text:
    2004 ND 77
    STATE of North Dakota, Plaintiff and Appellee v. Robert L. BUCHHOLZ, Defendant and Appellant.
    No. 20030275.
    Supreme Court of North Dakota.
    April 13, 2004.
    Rehearing Denied May 5, 2004.

      Terry W. Elhard, State’s Attorney, Ashley, N.D., for plaintiff and appellee.
    Donavin L. Grenz, Linton, N.D., for defendant and appellant.
    Robert P. Bennett, Assistant Attorney General, Bismarck, N.D., for the Attorney General.
   NEUMANN, Justice.

[¶ 1] Robert L. Buchholz appealed from a judgment entered upon a jury verdict finding him guilty of gross sexual imposition. We hold Buchholz waived review of issues about references at trial to other alleged wrongful acts by him, the statute of limitations did not bar the prosecution, the State did not violate a sequestration order, and Buchholz waived his right to receive an adult sexual offender evaluation more than ten days before sentencing. We affirm.

I

[¶ 2] In October 2002, the State charged Buchholz with gross sexual imposition under N.D.C.C. § 12.1-20-03(2), for allegedly engaging in sexual contacts between June 14, 1985, and December 31, 1991, with his stepdaughter, who was less than fifteen years old when the contacts were alleged to have occurred. The complainant was born in 1979. She testified Buchholz engaged in two separate instances of sexual contact with her when she was eleven or twelve years old, and he also frequently entered her bedroom during the night and fondled her breasts. According to the complainant, she had tried to forget about the incidents, but she decided to report them to law enforcement officials more than ten years later in October 2002, when her twelve-year-old half-sister returned home from a scheduled visitation with Buchholz with a hickey. Buchholz denied sexual contact with the complainant. He claimed the complainant was not credible because she “hated” him.

[¶ 3] A jury found Buchholz guilty of gross sexual imposition. At sentencing, Buchholz moved for a stay of execution, judgment of acquittal, new trial, arrest of judgment, and post-conviction relief. The court denied Buchholz’s motions, and he appealed from the judgment of conviction.

II

[¶ 4] On appeal from the judgment of conviction, Buchholz argues the trial court erred in denying his motion to suppress evidence of other alleged wrongful acts and in permitting prosecution witnesses to testify about the alleged wrongful acts. He claims the court erred in allowing the admission of evidence that he was responsible for a hickey on his daughter’s neck during her scheduled visitation with him in October 2002. He argues the court ignored its obligations under N.D.R.Ev. 404(b) and 403, and the State’s “true motive” in using that evidence was to inflame and prejudice the jury. He also argues the court refused to give a limiting jury instruction on that evidence.

[¶ 5] In a pretrial motion, Buchholz sought to suppress “all testimony, references, allegations and other evidence pertaining to an incident wherein” he was alleged to have given his daughter a hickey and “all testimony, references, allegations and other evidence” pertaining to incidents where he observed a stepdaughter from his second marriage while she was nude or in a partially-clad condition. Buchholz argued the evidence was not admissible under N.D.R.Ev. 404(b) and 403. The State argued evidence about the hickey was admissible under N.D.R.Ev. 404(b) to establish the complainant’s motive for reporting the allegations of gross sexual imposition to law enforcement authorities in October 2002, after waiting more than ten years.

[¶ 6] The trial court issued a pretrial order denying Buchholz’s motion to suppress. The court recognized evidence of other crimes, wrongs, or acts was generally not admissible to prove the character of a person, but may be admissible for other purposes and concluded “any ruling by the Court would be premature.” During trial, Buchholz did not object to any references to, or testimony about, the hickey, and the trial court did not have an opportunity to rule on that evidence under the requirements of N.D.R.Ev. 404(b) and 403. See State v. Christensen, 1997 ND 57, ¶ 7, 561 N.W.2d 631 (stating admissibility of evidence of prior bad acts subject to three-prong requirement under N.D.R.Ev. 404(b) and to balancing analysis under N.D.R.Ev. 403); State v. Micko, 393 N.W.2d 741, 744-45 (N.D.1986) (same).

[¶ 7] In State v. Bell, 2002 ND 130, ¶ 9, 649 N.W.2d 243, we said:

A touchstone for an effective appeal on any proper issue is that the matter was appropriately raised in the trial court, so the trial court could intelligently rule on it. State v. Freed, 1999 ND 185, ¶ 13, 599 N.W.2d 858. In Freed, we explained under Rule 103(a)(1), N.D.R.Ev., “error may not be predicated upon a ruling which admits ... evidence unless a substantial right of the party is affected, and ... a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context.” Id. A party must object at the time the alleged error occurs, so the trial court may take appropriate action if possible to remedy any prejudice that may have resulted. City of Fargo v. Erickson, 1999 ND 145, ¶ 22, 598 N.W.2d 787 (Sandstrom, J., concurring). Failure to object acts as a waiver of the claim of error. Id.

[¶ 8] In State v. Anderson, 2003 ND 30, ¶ 7, 657 N.W.2d 245, a trial court denied a defendant’s motion in limine to exclude letters written by the defendant to the victim. At trial, the State offered two letters into evidence without objection by the defendant. Id. We held the defendant had failed to preserve the issue about the admissibility of the letters, stating:

A motion in limine seeking an evidentia-ry ruling must be'decided without the benefit of evaluating the evidence in the context of trial. A renewed objection at the time the evidence is offered focuses the court on the objection in the trial context at which time both the relevance and the potential for prejudice will be more discernible. A failure to object at trial “acts as a waiver of the claim of error.”

Id.

[¶ 9] Here, the trial court denied Buchholz’s pretrial motion to suppress evidence about the hickey, stating “any ruling by the Court would be premature.” The court’s decision contemplated reconsideration of the issue when it was presented in the context of the trial. However, Buch-holz did not object to any references to the hickey at trial and did not provide the trial court with an opportunity to rule on the issue in the context of the trial. See Anderson, 2003 ND 30, ¶7, 657 N.W.2d 245. A party must object when the alleged error occurs at trial so the, court can take appropriate action, if possible, to remedy any prejudice that may have resulted. Id. We conclude Buchholz’s ’ failure to object at trial operates as a waiver of any claimed error about the hickey.

[¶ 10] Buchholz claims the trial court ■ also allowed the jury to hear evidence he had “peeked” at other girls and observed a stepdaughter while she was nude or in a partially-clad condition. However, the evidence referred to by ■Buchholz' was elicited without objection during his cross-examination of witnesses. Buchholz neither objected, nor moved to strike the references to that evidence. See N.D.R.Ev. 103(a)(1) ■ (“Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and ... [i]n case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection.”). See also State v. Sievers, 543 N.W.2d 491, 495 (N.D.1996). Buchholz cannot claim error for evidence he elicited without objection during cross-examination of witnesses.

[¶ 11] Buchholz claims the trial court refused to instruct the jury on its consideration of evidence about other alleged wrongful acts. Buchholz did not request an instruction on this issue in his requested jury instructions submitted to the court before trial. During discussions about jury instructions at trial, Buchholz asked the court to instruct the jury regarding its “consideration of alleged other acts” without proffering a specific instruction. The court granted Buchholz until the conclusion of testimony to provide the court with an instruction on that issue. When the court subsequently asked Buch-holz for an instruction on that issue, he could not “find it and locate it at this point in time,” and the court did not instruct the jury on that issue, stating “the instructions will stand as presented.”

[¶ 12] In State v. Olson, 356 N.W.2d 110, 114 (N.D.1984), this Court said:

although the trial court may be required to present general jury instructions concerning the issues without request from counsel, “attorneys have the professional responsibility to request or object to specific instructions of points of law resulting from testimony or on developments during trial, . Rule 30, N.D.R.Crim.P.” State v. Allery, 322 N.W.2d 228, 232, n. 3 (N.D.1982).
If a defendant desires more comprehensive instructions on any phase of the case, he must submit written instructions with the request that they be given. State v. Bowe, 57 N.D. 89, 220 N.W. 843 (1928). If a party fails to make such a request he cannot predicate error upon omissions in the charge given.

Buchholz’s failure to submit a proposed instruction precludes him from claiming error for the failure to instruct on this issue.

[¶ 13] By failing to properly raise these issues about other alleged wrongful acts at trial, Buchholz has failed to preserve these issues for our review unless they are obvious error. We exercise our power to notice obvious error cautiously and only in exceptional situations in which a defendant has suffered a serious injustice. State v. Freed, 1999 ND 185, ¶ 14, 599 N.W.2d 858; State v. Olander, 1998 ND 50, ¶ 12, 575 N.W.2d 658. We conclude this is not such a case.

Ill

[¶ 14] Buchholz raises several issues regarding the statute of limitations. He argues the trial court erred in applying the statute of limitations in N.D.C.C. § 29-04-03.1, which, as amended in 1993, provides:

A prosecution for violation of sections 12.1-20-03 through 12.1-20-08 or of section 12.1-20-11, where the victim was under eighteen years of age at the time the offense was committed must be commenced in the proper court within seven years after the commission of the offense or, if the victim failed to report the offense within this limitation period, within three years after the offense was reported to law enforcement authorities.

[¶ 15] In State v. Davenport, 536 N.W.2d 686, 687 (N.D.1995), this Court traced the relevant history of statute of limitations for felony allegations of sexual contact with a person under the age of fifteen:

[Before 1985] the applicable statute of limitations barred prosecution of felonies generally after three years. NDCC 29-04-02. In 1985, the legislature enacted NDCC 29-04-03.1 that established a seven-year limitation for sexual offenses against a minor victim in a “familial relationship” with the offender. 1985 N.D. Laws ch. 359, § 1. In 1987, the legislature amended NDCC 29-04-03.1 by removing the requirement of a “familial relationship” and by establishing a seven-year limitation for sexual offenses against any victim under the age of eighteen. 1987 N.D. Laws ch. 390, § 3. The 1987 legislature also enacted NDCC 29-04-03.2 directing that, if the victim of the sexual offense was under age fifteen, the limitation period does not begin until the victim reaches the age of fifteen. 1987 N.D. Laws ch. 391, § 1. Finally, the 1993 legislature again amended NDCC 29-04-03.1, in 1993 N.D. Laws ch. 331, § 1, to direct that prosecution for sexual offenses against victims under the age of eighteen must be commenced within seven years after the offense, “or, if the victim failed to report the offense within this limitation period, within three years after the offense was reported to law enforcement authorities.”

[¶ 16] In Davenport, 536 N.W.2d at 687-88, this Court cited State v. Thill, 468 N.W.2d 643, 647 n. 8 (N.D.1991) and State v. Pleason, 56 N.D. 499, 503, 218 N.W. 154, 155 (1928), for the principle that a law that extends a statute of limitations, or provides a new method for tolling the statute, may be applied immediately to all crimes for which the limitation period has not expired under prior law. See Stogner v. California, 539 U.S. 607, 123 S.Ct. 2446, 2461, 156 L.Ed.2d 544 (2003) (holding California statute enacted after expiration of previously applicable statute of limitations violated ex post facto clause when newly-enacted statute revived a previously time-barred prosecution). In Davenport, at 689, a majority of this Court held the Legislature intended retroactive application of each extension of the relevant statute of limitations for existing offenses for which the statute of limitations had not expired under the prior law.

[¶ 17] Here, the State charged Buch-holz with gross sexual imposition for acts allegedly occurring between June 14, 1985, and December 31, 1991, and the complainant testified the sexual contacts occurred when she was eleven or twelve, which was in 1990 or 1991. Under Davenport, the statute of limitations against Buchholz had not expired when the Legislature amended N.D.C.C. § 29-04-03.1 in 1993. We therefore conclude the trial court did not err in applying the 1993 version of N.D.C.C. § 29-04-03.1 to the claims against Buch-holz.

[¶ 18] Buchholz argues the application of the 1993 version of N.D.C.C. § 29-04-03.1 to conduct allegedly occurring in 1990 or 1991 violates the ex post facto clause. He argues this Court’s decision in Davenport should be overruled. However, because there was no time when the statute of limitations against Buchholz had expired, he has no ex post facto claim regarding application of the 1993 version of N.D.C.C. § 29-04-03.1 to acts occurring in 1990 or 1991. See Stogner, 123 S.Ct. at 2453-61 (citing Davenport for principle that extension of existing statute of limitations is not ex post facto violation and holding law enacted after expiration of previously applicable limitations period violates ex post facto clause when that law is applied to revive a previously time-barred prosecution). Moreover, the Legislature has not amended the relevant language of N.D.C.C. § 29-04-03.1 since this Court’s 1995 decision in Davenport, and the Legislature’s acquiescence is evidence Davenport is consistent with Legislative intent. See Western Nat’l Mut. Ins. Co. v. University of North Dakota, 2002 ND 63, ¶ 51, 643 N.W.2d 4. We decline Buehholz’s invitation to overrule Davenport.

[¶ 19] Buchholz claims he was entitled to a jury instruction on the statute of limitations because the complainant testified she had reported the allegations to friends when she was fifteen or sixteen years old. We have said a defendant is entitled to a jury instruction on the statute of limitations if there are issues of fact concerning whether the applicable statute of limitations has run. State v. Hersch, 445 N.W.2d 626, 634 (N.D.1989). However, N.D.C.C. § 29-04-03.1 says “if the victim failed to report the offense within [seven years after the commission of the offense],” the action must be commenced “within three years after the offense was reported to law enforcement authorities.” There was no evidence the complainant reported the incidents to law enforcement authorities until October 2002. Under these circumstances, there were no issues of fact about whether the applicable statute of limitations had run, and the trial court did not err in refusing to instruct the jury on that issue.

[¶ 20] Buchholz argues he was denied his right to a speedy and fair trial by the application of the 1993 version of N.D.C.C. § 29-04-03.1. However, the constitutional right to a speedy trial does not attach until a person becomes an accused, and “ ‘it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge’ that activates the speedy trial provision of the Sixth Amendment.” State v. Denny, 350 N.W.2d 25, 27 (N.D.1984) (quoting United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)). Buchholz was not charged with gross sexual imposition until 2002, and the prosecution against him did not violate his right to a speedy trial.

[¶ 21] To the extent Buchholz suggests preaccusatory delays in this prosecution violate his right to due process, he has not shown actual prejudice and intentional delay by the State to gain some tactical advantage over him or to harass him. See United States v. Lovasco, 431 U.S. 783, 790-96, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); Marion, 404 U.S. at 324-26; Denny, 350 N.W.2d at 27-29. See also Stoner v. Graddick, 751 F.2d 1535, 1540-47 (11th Cir.1985); State v. Gray, 917 S.W.2d 668, 673 (Tenn.1996); Story v. State, 721 P.2d 1020, 1026-29 (Wyo.1986).

IV

[¶ 22] Buchholz argues the trial court’s refusal to impose sanctions against the State for violating a sequestration order denied him due process and a fair trial. Before trial, the court issued a general order requiring sequestration of witnesses. After the first day of trial, the prosecutor simultaneously met in his office with the complainant and a high school friend of the complainant. At that time, neither the complainant nor her friend had testified. The complainant’s friend essentially testified that, during high school, the complainant had told her about the incidents with Buchholz. Buchholz moved to dismiss the prosecution against him on the ground the State had violated the court’s sequestration order. In response to the trial court’s inquiry about what had transpired during his meeting with the witnesses, the prosecutor said he questioned the witnesses in the presence of each other about issues before the court and:

I guess the reason I called [the complainant] in, yesterday in [Buchholz’s] opening statement he mentioned something about she said this happened in 1994, and I wanted to clarify with her on this thing, what happened in 1994. I know it didn’t happen in 1994. And it was I think the fact that they moved ... in 1994, that’s what happened there. And nothing that Mr. Buchholz — he didn’t do anything in 1994. Let’s see. I did ask — I did ask — I didn’t get into the detail we got into today with [the complainant’s friend] as to what, you know, what happened with her dad. She told me he went to prison.

The trial court denied Buchholz’s motion to dismiss, ruling:

I’m satisfied, first of all, that the testimony of the [complainant’s friend] is offered as corroboration for the statements and disclosure, as opposed to the truth of the matter or as a witness to the event. And, accordingly, while I do believe there is a technical violation of the sequestration order because it occurred during the time period of the trial, that the Court has had the opportunity to listen to the direct testimony of each of the two witnesses and is satisfied that the discussion held did not reflect in a mirror image by one witness to that of the other. The motion to dismiss on the basis of the violation of the sequestration order is denied.

[¶ 23] Rule 615, N.D.R.Ev., provides:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order on its own motion. This rule does not authorize exclusion of (i) a party who is a natural person, or (ii) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (iii) a person whose presence is shown by a party to be essential to the presentation of the party’s cause.

[¶ 24] The plain language of N.D.R.Ev. 615 requires the court to exclude witnesses when requested by a party so “they cannot hear the testimony of other witnesses.” Sequestration of witnesses serves two related policies: (1) to prevent witnesses from tailoring testimony in light of the testimony of other witnesses, and (2) to permit discovery of false testimony and other credibility problems. State v. Skor-ick, 2002 ND 190, ¶ 9, 658 N.W.2d 698. See 29 Charles Alan Wright and Victor James Gold, Federal Practice and Procedure, § 6242 (1997). Because of the similarities between N.D.R.Ev. 615 and Fed. R. Ev. 615, we may consider federal precedent in interpreting our rule. See State v. Randall, 2002 ND 16, ¶ 5, 639 N.W.2d 439. The federal courts have reached conflicting decisions about whether Fed. R. Ev. 615 precludes out-of-court communications between the witnesses during trial. Wright and Gold at § 6243. Some federal courts have concluded out-of-court communications between witnesses are precluded in order to promote the policies of Fed. R. Ev. 615, which might be frustrated if witnesses could collude outside of court. Wright and Gold, at § 6243. Other federal courts, however, have concluded the plain language of the federal rule is inapplicable because witnesses’ out-of-court communications during trial do not permit one witness to “hear the testimony of another witness” within the meaning of that rule. Id.

[¶ 25] Here, the trial court’s sequestration order did not specifically address witnesses’ out-of-court communications during trial. See Wright and Gold, at § 6243 (stating trial courts retain discretion to preclude witnesses’ out-of-court communications during trial as a function of the court’s general powers to manage the conduct of the trial). In the absence of specific language in the sequestration order addressing witnesses’ out-of-court communications during trial, we follow federal decisions that hold the plain language of the rule does not apply to witnesses’ out-of-court communications during trial. We therefore conclude the State did not violate the sequestration order.

V

[¶ 26] Buchholz argues the trial court erred in denying his post-trial motion for stay of execution, judgment of acquittal, new trial, arrest of judgment, and post-conviction relief. He essentially argues there was insufficient evidence to support the verdict.

[¶ 27] We review a trial court’s decision on a motion for a new trial under the abuse-of-discretion standard. State v. Klose, 2003 ND 39, ¶ 18, 657 N.W.2d 276. A trial court abuses its discretion if its decision is arbitrary, unreasonable, or unconscionable, not the product of a rational mental process leading to a reasoned determination, or a misinterpretation or misapplication of the law. Bell, 2002 ND 130, ¶ 6, 649 N.W.2d 243. In assessing sufficiency of the evidence to sustain a conviction, we do not reweigh conflicting evidence or judge the credibility of witnesses. Klose, at ¶ 19. Rather, we look only to the evidence most favorable to the verdict and the reasonable inferences therefrom to ascertain if there is substantial evidence to sustain the conviction. Id.

[¶ 28] We conclude there is sufficient evidence, viewed in the light most favorable to the verdict, to support the conviction. We therefore conclude the trial court did not abuse its discretion in denying Buchholz’s motion for a new trial on sufficiency of the evidence. Moreover, the other issues raised by Buchholz in his post-trial motion are the same as the issues he has raised on appeal. Because of our resolution of the issues raised in Buch-holz’s appeal, we conclude the trial court did not abuse its discretion in denying his post-trial motion.

VI

[¶ 29] Buchholz argues the trial court denied him due process by not providing him with copies of a presentence investigation report and an adult sexual offender evaluation prior to sentencing. He argues the court erred in sentencing him because the adult sexual offender evaluation contained obvious errors.

[¶ 30] After the jury verdict, the trial court ordered a presentence investigation, including a risk assessment mandated by N.D.C.C. § 12.1-32-02(11), and the court scheduled sentencing for September 8, 2003. Dennis Larkin completed an adult sexual offender evaluation of Buchholz, which, in some instances, referred to the person being evaluated as “Olin.” At the September 8, 2003 sentencing hearing, Buchholz indicated he had received the presentence investigation report at least ten days before sentencing, but he had not seen the adult sexual offender evaluation and a victim impact statement until “five minutes” before the sentencing hearing. Buchholz objected to the reference to “Olin,” and Buchholz sought a reassessment, or at least a clarification of the identification. The court recognized the adult sexual offender evaluation referred to a person named “Olin” and ordered Larkin to supplement and clarify the evaluation by September 12, 2003. The court nevertheless sentenced Buchholz, but stayed imposition of sentence until September 15, 2003, with an order which permitted either party to petition the court for resentencing if the clarification of identification in the adult sexual offender evaluation warranted resentencing. On September 10, 2003, Larkin informed the court another person’s name had been inadvertently typed into the evaluation and clarified that the reference to “Olin” meant Buchholz. On September 10, 2003, Buchholz moved for a copy of the adult sexual offender evaluation and any supplemental evaluations, and the court ordered release of the presentence investigation and adult sexual offender evaluation, as clarified. On September 11, 2003, the court denied Buehholz’s post-trial motions for stay of execution, judgment of acquittal, new trial, arrest of judgment, and post-conviction relief. Buchholz did not petition for reconsideration of sentencing, and on September 19, 2003, he appealed from the judgment of conviction.

[¶ 31] Rule 32, N.D.R.Crim.P. deals with presentence investigations and imposition of sentence. The information contained in a presentence report is governed by N.D.R.Crim.P. 32(c)(3)(A). Some types of information may not be included in a presentence report, but may be submitted to the court as an addendum to the report, including any diagnostic or prognostic opinion that might disrupt a program of rehabilitation, any sentence recommendation by parole and probation staff or the victim, any victim impact statement, or any other information including medical, psychiatric or psychological information. N.D.R.Crim.P. 32(c)(3)(B). Under N.D.R.Crim.P. 32(a)(1)(A), before imposing sentence, the court shall determine the defendant and the defendant’s counsel have had an opportunity to read and discuss the presentence investigation report, if made available under N.D.R.Crim.P. 32(c)(4)(A), which provides that a presen-tence report and any addendum are confidential and may not be read or copied by the public, or the parties unless permitted by the court in its discretion. Any disclosure to the defendant of the presentence report and any addendum must occur at least ten days before sentence is imposed, unless that minimum period is waived by the defendant. N.D.R.Crim.P. 32(c)(4)(B). Under N.D.R.Crim.P. 32(c)(2), a defendant’s counsel is entitled to notice and a reasonable opportunity to attend any interview of the defendant by parole and probation staff in the course of a presentence investigation.

[¶ 32] Buchholz argues he should have been provided with a copy of the risk assessment and allowed to call Larkin to testify at the sentencing hearing. Buch-holz argues his attorney was not given notice and an opportunity to attend any interviews of him during the course of the presentence investigation, as required by N.D.R.Crim.P. 32(c)(2). Buchholz also argues he did not receive a copy of the adult sexual offender evaluation, which was part of the presentence investigation report, more than ten days before the sentencing hearing, in violation of N.D.R.Crim.P. 32(c)(4)(B). He argues if this information had been provided to him, he could have argued for a more lenient sentence.

[¶ 33] At the sentencing hearing, Buch-holz said he had received the adult sexual offender evaluation “five minutes” before the hearing, but he did not assert a violation of the ten-day requirement of N.D.R.Crim.P. 32(c)(4)(B). We conclude Buchholz effectively waived any claim about that issue under N.D.R.Crim.P. 32(c)(4)(B). In the trial court, Buchholz also did not argue that he should have been allowed to call Larkin to testify and that his attorney was not given appropriate notice under N.D.R.Crim.P. 32(c)(2). Although Buchholz claimed during oral argument to this Court that he requested a continuance at the sentencing hearing, the transcript of that hearing does not reflect such a request.

[¶ 34] We do not consider issues raised for the first time on appeal. Anderson, 2003 ND 30, ¶ 7, 657 N.W.2d 245; Bell, 2002 ND 130, ¶ 9, 649 N.W.2d 243; Freed, 1999 ND 185, ¶ 13, 599 N.W.2d 858. Under these circumstances, we conclude Buchholz has failed to properly preserve the sentencing issues he now raises on appeal, and our review is limited to obvious error. We exercise our power to notice obvious error cautiously and only in exceptional circumstances in which a defendant has suffered a serious injustice. Freed, at ¶ 14; Olander, 1998 ND 50, ¶ 12, 575 N.W.2d 658. We conclude this is not such a case.

VII

[¶ 85] We affirm the judgment of conviction.

[¶ 36] WILLIAM A. NEUMANN, MARY MUEHLEN MARING, CAROL RONNING KAPSNER, DALE V. SANDSTROM and GERALD W. VANDE WALLE, C.J.

      . While his appeal was pending, Buchholz filed a “motion for post conviction relief” in this Court, seeking his "immediate release from incarceration ... pending his appeal.” We directed the trial court to treat his “motion for post conviction relief” as a motion for release pending appeal under N.D.R.App.P. 9, and we referred the matter to that court for disposition. The trial court treated Buch-holz's motion as an application for post-conviction relief under N.D.C.C. ch. 29-32.1, and in January 2004, the court denied his motion. Buchholz has not appealed the trial court's January 2004 order denying his "motion for post conviction relief.”

      . The trial court’s January 2004 order denying Buchholz’s motion for post-conviction relief is not before us in this appeal. See fn.l.


source: Caselaw Access Project

author: NEUMANN, Justice.

license: Public Domain

text:
    2004 ND 78
    STATE of North Dakota, Plaintiff and Appellee v. Steven PARIZEK, Defendant and Appellant.
    Nos. 20030085-20030088.
    Supreme Court of North Dakota.
    April 13, 2004.

      Lonnie Olson, State’s Attorney, Devils Lake, N.D., for plaintiff and appellee.
    Kerry Shannon Rosenquist, Grand Forks, N.D., for defendant and appellant.
   NEUMANN, Justice.

[¶ 1] Steven Parizek appealed from criminal judgments entered on jury verdicts finding him guilty of manufacturing methamphetamine, possessing methamphetamine, possessing drug paraphernalia, and possessing marijuana. We conclude the district court did not err in denying Parizek’s motion to suppress evidence, and we affirm.

I

[¶ 2] Shortly after midnight on the morning of September 4, 2002, Officers Virginia Gjestvang and Theodore Rainesa-lo were dispatched to a residence at South-view East lot number 10 in Devils Lake to respond to a call that a person was knocking on the inhabitant’s door. The officers pulled into the Southview East parking lot with their lights off and approached the residence. The officers observed a blue van parked in the driveway with a man sitting in it, and a man and woman at the door of the residence speaking to one of the inhabitants. Officer Rainesalo approached the two people at the door, Pari-zek and Shawn Lumley, and Officer Gjest-vang remained back near the van where Alonza Wilson, Jr., was seated. When Officer Rainesalo arrived at the door, an inhabitant told him he wanted Parizek and Lumley “out of here.” Rainesalo escorted them to the front of the van, told them to stay there, and walked back to talk to the inhabitant. Lumley followed him back to the door. The inhabitant told Rainesalo that “these people had been to his door three times during this night and he was getting tired of being woke up and he wanted them gone. He didn’t care what they wanted. Something about they wanted an address, or a phone number to somebody in town.... ”

[¶ 3] During this time, Officer Gjest-vang began talking with Parizek near the van and noticed he was “acting odd.” Officer Gjestvang testified:

A.... I was talking to Mr. Parizek. He was very jumpy, kind of bouncing all over the place, just acting odd. He had reached towards his pockets and I—
Q. Did that cause you some concern?
A. Yeah. You know, it’s a little after midnight. You know, it’s somewhat hard to see. You know, I want to know if somebody has got weapons on them, or you know especially as he was acting suspicious, jumping around and stuff like that.
Q. Okay. What did you do next?
A. I asked him to keep his hands out of his pockets. I asked him if he had any weapons on him. He said no.
I did just an external pat down of his front pockets and rear pockets of his pants. I felt what appeared to be like a cylinder type object in his, I believe it was his right front pocket of his pants. I asked him what that was. I believe he said it was a lighter and he—
Q. Did it feel like a lighter?
A. It didn’t, I mean it was kind of hard to tell, because I was just doing an external pat down. But he began reaching for his pockets again and I told him to keep his hands out of his pockets.
And at that point, I decided to find out what that object was. So I then pulled it out of his pocket and it was a cylinder, a little silver cylinder.
Q. Okay. What happened then?
A. I asked Mr. Parizek, I said, ‘What is this?” And he said, “It’s a lighter.” I said, “It doesn’t look like a lighter.” You know, it didn’t even closely resemble one.
It appeared that it opened somehow. We had a little bit of difficulty actually getting the object open. But he snatched it out of my hands before I even—
Q. Before you had a chance to really look at it?
A. Right. He swiped it out of my hands and started to step back from me. And then he showed me a blue rock. He was — I don’t know if he was trying to distract me with this blue rock, or what he was doing, but he was kind of waving it in my face saying, “Look at my rock.”
And I said, “Well, I’m not real interested in your rock. I want that back.”
Q. And then?
A. And at that point you know he is still stepping back from me, and he’s still got the object. I told him again, “I want that object back.”
He is refusing. He is not — you know, he is still showing me this rock. So we ended up having a sort of brief scuffle. Nothing major, but just a little bit of wrestling right by a car there that was, another car that parked in front of the van.
Q. Okay.
A. And during that scuffle, the cylinder was thrown into the yard next to where the car was parked.

[¶ 4] Officer Rainesalo heard Officer Gjestvang yelling for assistance, and helped her place handcuffs on Parizek. Officer Gjestvang found the cylinder in a patch of grass in the yard. After Officer Rainesalo placed Parizek in his vehicle, he talked to Lumley, who began “acting nervous, jumpy, not following commands.” Officer Rainesalo asked Lumley to take her hands out of her pockets and Lumley walked away from him to the back of the van. Officer Gjestvang patted down Lum-ley against the back of the van and handcuffed her. Officer Gjestvang testified:

A. While I had her towards the rear of the van, there was a little bit of light and I just caught a glimpse of what appeared to be a funnel.
I sat Ms. Lumley down on the ground and I went back with my flashlight and just looked in the rear of the van. It had a — it’s one of those older vans with a really large window in the back. I just looked in, from outside you could see a funnel, a container of some kind of chemical, a burner, and there was another item there that was easily visible. I believe it was a coffee pot.
All these items are, were suspicious in nature for the manufacture of methamphetamine.

[¶ 5] Wilson was removed from the van and he and Lumley were placed in the officers’ vehicles. The officers called a special agent and a detective to assist. After the special agent and detective arrived, Officer Gjestvang, with assistance from the detective, opened the cylinder and found a green leafy substance that appeared to be marijuana and a small tin foil containing what turned out to be methamphetamine. Parizek, who owned the van, consented to a search of the van, and the search revealed the articles in the van were used for manufacturing methamphetamine. Parizek, Lumley and Wilson were placed under arrest and charges were filed against them.

[¶ 6] A preliminary hearing for Lumley and Wilson was held on November 26, 2002. Parizek was not present, but his attorney was there to question the officers who testified. Lumley, Parizek and Wilson moved to suppress the evidence. Pari-zek’s preliminary hearing was held on February 3, 2003. Parizek and law enforcement officers testified. The district court based its decision on the motion to suppress on the record of both hearings, as well as a transcript of an audio recording of the conversation between Parizek and the officers on the morning of September 4, 2002. The transcript of the audio recording stated Officer Gjestvang on two occasions during the encounter asked Pari-zek to keep his hands “in” his pockets. The court denied the suppression motion, concluding the investigative stop of Pari-zek was justified, the frisk was reasonable, the pocket search was justified, and that Parizek’s consent to the search of the van was voluntarily given. A jury returned verdicts finding Parizek guilty of all charges. Parizek appealed, challenging on Fourth Amendment grounds the district court’s denial of his suppression motion. Parizek does not challenge the propriety of the district court’s use of the records from both preliminary hearings to decide the suppression motion.

II

[¶ 7] When reviewing a district court’s ruling on a motion to suppress, we defer to the district court’s findings of fact and resolve conflicts in the evidence in favor of affirmance. City of Fargo v. Wonder, 2002 ND 142, ¶ 8, 651 N.W.2d 665. We will affirm the district court’s factual findings unless we conclude there is insufficient competent evidence to support the decision or the decision is contrary to the manifest weight of the evidence. City of Jamestown v. Jerome, 2002 ND 34, ¶ 6, 639 N.W.2d 478. This standard of review accords great deference to the district court’s findings of fact, recognizing the district court is in a superior position to assess credibility of the witnesses and to weigh the evidence. City of Jamestown v. Dardis, 2000 ND 186, ¶ 7, 618 N.W.2d 495. Questions of law, such as the ultimate conclusion of whether the facts support a reasonable and articulable suspicion, are fully reviewable on appeal. State v. Fields, 2003 ND 81, ¶ 6, 662 N.W.2d 242.

A

[¶ 8] Parizek argues the officers in this case had no right to stop or “seize” him.

’ [¶ 9] To stop a person for investigative purposes, an officer must have an articulable and reasonable suspicion that a law has been or is being violated. City of Devils Lake v. Lawrence, 2002 ND 31, ¶ 8, 639 N.W.2d 466. In determining whether an investigative stop is valid, we use an objective standard and look to the totality of the circumstances. State v. Loh, 2000 ND 188, ¶ 5, 618 N.W.2d 477. The question is whether a reasonable person in the officer’s position would be justified by some objective manifestation to suspect the defendant was, or was about to be, engaged in unlawful activity. Fields, 2003 ND 81, ¶ 13, 662 N.W.2d 242. The itemized reasons for a stop listed in N.D.C.C. § 29-29-21 are not exclusive of the instances where a stop on reasonable suspicion grounds is appropriate. State v. Boline, 1998 ND 67, ¶29, 575 N.W.2d 906.

[¶ 10] This Court has recognized that police officers may “freeze” a situation and conduct a limited investigative stop of persons present at the scene of a recently committed crime without violating the Fourth Amendment. See Lawrence, 2002 ND 31, ¶¶ 10-17, 639 N.W.2d 466; City of Fargo v. Ovind, 1998 ND 69, ¶¶ 12-13, 575 N.W.2d 901. Even in circumstances where no one person can be singled out as the probable offender, police officers must be allowed to take some action intermediate to that of arrest and nonseizure activity where corroboration of a tip through observation of illegality is not practical. Lawrence, at ¶ 11; Ovind, at ¶ 12. Consequently, in Ovind, at ¶ 17, we upheld an investigative stop of a vehicle backing out of a parking spot in a restaurant parking lot by an officer responding to an early morning dispatch reporting a fight at the restaurant. In Lawrence, at ¶ 12, we upheld an investigative stop of a vehicle leaving the parking lot of a bar by an officer responding to a dispatch that a fight was going to begin at the bar. We rejected the argument that the officers had no articula-ble suspicion that a crime had been committed because the officers knew there had been no physical altercation at the bar, but only a verbal altercation. Id. We said the verbal altercation could have constituted the crime of disorderly conduct, and concluded an “officer’s reasonable and articu-lable suspicion that an individual has committed the offense of disorderly conduct is sufficient to justify a temporary detention of that individual for investigative purposes.” Id. at ¶ 14.

[¶ 11] The district court found the brief detention in this case was justified, reasoning:

Here, the officers were investigating an unwanted guests complaint by a citizen. The officers had briefly detained Parizek and Lumley in the driveway of the home until Officer Rainaselo [sic] could determine from the owner what was ‘going on’ including any criminal activity. It is reasonable to conclude that the officers thought these individuals may have been involved in some type of criminal activity when they stopped them in the driveway of # 10 Southview Estates.

[¶ 12] Parizek argues the court’s reasoning is flawed because the officers could not have had any articulable suspicion of criminal activity. Parizek argues the only information the officers received from dispatch was that someone was knocking on the complainant’s door, and although an inhabitant of the residence informed Officer Rainesalo that Parizek and Lumley had been there three times that night, there was no evidence that the owner had asked them to leave. A person is guilty of criminal trespass under N.D.C.C. § 12.1-22-03(4) “if that person remains upon the property of another after being requested to leave the property by a duly authorized person.” The officers were not required to have probable cause to arrest for violation of a law, but only reasonable and articulable suspicion that a law had been violated. E.g., State v. Corum, 2003 ND 89, ¶ 10, 663 N.W.2d 151. Although the dispatch may have been somewhat ambiguous, a call to the police is an unusual response to a knock on the door. The “ ‘lateness of the hour’ ” is another factor that may raise the level of suspicion to justify an investigative stop. Fields, 2003 ND 81, ¶ 20, 662 N.W.2d 242 (quoting United States v. Lender, 985 F.2d 151, 154 (4th Cir.1993)). Under the totality of the circumstances, we conclude the officers had a reasonable and articulable suspicion that Parizek was engaged in unlawful activity, and were justified in temporarily detaining him to freeze the situation for further investigation.

B

[¶ 13] Parizek argues there was no justification for Officer Gjestvang to conduct a pat down search of him.

[¶ 14] A law enforcement officer may conduct a frisk or a pat down search of a person only when the officer possesses an articulable suspicion the individual is armed and dangerous. State v. Tognotti, 2003 ND 99, ¶ 16, 663 N.W.2d 642. In Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court held:

[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of, such persons in an attempt to discover weapons which might be used to assault him.

“The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent [person] in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id. at 27, 88 S.Ct. 1868.

[¶ 15] When Officer Gjestvang began talking with Parizek, “[h]e was very jumpy, kind of bouncing all over the place, just acting odd. He had reached towards his pockets ...” Officer Gjestvang testified she asked him to “keep his hands out of his pockets.” Reaching into one’s pockets after being told not to do so gives an officer an articulable suspicion that the subject might be armed and dangerous. See State v. Tollefson, 2003 ND 73, ¶ 11, 660 N.W.2d 575. Parizek argues placing his hands in his pockets cannot be used to justify the pat down search because the transcript of the audio recording establishes Officer Gjestvang told him to put his hands in his pockets. The district court found that Parizek “had been told earlier to keep his hands still and not move them around,” and this finding is not contrary to the manifest weight of the evidence. The transcript of the audio recording reveals Parizek was not following Officer Gjest-vang’s instructions, whether she told him to keep his hands in or out of his pockets. Indeed, Parizek testified at his preliminary hearing that “I didn’t have my hands in my pocket or nothing like that,” which is contrary to Officer Gjestvang’s instructions revealed in the transcript of the audio tape. We agree with the district court that Parizek’s “jumpy behavior and his reaching toward his pockets in the dark of night justified this officer to conduct a pat-down search.”

C

[¶ 16] Parizek argues Officer Gjestvang was not justified in searching his pocket.

[¶ 17] A valid pat down search consists solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault. Tollefson, 2003 ND 73, ¶ 13, 660 N.W.2d 575. A pat down is not simply a routine preliminary to a more extensive search. State v. Zearley, 444 N.W.2d 353, 359 (N.D.1989). When an outside clothing pat down search reveals the presence of an object of a size and density that reasonably suggests the object might be a weapon, the searching officer is entitled to continue the search to the inner garments where the object is located in order to determine whether the object is in fact a weapon. State v. Heitzmann, 2001 ND 136, ¶ 13, 632 N.W.2d 1. Because weapon verification is essential if safety is to be preserved and a potentially volatile situation neutralized, certainty that an object is a weapon is not required before an officer may continue a pat down search to the inner clothing site where the object is located. Tollefson, at ¶ 14; State v. Zearley, 468 N.W.2d 391, 392 (N.D.1991). Moreover, a more intrusive Terry search may be constitutionally permissible if the officer is proportionately responding to the actions of a subject. Heitzmann, at ¶ 16. However, if an officer continues to explore a detainee’s pocket after concluding it contains no weapon, the valid scope of a Terry search has been exceeded and any contraband discovered in the pocket must be suppressed. Id. at ¶ 13.

[¶ 18] During the pat down search, Officer Gjestvang “felt what appeared to be like a cylinder type object” in Parizek’s pocket. Parizek was not complying with Officer Gjestvang’s instructions and his hand movements were unpredictable. Parizek was “jumpy, kind of bouncing all over the place, just acting odd.” Parizek told Officer Gjestvang the object was a lighter, but she did not believe it was a lighter. When asked if there could have been a weapon inside the cylinder, Officer Gjestvang testified, “I guess nothing, you know comes to mind, just sitting here. Initially feeling it from the outside, I was unable to tell exactly what it ... was.” When asked if she knew the cylinder was not a weapon, she testified, “[w]ell, I don’t know that for sure. But it didn’t appear at that point that it was.”

[¶ 19] Although Officer Gjestvang did not believe the cylinder was a weapon, she was not certain the object was not a weapon. Given Parizek’s erratic behavior, we agree with the district court that Officer Gjestvang’s “actions were a proportionate response to the defendant’s actions and her safety concerns,” and “[s]he acted reasonably to protect herself by taking possession of the object.” We conclude Officer Gjestvang was justified in conducting the pocket search.

D

[¶ 20] Parizek argues the opening and search of the cylinder after it had been removed from his pocket was illegal.

[¶ 21] Officer Gjestvang testified she “could tell” the cylinder was not a weapon “[o]nce [she] took [it] out” of Pari-zek’s pocket. The district court found that “[o]nce the object was removed from the pocket, Officer Gjestvang agreed the safety issues diminished and curiosity replaced safety.” Generally, where an object recovered from a suspect during a pat down search is a closed container, the officer may not open the container to examine its contents unless the officer can point to specific and articulable facts supporting a reasonable suspicion that the closed container poses a danger to the officer or others nearby. See, e.g., People v. Ratcliff, 778 P.2d 1371, 1380 (Colo.1989); State v. Harrison, 957 S.W.2d 774, 777-78 (Mo.Ct.App.1997); State v. Wiggins, 184 Or.App. 333, 56 P.3d 436, 440 (2002); Phillips v. Commonwealth, 17 Va.App. 27, 434 S.E.2d 918, 920-21 (1993); see also 4 Wayne R. LaFave, Search and Seizure § 9.5(d) (3d ed.1996). However, even if opening and searching the cylinder was illegal, it does not follow that Parizek should have prevailed on his motion to suppress.

[¶ 22] Evidence obtained by unlawful police conduct is admissible if the prosecution proves by a preponderance of the evidence that the evidence would have inevitably been discovered by lawful means. State v. Waltz, 2003 ND 197, ¶ 17, 672 N.W.2d 457. Before the cylinder was opened and searched, Lumley walked away from Officer Rainesalo to the back of the van and Officer Gjestvang, while patting down Lumley, “caught a glimpse of what appeared to be a funnel” through the van’s large back window. Officer Gjest-vang, with the aid of a flashlight, looked through the van window and observed items used for manufacturing methamphetamine. Officer Gjestvang’s use of a flashlight to see inside of the van does not render her observations illegal under the plain view doctrine. See State v. Klodt, 298 N.W.2d 783, 787 (N.D.1980); see also Mollica v. Volker, 229 F.3d 366, 369 (2d Cir.2000); United States v. Hatten, 68 F.3d 257, 261 (8th Cir.1995). A special agent and a detective were called to assist. Upon arriving, the special agent told Officer Gjestvang “basically from the items that he could see from the outside of the vehicle that at that point we were going to place all three under arrest.” Officer Gjestvang, with assistance, then managed to open and search the cylinder.

[¶ 23] It was not the knowledge the officers gained by opening the cylinder that led to the discovery of the incriminating items in the van, but it was Lumley’s failure to stand still that led the officers to the van and to the subsequent plain view observation of the incriminating items. Parizek consented to a search of his van, and Parizek does not challenge on appeal the district court’s finding that his consent was voluntarily given. The discovery of the items in the van gave the officers probable cause to arrest Parizek, Lumley and Wilson. If the fruits of a challenged search are not necessary to support probable cause to arrest, it is not important that the challenged search shortly preceded the formal arrest. Rawlings v. Kentucky, 448 U.S. 98, 111 & n. 6, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). The marijuana and methamphetamine discovered in the cylinder were not necessary to establish probable cause to arrest Parizek, and it would have inevitably been discovered in the valid search incident to Parizek’s arrest. See Waltz, at ¶ 17; State v. Olson, 1998 ND 41, ¶¶ 16-17, 575 N.W.2d 649. Therefore, we conclude the district court did not err in denying Parizek’s motion to suppress.

Ill

[¶ 24] Parizek asserts the evidence should have been suppressed under N.D. Const, art. I, § 8, but has not marshaled a separate argument under the state constitution. This is insufficient to raise the state constitutional argument for our consideration. See State v. Holzer, 2003 ND 19, ¶ 15, 656 N.W.2d 686; State v. Stewart, 1999 ND 154, ¶ 25 n. 8, 598 N.W.2d 773; State v. Garrett, 1998 ND 173, ¶ 9 n. 1, 584 N.W.2d 502.

IV

[¶ 25] The criminal judgments are affirmed.

[¶ 26] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, CAROL RONNING KAPSNER and DALE V. SANDSTROM, JJ., concur.


author: VANDE WALLE, Chief Justice.

text:
    2004 ND 82
    Sandra PETERSON, Plaintiff and Appellant v. NORTH DAKOTA UNIVERSITY SYSTEM, and Bismarck State College, Defendants and Appellees.
    No. 20030249.
    Supreme Court of North Dakota.
    April 13, 2004.

      Charles “Casey” L. Chapman, Chapman & Chapman, Bismarck, ND, for plaintiff and appellant.
    Tag C. Anderson, Assistant Attorney General, Bismarck, ND, for defendants and appellees.
   VANDE WALLE, Chief Justice.

[¶ 1] Sandra Peterson appealed from summary judgment dismissing with prejudice her complaint against the North Dakota University System (“NDUS”) and Bismarck State College (“BSC”). We affirm.

I

[¶ 2] Peterson was a tenured faculty member in the commercial art department at BSC. Under North Dakota State Board of Higher Education Policy Manual (“policy manual”) section 605.3(8), BSC notified Peterson in April 1999 of its intent to dismiss her for cause, alleging she violated a State Board of Higher Education (“Board”) policy and federal law by disclosing confidential information about a student to a classroom full of students. BSC directed Peterson to apologize for the violation. Her apology was considered inappropriate, and BSC claimed this constituted a substantial and manifest neglect of her duties. Through her attorney, Peterson challenged the sufficiency of the notice to dismiss her. In May 1999, Peterson received an amended notice of BSC’s intent to dismiss her containing the original allegations and several new ones. The new allegations included neglect of teaching responsibilities for ending a class one month early and failing to appropriately clean up “dark room and/or lab areas,” demonstrated incompetence in teaching for continually displaying an inappropriate pattern of behavior while assisting students, and demonstrated incompetence in teaching for indications received from the BSC Commercial Art Advisory Committee that it would not sign the renewal form to continue the BSC Commercial Art Program because of concerns regarding Peterson’s abilities as an instructor.

[¶ 3] In July 1999, BSC President Donna Thigpen dismissed Peterson for cause. Peterson requested reconsideration, under section 605.3(8) of the policy manual, of her dismissal by a BSC faculty committee, which concluded she should not be dismissed. President Thigpen disagreed with the committee’s decision and affirmed the decision dismissing Peterson for cause. Peterson requested reconsideration, as specified by section 605.4 of the policy manual, of this decision by the BSC Standing Committee on Faculty Rights (“Standing Committee”), which conducted a trial-like hearing in February 2000 and concluded BSC did not establish clear and convincing evidence that there was adequate cause to dismiss Peterson. President Thigpen reviewed the evidence presented at the hearing, and in a March 2000 letter, affirmed her prior decision to dismiss Peterson.

[¶ 4] Peterson’s final appeal was to the Board, which requested an administrative law judge (“ALJ”) from the Office of Administrative Hearings to review the record and make recommended findings of fact and conclusions of law. The ALJ concluded BSC proved by clear and convincing evidence that there was adequate cause to dismiss Peterson and recommended affirming her dismissal. In January 2001, the Board adopted the ALJ’s recommendations and affirmed Peterson’s dismissal.

[¶ 5] In July 2001, Peterson filed suit against NDUS and BSC (collectively “the State”) in district court. She alleged breach of her employment contract, wrongful discharge, and civil conspiracy. The State moved for summary judgment. The district court granted the motion, finding Peterson failed to raise any genuine and material issues of fact regarding whether the Board’s decision to dismiss her was objectively reasonable and made in good faith, and any genuine or material issue of fact to support her breach of contract, wrongful discharge, and conspiracy claims.

II

[¶ 6] Whether the trial court properly granted summary judgment is a question of law which we review de novo on the entire record. Iglehart v. Iglehart, 2003 ND 154, ¶ 9, 670 N.W.2d 343.

[SJummary judgment ... is a procedural device under N.D.R.Civ.P. 56 for prompt and expeditious disposition of a controversy without a trial if either party is entitled to judgment as a matter of law, and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result. On appeal, we review the evidence in the light most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences which reasonably can be drawn from the evidence. The party moving for summary judgment bears the burden of establishing there is no genuine issue of material fact and that, under applicable principles of substantive law, he is entitled to judgment as a matter of law.

Green v. Mid Dakota Clinic, 2004 ND 12, ¶ 5, 673 N.W.2d 257 (citations omitted).

[¶ 7] The State Board of Higher Education was created to control and administer several state educational institutions, known as the North Dakota University System. N.D. Const, art. VIII, § 6; N.D.C.C. § 15-10-01.3. Bismarck State College is part of the North Dakota University System. N.D.C.C. § 15-10-01. The Board has all the powers necessary to control and manage the institutions of the NDUS, including removing professors from employment. N.D.C.C. § 15-10-17. Regulations adopted by the Board as part of its policy manual govern termination of faculty members and “are part of the employment contract between the institution and faculty member.” Hom v. State, 459 N.W.2d 823, 824 (N.D.1990).

[¶ 8] Peterson was a full-time tenured faculty member at BSC. “Tenured appointments recognize a right, subject to Board policy, to continuous academic year employment in an academic unit or program area as defined by an institution and stated on the contract.” North Dakota State Board of Higher Education Policy Manual, Academic Freedom and Tenure; Academic Appointments, § 605.1(4)(b) (2001). “Tenure in the academic community commonly refers to a status granted, usually after a probationary period, which protects a teacher from dismissal except for serious misconduct, incompetence, financial exigency, or change in institutional programs. The primary function of tenure is the preservation of academic freedom.” Stensrud v. Mayville State College, 368 N.W.2d 519, 521 n. 1 (N.D.1985) (citations omitted).

[¶ 9] At the time of Peterson’s dismissal, section 605.3(8) (1996) of the policy manual allowed dismissal of a tenured faculty member for cause. It defined “Adequate Cause” as:

(a) demonstrated incompetence or dishonesty in teaching, research, or other professional activity related to institutional responsibilities, (b) continued or repeated unsatisfactory performance evaluations and failure to respond in a satisfactory manner to a recommended plan for improvement, (c) substantial and manifest neglect of duty, (d) conduct which substantially impairs the individual’s fulfillment of his or her institutional responsibilities or the institutional responsibilities of others, (e) a physical or mental inability to perform assigned duties, provided that such action is consistent with laws prohibiting discrimination based upon disability, or (f) significant or continued violations of Board policy or institutional policy, provided that for violations of institutional policy the faculty member must have been notified in advance in writing by the institution’s chief executive that violation would constitute grounds for dismissal, or the institutional policy must have provided specifically for dismissal as a sanction.

Section 605.4 of the policy manual allowed faculty members to appeal adverse decisions to the Standing Committee. In appeals to the Standing Committee involving dismissals for cause, the institution was required to prove that grounds for its actions existed by clear and convincing evidence. North Dakota State Board of Higher Education Policy Manual, Hearings and Appeals, § 605.4(8) (1998). The Standing Committee was required to report its findings, conclusions, and recommendations to the institution’s chief executive, who had to make a decision and notify the Standing Committee and the faculty member of the result. Id. § 605.4(11). At the time of Peterson’s dismissal, the chief executive’s decision was considered final except, in cases involving dismissals for cause, a faculty member could appeal the chief executive’s decision to the Board. Id. § 605.4(12).

[¶ 10] Peterson contends her employment contract was breached because BSC did not prove, by clear and convincing evidence, that there was adequate cause to dismiss her.

A.

[¶ 11] As an initial matter, we must determine the appropriate standard of judicial review for substantive determinations by the Board. The State asks us to conclude that Peterson should be required to petition for a writ of mandamus seeking relief from the Board’s decision. Alternatively, it contends the standard from Thompson v. Associated Potato Growers, Inc., 2000 ND 95, 610 N.W.2d 53, should control judicial review of Peterson’s claims. Peterson seeks a de novo determination whether her contract was breached, or she asserts that if Thompson is applicable, summary judgment was inappropriate because the Board contractually promised her greater rights than Thompson provides and a jury should decide whether the Board’s decision was objectively reasonable and made in good faith.

[¶ 12] We disagree with the State’s assertion that a writ of mandamus is the proper avenue for Peterson to proceed with her claim. The State did not present this argument to the trial court and did not address it in its brief. Unlike decisions not to renew the contracts of elementary and secondary teachers, there is no statutory guidance regarding a decision by the Board to dismiss a faculty member of an institution in the NDUS. See N.D.C.C. ch. 15.1-15. Courts may issue a writ of mandamus “to any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled and from which the party is precluded unlawfully by such inferior tribunal, corporation, board, or person.” N.D.C.C. § 32-34-01. In a case involving the nonrenewal of a professor’s employment contract with a private college, we held:

The writ of mandamus is available to the [elementary or secondary education] teacher to compel the school district to comply with its statutory mandate to renew the teacher’s contract.
In light of ... the contractual and nonstatutory nature of [the professor’s] employment relationship with the College she, as a matter of law, is not entitled to ... a writ of mandamus to compel reinstatement of her teaching position.

Schauer v. Jamestown College, 323 N.W.2d 114, 115-16 (N.D.1982). Similarly, Peterson’s claims are contractual and not statutory in nature. See Stensrud, 368 N.W.2d at 521 & n. 2 (stating the terms of the contract govern the manner in which a college professor may be terminated and the abuse of discretion standard used by the trial court was inappropriate because there were no statutory requirements governing a nontenured college professor’s employment contract). Therefore, a writ of mandamus is not appropriate and the terms of Peterson’s employment contract govern the manner in which she may be terminated.

[¶ 13] The Board is a constitutional body with full power and authority to appoint and remove professors of higher education institutions under its control. Posin v. State Bd. of Higher Educ., 86 N.W.2d 31, 34-35 (N.D.1957); see also Richard B. Crockett, Constitutional Autonomy and the North Dakota State Board of Higher Education, 54 N.D. L.Rev. 529, 533-34 (1978). Because the Board exercises constitutional powers, our review of its substantive decisions is akin to the review we employ when the doctrine of separation of powers applies. Article XI, section 26, of the North Dakota Constitution formalizes the doctrine of separation of powers. See State v. Hanson, 558 N.W.2d 611, 611 n. 1 (N.D.1996). “[T]he doctrine of separation of powers restricts judicial review of decisions by the executive branch of government.” Med. Arts Clinic, P.C., v. Franciscan Initiatives, Inc., 531 N.W.2d 289, 300 (N.D.1995). The Board is excluded from the definition of an “administrative agency” by N.D.C.C. § 28-32-01(2)(j). Consequently, to secure review of a Board decision, a person adversely affected must bring a separate action in district court because there is no statute or rule providing an appeal to the district court similar to the appeal provided from administrative agency decisions. See N.D.C.C. § 28-32-42.

[¶ 14] Nonetheless, recognizing the separation of powers doctrine, we conclude judicial review similar to that provided in appeals from administrative agency decisions is appropriate in this case. In reviewing factual findings from administrative agencies we have held, “we do not make independent findings of fact or substitute our judgment for that of the agency. We determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence.” See Power Fuels, Inc., v. Elkin, 283 N.W.2d 214, 220 (N.D.1979). Peterson was required to exhaust her administrative remedies before she could bring an action in district court. See Long v. Samson, 1997 ND 174, ¶ 10, 568 N.W.2d 602 (dismissed public employees must exhaust their administrative remedies before seeking damages for tort or contract claims). NDUS and BSC were required to follow the procedures provided in the policy manual in order to dismiss Peterson for cause. See Stensrud, 368 N.W.2d at 522 (“Generally, substantial compliance with the procedural requirements for termination is sufficient if their purpose is fulfilled”). Because a de novo review of Peterson’s breach of contract claim would render the Board’s administrative review procedures meaningless and would be contrary to the holding in Posin, we are persuaded that the proper standard for courts to review a substantive Board decision dismissing a tenured faculty member for cause is determining whether a reasoning mind could have reasonably determined that the factual conclusions were supported by, as the policy manual provides, clear and convincing evidence. See Posin, 86 N.W.2d at 35-36.

[¶ 15] This approach is consistent with our review in private breach of employment contract cases, which are governed by the standard set forth in Thompson. In Thompson, we reversed and remanded a trial court’s judgment awarding Thompson damages for wrongful termination of his employment. 2000 ND 95, ¶ 1, 610 N.W.2d 53. Thompson was a contract employee who was terminated for cause from his employment at Associated. The trial court found Thompson did not commit a material violation of Associated’s policies or a material breach of the provisions of the employment agreement. Id. at ¶ 5. On appeal, we explained that employment in North Dakota is presumed to be at will, but parties can modify the presumption and define their contractual rights regarding termination. Id. at ¶ 8.

[¶ 16] In evaluating whether there was a breach of the contract, we relied on Cotran v. Rollins Hudig Hall Int’l, Inc., 17 Cal.4th 93, 69 Cal.Rptr.2d 900, 948 P.2d 412, 422 (1998), and

adopt[ed] the objective good-faith standard under which an employer is justified in terminating an employee for good cause for “fair and honest reasons, regulated by good faith on the part of the employer, that are not trivial, arbitrary or capricious, unrelated to business needs or goals, or pretextual. A reasoned conclusion, in short, supported by substantial evidence gathered through an adequate investigation that includes notice of the claimed misconduct and a chance for the employee to respond.”

Thompson, 2000 ND 95, ¶ 20, 610 N.W.2d 53 (citations omitted) (emphasis added). We held the trial court erred by not applying an objective good-faith standard for deciding whether there was cause to terminate Thompson. Id. at ¶ 22.

[¶ 17] Job discipline and dismissal appeals to the Board must be conducted by the office of administrative hearings in accordance with applicable laws. N.D.C.C. § 54-57-03. At the time of Peterson’s dismissal, a hearing officer conducted the appeal to the Board

pursuant to N.D.C.C. eh. 54-57, by reviewing the record and, based upon that review making recommended findings of fact, conclusions of law and a recommended order to the Board. The Board may, in its discretion, ask the hearing officer to conduct a limited hearing or conduct a de novo hearing, and then make recommended findings of fact, conclusions of law and a recommended order to the Board. Proceedings on appeal shall be governed by the Uniform Rules of Administrative Practice and Procedure of the Office of Administrative Hearings. There is no appeal to the Board from a final decision of the institution’s chief executive except from decisions resulting in dismissal for cause.

North Dakota State Board of Higher Education Policy Manual, Hearings and Appeals, § 605.4(12) (1998). This review, along with compliance with the procedures in the policy manual, created a sufficient record of the proceedings before the Board for judicial review. See Koch Hydrocarbon Co. v. State, 454 N.W.2d 508, 513-15 (N.D.1990) (VandeWalle, J., concurring specially) (expressing concern over the lack of an adequate record to review a decision by the State Board of Equalization, which was excluded from the definition of an administrative agency).

If the courts are to review these actions, and it is not necessary as a matter of constitutional right that they be empowered to do so, it should be a meaningful review recognizing the limitations thereon by the doctrine of separation of powers. Anything less than a meaningful review gives a false sense of adherence to our system of checks and balances which makes the judicial branch little more than an apologist for the actions of the executive branch of government, on the one hand, or a usurper of powers on the other. Neither is a desirable result.

Id. at 515.

[¶ 18] In a breach of contract action where the Board has determined adequate cause exists to dismiss a contract employee, the courts can provide a meaningful review by adhering to our prior decisions that procedural violations occur if the State has not substantially complied with its established procedures and by reviewing substantive decisions to determine whether a reasoning mind could have reached the same conclusion on the evidence presented.

B.

[¶ 19] The trial court granted the State’s summary judgment motion because it concluded Peterson had not raised a genuine or material issue of fact regarding whether the Board’s decision was objectively reasonable and made in good faith or any genuine or material issue of fact to support her breach of contract claim. The record reflects that the Board complied with the procedural requirements in the policy manual. Therefore, we must determine whether summary judgment was appropriate in terms of Peterson’s substantive claim that her employment contract was breached because adequate cause to dismiss her was not established by clear and convincing evidence.

[¶ 20] In exhausting the administrative procedures provided in Peterson’s contract, two committees and the Board reviewed President Thigpen’s decision to dismiss Peterson for cause. The Standing Committee conducted a trial-like hearing in which it heard testimony from various witnesses and arguments from both sides. It found Peterson violated Board policy by disclosing confidential information about a student, but the BSC “administration did not consider this violation to be cause for dismissal when the matter was initially addressed.” It found the amended notice of intent to dismiss added “very little new cause” for Peterson’s dismissal. It concluded that BSC ■

A. By it’s [sic] own determination, did not cite the [student privacy] violation of Board policy to be cause for dismissal when it first occured [sic], and opted for an apology instead. It should have been over.
B. By it’s [sic] own determination, did not cite the nature of the ... apology to be cause for dismissal either, and opted for a reprimand, with a plan for improvement. It should have been over again.
C. By it’s [sic] own determination, terminated this matter as attested in President Thigpen’s 03/31/99 letter to [the student], in which she wrote, “The college has taken appropriate action regarding Sandra Peterson.” It should have been over again.

It determined BSC did not prove, by clear and convincing evidence, adequate cause to dismiss Peterson.

[¶ 21] After reviewing the evidence presented at the hearing and the Standing Committee’s report, President Thigpen concluded that the administration did establish, by clear and convincing evidence, adequate cause to dismiss Peterson. She concluded the privacy violation and the subsequent, inappropriate apology constituted cause for dismissal. , Additionally, she stated:

The Committee report does not mention that all three of Peterson’s colleagues in her department testified that numerous students complained to them almost every year about Peterson. All three of these colleagues testified that they agree with the decision to terminate Peterson because she has simply not been doing her job. Further, the report does not mention that former Dean Togstad met with Peterson in 1996 about student complaints and informed her that the administration would initiate proceedings to dismiss her if the problems continued. I considered very carefully the testimony of her three colleagues and her supervisors. Her colleagues worked with her on a daily basis, taught in the same discipline, and advised students, therefore, they are in the best position to evaluate her abilities.
The Committee finds that there is “no precedence for dismissal after a first offense.” Although I find nothing in the record that supports this statement, the dismissal is not based on a single offense.
The Committee finds that a poor apology and leaving class early are not substantial and manifest neglect. The Committee ignored (or misconstrued) Peterson’s neglect in ending a class, without authorization, one month prior to the semester end.
The Committee dismisses the allegation about incompetence in teaching by stating that one complaint by two students does not address teaching competence. I find not just one complaint by two students but numerous complaints, most verbal but including three formal, written complaints, by students about Peterson over a period of many years.
Considering the entire record as a whole, I conclude that the administration established, by clear and convincing evidence, cause to dismiss Sandra Peterson based upon a significant violation of State Board of Higher Education policy, substantial and manifest neglect of duty, and demonstrated incompetence in teaching.

As a result, President Thigpen affirmed Peterson’s dismissal, effective March 31, 2000.

[¶ 22] On appeal to the Board, the ALJ reviewed the transcript of the Standing Committee hearing, the exhibits admitted, and the post-hearing briefs submitted by the parties. The Board allowed the ALJ to receive additional evidence if necessary, but neither party provided additional evidence. In reviewing President Thigpen’s decision on appeal, the ALJ concluded:

1. Sandra Peterson’s disclosure to other students that a fellow student had previously failed a class constituted a significant violation of SBHE Policy 1912. That policy provides that student education records are confidential according to the federal Family Education Rights and Privacy Act. A record of a student’s prior enrollment in a particular class and grade or record of whether a student failed a class is confidential. Peterson’s subsequent failure to take full responsibility for her conduct and criticism of the student in question in front of other students for filing a complaint about Peterson was unprofessional, inappropriate and did not conform to an agreement reached between the student and Peterson to resolve the student’s complaint.
2. Peterson’s conduct in leaving a class early after reading a statement to the class constituted substantial and manifest neglect of duty.
3. Peterson’s conduct in ending a class one month before the semester end withojut authorization constituted substantial and manifest neglect of duty.
4. j Peterson’s persistent pattern of unprofessional and inappropriate behavior toward her students, including ignoring or refusing to respond to questions and requests for assistance and inappropriate comments about students constituted demonstrated incompetence in teaching. Responding to student questions and requests for assistance and advising students is an important part of the job of teaching. Peterson had been warned and counseled about her treatment of students on several occasions and she was informed that if students continued to complain her employment would be terminated. In spite of these discussions and warnings, Peterson persisted in treating some of her students in an unacceptable manner.
5. Bismarck State College established, by clear and convincing evidence, adequate cause to dismiss Sandra Peterson for significant violation of state board of higher education policy, substantial and manifest neglect of duty, and demonstrated incompetence in teaching, in accordance with state board of higher education policies governing dismissal of a faculty member, SBHE Policies 605.3 and 605.4.

The Board adopted the ALJ’s findings and conclusions and affirmed Peterson’s dismissal for cause.

[¶ 23] Peterson contends BSC contractually bound itself to a more restrictive burden of proof in cases involving the dismissals of tenured faculty members for cause. She relies on Thompson, in which we noted “[t]he California Supreme Court recognized an employer may contract away its right to decide whether facts constituting cause for termination exist.” 2000 ND 95, ¶ 17, 610 N.W.2d 53 (citing Cotran, 69 Cal.Rptr.2d 900, 948 P.2d at 419-20). The construction of a written contract to determine its legal effect is a question of law. Id. at ¶ 9, 69 Cal.Rptr.2d 900, 948 P.2d 412. The NDUS policies did not contract away the Board’s right to make the final determination whether adequate cause existed to dismiss Peterson. Section 605.4(11) (1998) of the policy manual provided, “In all cases except those resulting in a decision to dismiss a tenured faculty member in which the faculty member files an appeal with the Board ..., the decision of the chief executive is final.” This policy established the Board as the final arbitrator in appeals regarding dismissals of tenured faculty members for cause. The contract required BSC to show clear and convincing evidence that adequate cause existed to terminate Peterson. See North Dakota State Board of Higher Education Policy Manual, Hearings and Appeals, § 605.4 (1998). Therefore, Peterson contracted that the Board would be the final authority regarding whether there was adequate cause and we must determine whether, on the evidence presented to the Board, a reasoning mind could conclude there was clear and convincing evidence to dismiss her for cause.

[¶ 24] Viewing the facts and reasonable inferences in a light most favorable to Peterson, we conclude she has not raised a genuine or material issue of fact showing a reasoning mind could not have concluded there was adequate cause to dismiss her. Rather, the record reflects that different committees, boards, or persons placed different weight on the evidence presented. Peterson contracted for the procedures afforded to her. A breach of Peterson’s employment contract does not occur merely because she disagrees with the substantive result of those procedures. The mere fact that different opinions could be reached based on the facts is not sufficient to establish the Board breached her employment contract. There was sufficient evidence in the record for a reasoning mind to conclude clear and convincing evidence existed to dismiss Peterson for cause. Accordingly, we affirm the summary judgment dismissing Peterson’s breach of contract claim.

Ill

[¶ 25] The trial court concluded Peterson did not raise any genuine or material issue of fact to support her wrongful discharge and conspiracy claims. In actions where contract employees have been terminated for cause, breach of contract has been evaluated as the basis for wrongful termination. See generally Thompson, 2000 ND 95, 610 N.W.2d 53 (evaluating whether Associated wrongfully terminated Thompson under his employment contract). In at-will employment situations, this Court has recognized a public policy exception to the employer’s right to terminate an employee. See Jose v. Norwest Bank North Dakota, N.A., 1999 ND 175, ¶ 17, 599 N.W.2d 293 (reviewing cases in which the public policy exception has prohibited terminating an at-will employee). The public policy must be evidenced by a constitutional or statutory provision to prohibit terminating an at-will employee. Id. (citing Ressler v. Humane Soc’y of Grand Forks, 480 N.W.2d 429, 431 (N.D.1992) and Krein v. Marian Manor Nursing Home, 415 N.W.2d 793, 794 (N.D.1987)).

[¶ 26] Peterson claims the established policies of NDUS are examples of the public policy of the State of North Dakota that protect tenured college professors from arbitrary and capricious dismissal. She alleges BSC violated its policies because the administration engaged in a concerted effort to dismiss her after she signed a letter in early March 1999 that complained about the termination of her department chair. We have previously held that an action for retaliatory discharge in violation of public policy is a tort. Ghorbanni v. North Dakota Council on Arts, 2002 ND 22, ¶ 13, 639 N.W.2d 507 (citing Krein, 415 N.W.2d at 794-95). However, Peterson’s wrongful discharge claim depends entirely upon the provisions of her contract protecting her from arbitrary and capricious removal, and is therefore, a restatement of her breach of contract claim. Similar to her breach of contract claim, she has not presented a genuine or material issue of fact that would support her claim for wrongful discharge, and the trial court did not err in summarily dismissing it. See Pioneer Fuels, Inc., v. Montana-Dakota Utilities Co., 474 N.W.2d 706, 710 (N.D.1991) (“A breach of contract even if intentional, malicious, or in bad faith, is not enough to convert a contract action into a tort action”).

[¶ 27] A civil conspiracy is “a combination of two or more persons acting in concert to commit an unlawful act or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties to inflict a wrong against or injury upon another and an overt act that results in damage[s]. The distinguishing factor between a criminal conspiracy and a civil conspiracy is that damages, not the agreement, are the essence of the conspiracy.” Hurt v. Freeland, 1999 ND 12, ¶ 37, 589 N.W.2d 551 (internal citation and quotation marks omitted). Peterson has not produced any evidence indicating there was an agreement by BSC or its agents to commit an unlawful act or a lawful act by unlawful means. The only possible agreement in this case would be to breach Peterson’s employment contract. However, a breach of contract alone is not a tort and it will not support a claim for civil conspiracy. See Pioneer Fuels, Inc., 474 N.W.2d at 710; see also Grizzle v. Texas Commerce Bank, N.A., 38 S.W.3d 265, 285 (Tex.App.2001), rev’d on other grounds in part by Texas Commerce Bank, N.A., v. Grizzle, 96 S.W.3d 240 (Tex.2002) (“Because breach of contract is not a tort, it mil not support a civil conspiracy”). Not only is a breach of contract alone not a tort, we have held the Board did not breach its contract with Peterson. Accordingly, the trial court did not err in granting summary judgment and dismissing Peterson’s civil conspiracy claim.

[¶ 28] The judgment is affirmed.

[¶ 29] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEBLEN MARING and CAROL RONNING KAPSNER, JJ„ concur.

      . An appeal to the Board is not provided in the current policy manual. Section 605.4(12) (2001) provides "[t]he decision of the president is final.”