author: WRIGHT, Judge.

text:
    Sarah L. SKARHUS, Relator, v. DAVANNI’S INC., Respondent, Department of Employment and Economic Development, Respondent.
    No. A05-1995.
    Court of Appeals of Minnesota.
    Sept. 19, 2006.

      Sarah Skarhus, Crystal, MN, pro se relator.
    Davanni’s Inc., Davannis Pizza & Hot Hoagies, Plymouth, MN, respondent.
    Linda A. Holmes, Department of Employment and Economic Development, St. Paul, MN, for respondent Department of Employment and Economic Development.
    Considered and decided by ROSS, Presiding Judge; GORDON W. SHUMAKER, Judge; and WRIGHT,' Judge.
   OPINION

WRIGHT, Judge.

Relator challenges the determination by the unemployment law judge (ULJ) that relator was disqualified from receiving unemployment benefits because she committed employment misconduct and that relator did not show good cause for failing to participate in an evidentiary hearing. Relator argues that (1) her conduct does not satisfy the statutory definition of “employment misconduct” because theft of food valued at less than four dollars was a single incident without a significant adverse impact on her employer, and (2) she did not participate in the hearing because it was too soon to ask her new employer for time off or to use the telephone during working hours. We affirm.

FACTS

Relator Sarah Skarhus was employed by Davanni’s Riverside (Davanni’s) from March through July 2005. Skarhus’s duties included food preparation and working as a cashier. On July 5, 2005, Skarhus went to Davanni’s on her day off and rang up an order for herself. Skarhus ordered extra beef on her sandwich and also placed an order for “Just Cuz” cheese bread. “Just Cuz” is a code indicating that free cheese bread has been given to a customer when there has been an error on the part of Davanni’s. Skarhus did not charge herself for the extra beef or the cheese bread, but she charged the rest of her order to her employee account. Another employee reported Skarhus to the management. Skarhus was fired that same day for food theft.

Skarhus applied for unemployment benefits with the Department of Employment and Economic Development (department). Skarhus stated in her application for benefits that she “knew not charging yourself for extra food would get you fired” but that she intended to pay for the additional items and simply rang up the order wrong because she was in a hurry. A department adjudicator made an initial determination that Skarhus had been discharged for employment misconduct.

Skarhus appealed the department’s initial determination, and a hearing before a ULJ was scheduled for August 16, 2005. Skarhus faxed a letter on August 15 to the department indicating that she could not participate in the hearing because of her work schedule at her new job. In her letter, Skarhus also challenged the credibility of Davanni’s witnesses and alleged that she had been underpaid by Davanni’s.

At the hearing, a Davanni’s general manager presented receipts and a statement signed by another Davanni’s employee describing the incident of misconduct. The total amount of the theft was less than four dollars. Although Skarhus did not participate in the hearing, her faxed letter was received in evidence and considered by the ULJ.

The ULJ determined that Skarhus had been discharged for employment misconduct and, therefore, was disqualified from receiving unemployment benefits. The ULJ concluded that Skarhus’s action, although a single incident of misconduct, had a significant adverse impact on Davanni’s. The ULJ reasoned that “Skarhus’s conduct certainly called into question her honesty and trustworthiness, important considerations for an employee handling an employer’s cash.”

Skarhus requested reconsideration of the ULJ’s decision, seeking another hearing and arguing that the incident did not have a significant adverse impact on Da-vanni’s. In its order of affirmation, the ULJ affirmed Skarhus’s disqualification from receiving unemployment benefits. The ULJ found that Skarhus had not shown good cause for missing the first hearing and that a new evidentiary hearing was not required. This certiorari appeal followed.

ISSUES

I. Did relator’s theft have a significant adverse impact on her employer so as to constitute employment misconduct?

II. Did relator show good cause for failing to appear at the evidentiary hearing before the ULJ? III.Is relator entitled to relief based on any of her other arguments?

ANALYSIS

I.

An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2004). Employment misconduct means “intentional, negligent, or indifferent conduct, on the job or off the job (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that displays clearly a substantial lack of concern for the employment.” Id., subd. 6(a) (2004). But the statutory definition of employment misconduct specifically exempts “a single incident that does not have a significant adverse impact on the employer.” Id. Skarhus argues that, because her conduct falls under this exemption, the ULJ erred in his determination that she is disqualified from receiving unemployment benefits.

When reviewing the decision of a ULJ, we may affirm the decision, remand it for further proceedings, or reverse or modify it if the substantial rights of the petitioner have been prejudiced because the findings, inferences, conclusion, or decision are “(1) in violation of constitutional provisions; (2) in excess of the statutory authority or jurisdiction of the department; (3) made upon unlawful procedure; (4) affected by other error of law; (5) unsupported by substantial evidence in view of the entire record as submitted; or (6) arbitrary or capricious.” Minn.Stat. § 268.105, subd. 7(d) (Supp.2005).

Whether an employee committed employment misconduct is a mixed question of fact and law. Schmidgall v. Film-Tec Corp., 644 N.W.2d 801, 804 (Minn.2002). Whether the employee committed a particular act is a question of fact. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn.App.1997). We view the ULJ’s factual findings in the light most favorable to the decision, Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn.1996), giving deference to the credibility determinations made by the ULJ, Jenson v. Dep’t of Econ. Sec., 617 N.W.2d 627, 631 (Minn.App.2000), review denied (Minn. Dec. 20, 2000). In doing so, we will not disturb the ULJ’s factual findings when the evidence substantially sustains them. Minn.Stat. § 268.105, subd. 7(d). But whether the act committed by the employee constitutes employment misconduct is a question of law, which we review de novo. Scheunemann, 562 N.W.2d at 34.

Skarhus admits that she knew taking food from her employer without paying for it was theft and could result in termination. Prior to this incident, Skarhus had signed a Davanni’s policy statement indicating that she understood that “[dishonesty in any form may be grounds for dismissal” and that “[u]nlawful activity such as theft or vandalism by an employee ... may be prosecuted by the company.” But Skarhus claims that she intended to pay for the food. The ULJ did not find Ska-rhus’s contention credible, and we defer to the ULJ’s determination in this regard. Jenson, 617 N.W.2d at 631. Accordingly, the record before us establishes that Ska-rhus engaged in intentional conduct on the job that seriously violates the standards of behavior the employer has the right to expect of the employee. Minn.Stat. § 268.095, subd. 6(a).

Thus, whether this act of theft is exempt from the statutory definition of employment misconduct turns on whether the theft of food valued at less than four dollars had a significant adverse impact on the employer. We acknowledge that, using the analytical approach urged by Ska-rhus, we could focus solely on the minimal value of the stolen food. But the value of the stolen items is not the dispositive factor in our analysis. Deciding whether the exemption applies based on the value of the items involved in the theft would not only narrow the inquiry to an economic analysis that could, in many instances, require extensive fact-finding to determine whether a specific dollar value was significant for a particular employer, but also disregard the type of adverse impact that is not readily quantifiable.

Rather than focusing solely on the amount of the theft to determine whether it had a significant adverse impact on the employer, we examine Skarhus’s conduct in the context of her job responsibilities at Davanni’s. Skarhus’s responsibilities as a cashier required her to handle the money of Davanni’s and its customers and to accurately account for items sold to customers and employees. After Skarhus’s theft, Davanni’s could no longer entrust her with those responsibilities. Thus, Davanni’s ability to assign the essential functions of the job to its employee was undermined by the employee’s conduct. Under these circumstances, we conclude that Skarhus’s theft constitutes a single act that had a significant adverse impact on the employer. Accordingly, the ULJ correctly determined that Skarhus’s conduct did not fall under the single-incident exception to employment misconduct set forth in Minn. Stat. § 268.095, subd. 6 (2004).

II.

After an adverse decision by a ULJ, a relator may file a request for reconsideration. Minn.Stat. § 268.105, subd. 2(d) (Supp.2005).

If the involved applicant or involved employer who filed the request for reconsideration failed to participate in the evidentiary hearing[,] ... an order setting aside the findings of fact and decision and directing that an additional evi-dentiary hearing be conducted must be issued if the party who failed to participate had good cause for failing to do so.

Id. A reviewing court accords deference to a ULJ’s decision not to hold an additional hearing and will reverse that decision only for an abuse of discretion. See Goodwin v. BPS Guard Servs., Inc., 524 N.W.2d 28, 30 (Minn.App.1994) (deferring to commissioner’s discretion not to remand for new hearing before referee when party failed to submit testimony at first hearing).

The ULJ found that Skarhus had not shown good cause for failing to participate in the evidentiary hearing. The record establishes that Skarhus’s mother called to inform the department that Skarhus could not participate in the hearing because she had to work. The department offered to reschedule, and Skarhus’s mother indicated that she would check with Skarhus about another date. Rather than proposing an alternate date for the hearing, Ska-rhus faxed a letter to the ULJ on the day before the hearing stating that her work schedule precluded her from participating.

“Good cause” is “a reason that would have prevented a reasonable person acting with due diligence from participating at the evidentiary hearing.” Minn. Stat. § 268.105, subd. 2(d). Failing to attend the hearing because it conflicted with Skarhus’s work schedule is not “good cause” when the department offered to reschedule, but Skarhus neither attempted to reschedule the hearing nor demonstrated that a request for time off work to attend the hearing was denied. Based on this record, we will not disturb the ULJ’s decision to deny the request for an additional evidentiary hearing.

III.

Skarhus raises several other issues, none of which entitles her to relief. First, Skarhus challenges the testimony of the Davanni’s manager who participated in the evidentiary hearing because he was not present when the incident occurred. But a ULJ is authorized to conduct a hearing without conforming to the rules of evidence. Id., subd. 1(b) (Supp.2005). A witness at an evidentiary hearing is not required to have firsthand knowledge because a ULJ “may receive any evidence which possesses probative value, including hearsay.” Minn. R. 3310.2922 (2005); see Vang v. A-1 Maint. Serv., 376 N.W.2d 479, 482 (Minn.App.1985) (stating that hearsay may be sufficient to support ULJ’s decision). The manager presented Davanni’s case to the ULJ and testified about a conversation he had with Skarhus after her discharge, during which Skarhus never mentioned that she intended to pay for the food. This testimony was relevant and properly considered by the ULJ.

Skarhus also challenges the credibility of a Davanni’s witness who provided a statement for the hearing. This argument is misplaced. Credibility determinations are the exclusive province of the ULJ and will not be disturbed on appeal. Jenson, 617 N.W.2d at 631. In addition, Ska-rhus claims that Davanni’s stole from her because it did not pay her adequately for her weekend hours. But Davanni’s weekend-pay policies are not properly before us. Finally, Skarhus asserts that the ULJ ignored her submissions. Because this contention is not supported by the record, it is without merit.

DECISION

Because relator’s theft undermined the employer’s ability to assign essential job functions to relator, this conduct constitutes a single act that had a significant adverse impact on the employer. Accordingly, the ULJ properly determined that relator is disqualified from receiving unemployment benefits because she committed employment misconduct.

Affirmed.

      . This standard of review applies to decisions made by the ULJ on or after June 25, 2005. 2005 Minn. Laws ch. 112, art. 2, § 34.


source: Caselaw Access Project

author: CROTHERS, Justice. MARING, Justice,

license: Public Domain

text:
    2006 ND 190
    John STRAND, Cass County resident and tax payer and other Concerned Citizens and tax payers, similarly situated, Plaintiffs and Appellants v. CASS COUNTY, North Dakota, a political subdivision, Defendant and Appellee and the Cass County Commission, Defendant.
    No. 20050380.
    Supreme Court of North Dakota.
    Aug. 28, 2006.

      Robert W. Harms (argued), Bismarck, ND, and John T. Goff (appeared), Montgomery, Goff and Bullís, Fargo, ND, for plaintiffs and appellants.
    Robert G. Manly (argued), and W. Todd Haggart (appeared), Vogel Law Firm, Fargo, ND, for defendant and appellee.
   CROTHERS, Justice.

[¶ 1] John Strand and other Cass County residents and taxpayers appeal from a judgment dismissing their civil rights and abuse of process actions against Cass County and from an order denying their request for an award of attorney fees. We conclude the district court did not commit reversible error in instructing the jury on the civil rights claim. We further conclude the court failed to rule on part of Strand’s request for attorney fees. We affirm the judgment, but we reverse the order denying Strand’s request for attorney fees and remand for reconsideration.

I

[¶ 2] In the late 1990s, Cass County voters approved a one-half cent sales tax for a new jail. The County eventually decided to demolish the old jail and sheriffs residence in Fargo. Strand and a group of Cass County citizens known as “Save the Jail” (collectively “Strand”) sought to prevent demolition because both buildings were listed on the National Registry of Historic Places. In an effort to prevent demolition, Strand appeared at County Commission meetings, filed petitions for a two-year moratorium, wrote guest editorials in the newspaper, and initiated requests for opinions from the North Dakota Attorney General.

[¶ 3] On February 18, 2003, the County awarded bids to demolish the buildings. However, on February 25, 2003, the Attorney General issued a letter opinion declaring that “Cass County may not destroy the residence without the State Historical Board’s approval.” N.D. Op. Atty. Gen. 2003-L-ll, at 1. The State Historical Board met on March 11, 2003, and granted the County permission to demolish the jail, but continued the hearing on the sheriffs residence until April 11, 2003. At the April 11 meeting, the Board gave its approval to demolish the sheriffs residence, and demolition work began in the afternoon. Also on April 11, 2003, the Attorney General issued another letter opinion declaring that under the terms of N.D.C.C. ch. 11-11, “if the project constitutes an extraordinary expenditure, Cass County cannot commence the project prior to submitting the proposed expenditure to a vote. Whether the demolition is a separate project from the proposed construction is a question of fact on which this office cannot opine.” N.D. Op. Atty. Gen. 2003-L-25, at 4. The County decided that demolition was a separate project not requiring voter approval, and work continued.

[¶ 4] On April 14, 2003, Strand sued the County and obtained a temporary restraining order prohibiting any further demolition. Strand’s complaint alleged that the County was obligated under N.D.C.C. ch. 11-11 to hold a vote before proceeding with demolition. The temporary restraining order was vacated by stipulation of the parties on April 22, 2003, because the buildings were so severely damaged. On May 6, 2003, the demolition contractor submitted a bill and proposed contract change order for $39,066 to the County. On May 7, 2003, the County filed its answer and counterclaim asserting that Strand’s actions resulted in additional costs to the county “in excess of $39,000.” The County also alleged that Strand’s “allegations are untrue, made without reasonable cause and not in good faith and are frivolous pursuant to N.D.C.C. § 28-26-31,” and requested “costs, disbursements and reasonable attorney fees as may be allowed by law.” The County Commission subsequently approved filing the counterclaim. Strand was allowed to amend his complaint to allege that he was entitled to attorney fees from the County because its pleadings were frivolous and not filed in good faith, that the County had violated his civil rights under the First Amendment, the North Dakota Constitution, and 42 U.S.C. § 1983, and that the County had committed abuse of process.

[¶ 5] Strand’s civil rights and abuse of process claims, as well as the County’s counterclaim for additional costs, were submitted to a jury. On the morning of trial, the County withdrew its request for attorney fees against Strand. The jury found that the County did not violate Strand’s First Amendment rights and did not commit abuse of process by asserting a counterclaim against Strand. The jury also found that Strand’s procurement of the temporary restraining order did not damage the County. The district court later ruled that the County did not violate N.D.C.C. ch. 11-11 by failing to submit the demolition project to a vote of the electors. Strand then moved for an award of attorney fees alleging the County’s pleadings, including its request for attorney fees, were not filed in good faith and were frivolous. The court denied Strand’s request for an award of attorney fees. This appeal followed.

II

[¶ 6] Strand argues the district court committed reversible error in instructing the jury on his civil rights claim under 42 U.S.C. § 1983.

[¶ 7] We review jury instructions to determine whether, as a whole, they fairly and adequately advised the jury. Case Credit Corp. v. Oppegard’s, Inc., 2005 ND 141, ¶ 9, 701 N.W.2d 891. A proper jury instruction adequately informs the jury of the applicable law. Amyotte v. Rolette County Hous. Auth., 2003 ND 48, ¶ 5, 658 N.W.2d 324. The district court is not required to instruct the jury in the exact language sought by a party if the instructions are not misleading or confusing, and if they fairly advise the jury of the law on the essential issues of the case. Forster v. West Dakota Veterinary Clinic, Inc., 2004 ND 207, ¶ 29, 689 N.W.2d 366.

[¶ 8] The district court instructed the jury as follows:

CIVIL RIGHTS VIOLATION
To be found hable for a civil rights violation Cass County must have deprived John Strand of a right, privilege, or immunity secured by the First Amendment.
Depriving a person of their civil rights may include retaliation by the County for exercising those rights. Such retaliation may be shown if it tends to chill or deter the civil rights of a person of ordinary firmness. Also, through the conduct of the County, there is or will be a chilling effect on the First Amendment Rights of a person or persons of ordinary firmness in the present or in the future.
CIVIL RIGHTS VIOLATION-ELEMENTS
For you to find the defendant liable for a violation of the plaintiffs civil rights, the plaintiff must prove:
1. That the defendant deliberately deprived the plaintiff of a right, privilege or immunity provided by the United States Constitution;
2. That the deprivation of such protected right, privilege or immunity resulted from a policy or custom of the defendant; and
3.That the plaintiff sustained an actual injury as defined in these instructions.

Strand contends this instruction is erroneous because it required the jury to find that a violation of his civil rights had to be the result of a “policy or custom” of the County, and the commissioners’ approval of the filing of the counterclaim indisputably constituted an official “policy.”

[¶ 9] Strand’s civil rights claim was based on 42 U.S.C. § 1983, which provides in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

[¶ 10] In Monell v. Neiv York City Dept, of Soc. Sens., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the United States Supreme Court held that “a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” The Court’s conclusion was based on the specific language of the statute itself, as well as the statute’s legislative history. Id. at 665-83, 692, 98 S.Ct. 2018. As the Supreme Court later explained, “in Monell and subsequent eases, we have required a plaintiff seeking to impose liability on a municipality under § 1983 to identify a municipal ‘policy’ or ‘custom’ that caused the plaintiffs injury.” Board of County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). In Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), the Supreme Court also made it clear that “a municipality may be liable under § 1983 for a single decision by its properly constituted legislative body — whether or not that body had taken similar action in the past or intended to do so in the future— because even a single decision by such a body unquestionably constitutes an act of official government policy.” The Court in Pembaur, at 481, 106 S.Ct. 1292 (footnote omitted), explained:

[A] government frequently chooses a course of action tailored to a particular situation and not intended to control decisions in later situations. If the decision to adopt that particular course of action is properly made by that government’s authorized decisionmakers, it surely represents an act of official government “policy” as that term is commonly understood. More importantly, where action is directed by those who establish governmental policy, the municipality is equally responsible whether that action is to be taken only once or to be taken repeatedly. To deny compensation to the victim would therefore be contrary to the fundamental purpose of § 1983.

Consequently, it is a well-settled principle of § 1983 jurisprudence that a local government body may only be held liable for constitutional violations which result from a policy or custom of the government body. See, e.g., Scheeler v. City of St. Cloud, 402 F.3d 826, 832 (8th Cir.2005); Turney v. Waterbury, 375 F.3d 756, 761-62 (8th Cir.2004); Yellow Horse v. Pennington County, 225 F.3d 923, 928 (8th Cir.2000).

[¶ 11] We conclude the district court did not err in rejecting Strand’s request that reference to “policy or custom” be removed from the jury instruction defining the elements of a civil rights violation. Although it is error for a court to include inapplicable portions of a statute in jury instructions, Case Credit Corp., 2005 ND 141, ¶ 12, 701 N.W.2d 891, the terms “policy or custom” are applicable portions of the statute, the instruction is a correct statement of the law, and it comports with standard jury instructions on § 1983 liability. See 3B K. O’Malley, J. Grenig, W. Lee, Federal Jury Practice and Instructions; Civil § 165.25, at 626 (5th ed. 2001). Indeed, a failure to refer to “policy” or “custom” in the instruction might have constituted error because it could have allowed the jury to find against the County on a mere respondeat superior theory. See Chonich v. Wayne County Cmty. Coll., 874 F.2d 359, 366-67 (6th Cir.1989); Harris County v. Lu, 2002 WL 32341887, *2 (Tex.Ct.App., May 16, 2002).

[¶ 12] Strand argues the district court nevertheless should have defined the terms “policy or custom.” Because Strand did not request such an instruction in the district court, he has failed to preserve the issue and we consider only whether the failure to define the terms constituted “plain error ... affecting substantial rights” under N.D.R.Civ.P. 51(d)(2). See Sollin v. Wangler, 2001 ND 96, ¶¶ 23-24, 627 N.W.2d 159; Rau v. Kirschenman, 208 N.W.2d 1, 9 (N.D.1973).

[¶ 13] Strand principally relies on Westborough Mall, Inc. v. City of Cape Girardeau, 794 F.2d 330, 338-39 (8th Cir.1986), in which the Eighth Circuit Court of Appeals ruled that in a § 1983 action the term “official policy” should be defined in the instructions to explain that “municipal liability may be imposed for a single decision by a municipal policy maker if the single act (1) is a decision of the legislative body, or (2) is executed in compliance with formal rules or understandings that are intended to, and do, establish fixed plans of action to be followed under similar circumstances, consistently and over time, or (3) is directed by those who establish governmental policy.” However, the Westbor-ough court did not rule that the failure to define “official policy” in that case was reversible error. The court noted the appellants did not offer a definition of official policy to the trial court. Id. at 338. Because the Westborough court had found reversible error with respect to other instructions, it merely stated “[o]n remand, the district court should incorporate a definition of ‘official policy’ in its jury instructions.” Id. at 339. Strand has not cited, nor have we found, any cases holding that a court’s failure to sua sponte define “policy” or “custom” is reversible error. See Swans v. City of Lansing, 65 F.Supp.2d 625, 640 (W.D.Mich.1998) (where standard instruction on municipal liability was given, failure to define terms “policy” or “custom” was “not error, let alone plain error”).

[¶ 14] Strand claims the court’s failure to define the terms is reversible because it was compounded by the County’s closing argument during which its attorney argued: “There’s no evidence, not one shred of evidence in this case, that the county’s ever done it before, and as a consequence there cannot possibly be a policy or custom of a defendant to countersue a citizen.” Although the County’s argument may have been a misstatement of the law under the circumstances, Strand did not object to this argument when it was made, and did not respond to it in rebuttal closing argument. Moreover, the court’s instruction on “Civil Rights Violation” immediately preceding the instruction on the elements informed the jury that a deprivation of civil rights could include “retaliation by the County for exercising those rights,” thus indicating that the County’s approval of the counterclaim could qualify as a-civil rights violation. We conclude the instructions, as a whole, fairly advised the jury of the law on the essential issues of the case, and the court’s failure to define “policy” or “custom” was not plain error affecting Strand’s substantial rights under N.D.R.Civ.P. 51(d)(2).

Ill

[¶ 15] Strand argues the district court -erred by failing to address his claim for attorney fees based on the ground that the County’s demand for attorney fees was frivolous or made in bad faith.

[¶ 16] In his post-trial motion, Strand sought an award of attorney fees under N.D.R.Civ.P. 11(b) and N.D.C.C. §§ 28-26-01 and 28-26-31. Strand’s motion had two bases: (1) the County’s counterclaim against him for $39,000 was frivolous and filed in bad faith; and (2) the County’s request for attorney fees against him, which was withdrawn on the first day of trial, was frivolous and filed in bad faith. In its order denying Strand’s motion, the district court only ruled on the first basis, holding Strand was not entitled to an award of attorney fees based on the County’s assertion of the counterclaim. Strand does not challenge the court’s refusal to award attorney fees for defending against the counterclaim, but asserts the court erred in failing to address his claim for attorney fees based on the County’s request for attorney fees which was subsequently withdrawn.

[¶ 17] An award of attorney fees under N.D.R.Civ.P. 11 and N.D.C.C. §§ 28-26-01 and 28-26-31 lies within the sound discretion of the district court. See Dietz v. Kautzman, 2004 ND 119, ¶ 15, 681 N.W.2d 437; Peterson v. Zerr, 477 N.W.2d 230, 235 (N.D.1991). A district court abuses its discretion when it fails to address nonfrivolous issues presented to the court. Hilgers v. Hilgers, 2004 ND 95, ¶ 25, 679 N.W.2d 447. We reverse the court’s order and remand for consideration of Strand’s request for attorney fees based on the County’s request for attorney fees from Strand.

IV

[¶ 18] We affirm the judgment, reverse the order denying Strand’s request for attorney fees, and remand for reconsideration.

[¶ 19] GERALD W. VANDE WALLE, C.J., and DOUGLAS L. MATTSON, District Judge, concur.

I cuncur in the result. DALE V. SANDSTROM, J.

[¶ 20] The Honorable Douglas L. Mattson, District Judge, sitting in place of Kapsner, J., disqualified.

MARING, Justice,

concurring specially.

[¶ 21] I respectfully concur specially. I write only to make known my concerns regarding misstatements of law during closing arguments.

[¶ 22] In general, counsel must make a timely objection to a misstatement of the law and must ask the trial judge to give a curative instruction to the jury. Blessum v. Shelver, 1997 ND 152, ¶ 30, 567 N.W.2d 844. Failure to object waives the misstatement of the law. Id. There is one exception to this rule:

The only exception to the general rule requiring objection to improper closing argument is when the misconduct of counsel is so severe that it affects that party’s substantial rights or constitutes a denial of a fair trial, thereby placing an independent duty upon the court to confíne the attorney to the permissible bounds of argument, where necessary, and admonish the jury.

Id. (citing Andrews v. O’Hearn, 387 N.W.2d 716, 731 (N.D.1986)). A party’s substantial rights are affected when an attorney’s misstatement of the law during closing argument affects the outcome of the case. Howes v. Kelly Services, 2002 ND 208, ¶ 5, 654 N.W.2d 422.

[¶ 23] Here, the attorney for Cass County misstated the law when he stated during his closing argument, “[t]here’s no evidence, not one shred of evidence in this case, that the county’s ever done it before, and as a consequence there cannot possibly be a policy or custom of a defendant to countersue a citizen.”

[¶ 24] However, Strand’s ability to challenge Cass County’s attorney’s misstatement of law during closing argument was hindered by his own inaction. First, Strand failed to request a jury instruction on the meaning of “policy.” Then, he never objected to Cass County’s attorney’s closing argument. Further, Strand never clearly argued how he was prejudiced by the misstatement of law and never moved for a new trial. We do not know how the trial judge would have viewed the impact of the misstatement of law because Strand did not make a motion for a new trial. A motion for a new trial provides the trial judge an opportunity to explain why a misstatement of the law made during closing argument was or was not prejudicial. In assessing prejudice, we consider the analysis of the trial judge because the judge was in a better position to weigh the impact of the misconduct. Blessum, 1997 ND 152, ¶ 33, 567 N.W.2d 844.

[¶ 25] A trial judge, however, must be concerned that a party receive a fair trial and be ready to take appropriate action when a misstatement of the law occurs during closing argument. “[A] trial judge has a duty to prevent improper closing argument from prejudicing the jury.” Murphy v. Int’l Robotic Sys., 766 So.2d 1010, 1023 (Fla.2000). The trial judge in this case could have cured Cass County’s attorney’s misstatement of law. Trial judges must remember the important role they play in ensuring the fair administration of justice. Even if the trial judge breaches his duty, this does not necessarily mean the party’s substantial rights are affected.

[¶ 26] Despite the exception to the waiver rule, under the facts present in this case, I agree with the majority that Cass County’s attorney’s misconduct during closing argument was not so severe that it affected Strand’s substantial rights.

[¶ 27] Although Cass County’s attorney’s misstatement of the law did not affect Strand’s substantial rights, such misconduct can have a significant impact. “An attorney must refrain from potentially prejudicial comments during closing argument.” Blessum, 1997 ND 152, ¶ 32, 567 N.W.2d 844. Such comments could be grounds for reversal. The attorney for Cass County made an improper comment when he clearly misstated the law to the jury during his closing argument. I strongly believe improper comments should not be condoned; the legal system depends on public confidence in the courts and the system of justice is negatively impacted by the allowance of improper comments. Therefore, an exception to the waiver rule is essential to maintaining public trust in our jury trial system.

[¶ 28] I, therefore, concur specially and voice my concern that Cass County’s attorney misstated the law during closing argument without admonition by the trial court at any stage.

[¶ 29] Mary Muehlen Maring


author: SANDSTROM, Justice.

text:
    2006 ND 196
    STATE of North Dakota, Plaintiff and Appellee, v. ReAnna L. GRAF, Defendant and Appellant. State of North Dakota, Plaintiff and Appellee, v. Samuel Lee Parisien, Defendant and Appellant.
    Nos. 20050410-20050413, 20050414-20050417.
    Supreme Court of North Dakota.
    Sept. 13, 2006.

      Nancy Darlene Yon (appeared), Assistant State’s Attorney, and Justin Vinje (argued), third-year law student, under the Rule on Limited Practice of Law by Law Students, Grand Forks, N.D., for plaintiff and appellee.
    Robin L. Olson, Olson Johnston Law Office, Grand Forks, N.D., for defendants and appellants.
   SANDSTROM, Justice.

[¶ 1] ReAnna Graf and Samuel Pari-sién appeal from convictions for drug-related offenses entered after they conditionally pled guilty to the charges. We conclude Parisien’s consent to a search of his apartment after consultation with an attorney purged the taint of law enforcement’s unlawful entry into the apartment. We affirm.

I

[¶ 2] On February 22, 2005, the manager of a Grand Forks apartment complex called a law enforcement officer to report her suspicions of drug activity in one of the apartments she managed. After speaking with the apartment manager, four officers went to the apartment, which was occupied by Graf and Parisién. The officers knocked on the apartment door, and when Graf answered, they told her they were investigating a complaint that drugs were present in the apartment.

[¶ 3] The parties dispute whether Graf invited the officers into the apartment. The State claims Graf verbally consented to the officers’ entry into the apartment. Graf and Parisién claim Graf merely turned and walked into the living room to inform Parisién that the officers were there investigating a complaint, and she did not consent to the officers’ entry into the apartment.

[¶ 4] Once inside the apartment, one officer observed a marijuana cigarette in an ashtray in the living room. When the officers asked Parisién if he would sign a written consent to search the apartment, Parisién telephoned his mother. When Parisién did not respond to further requests for consent to a search, one of the officers left to obtain a search warrant. Shortly thereafter, Parisien’s mother and her husband arrived at the apartment, followed closely by an attorney. According to one of the officers, the attorney spoke with the officer and then conferred with Parisién. According to Parisién, the attorney “took [Parisién] down the hall to the front steps to talk with [Parisién]” and Parisién “told [the attorney] what was going on [and the attorney] told [Parisién] to sign the consent to search because [the attorney] felt they were going to get the warrant anyway.” According to Parisién, he talked with the attorney for “about five minutes.” The attorney served as a witness when Parisién signed a written “consent to search” the apartment. A search of the apartment resulted in the seizure of drug paraphernalia, methamphetamine, and marijuana.

[¶ 5] Graf and Parisién were each charged with two counts of possession of drug paraphernalia and possession of both methamphetamine and marijuana with intent to deliver. Graf and Parisién moved to suppress the evidence seized during the search of their apartment. The district court found that Graf had not verbally consented to a search of the apartment when the officers followed her into the apartment. The court concluded, however, that the illegality of the officers’ initial entry into the apartment was purged by Parisien’s subsequent written consent to search the apartment after consultation with an attorney and that the evidence seized during the search would inevitably have been discovered. The court denied the motion to suppress. Graf and Parisién subsequently entered conditional pleas of guilty under N.D.R.Crim.P. 11(a)(2) to the charges.

[¶ 6] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeals are timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 29-28-06.

II

[¶ 7] In reviewing a district court’s decision on a motion to suppress evidence, we defer to the district court’s findings of fact and resolve conflicts in testimony in favor of affirmance. State v. Smith, 2005 ND 21, ¶ 11, 691 N.W.2d 203. We will affirm a district court’s decision on a motion to suppress if “there is sufficient competent evidence fairly capable of supporting the trial court’s findings, and the decision is not contrary to the manifest weight of the evidence.” City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994). Our standard of review recognizes the importance of the district court’s opportunity to observe the witnesses and assess their credibility. State v. Mitzel, 2004 ND 157, ¶ 10, 685 N.W.2d 120. Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law. Id.

Ill

[¶ 8] Graf and Parisién claim the district court erred in denying their motion to suppress evidence seized during the search of their apartment. The State responds that the district court erred in finding Graf had not consented to the officers’ entry into the apartment.

A

[¶ 9] The Fourth Amendment to the United States Constitution and article I, § 8, of the North Dakota Constitution protect individuals from unreasonable searches and seizures in their home. State v. DeCoteau, 1999 ND 77, ¶ 7, 592 N.W.2d 579. Warrantless searches inside an individual’s home are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Mitzel, 2004 ND 157, ¶ 11, 685 N.W.2d 120. Searches inside an individual’s home are not unreasonable, however, if the search falls under one of the well-delineated exceptions to the warrant requirement. Mit-zel, at ¶ 11. When no exception to the warrant requirement exists, any evidence seized is inadmissible under the exclusionary rule and must be suppressed. Id. at ¶ 12. The State has the burden of showing a warrantless search falls within an exception to the warrant requirement. Id.

[¶ 10] Consent is one exception to the warrant requirement. Mitzel, 2004 ND 157, ¶ 13, 685 N.W.2d 120; DeCoteau, 1999 ND 77, ¶ 9, 592 N.W.2d 579; State v. Avila, 1997 ND 142, ¶ 16, 566 N.W.2d 410. “The existence of consent is a question of fact to be determined from the totality of the circumstances.” Mitzel, ¶ 13. In DeCoteau, at ¶ 11, we discussed requirements for obtaining a defendant’s consent to a search:

“[T]o sustain a finding of consent, the State must show affirmative conduct by the person alleged to have consented that is consistent with the giving of consent, rather than merely showing that the person took no affirmative actions to stop the police from entering.” Avila, 1997 ND 142, ¶ 17, 566 N.W.2d 410 (citing United States v. Jaras, 86 F.3d 383, 390 (5th Cir.1996) (consent cannot be inferred from silence and failure to object when police do not expressly or implicitly request consent); United States v. Shaibu, 920 F.2d 1423, 1427 (9th Cir.1990) (absent specific request by police for permission to enter a home, government may not show consent to enter from defendant’s failure to object to entry because “[t]o do so would be to justify entry by consent and consent by entry”); United States v. Wenzel, 485 F.Supp. 481, 483 (D.Minn.1980) (failure to order uninvited officer to leave apartment is “hardly enough to establish consent”); Robinson v. State, 578 P.2d 141, 144 (Alaska 1978) (where defendant at no time indicated consent to officers’ presence except by silence, failure to demand that officers leave was not voluntary consent); Ingram v. State, 364 So.2d 821, 822 (Fla.Ct.App.1978) (submission to apparent authority of officer is not necessarily consent to search, and a showing of acquiescence without at least tacit consent is not sufficient to prove consent); I.W. Ringel, Searches & Seizures, Arrests and Confessions § 9.3 (2d ed.1997); 2 J. Cook, Constitutional Rights of the Accused § 4:55 (3d ed.1996)).

[¶ 11] Here, the district court said a factual dispute existed regarding whether Graf invited the officers into the apartment. Two officers testified at the suppression hearing that Graf verbally consented to their entering the apartment, but they also testified they did not remember her specific words. Graf explicitly testified she did not consent to the officers’ entry into the apartment, and she merely turned away and walked into the living room to tell Parisién the officers were there. The district court said that even if Graf invited the officers into the front entrance of her apartment, her actions did not indicate an affirmative consent to allow the officers to leave the front entryway and search the apartment. The court found the State had failed to meet its burden of showing affirmative conduct that was consistent with giving consent. The court observed the witnesses and assessed their credibility, and we decline the State’s invitation to reweigh the evidence. We conclude there is sufficient competent evidence fairly capable of supporting the court’s finding, and the court’s decision is not contrary to the manifest weight of the evidence. We therefore affirm the district court’s holding that the officers’ initial entry into the apartment was unlawful.

B

[¶ 12] Parisién and Graf argue Parisien’s consultation with an attorney and subsequent consent to search does not purge the taint of the officers’ initial unlawful entry into the apartment.

[¶ 13] In State v. Smith, 2005 ND 21, ¶ 26, 691 N.W.2d 203, we outlined the standard for determining whether a subsequent consent to search purges the taint of prior unlawful police activity. See Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). Under Smith, a court must engage in a two-step inquiry, first employing a totality-of-the-circumstances analysis to determine whether the subsequent consent to search was voluntary. Smith, at ¶ 26. If the consent was voluntary under the totality of the circumstances, the court must then proceed to the second inquiry and determine whether the taint of the prior unlawful conduct is purged, considering: (1) the temporal proximity between the illegal search or seizure and the consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. Id.

[¶ 14] The district court said there was a short temporal proximity between law enforcement’s unlawful entry into the apartment and the time when officers began asking Parisién for consent to search the apartment. Although noting some courts have found a short temporal proximity resulted in a tainted consent to search, the district court nevertheless said that intervening circumstances may be sufficient to break the causal connection between unlawful conduct and consent. The crux of the court’s rationale for deciding Parisien’s consent purged law enforcement’s prior unlawful entry into the apartment is the court’s conclusion that Pari-sien’s consultation with an attorney before signing the consent to search was an intervening circumstance sufficient to purge the taint of the prior illegality.

[¶ 15] In Brown, 422 U.S. at 603-04, 95 S.Ct. 2254 the United States Supreme Court held that warnings prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), alone and per se, cannot always make a confession sufficiently a product of free will to break, for Fourth Amendment purposes, the causal connection between law enforcement illegality and a confession. In Brown, at 611, 95 S.Ct. 2254 Justice Powell, in an opinion concurring in part, outlined a requirement for some demonstrably effective break in the chain of events leading from an illegal arrest to a statement, such as actual consultation with counsel or the accused’s presentation before a magistrate for a determination of probable cause, before the taint of illegal conduct can be removed.

[¶ 16] Other courts have recognized that consultation with an attorney or a relative is an intervening circumstance that can purge the taint of a prior Fourth Amendment violation. See United States v. Buchanan, 904 F.2d 349, 356 (6th Cir.1990) (defendant “did not consult with an attorney prior to consenting to the search”); United States v. George, 883 F.2d 1407, 1416 (9th Cir.1989) (“[t]his simply is not a case where [defendant] ... consulted with an attorney”); United States v. Wellins, 654 F.2d 550, 555-56 (9th Cir.1981) (“crucial factor in this case is that [defendant] was permitted to consult with his attorney”); People v. Boyer, 38 Cal.4th 412, 42 Cal.Rptr.3d 677, 133 P.3d 581, 609 (2006) (“opportunity for legal consultation is critically important in determining whether a consent to search was purged of the primary taint of a prior Fourth Amendment violation”); State v. Shular, 400 So.2d 781, 782 (Fla.Dist.Ct.App.1981) (“causal connection between illegal arrest and [subsequent confession] sufficiently attenuated as to purge any taint from the arrest ... [where defendant] met alone with his parents for over an hour and spoke with his attorney”); State v. Huddleston, 924 S.W.2d 666, 675 (Tenn.1996) (“one example of an intervening circumstance ... is arrestee’s consultation with an attorney, relative, friend, or priest”). See also United v. Juarez, 573 F.2d 267, 274 (5th Cir.1978) (fact that defendant was practicing attorney who had represented criminal defendants and was schooled in criminal law supported volun-tariness of defendant’s consent to search).

[¶ 17] Here, law enforcement permitted Parisién to consult with his mother and an attorney before he consented to the search of the apartment. According to one officer, the attorney spoke with the officer before speaking with Parisién, and the attorney spoke with Parisién for about ten to fifteen minutes in the hallway. According to Parisién, the attorney “took [Parisién] down the hall to the front steps to talk with [Parisién],” and Parisién “told [the attorney] what was going on [and the attorney] told [Parisién] to sign the consent to search because [the attorney] felt they were going to get the warrant anyway.” The attorney also served as a witness when Parisién signed the written consent to search the apartment. The nature of Parisien’s private consultation with an attorney is the crucial factor in this case. Under these circumstances, we conclude Parisien’s consent to search the apartment was voluntary and his consultation with an attorney was a sufficient intervening circumstance to purge the taint of the prior unlawful entry into the apartment. Moreover, on this record, we cannot say that the unlawful police activity was so flagrant as to require suppression of the seized evidence. We therefore conclude the district court did not err in denying the motion to suppress the evidence found in the apartment.

C

[¶ 18] Because of our resolution of the consent issue, we need not address whether the evidence would have been inevitably discovered.

IV

[¶ 19] We affirm the convictions.

[¶ 20] GERALD W. VANDE WALLE, C.J., and DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


author: KAPSNER, Justice.

text:
    2006 ND 192
    STATE of North Dakota, Plaintiff and Appellee, v. Zachary SCHMIDKUNZ, Defendant and Appellant.
    No. 20050141.
    Supreme Court of North Dakota.
    Sept. 13, 2006.

      John P. Van Grinsven III, State’s Attorney, Minot, N.D., for plaintiff and appellee.
    Chad Rory McCabe, Bismarck, N.D., for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Zachary Schmidkunz appealed from a criminal judgment entered after a jury found him guilty of murder, a Class AA Felony. We conclude the prosecutor’s improper comments during closing arguments did not constitute obvious error, the district court did not abuse its discretion in admitting testimony by the State’s expert witness, and the district court did not abuse its discretion in making comments to the jury before deliberations or in permitting the State’s expert to testify regarding his competency evaluation of Schmidkunz. We affirm.

I

[¶ 2] On November 17, 2003, Minot police were dispatched to Schmidkunz’s parents’ residence after his parents contacted police upon discovering the body of a dead woman in their basement. Police officers determined the woman had been shot with a shotgun. Further investigation revealed a shotgun belonging to Zachary Schmid-kunz on a bed in the basement. Zachary Schmidkunz was not at his parents’ house, and his mother indicated she had last spoken with him by telephone earlier that day.

[¶ 3] Later that evening Schmidkunz surrendered to Jamestown law enforcement officers and claimed to have shot a woman in Minot. Upon confirming that a shooting had occurred in Minot, Jamestown law enforcement officers placed Schmidkunz under arrest. Schmidkunz was interviewed and gave a handwritten statement to Jamestown law enforcement officers, providing information and details implicating him in the shooting. A typed transcript of Schmidkunz’s interview with Jamestown law enforcement officers was received at his subsequent trial, as well as his handwritten statement and his sketch of the basement.

[¶ 4] The State charged Schmidkunz with Class AA Felony murder. During trial, Schmidkunz presented expert testimony from Dr. Maureen Hackett. Dr. Hackett testified that, in her opinion, “Schmidkunz was in a state of mind of an ‘automaton’ that was induced by extreme physiologic excitement fueled by a reaction to a medication withdrawal that created an extreme worsening of his psychiatric symptoms and a sudden onset of novel rage resulting in a prolonged episode of extreme emotional disturbance.” The State provided rebuttal testimony from Dr. Joseph Belanger and Dr. James Roer-ig addressing Dr. Hackett’s testimony about Schmidkunz’s competency. A jury convicted Schmidkunz of the charge of murder. Schmidkunz appealed from the criminal judgment entered upon the jury verdict.

II

[¶ 5] Schmidkunz argues the prosecutor’s improper comments during closing argument constitute obvious error and require reversal of his conviction. Schmid-kunz argues the prosecutor referred to taped recordings by Schmidkunz’s expert witness, Dr. Hackett, which were made during her interviews of Schmidkunz and were not admitted into evidence. Schmid-kunz concedes, however, he did not object to the prosecutor’s comments during closing argument and our review of this issue is for obvious error.

[¶ 6] “This Court exercises its authority to notice obvious error cautiously and only in exceptional circumstances in which the defendant has suffered a serious injustice.” State v. Clark, 2004 ND 85, ¶ 6, 678 N.W.2d 765 (citing State v. Anderson, 2003 ND 30, ¶ 8, 657 N.W.2d 245, and State v. Evans, 1999 ND 70, ¶ 9, 593 N.W.2d 336). In analyzing obvious error claims under North Dakota law, we have applied a plain error framework, explaining an appellate court may notice a claimed error that was not brought to the district court’s attention if there was “(1) error, (2) that is plain, and (3) affects substantial rights.” State v. Olander, 1998 ND 50, ¶¶ 13-14, 575 N.W.2d 658. Once the defendant establishes that a forfeited plain error affects substantial rights, this Court has discretion to correct the error, and should correct the error where it seriously affects the fairness, integrity or public reputation of judicial proceedings. Id. at ¶ 16.

[¶ 7] In controlling the scope of closing argument, the district court is vested with discretion, and absent a clear showing of an abuse of discretion, we will not reverse on grounds the prosecutor exceeded the scope of permissible closing argument. Clark, 2004 ND 85, ¶ 7, 678 N.W.2d 765. Unless the error is fundamental, a defendant must demonstrate a prosecutor’s comments during closing argument were improper and prejudicial. Id. In order to be prejudicial, the improper closing argument must have “stepped beyond the bounds of any fair and reasonable criticism of the evidence, or any fair and reasonable argument based upon any theory of the case that has support in the evidence.” Id. (citing Evans, 1999 ND 70, ¶ 11, 593 N.W.2d 336).

[¶ 8] Here, Schmidkunz’s expert witness, Dr. Hackett, tape-recorded approximately six and a half hours of her interviews with him. In cross-examining Dr. Hackett, the prosecutor played a portion of those taped interviews. The recordings themselves, however, were not admitted into evidence.

[¶ 9] During closing argument, the prosecutor argued:

[Dr. Hackett] testified in direct she liked to make these tapes because she could go back and review them. Remember I told you in my opening statement a lot of this information the State didn’t get until three weeks before trial, inundated with material. Had to pour through them.
But we made time to listen to the tapes. And the thing that stuck out in my mind — you read her report, the first report. Nowhere in that tape or in that report, excuse me, does she mention that he advised her on the tape he took a pill on Sunday.
That was important because, you know, you heard in this discontinuation syndrome, which was their defense, that the best thing you can do is reintroduce the drug. And within 24 hours it will— things were going to get better. But somehow that didn’t make it in here. She said I obviously would have put it in there.
Was it an oversight or was it because it just didn’t fit? That is your call. But it doesn’t help the theory. Certainly it doesn’t.
And we played the tape. I would have played the tape all day. There were other things I would have liked to have shown on the tape.

(Emphasis added.)

[¶ 10] Schmidkunz argues the prosecutor’s comments were improper because the State cannot rely or comment on facts not in evidence during closing argument. It is undisputed that the actual recordings of Dr. Hackett’s interviews with Schmidkunz were not admitted into evidence so the evidence was limited to the portion of the tape actually heard by the jury. We have previously expressed our concern when a prosecutor comments personally on evidence “because he or she is acting as an unsworn witness for the prosecution who is not subject to cross-examination and who may be perceived as an expert witness.” State v. Skorick, 2002 ND 190, ¶ 15, 653 N.W.2d 698 (citing State v. Schimmel, 409 N.W.2d 335, 343 (N.D.1987)). We have also stated that a prosecutor’s improper statements of fact not supported by the evidence “are presumed to be prejudicial unless harmless in themselves.” Evans, 1999 ND 70, ¶ 12, 593 N.W.2d 336 (quoting State v. Mehralian, 301 N.W.2d 409, 418 (N.D.1981)). In Evans, the prosecutor argued that the defendants had been identified on tape, -without evidentiary support in the record. Evans, at ¶ 12. The issue of identification was disputed at trial, and the prosecutor’s comments suggested the prosecutor knew of evidence that supported the charges but was not presented to the jury. Id. However, in Evans, the prejudicial effect of the prosecutor’s improper comments was compounded by the district court’s failure to admonish the jury to disregard the prosecutor’s comments about the identification issue, which were not supported by any evidence. Evans, at ¶ 13.

[¶ 11] Here, the district court instructed the jury that statements by counsel were not to be considered evidence, any statements by counsel concerning facts not supported by the evidence were to be disregarded, and jury members were to rely on their own recollection or observation. See, e.g., Clark, 2004 ND 85, ¶ 11, 678 N.W.2d 765 (concluding any possible prejudice was minimized by the court’s cautionary instruction and any isolated improper statements were not obvious error). Moreover, although the prosecutor’s comments in closing arguments regarding the tapes were improper in suggesting they provided more evidence not heard by the jury, we cannot conclude that the comments were so prejudicial as to affect Schmidkunz’s substantial rights. The evidence against Schmidkunz was overwhelming, and we cannot say that the prosecutor’s single comment, which did not state any specific evidentiary facts, carried with it enough weight to impact the jury’s verdict and Schmidkunz’s ability to receive a fair trial. Schmidkunz has failed to demonstrate the prosecutor’s remarks affected his substantial rights.

[¶ 12] Based upon our review of the record, we are unable to conclude the State’s improper comment in closing argument prejudiced Schmidkunz. We therefore, conclude Schmidkunz was not denied a fair trial by the prosecutor’s comment and the claimed error does not rise to the level of obvious error requiring reversal.

Ill

[¶ 13] Schmidkunz argues the district court committed reversible error by allowing the State’s expert witness, Dr. Joseph Belanger, to testify to an element of the criminal charge. The State argues Dr. Belanger’s testimony regarding criminal responsibility was appropriate under the circumstances.

[¶ 14] Rules 702 through 706 of the North Dakota Rules of Evidence govern the admissibility of expert testimony. “The test for admission of expert testimony is whether or not such testimony will assist the trier of fact to understand the evidence or to determine a fact in issue and whether or not the witness is qualified as an expert.” State v. Fontaine, 382 N.W.2d 374, 377 (N.D.1986). Under N.D.R.Ev. 702, an expert may testify to scientific, technical, or other specialized knowledge which will assist the trier of fact. Rule 704, N.D.R.Ev., specifically provides: “Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Thus, an expert is authorized to give his opinion even though it embraces an ultimate issue of fact to be decided by the trier of fact. See State v. Steinbach, 1998 ND 18, ¶ 12, 575 N.W.2d 193. Rule 702, N.D.R.Ev., envisions “generous allowance” of the use of expert witness testimony where a witness is shown to have some degree of expertise in the field of which the expert testifies. Steinbach, at ¶ 12; Anderson v. A.P.I. Co. of Minnesota, 1997 ND 6, ¶ 9, 559 N.W.2d 204.

[¶ 15] The ultimate decision whether to admit expert witness testimony rests within the district court’s sound discretion. Steinbach, 1998 ND 18, ¶ 12, 575 N.W.2d 193; Fontaine, 382 N.W.2d at 377. We will not reverse the district court’s decision on appeal unless the court has abused its discretion. Steinbach, at ¶ 12; Fontaine, at 377. “An abuse of discretion by the district court is never assumed, and the burden is on the party seeking relief affirmatively to establish it.” Nesvig v. Nesvig, 2006 ND 66, ¶ 12, 712 N.W.2d 299. “The district court abuses its discretion only when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination.” Id.

[¶ 16] Schmidkunz argues that Dr. Be-langer improperly testified to the essential elements of murder and definitions of “intentionally” and “knowingly.” Schmidkunz claims the district court erred in allowing Dr. Belanger to testify that Schmidkunz’s conduct was insufficient to meet the mental disease and defect standard because Dr. Belanger “just read what it means to be knowingly.” Schmidkunz asserts the testimony the State solicited from Dr. Be-langer wrongfully invaded the province of the jury to determine Schmidkunz’s mental state and guilt or innocence because that testimony addressed the essential elements of murder, the definitions of intentionally and knowingly, and his opinion that Schmidkunz’s conduct was insufficient to meet the appropriate standard for a mental disease and defect.

[¶ 17] Schmidkunz’s argument relies on cases applying language from Fed.R.Evid. 704(b), which provides: ,

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of the defense thereto. Such ultimate issues are matters for the trier of fact alone.

In 1984, Congress amended Fed.R.Evid. 704 to include that subsection. See United States v. Alexander, 805 F.2d 1458, 1460 n. 1, 1461 (11th Cir.1986) (explaining Rule 704 was amended by section 406 of the Insanity Defense Reform Act of 1984, Pub.L. No. 98-473, 98 Stat.2057, 2067, which is chapter IV of Title II of the Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, 98 Stat.1976). That subsection, however, has never been adopted in North Dakota, and the Joint Procedure Committee has specifically declined to recommend amending N.D.R.Ev. 704 to include that language. See Minutes of the Joint Procedure Comm. 19-20 (April 27-28, 2006); Minutes of the Joint Procedure Comm. 4 (Jan. 23, 1986). We decline to adopt that language by judicial decision. See State v. Osier, 1997 ND 170, ¶ 5 n. 1, 569 N.W.2d 441 (declining to adopt procedural rule by opinion in litigated appeal).

[¶ 18] We agree with the State’s observation that N.D.C.C. §§ 12.1-04.1-03, 12.1-04.1-04, 12.1-04.1-13, and N.D.R.Crim.P. 12.2, specifically authorize the admission of evidence at trial relating to issues of lack of criminal responsibility or lack of state of mind as an element required for the alleged offense. Under those statutes, that type of testimony may be relevant and admissible, despite embracing an ultimate issue for the trier of fact. In State v. Jensen, 251 N.W.2d 182, 189 (N.D.1977), this Court stated:

Psychiatrists and other experts may testify as to their conclusions, even though based upon reports of psychologists not in evidence. N.D.R.Ev. 703; Minot Sand & Gravel Co. v. Hjelle, 231 N.W.2d 716 (N.D.1975).
Psychiatrists and other experts may be allowed to testify to their opinions on the ultimate fact to be determined by the jury, namely, whether the defendant, at the time of the offense, had substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law as of the time of the alleged offense. It is not a proper objection that an expert is testifying to an ultimate fact. N.D.R.Ev. 704. Minot Sand & Gravel Co. v. Hjelle, supra.

[¶ 19] Dr. Belanger’s testimony was given in the rebuttal phase of the trial after the defense had presented its case. Dr. Belanger testified after Dr. Hackett testified and provided evidence relating to Schmidkunz’s intent, referring to the specific terms in the statute defining the elements for the charged offense and Schmidkunz’s state of mind for his criminal responsibility.

[¶ 20] Under N.D.R.Ev. 704, Dr. Be-langer’s testimony is the type of testimony that would assist the trier of fact even though it may embrace an ultimate issue to be decided by the jury. We conclude the district court did not abuse its discretion in admitting Dr. Belanger’s expert testimony.

IV

[¶ 21] Schmidkunz argues the district court’s comments to the jury before deliberations caused a forced or coerced verdict. At the close of evidence the district court told the jury:

Let me further advise that in all likelihood we will not have the attorneys’ closing arguments today. We will start with those at nine o’clock tomorrow morning. Now, on the assumption that process will be over about noon, you will then be in charge of the bailiffs, and you will start your deliberations. You will have to give up your telephones for as long as it takes you. And it is my policy to the extent possible for you to continue deliberation right through until you reach a verdict or until the time gets too unreasonable.
The reason I am telling you all this is so you can plan your Friday or alert those people that you may have to alert that potential exists that you will be working after five o’clock on Friday. I don’t know if that will be necessary. But you have a right to plan your lives.

After the final jury instructions, the court said:

I will advise you that I have no way of knowing how long the deliberations will take. It is my intention that you will in all likelihood receive or start deliberations some time mid-forenoon. And it is my intention that you will deliberate— getting a chance to have a noon break or noon food brought in, or something — but deliberate until you come up with a verdict. I advise you this so that you might know that deliberations, if it takes that long, [are] not going to stop at five o’clock tomorrow night, and you can consequently notify your families of that potential.

Schmidkunz claims the verdict was forced or coerced because after an almost two-week trial, the jury returned a verdict in about three hours. Schmidkunz did not object to either comment. Thus we are limited to a review for obvious error. See State v. Bertram, 2006 ND 10, ¶ 17, 708 N.W.2d 913.

[¶ 22] The district court has broad discretion over the conduct of a trial, which includes scheduling the time for jury deliberations, but the court must exercise its discretion in a manner that best comports with substantial justice. State v. Parisien, 2005 ND 152, ¶ 11, 703 N.W.2d 306. “[T]he mere length of time a jury is kept in deliberations, in itself, does not establish that a verdict was coerced ....” Id. (internal quotation omitted).

[¶ 23] In our view, the court’s statements to the jury merely informed the jury of the anticipated schedule for deliberations so the members of the jury could “plan your lives.” Nothing in this record supports Schmidkunz’s claims that the jury’s verdict was forced or coerced. Based upon our review of the record, we conclude the district court did not coerce or force a verdict and did not abuse its discretion in advising the jury of the schedule for deliberations. Because we conclude the district court did not abuse its discretion, Schmidkunz cannot demonstrate an error under the obvious error analysis.

V

[¶ 24] Schmidkunz argues the district court erred in admitting Dr. Belan-ger’s testimony and his reports because his evaluation of Schmidkunz was audio-recorded, but not video-recorded.

[¶ 25] In support of his argument, Schmidkunz relies on language in N.D.C.C. § 12.1-04.1-08(1), which provides:

An examination of the defendant conducted under section 12.1-04.1-05 must be audio-recorded and, if ordered by the court, video-recorded. The manner of recording may be specified by rule or by court order in individual cases.

[¶ 26] Before trial, the district court had ordered that the State’s examination of Schmidkunz be both audio-recorded and video-recorded. In August 2004, the State was notified by personnel at the State Hospital that the Hospital did not have the capability to videotape the examination and evaluation of Schmidkunz. The State sent a letter to the State Hospital indicating an audio-recording would be sufficient. The letter indicates it was also sent to Schmidkunz’s counsel and filed with the court. In the State’s supplemental discovery responses filed in October 2004, Dr. Belanger was listed as an expert witness for trial regarding the issue of lack of criminal responsibility or the requisite state of mind.

[¶ 27] During trial and just before Dr. Belanger’s testimony, Schmidkunz objected to Dr. Belanger’s testimony and reports, arguing that evidence was inadmissible because of the lack of a video-taped examination. The district court ruled that, “in spite of the fact the order was not strictly complied with,” the State had provided timely notification upon learning video-recording capacity was not available and, further, that Schmidkunz had waived his right to object to the lack of a videotaped recording by failing to object, or take appropriate and timely action, to that procedure before trial.

[¶ 28] We conclude the district court’s decision to admit Dr. Belanger’s testimony was not arbitrary, unreasonable, or unconscionable and was the product of a rational mental process. We therefore conclude the court did not abuse its discretion in admitting Dr. Belanger’s testimony and reports into evidence.

VI

[¶ 29] The district court judgment is affirmed.

[¶ 30] GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.


text:
    2006 ND 193
    STATE of North Dakota, Plaintiff and Appellee, v. James Leroy IVERSON, Defendant and Appellant.
    No. 20060097.
    Supreme Court of North Dakota.
    Sept. 13, 2006.
    Peter D. Welte (on brief), State’s Attorney, and Meredith H. Larson (on brief), appearing under the Rule on the Limited Practice of Law by Law Students, Grand Forks, ND, for plaintiff and appellee.
    James Leroy Iverson (on brief), pro se, Bismarck, ND, defendant and appellant.
   KAPSNER, Justice.

[¶ 1] James Leroy Iverson appeals from an order denying him credit for the time he served in custody prior to his 1969 murder conviction. We affirm the district court order.

I

[¶ 2] James Leroy Iverson was convicted of first and second degree murder on May 2, 1969. On May 9, 1969, the trial court sentenced Iverson to life in prison for first degree murder and to an indeterminate term of 25 to 30 years for second degree murder. The sentences were to run concurrently.

[¶ 3] In 1975, the North Dakota Board of Pardons (“Board”) reduced Iverson’s life sentence to 99 years. Since his original sentencing date, the Board has further commuted Iverson’s sentence on several occasions. We affirmed Iverson’s conviction on direct appeal in 1971. State v. Iverson, 187 N.W.2d 1, 44 (N.D.1971) [Iverson I]. In 1974, we also affirmed a district court’s decision not to grant him post-conviction relief. State v. Iverson, 225 N.W.2d 48, 56 (N.D.1974) [Iverson II].

[¶ 4] After his arrest on November 27, 1968, Iverson was jailed and remained in custody at the Grand Forks county jail until he was sentenced, totaling 164 days. On October 28, 2005, Iverson filed a motion to receive credit against his murder sentences for the time he spent in custody at the county jail. Iverson’s original sentence made no reference to the time he spent in custody before his sentencing date.

II

[¶ 5] Iverson argues that he is entitled to credit for the days he spent in the county jail under N.D.C.C. § 12.1-32-02(2), which provides:

Credit against any sentence to a term of imprisonment must be given by the court to a defendant for all time spent in custody as a result of the criminal charge for which the sentence was imposed or as a result of the conduct on which such charge was based. “Time spent in custody” includes time spent in custody in a jail or mental institution for the offense charged, whether that time is spent prior to trial, during trial, pending sentence, or pending appeal.

Section 12.1-32-02, however, was enacted in 1973 and became effective on July 1, 1975. 1973 N.D. Sess. Laws ch. 116, § 31 (enacting N.D.C.C. § 12.1-32-02); 1973 N.D. Sess. Laws ch. 116, § 42 (establishing N.D.C.C. § 12.1-32-02’s effective date). The provision does not expressly indicate whether it retroactively applies. N.D.C.C. § 12.1-32-02(2).

[¶ 6] The question Iverson presents is one of determining whether the Legislature intended for N.D.C.C. § 12.1-32-02(2) to retroactively apply. Generally, no statutory provision retroactively applies unless the Legislature expressly manifests a contrary intention. N.D.C.C. § 1-02-10 (“No part of this code is retroactive unless it is expressly declared to be so.”); State v. Rodriguez, 454 N.W.2d 726, 730, n. 3 (N.D.1990) (discussing retroactive application of criminal intent statute); State v. Cummings, 386 N.W.2d 468, 471-72 (N.D.1986) (evaluating the retroactive application of ameliorating penal legislation). “A statute is employed retroactively when it is applied to a cause of action that arose prior to the effective date of the statute.” Id. at 471 (quoting Reiling v. Bhattacharyya, 276 N.W.2d 237, 239 (N.D.1979)). Retroactive application is disfavored because it creates new legal responsibilities based on past conduct. Id. We have, however, applied a narrow exception to the general bar to retroactivity to prevent an unjust result. See, e.g., id. (defining an exception to the prohibition on retroactive application for an “ameliorating amendment” to a criminal statute). “ ‘[L]aws which confer benefits are often excepted from the general rule against retroactive application.’” Smith v. Baumgartner, 2003 ND 120, ¶ 11, 665 N.W.2d 12 (quoting Cummings, at 471); see also generally 2 Sutherland, Statutory Construction § 41.2 (6th ed.2001) (acknowledging the problems with retroactive statutory application).

[¶ 7] Notwithstanding the general rule against retroactivity and its “ameliorative penal legislation” exception, a statute cannot apply retroactively when it becomes effective after a person has been finally convicted. Cummings, 386 N.W.2d at 472, n. 2. “Legislation lessening punishment may not be applied to final convictions because this would constitute an invalid exercise by the Legislature of the executive pardoning power.” Id. (citing Ex parte Chambers, 69 N.D. 309, 315, 285 N.W. 862, 864-65 (1939)). We have not clearly defined “final conviction”; however, the United States Supreme Court has stated that a final conviction means “a case in which a judgment of conviction has been rendered [and] the availability of appeal [has been] exhausted....” Griffith v. Kentucky, 479 U.S. 314, 321 n. 6, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); see also Chambers, 69 N.D. at 315, 285 N.W. at 864-65 (stating that final conviction means either a verdict of guilty or a judgment and sentence of the trial court upon a verdict or plea of guilty).

[¶ 8] Here, Iverson was finally convicted before the effective date of N.D.C.C. § 12.1-32-02(2). He was found guilty by a jury verdict and was sentenced by the district court in 1969. We affirmed Iver-son’s conviction on direct appeal in 1971, Iverson I, 187 N.W.2d at 44, before the statute’s effective date, July 1, 1975. 1973 N.D. Sess. Laws eh. 116, § 42 (establishing N.D.C.C. § 12.1-32-02’s effective date). Since Iverson was finally convicted before the statute’s effective date, granting his requested relief would constitute an infringement on the executive pardoning power. See Cummings, 386 N.W.2d at 472, n. 2 (citing Chambers, 69 N.D. at 315, 285 N.W. at 864-65).

Ill

[¶ 9] We conclude that Iverson was finally convicted prior to the effective date of N.D.C.C. § 12.1-32-02(2). We also conclude that retroactive application of section 12.1-32-02(2) in this case would constitute an infringement on the executive pardoning power. Therefore, we affirm the district court’s order denying Iverson credit for the time he served in the county jail prior to his sentencing in 1969.

[¶ 10] GERALD W. YANDE WALLE, C.J., and MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.