prosecutor called Bell a predator; Bell argued the court used that factor to support the sentence. Id. at 600. This Court held the evidence presented supported a reasonable inference that Bell was preying on young girls, and that reasonable inference was not an impermissible factor. Id. at 601.

[¶ 42] The Bell and Steinbach sentencing courts relied on evidence in the record and made reasonable inferences based upon that evidence. The sentencing courts heard testimony and were able to judge the reliability and credibility of the evidence the court used as the basis for its inferences. It is this distinction that separates these cases from Smith. This is not a sentence enhancement case like Orr, but is a case like Bell and Steinbach where the court relied on evidence admitted during the trial. The district court considered the evidence presented during the trial, including the confidential informant’s testimony that he and Hoverson used a code to speak about drug transactions, inferring that the two had engaged in drug transactions in the past. Other evidence included the packaging of the methamphetamine in a small ziplock bag decorated with dollar bill signs. Based on this evidence, the court determined Hoverson was engaged in an ongoing enterprise of selling drugs. This was a reasonable inference based upon the evidence in the record and was a factor the court could consider during sentencing. The court also considered at least seven other factors in sentencing Hoverson, all of which are listed in N.D.C.C. § 12.1-32-04.

[¶ 43] Hoverson’s sentence was within the range of sentences for a Class A Felony. See N.D.C.C. §§ 19-03.1-23 and 12.1-32-01. He has failed to show the district court substantially relied upon an impermissible factor in sentencing.

V

[¶ 44] We conclude: (1) Agent Mar-chus’ conduct was not so outrageous as to bar prosecution of Hoverson; (2) the district court interpreted Rule 608(b) too narrowly when it denied Hoverson’s request to cross examine the confidential informant about the facts of the theft of property conviction, but the error was harmless; (3) the district court did not abuse its discretion in denying Hoverson the right to impeach the confidential informant through cross examination of specific instances of conduct; and (4) the district court did not rely upon an impermissible factor in sentencing Hoverson. We affirm the amended criminal judgment.

[¶ 45] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ, concur.