author: LANSING, Judge.

text:
    STATE of Minnesota, Plaintiff, v. Matthew Raymond SMOOT, Defendant.
    No. A06-2342.
    Court of Appeals of Minnesota.
    Sept. 4, 2007.

      Lori Swanson, Attorney General, St. Paul, MN; and Donald F. Ryan, Crow Wing County Attorney, Kristine R. De-May, Assistant County Attorney, Brainerd, MN, for plaintiff.
    R. Daniel Rasmus, Christensen, Laue & Rasmus, Minneapolis, MN; and Eric L. Newmark, Birrell & Newmark, Ltd., Minneapolis, MN, for defendant.
    Considered and decided by HUDSON, Presiding Judge; LANSING, Judge; and HALBROOKS, Judge.
   OPINION

LANSING, Judge.

The district court denied Michael Smoot’s motion to dismiss a charge of second-degree unintentional murder from a multi-count complaint. Following the denial of the motion, the district court certified as important and doubtful the question of whether the felony of first-degree driving while impaired can serve as a predicate felony for the charge of second-degree felony murder under Minn.Stat. § 609.19, subd. 2(1) (2004). We answer the certified question in the affirmative.

FACTS

Michael Smoot was driving home from a Crow Wing County bar in July 2005, when he swerved into oncoming traffic and struck a car that was driven by sixteen-year-old Joseph Jordan. Jordan was pronounced dead at the scene. Two passengers in Smoot’s car were also injured in the crash. A blood test taken within two hours of the accident showed Smoot’s alcohol concentration was .29.

According to passengers in Smoot’s car, Smoot had consumed a substantial amount of alcohol and smoked marijuana over the course of the evening. As Smoot was leaving the bar at the end of the evening, he was approached by a man who told him that he should not drive. Smoot refused the man’s offer to give him a ride home.

Once in his car, Smoot failed to remain in his lane of traffic, swerved all over the road, drove against the flow of traffic, and refused warnings of the passengers to pull over and attempt to obtain a sober driver. When the passengers saw Jordan’s car approaching from the opposite direction, they begged Smoot to get back into his correct driving lane. Smoot reportedly laughed in response and continued in the path of travel that resulted in a nearly head-on collision. Witnesses estimated that he was driving at a rate of 75-85 miles per hour and accelerating at the time of the collision.

Smoot’s driving record includes three convictions for drunk driving. Twice, in 1999 and 2004, he pleaded guilty to driving while impaired in Minnesota. In 2002, he pleaded guilty to operating while intoxicated in Wisconsin. Smoot’s Minnesota driver’s license was revoked based on the Wisconsin conviction. As a result, Crow Wing County charged Smoot with first-degree DWI, which is a felony offense. See Minn. Stat. §§ 169A.20, 169A.24 (2004) (establishing felony-level offense for DWI committed within ten years of first of three qualifying impaired-driving incidents). The county also charged Smoot with second-degree felony murder, using the felony DWI as the predicate offense. See Minn.Stat. § 609.19, subd. 2(1) (2004) (describing offense as unintentional murder of human being while committing or attempting to commit felony-level offense).

ISSUES
I. Does felony driving while impaired under Minn.Stat. § 169A.24 (2004) involve a special danger to human life?
II. Can a strict-liability crime serve as a predicate offense for second-degree unintentional felony murder under Minn.Stat. § 609.19, subd. 2(1) (2004)?
III.Is criminal vehicular homicide a more specific offense that exclusively governs Smoot’s conduct?

ANALYSIS

Michael Smoot raises three arguments against using felony driving while impaired (DWI) as a predicate offense for unintentional felony murder. He argues (1) that felony DWI is not inherently dangerous when viewed in the abstract, (2) that a strict liability crime cannot serve as a predicate offense for felony murder, and (3) that criminal vehicular homicide is a more specific offense that exclusively governs Smoot’s conduct. We reject Smoot’s arguments and conclude that felony DWI can serve as a predicate offense for unintentional murder under Minn.Stat. § 609.19, subd. 2(1) (2004).

I

To serve as a predicate offense for second-degree unintentional felony murder, an offense must involve a special danger to human life. State v. Anderson, 666 N.W.2d 696, 700-01 (Minn.2003). The special danger to human life must be established both as the offense is committed and in the abstract. Id. We determine whether an offense involves a special danger to human life in the abstract based on “the elements of the underlying felony.” Id. The elements of the underlying felony need not include a reference to death or bodily harm. State v. Mitchell, 693 N.W.2d 891, 894-95 (Minn.App.2005), review denied (Minn. June 28, 2005). The elements must, however, demonstrate that the felony is inherently dangerous and poses a significant danger to human life. Anderson, 666 N.W.2d at 701. We review de novo the district court’s determination that an offense involves a special danger to human life. Id. at 698.

An individual is guilty of felony DWI if he or she violates Minn.Stat. § 169A.20 (2004) either (1) within ten years of the first of three or more qualified alcohol-related incidents or (2) with a prior felony DWI on his or her record. Minn.Stat. § 169A.24 (2004). An individual violates section 169A.20 if, in relevant part, he or she drives, operates, or physically controls a motor vehicle while under the influence of alcohol or with an alcohol concentration of at least .08. Minn.Stat. § 169A.20, subd. 1(1), (5). Thus, the statute regulates three types of impaired behavior: (1) driving a vehicle, (2) operating a vehicle, and (3) being in control of a vehicle. See State v. Starfield, 481 N.W.2d 834, 838-39 (Minn.1992) (concluding that DWI conviction can be based on physical control of inoperable vehicle).

Smoot does not — at this point in the proceedings — argue that his actions, as committed, did not involve a special danger to human life. Instead, he argues that felony DWI does not involve a special danger to human life in the abstract. According to Smoot’s argument, the elements do not demonstrate a danger to human life because they do not include a reference to the possibility of injury or death, and allow conviction without evidence of actual impairment and in clearly nondangerous situations.

Smoot’s arguments, however, do not address the relevant standard. To represent a special danger to human life, the elements of the crime need not refer to death or the possibility of injury. Mitchell, 693 N.W.2d at 894-95. Nor need they refer to impairment. The felony must only be inherently dangerous in the abstract. Anderson, 666 N.W.2d at 701. In other words, a significant degree of risk must inhere in the elements of the crime.

Thus, Smoot’s hypothetical situations in which felony DWI is committed in a nondangerous manner are consistent with our conclusion that the crime involves a special danger in the abstract. A crime is inherently dangerous if its elements involve a significant danger to human life. Anderson, 666 N.W.2d at 701. The crime need not cause an actual injury in every case. Therefore, an inherently dangerous crime can be committed without causing injury. In such cases, the crime cannot serve as a predicate offense for felony murder because it will not involve a special danger to human life as committed.

In Anderson, the supreme court analyzed the elements of a crime — felon in possession of a firearm — that could never pose a risk to human life without further action by the defendant. Id. “While the use of a firearm can pose significant danger to human life, simple possession— standing alone — does not.” Id. Felony DWI is akin to use of a firearm, rather than possession. An impaired person who drives, operates, or takes physical control of a vehicle poses an indisputable risk to human life. See Starfield, 481 N.W.2d at 837 (“Alcoholic behavior can be unpredictable.”). This danger is even more acute in the case of felony DWI because the defendant is a repeat offender. See State v. Henning, 666 N.W.2d 379, 388 (Minn.2003) (discussing special risks posed by repeat DWI offenders). Even if physical control is not inherently dangerous in the abstract, courts can separately examine the inherent dangerousness of driving or operating a vehicle while impaired. See People v. Patterson, 49 Cal.3d 615, 262 Cal.Rptr. 195, 778 P.2d 549, 556 (1989) (concluding that “each offense set forth in the statute should be examined separately to determine its inherent dangerousness”).

Smoot argues that felony DWI does not create a special danger any greater than that created by misdemeanor DWI. The special-danger inquiry, however, examines danger in the abstract and actual danger, not comparative danger. Anderson, 666 N.W.2d at 699. In enacting the Minnesota Impaired Driving Code, the legislature expressed its intent to eradicate drunk driving and promote public safety on the state’s highways. State v. Horning, 535 N.W.2d 296, 299-300 (Minn.1995); see Minn. Dep’t of Pub. Safety v. Juncewski 308 N.W.2d 316, 319 (Minn.1981) (noting that legislature intended that statute be given broadest possible effect). That expression of legislative intent includes an inherent determination that driving, operating, or physically controlling a motor vehicle while under the influence of alcohol poses a significant danger to human life without regard for how the offense is ultimately charged. As a result, the elements of felony DWI satisfy the special-danger requirement.

II

In addition, Smoot argues that felony DWI cannot serve as a predicate offense for felony murder because felony DWI is a strict-liability offense. At common law, a murder conviction required proof of malice, but the existence of malice could be proved indirectly. See State v. Branson, 487 N.W.2d 880, 881-82 (Minn.1992) (discussing history of common-law felony murder); State v. Weltz, 155 Minn. 143, 146, 193 N.W. 42, 43 (1923) (noting that malice “need not be proved directly”). Smoot asserts that the common-law felony-murder rule imputed the malice required for murder from the mens rea necessary for the predicate offense. Thus, he argues, Minnesota’s felony-murder statute cannot apply in this circumstance because it incorporates the common law of felony murder and the commission of felony DWI does not require malice.

For purposes of our analysis, we will assume, as Smoot argues and the state does not dispute, that felony DWI is a strict liability offense. Cf. State v. Al-Naseer, 734 N.W.2d 679, 683 (Minn.2007) (noting that when “statutes are silent about the mens rea element [courts must] determine what degree of knowledge is required for crime”). Nonetheless, we conclude that a felony DWI — despite the lack of a specific mens rea element — can serve as a predicate offense for felony murder.

Our analysis begins with the text of the statute at issue. In general, when a statute’s language is unambiguous, we must apply the statute’s plain meaning. Hans Hagen Homes, Inc. v. City of Minnetrista, 728 N.W.2d 536, 539 (Minn.2007). The legislature has instructed that “[w]hen the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” Minn.Stat. § 645.16 (2006).

The second-degree unintentional-felony-murder statute is not ambiguous. A person commits the crime if he or she “causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting.” Minn.Stat. § 609.19, subd. 2(1) (2004). Because first-degree DWI is a felony offense, the plain meaning of the statute permits first-degree DWI to be used as a predicate offense for felony murder.

In interpreting the felony-murder statute, however, “we are not writing on a clean slate.” Anderson, 666 N.W.2d at 701 n. 7. The language of the felony murder statute has been interpreted to require that the felony involve “a special danger to human life.” Id. at 700. The supreme court in Anderson recognized that “under its plain language, except for the three specified exceptions, the statute appears to apply to all other felonies” and that the statute’s meaning has been refined by judicial limitations set forth in precedent. Id. We must therefore decide whether the statute, as interpreted, forbids the use of strict-liability crimes as predicate offenses. To reach this decision, we must examine the history of the judicially created requirement that the felony involve a special danger to human life.

Before 1981, the felony-murder statute required that the predicate offense be committed “upon or affecting the person whose death was caused or another.” Minn.Stat. § 609.195 (1980). The supreme court interpreted this language as isolating “for special treatment those felonies that involve some special danger to human life.” State v. Nunn, 297 N.W.2d 752, 753 (Minn.1980). In 1981, the legislature amended the felony-murder statute and removed the requirement that the crime be committed upon or affect the person whose death was caused. 1981 Minn. Laws ch. 227, § 10, at 1010. Following this amendment, the supreme court continued to require that the felony involve a special danger to human life. See Anderson, 666 N.W.2d at 699-700 (citing State v. Back, 341 N.W.2d 273, 276-77 (Minn.1983), and State v. Cole, 542 N.W.2d 43, 53 (Minn.1996)).

In Anderson, the supreme court discussed this history in the course of determining whether the predicate felony must involve a special danger to human life when considered in the abstract. Id. at 669-701. The supreme court reasoned that “when the legislature does not amend our construction of a statute, the court’s construction stands.” Id. at 700.

We do not think that Anderson provides a basis for judicially imposing an additional requirement that the predicate offense include a specific mens rea element. Many strict-liability crimes, of course, do not involve a special danger to human life and therefore, even if they are classified as felonies, they could not be used as predicate offenses. But Smoot has cited no case that specifically requires that the predicate felony include a mens rea element. Thus, unlike the facts of Anderson, we do not face an established interpretation that has been followed by legislative acquiescence. The legislature’s unambiguous language does not incorporate the common law of felony murder, and the supreme court has accepted this language subject to the limitation that the felony-murder statute is interpreted to “isolate for special treatment those felonies that involve some special danger to human life.” Anderson, 666 N.W.2d at 699 (quotation omitted). Thus, we conclude that our decision should be based on the text of the felony-murder statute as it has been interpreted. Because felony DWI is “a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting,” the plain text of Minn.Stat. § 619.19 permits its use as a predicate offense for felony murder so long as it presents a special danger to human life.

Ill

Finally, Smoot argues that felony DWI cannot be a predicate offense for felony murder because his conduct is exclusively governed by the more specific offense of criminal vehicular homicide. When a general statute conflicts with a specific statute, “the more specific statute governs over the more general statute, unless the legislature manifestly intends for the general statute to control.” State v. Craven, 628 N.W.2d 632, 635 (Minn.App. 2001), review denied, (Minn. Aug. 15, 2001). A conflict arises if the two statutes “have the same elements but differing penalties.” Id.

In Craven, the defendant was convicted of second-degree felony murder with fleeing a peace officer in a motor vehicle as the predicate offense. Id. at 634. This court noted that a conviction for fleeing a peace officer causing death would require proof of exactly the same elements. Id. at 635. Because the more specific offense of fleeing a peace officer causing death governed the defendant’s conduct, we held that fleeing a peace officer in a motor vehicle could not be used as a predicate offense for second-degree felony murder. Id. at 637.

Felony DWI, however, requires proof of an element that criminal vehicular homicide does not: prior alcohol-related offenses. Thus, felony DWI can only be committed at the end of a course of conduct involving multiple DWI convictions. Minn.Stat. § 169A.24, subd. 1 (incorporating driving history as element of offense). Criminal vehicular homicide, in contrast, involves a single incident of dangerous driving. Minn.Stat. § 609.21, subd. 1 (2004) (establishing liability without regard for driving history). To convict Smoot of felony murder with felony DWI as the predicate offense, the state would need to prove that he committed at least three prior DWI offenses. Thus, the state would need to prove an additional element not required for a criminal-vehicular-homicide conviction. The felony-murder charge will not “swallow up” the more specific charge. Craven, 628 N.W.2d at 637. Therefore, felony DWI is not precluded from use as a predicate offense by a more specific statute with the same elements.

We are not insensitive to the far-reaching effect of our holding. Allowing conduct previously treated as criminal vehicular homicide to instead be treated as second-degree unintentional murder increases the severity level of the charged offense from VIII to X, and significantly increases the presumptive executed sentence. Minn. Sent. Guidelines §§ 4, 5. But this is the result that a straightforward application of the law produces. Furthermore, it is not demonstrably unjust, considering that an individual involved in an alcohol-related vehicular homicide would not face a charge of felony murder unless he or she had (1) at least three qualifying impaired-driving incidents or (2) a prior felony DWI. Minn.Stat. § 169A.24. As a court, it is not our role to alter or establish policy affecting public safety. That duty falls to the legislature. State v. Tatum, 556 N.W.2d 541, 548 n. 7 (Minn.1996) (inviting legislature to reconsider effects of statute).

DECISION

Based on the language of MinmStat. § 609.19 and the history of the statute, first-degree DWI is a permissible predicate felony in a prosecution for second-degree felony murder.

Certified question answered in the affirmative.

      . The three felonies explicitly excluded from the felony-murder rule set forth in Minn.Stat. § 609.19, subd. 2(1), fall under other felony-murder provisions. See Minn.Stat. § 609.185(a)(2) (2004) (making criminal sexual conduct predicate offense for first-degree felony murder); Minn.Stat. § 609.19, subd. 1(2) (making commission of drive-by shooting predicate offense for second-degree felony murder).


source: Caselaw Access Project

author: ROSS, Judge.

license: Public Domain

text:
    Michael BOLEN, et al., Respondents, v. Todd GLASS, Appellant (A06-1422). Michael Bolen, et al., Respondents, v. Todd Glass, Defendant, City of Duluth, Appellant (A06-1440).
    Nos. A06-1422, A06-1440.
    Court of Appeals of Minnesota.
    Sept. 4, 2007.

      Stephanie A. Ball, Fryberger, Buchanan, Smith & Frederick, P.A., Duluth, MN, for respondents Michael Bolen et al.
    Bradley J. Gunn, Malkerson, Gilliland & Martin, LLP, Minneapolis, MN, for appellant Todd Glass.
    M. Alison Lutterman, Deputy City Attorney, Duluth, MN, for appellant City of Duluth.

      Considered and decided by WILLIS, Presiding Judge; RANDALL, Judge; and ROSS, Judge.
   OPINION

ROSS, Judge.

These consolidated appeals involve a dispute over a landowner’s right to construct a private driveway on adjacent property dedicated in 1902 to become a public street. The City of Duluth granted Todd Glass a permit to install a driveway on the dedicated, but never-established, “street.” Michael and Deborah Bolen hold the fee to part of the property that constitutes the would-be street. They contend that Glass lacks the right to construct the driveway and the city lacks authority to permit its construction, which they allege constitutes a trespass on their property. Joseph Za-jac also owns part of the historically dedicated street, and he also challenges the city’s authority to permit the driveway on his portion of it. The district court agreed with the Bolens and Zajac, and it issued a permanent injunction ordering Glass to restore the property to its prior condition. The city and Glass filed separate appeals, which have been consolidated.

Because the district court accurately determined that Glass lacks the right and the city lacks authority to, permit Glass to construct a private driveway on a platted, undeveloped street dedicated to public use, we affirm the injunction issued in favor of the Bolens and Zajac. But because the district court abused its discretion by requiring Glass to remove even that portion of the driveway that lies on his property, we modify the district court’s order to require Glass to restore only those portions of the corridor that are owned by the Bolens and Zajac.

FACTS

The property owners in this dispute own lots abutting “40th Street” in the City of Duluth’s Park Point neighborhood. The street has never been improved by grading or paving from its natural condition. The short corridor appears as “Interlachen Street” on a certified and recorded plat described as the Oatka Beach Addition, accepted by the city council in December 1902. The 1902 fee owner specifically “dedicate[d] to the public use the streets and avenues herein shown” in accordance with statute. See Minn.Stat. § 505.01 (2006) (authorizing filing of plats, which may include donation of land for any public use); Denman v. Gans, 607 N.W.2d 788, 795 n. 2 (Minn.App.2000) (recognizing that this statute “has been renumbered and subjected to slight language changes but has not been altered substantively for 150 years”), review denied (Minn. June 27, 2000).

In 1909 the city renamed Interlachen Street as 40th Street, but the city has never developed, used, or maintained 40th Street as a public roadway. It has, however, installed a street sign arid curb cut, as it has done with a number of other “street ends” or “paper streets” on Park Point. On paper only, these northeast-southwest running street ends connect Minnesota Avenue, the primary public thoroughfare on Park Point, with “Lake Avenue,” another dedicated but unimproved paper street, which runs northwest-southeast and parallel to Minnesota Avenue along the Lake Superior shoreline. The city acknowledges that it “likely [will never] develop” 40th Street as a public street.

Measured by lots, 40th Street is two lots long. The centerline of 40th Street is the eastern border of Lots 24 and 11, owned by Michael and Deborah Bolen. The cen-terline is also the western border of Lot 15, which is currently owned by Joseph Zajac, and Lot 1, which is one of three adjoining lots that comprise an L-shaped parcel currently owned by Toss Glass. Glass’s L-shaped parcel abuts the north and east borders of Lot 15. The owners of Lot 15 have historically used a driveway that is located within the 40th Street corridor to access Minnesota Avenue. Lot 15⅛ driveway lies entirely on Lot 15, except for a portion that extends lengthways over the centerline onto Lot 24 by consent of the owners of Lot 24.

Until this dispute, owners of the L-shaped parcel that Glass now owns have accessed Minnesota Avenue by a driveway running along the east border of, and lying entirely within, that parcel. When Glass purchased the L-shaped parcel in 1998, he used that driveway. In June 2003, Glass added gravel to extend the driveway across his property toward the west, effectively connecting all three lots of his L-shaped parcel with an L-shaped driveway. Glass testified that he “wanted a secondary vehicular access so that [he] could drive up to the parking pad using the narrow driveway,' but then exit the property using the 40th Street right-of-way.”

In October 2004, Glass disabled the gravel driveway that had given the property access to Minnesota Avenue by covering it with sod, leaving only the 2003 extension. He testified that he covered the driveway because it was too narrow and that its removal would allow him eventually to build an addition on his house and still meet the city’s impervious-surface requirements. In February 2005, Glass applied for a permit to build a garage on Lot 1. He then applied for a permit to construct a driveway on 40th Street so that he could access the new garage. The city granted the permit to allow Glass to “construct private improvements within the platted right-of-way of 40th St[reet] South to provide access to the driveway to Lot 1.” The Bolens sued Glass in June 2005, immediately after the city granted the permit. Glass constructed the driveway on part of each of the four lot extensions within the 40th Street corridor: Lot 1, owned by Glass; Lots 11 and 24, owned by the Bolens; and Lot 15, owned by Zajac.

Evidence was presented at trial regarding the historic use of 40th Street. A driveway on 40th Street has always provided access to Minnesota Avenue from the house and garage located on Lot 15, which is currently owned by Zajac. For many years, 40th Street also provided access to a small house known as the “wee” house, located on Lot 1 on the L-shaped parcel. A sidewalk led from the wee house to the driveway that is located on Lot 15 within the 40th Street corridor.

While the parties dispute the extent of the use of 40th Street by the occupants of the wee house and whether that use was by consent of the owner of Lot 15, it is fairly clear that when the wee house was occupied, its residents were allowed to access Minnesota Avenue by parking a vehicle on Lot 15’s driveway on 40th Street and walking to the wee house. The wee house was condemned by the city in 1996 and demolished before Glass purchased the L-shaped parcel in 1998.

It is also quite clear that the various owners of the lots that incorporate 40th Street have sought to maintain the corridor as private, discouraging public use by planting tall grasses, trees, and shrubs within it. The terrain itself presents an obstacle to vehicular travel, with a thirteen- to fourteen-foot elevation from the southwest, which results in a steep embankment within the corridor. Glass disturbed that bank and some of the vegetation when he constructed his city-permitted driveway in 2005.

Following a two-day trial, the district court found that although the plat with its street dedication was recorded in 1902, the city has never “by formal legislative enactment or executive resolution ... taken steps to develop the platted 40th Street [cjorridor easement as a public street or thoroughfare such that the easement in question remains a ‘paper street.’ ” The court further found that the Bolens and Zajac,

as to that portion of the 40th Street [cjorridor easement which abuts their respective lots, own the fee title to the property abutting said lots ... to the centerline of said easement, subject only to the rights of the [city] to accept the “plat dedication” for the purpose of developing a public thoroughfare.

The district court concluded that the city exceeded its power by permitting “a private citizen to develop a public easement for private driveway purposes” because the permit essentially “attempted to overlay a public easement with a private easement, thus creating property rights and property burdens without authority to do so.”

It held that Glass therefore “cannot, by grant from a public authority, acquire rights in a dedicated public easement in derogation of the public’s ultimate easement rights or which burdens the adjoining servient estates in excess of the burden imposed by the plat dedication.” The court permanently enjoined the city and Glass from developing the 40th Street corridor “except by proper legislative enactment and subsequent development of a public thoroughfare.” The court ordered Glass to remove all improvements within the 40th Street corridor and to fully restore the property to its prior condition within 45 days. These consolidated appeals follow.

ISSUES
. I. Did the district court abuse its discretion by adding a.testifying witness as a plaintiff after trial?
II. Does the owner of a lot within a plat have the right unilaterally to construct a private driveway on neighboring property that has been dedicated but not used as a public street?
III. Was the City of Duluth authorized by its code to grant a person permission to construct a private driveway on property owned by the person’s neighbors within a corridor dedicated but not used as a public street?
IV. Did the district court abuse its discretion by ordering a person to restore land to its unimproved condition on the portion to which the person holds the underlying fee?

ANALYSIS

Addressing the parties’ challenges to different aspects of the district court’s conclusions on appeal, we must determine whether the district court’s findings are clearly erroneous or whether it erred in its application of the law. River City Mortgage Corp. v. Baldus, 695 N.W.2d 375, 377 (Minn.App.2005). We will uphold the district court’s findings unless they are “manifestly and palpably contrary to the evidence.” Flynn v. Beisel, 257 Minn. 531, 534, 102 N.W.2d 284, 287 (1960). An appellate court, however, is not bound by findings that are “controlled or influenced by errors of law.” Id. at 534, 102 N.W.2d at 288. We begin by reviewing the district court’s discretion to add Zajac as a party.

I

The district court granted the Bo-lens’ posttrial motion to add Zajac as a plaintiff, without holding a hearing or otherwise entertaining argument from Glass. Glass asserts that he has been prejudiced by the court’s decision because (1) Zajac would have been viewed as an interested party while testifying, rather than as a seemingly disinterested witness; (2) Za-jac’s testimony as a party would have been subject to less-restrictive rules of evidence; and (3) the scope of Glass’s liability is broader than he anticipated with only the Bolens as plaintiffs.

The Bolens’ request was characterized as a motion to amend the complaint to conform to issues tried by consent of the parties under rule 15.02 of the Minnesota Rules of Civil Procedure. The district court has broad discretion to allow an amendment to the pleadings when an issue has been litigated by consent. Willmar Gas Co. v. Duininck, 239 Minn. 173, 176, 58 N.W.2d 197, 199 (1953). Allowing an amendment to add a'party may be appropriate, even by way of posttrial motion. See Jack Frost, Inc. v. Engineered Bldg. Components Co., 304 N.W.2d 346, 350 (Minn.1981) (affirming grant of posttrial motion to add party).

We see no prejudice to Glass by the amendment. Glass’s answer had alleged as an affirmative defense the Bolens’ failure to add Zajac as an indispensable party. Glass asserts that the Bolens could have added Zajac as a plaintiff by consent or with permission of the court before trial under rule 15.01. His answer demonstrates that well before trial he recognized that Zajac has a stake in the outcome and should be a party. And it would have been equally clear to the factfinder that Zajac would either benefit or suffer from the district court’s decision whether Zajac was designated as a party or not. Because of the nature of the dispute, the court’s decision would assign rights and burdens concerning the land within the corridor that is not owned by Glass but upon which Glass built his driveway. This includes the Zajac property. Zajac’s interest was apparent, and his testimony was equally impeachable as a nonparty witness or as a plaintiff. Glass has not established how evidentiary offerings, objections, or rulings may have differed materially had there been an earlier party designation, and Glass’s liability to Zajac would apparently be the same whether Zajac is a plaintiff in this action or in one to follow. Better practice would have been to include Zajac as a party at the outset or soon after. But based on our review of the record, we conclude that the district court did not abuse its discretion by adding Zajac as a plaintiff, even when it did so after trial. We next consider the principal substantive question, which is whether Glass has a private right to construct a driveway on 40th Street to connect his parcel to the public thoroughfare.

II

Glass and the city forward various theories to support their contention that Glass has a right to 40th Street that entitles him to construct a driveway to serve his property and allow private access to Minnesota Avenue. None persuades us.

They argue that Glass has the right to use 40th Street because the street is an open public street and he may use it as a member of the public. But the district court found that the street is a “paper street” only. And the evidence fails to compel the contrary finding that the street is “open” to the public. The city has never petitioned to open the street or maintained the corridor for public use. See, e.g., In re Maintenance of Road Areas Shown on Plat of Suburban Estates, 311 Minn. 446, 451-52, 250 N.W.2d 827, 831 (1977) (noting that “municipality may determine the time it will open a street” and advising owners to formally present request to town board to open and maintain roads); Village of Medford v. Wilson, 304 Minn. 250, 254, 230 N.W.2d 458, 460 (1975) (affirming right of village to open street dedicated by plat when it serves public purpose). Rather, the city has acknowledged that the abutting property owners may exclude the public, and it admitted that it intends never to improve the corridor for public travel.

Glass argues that the street became open by virtue of the city’s acceptance of the 1902 plat that contained the dedication of the street easement. He cites no authority for this proposition, and the city’s brief does not join him in it; he merely contends that because there normally are no “parades and ribbon-cutting ceremonies to commemorate the opening of a city street,” the acceptance of the dedication itself was sufficient to open it. Caselaw leads us to a different conclusion. In Lafayette Land Co. v. Village of Tonka Bay, a landowner sued to compel the village to open a portion of a road that, like 40th Street, had been dedicated to the municipality but not improved to accommodate vehicular travel since its dedication. 305 Minn. 461, 461-62, 234 N.W.2d 804-05 (1975). The supreme court affirmed the district court’s decision not to open the road. Id. at 462-64, 234 N.W.2d at 805-06. If municipal tacit acceptance of a platted dedication alone were sufficient to open a roadway on unimproved land for public use, the supreme court would have had no basis to affirm.

Glass and the city also contend that the 1902 dedication combined with its public use since that time opened the street. The two cases they rely upon do not support their position. In Anderson v. Birkeland, the supreme court considered whether a roadway that had been graded, oiled, and resurfaced for public use by the county at public expense for six years and that was used as a roadway by the public for at least 17 years had thereby been offered and accepted as a public roadway by statutory or common-law dedication. 229 Minn. 77, 80-84, 38 N.W.2d 215, 218-20 (1949). On those facts of clear public use, the roadway was deemed to be public. Id. at 85-86, 38 N.W.2d at 220-21. Not only is Anderson factually dissimilar from this case because of the extensive use of the corridor as a public roadway, it also addressed a different legal issue. Unlike the roadway in Anderson, there is no question whether 40th Street was dedicated, or whether the dedication was tacitly accepted by the city for its potential, eventual use as a roadway. The questions Glass and the city introduce are whether the street has been and is opened by the city for public use and, if so, whether Glass may construct a private driveway on it. Anderson is factually and legally inappo-site.

The second case the parties cite comes closer to the issue but not to the relevant facts: In re Request of Lafayette Dev. Corp. to Open 18th Ave. S., 567 N.W.2d 743 (Minn.App.1997) affd mem., 576 N.W.2d 740 (Minn.1998). In Lafayette Development, we held for the first time that a dedicated roadway’s opening can occur without a municipality making improvements to the roadway. Id. at 745. We determined that the city could not prohibit the use of a corridor that had been dedicated as a public street because postdedi-cation public use of the corridor as a roadway established that it was a street opened to public use. Id. But in that case, the disputed dedicated corridor was the natural extension of an existing, paved city street, had been graded and graveled for vehicular use, and had been used “for many years” for vehicular travel by the landowner, a neighboring landowner, tenants, and invitees. Id. at 744. The district court did not find that ongoing and current vehicular use occurred on the disputed 40th Street corridor, and the facts would not support that finding.

Glass highlights that the corridor was used as an amusement park in the early 1900s, that “40th Street” appears on a city map, that there have been walking paths in the corridor, and that the city has installed a curb cut and a street sign. Together with the dedication, he argues, these facts demonstrate that the corridor is already an open street. We áre not convinced. That an amusement park operated on the property 100 years ago does little to support the notion that the city opened the corridor for use as a public roadway. Walking paths are also not roadways, and the evidence indicates that the landowners and the city recognized that the owners of the corridor could, and did, restrict public access to it. That the city installed a sign and a curb cut and included the corridor as a “street” on maps certainly might suggest its intent to open the street for public-roadway use in the future. But Glass’s argument as supported by Lafayette Development depends on whether the street is already open as a public roadway, and the city has expressly indicated that it does not intend to exercise its authority to develop the street for that use. The city adds that it has also installed a bituminous apron at the curb cut. This suggests only that if the city changes course and does open the street for public use, it likely will pave the street. At the very least, we can assume that the city will not indicate that the corridor is open for use as a city street until it removes the trees and shrubs that the landowners have planted to discourage public access, with the city’s approval. The idea that the street is already open to public use lacks sufficient factual support.

Although Glass has rights to use the portion of the unopened street that lies on his own property, any right he might have to use the street as a member of the public is subject to the rights of the individual property owners of each segment of it.

[A]ny abutting landowner owns to the middle of the platted street or alley and ... the soil and its appurtenances, within the limits of such street or alley, belong to the owner in fee, subject only to the right of the public to use or remove the same for the purpose of improvement.

Kochevar v. City of Gilbert, 273 Minn. 274, 276, 141 N.W.2d 24, 26 (1966). Even when public improvements are deemed necessary, a municipality must show that the improvement serves a public purpose and must follow proper procedures before making those improvements. See id. at 277, 141 N.W.2d at 27. The city engineer issued the permit to Glass without any public notice or input, and no evidence was presented to show that Glass’s proposed driveway would serve any public purpose. There is no dispute that he intends the driveway to serve only to access his private garage.

We also do not agree with the contention that Glass has the right to install a driveway on 40th Street merely because he owns a lot within the plat. Under certain circumstances, the owner of a lot within a plat may obtain rights to use dedicated areas in the plat that do not directly abut his property. For example, in Bryant v. Gustafson, a plat expressly dedicated the use of named roadways to the lot owners of the plat. 230 Minn. 1, 3, 40 N.W.2d 427, 430 (1950). The disputed roadway was dedicated specifically for their use rather than for public use, and the plat was not within any municipality. Id. at 10, 40 N.W.2d at 434. The residents of the platted lots in Bryant had used parts of these designated roadways to access the lake for a period of over 25 years, and when a new owner sought to exclude these other resident-users as trespassers, the excluded residents successfully sued to regain their access. Id. at 5, 12, 40 N.W.2d at 431, 434. Here, however, the plat dedicated 40th Street for public use and, unlike in Bryant, there is little evidence in the record that the identified beneficiaries (here, the public) have ever used the corridor as a street.

It is true that the supreme court has acknowledged the general rule that “one purchasing a lot within a plat may rely upon the dedication of streets and alleys shown therein, and possesses the right to use the same.” Etzler v. Mondale, 266 Minn. 353, 364, 123 N.W.2d 603, 611 (1963). 'But this rule applied only to entitle the owners in a plat to notice of vacation proceedings and, potentially, damages related to the vacation, not to any private right to improve unilaterally and use dedicated property. Id. at 364-65, 123 N.W.2d at 611-12 (affirming district court’s grant of petition to vacate part of plat dedicated as park and holding that other lot owners in platted, area should receive notice of vacation proceedings).

Glass faces two significant obstacles to his assertion of the right to employ self-help in creating his driveway. First, Minnesota courts have not established the more extreme rule urged by Glass and expressed by several other jurisdictions that the purchasers of property within a plat that dedicates land as streets for public use are entitled to “do whatever is necessary to put [those streets] in a condition for use.” 26 C.J.S. Dedication § 78 (2001); see also Village of Baxter Estates v. G.N.M. Constr. Co., 49 Misc.2d 333, 267 N.Y.S.2d 663, 666 (N.Y.Sup.Ct.1966) (“As the purchaser and owner of Lots ... on the filed map, the corporate defendant has an absolute right to open up and improve the unopened portions of [certain paper streets] for persons going to and from its lots; nor would this right be impaired even if [the defendant] did not have title to the roadbeds.”). Here, municipalities are authorized to choose á careful approach to the improvement and opening of dedicated land for public use. As discussed above and implied by- various holdings, in Minnesota, municipalities, not neighboring landowners, decide whether a property dedicated for a particular use will be improved to accommodate that use. See Pierro v. City of Minneapolis, 139 Minn. 394, 395, 166 N.W. 766, 766 (1918) (“It is settled law in this state that when a street is dedicated by plat, the city may choose its own time to occupy, open and use the street.”); see also Etzler, 266 Minn, at 359-60, 365, 123 N.W.2d at 608, 611-12 (noting that the district court acted within its discretion to credit municipality’s resolution to vacate park dedication); Lafayette Land Co., 305 Minn, at 463-64, 234 N.W.2d at 806 (affirming municipality’s authority to refuse to open a dedicated street over demand of interested would-be user); Maintenance of Road Areas, 311 Minn, at 451-52, 250 N.W.2d at 831 (asserting city’s authority to decide when a street would be opened for use).

If Glass’s legal theory were correct, the Bolens or Zajac, or any of the other owners of the 164 lots established by the platted, 1902 Oatka Beach Addition, could by right arrive tomorrow with a bulldozer and a load of gravel and level 40th Street from Minnesota Avenue to the lake. We see no support for this theory in Minnesota law, which contemplates a deliberate, municipality-controlled approach to improvements to and use or vacation of dedicated land. We hold that the owner of a platted lot within a municipality does not, by virtue of a public street dedication of land elsewhere within the plat, have the right unilaterally to improve the dedicated land for use as a street.

Second, even if Minnesota law authorized any private landowner in a plat to improve property elsewhere within the plat to fulfill the purpose of a plat dedication, Glass has not taken steps, and the city has not directed him, to open 40th Street for the purpose for which it was dedicated. Although the dedication is for a publicly usable street, Glass has created merely a private driveway on Zajac’s and the Bolens’ properties to access his private garage by connecting to Zajac’s private driveway. By his improvement the public enjoys no more access than before. Although Minnesota caselaw demonstrates that Glass has a right to receive notice attendant to the disposition of platted but unopened streets, and he may, as an interested party, be entitled to measured damages arising from the vacation of those streets, it does not establish that he has the right to construct a private driveway for private use on portions of the 40th Street corridor that rest on property to which other landowners hold title.

Glass next argues that he has a constitutional right to use 40th Street to access Minnesota Avenue from his property. Elsewhere, he argues that he has a constitutionally protected right of access from his property. The distinction between a constitutional right to access property and a constitutionally protected right to access property is not simply a difference in semantics. If Glass has an actual constitutional right to access his property, the government — in this case the city — may have a “constitutional obligation to provide sufficient public street access to the Glass property,” exactly as he argues. If, instead, his right to access his property ariáes from some other source and concerns the relationship between neighboring landowners, it is a right that the state need not itself satisfy. Rather, it is a private right that the state or local government may not infringe without due process and just compensation. We therefore first clarify the nature of the right.

A landowner’s right to access his property arises from common law. Property interests are not created by the Constitution. Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Although property interests are protected by the federal Due Process and Takings Clausds, the property interests themselves arise from independent sources, such as state law. Id.; see also Hughes v. Washington, 389 U.S. 290, 295, 88 S.Ct. 438, 441, 19 L.Ed.2d 530 (1967) (Stewart, J., concurring) (“[A]s a general proposition ... the law of real property is, under our Constitution, left to the individual States to develop and administer.”). It is true that, in Minnesota, landowners have the right of access from their property to a public right-of-way. Johnson v. City of Plymouth, 263 N.W.2d 603, 605-06 (Minn.1978). But the supreme court in Johnson did not indicate that this right arises from the state or federal constitution. Rather, it noted that the right is recognized “under Minnesota law,” and the cases it relied upon trace back to common-law origins, not to constitutional precepts. See id. (citing cases). It is also true that a governmental taking of a property right of access requires just compensation ■ under the state and federal constitutions, but this is all that is established by the cases cited by Glass. See id. at 606 . (“Like other property rights, the right of reasonable access can be infringed or ‘taken’ by the state, giving the property owner a constitutional right to compensation.”); Hendrickson v. State, 267 Minn. 486, 445-46, 127 N.W.2d 165, 172-73 (1964) (“If the jury decides that the location of the proposed interchange substantially impairs plaintiffs’ right to reasonably convenient and suitable access to the main thoroughfare, plaintiffs are entitled to damages.”). The right of access is a common-law property right that is constitutionally protected from noncompensated governmental taking; it is not itself a constitutional right that obligates the government to take affirmative steps to require one’s neighbors to allow access over their property.

Having concluded that Glass’s right of access to his property is a common-law right, we must decide if the right is satisfied in this case. We hold that it is. As the district court found, Glass’s parcel has direct access to Minnesota Avenue already, and he and the prior parcel owners relied on that access for years. Although it may be more convenient for Glass to discard his original driveway and reach Minnesota Avenue by 40th Street, he has not contended that this change is “necessary.” See Magnuson v. Cossette, 707 N.W.2d 738, 745 (Minn.App.2006) (applying doctrine of easement of necessity and noting that' the “easement must be more than a mere convenience”). Glass attempts to establish hypothetical necessity by insisting that exercising his right to sever his L-shaped parcel by selling Lot 1 would leave the owner of the severed lot landlocked and without access to Minnesota Avenue except by 40th Street. This assertion does not help his position for two reasons.

First, we must decide the case on the present facts, and presently, Glass owns the entire parcel, which abuts Minnesota Avenue with no need to rely on 40th Street. And although the individual lots theoretically could have been singly owned by different individuals, they were not. The record establishes that the owner of Lot 1 always also owned at least Lots 2 and 16, allowing direct access to Minnesota Avenue from the parcel. And even if Lot 1 had previously been separately owned and landlocked, Glass’s ownership of the merged three lots eliminated Lot l’s hypothetical need to rely on any other lot to access the public thoroughfare. “The merger doctrine is intended to extinguish easements when title to the dominant and servient estates are united in one fee owner simply because one has no need for an easement in property one owns in fee.” Pergament v. Loring Props., Ltd., 599 N.W.2d 146, 151 (Minn.1999).

Second, Glass’s hypothetical future sale would not leave the landlocked owner of Lot 1 without a remedy because she could either petition the city to open 40th Street or rely on the common-law principle of implied grant of easement by necessity. When a landowner conveys part of his land and retains another, he is presumed to convey to the owner of the landlocked portion an easement of access to the thoroughfare across the retained portion. Romanchuk v. Plotkin, 215 Minn. 156, 160-61, 9 N.W.2d 421, 424 (1943) (outlining elements of easement by implication of necessity). The district court properly rejected Glass’s right-to-access argument. Glass has adequate access by Lot 16, which he and his predecessors have long relied on to reach the house on Lot 2.

We conclude that the district court did not err by determining that Glass lacks the right to construct a private driveway on property owned by the Bolens and Zajac within the 40th Street corridor. We must next decide whether the city has, nevertheless, lawfully conferred that right to Glass.

Ill

The district court determined that the city exceeded its authority by granting a permit to “allow a private citizen to develop a public easement for private driveway purposes.” The city claims that the district court ignored the authority granted by its Legislative Code, which includes a charter and general ordinances. We do not read this code to confer the claimed authority.

The city contends that it derives the authority to issue the permit to Glass on the following provision of the city charter: “The council may by ordinance permit abutting owners to make use of portions of public highways not physically being used or occupied by the public upon such terms and conditions and by such procedure as the council, in each such ordinance, may provide.” Duluth, Minn., City Charter ch. XIII, § 100(d) (1964). The city asserts that under this section, it enacted a general ordinance giving the city engineer the authority to “issue special permits to private parties to make local improvements in, upon or under the public highways and public grounds of the city, as such local improvements are defined and authorized by Chapter IX of the City Charter.” Duluth, Minn., Legislative Code § 45-84.

We disagree that section 100(d) authorized the city to permit Glass to construct a private driveway within the corridor on the Bolen and Zajac properties. First, section 100(d) expressly concerns permitted use by abutting property owners, and Glass does not fit that description for the challenged portions of his proposed driveway. An abutting property is one that “share[s] a common boundary.” Black’s Law Dictionary 11 (8th ed.2004); see also Kochevar, 273 Minn, at 276, 141 N.W.2d at 26 (describing “abutting landowner[’s]” ownership as extending to the centerline of the segment of the street adjacent to the landowner’s lot). Glass is an abutting owner only so far as his property extends lineally along the 40th Street corridor beside Lot 1; Glass is not an abutting owner on the southern half of the corridor where the centerline marks the boundary between Lots 24 and 15, owned by the Bolens and Zajac, and his private rights to the northern half do not extend west of the center-line.

Second, section 100(d) authorizes the city council “by ordinance [to] permit” abutting owners to use an unused or unoccupied part of a public highway based on the terms that “each such ordinance” may provide. The city enacted no ordinance permitting and defining the terms of Glass’s use of the public-roadway easement. While the city contends that section 45-84 is such an ordinance, that section concerns local improvements by private parties upon or under public highways and public grounds. And a party making improvements under the ordinance must “assign, set over, and transfer unto the city, in trust for the use and benefit of the public, such improvement.” Duluth, Minn. Legislative Code § 45-86 (emphasis added). Section 45-84 contemplates local improvements for the public benefit. It does not purport to authorize permission to make improvements exclusively for private use. We conclude that section 45-84 did not authorize the city to permit Glass to build his private driveway along portions of the 40th Street corridor that abut property owned by the Bolens and Zajac. We therefore need not consider the larger question, whether the city has the constitutional authority to do so. We hold that the district court correctly determined that the city code did not authorize the city to permit Glass to enter, modify, and use those portions of the 40th Street corridor that he does not own. The only remaining question is whether the district court went too far by requiring Glass to restore the portion of the corridor that he does own.

IV

Glass asserts that the district court erred by ordering him to restore the entire 40th Street corridor to its previous condition, even those parts that abut Lot 1 and to which Glass holds the underlying fee. Because Glass owns the underlying fee to the centerline of that part of the 40th Street corridor that abuts Lot 1, he is entitled to use that property as he sees fit, “subject only to the right of the public to use or remove [the property] for the purpose of improvement.” Kochevar, 273 Minn, at 276, 141 N.W.2d at 26. We are not persuaded by the Bolens’ and Zajac’s response that this injunctive remedy is necessary as an alternative to money damages because the actions taken by Glass, even on his own lot, allegedly “created the appearance of a street, public in nature and inviting public use.” The Bolens and Zajac offer no legal support for the novel idea that to remedy a trespass into neighboring property the court may prohibit improvements to the trespasser’s property. We therefore modify that part of the district court’s decision so as to require Glass to restore only those portions of the 40th Street corridor to which he is not the fee-holder.

DECISION

The district court acted within its discretion by adding Zajac, a clearly interested party, as a plaintiff after trial. Under Minnesota law, an owner of a platted lot within a municipality does not have the private right unilaterally to improve land to open a street dedicated to public use when he is not the fee holder, and the lot owner in this case also has made improvements insufficient to satisfy the dedication’s públic purpose. The City of Duluth’s legislative code does not authorize the city to permit a lot owner within a plat to construct a private driveway for private use on property beyond the lot owner’s title. Although the district court accurately determined that the breaching owner may not construct his driveway on his neighbor’s property, it abused its discretion by ordering him to restore the property on those portions of the contested corridor to which he holds the underlying fee. We therefore affirm the district court and modify its judgment only to limit the remedy.

Affirmed as modified.

      . The plat consists of four blocks with a total of 164 lots. The Bolens’ current lots are within Block 1, and Zajac’s and Glass's lots are in Block 2. For convenience, we will refer to the lots by lot number only without regard to their separate block assignments.

      . Henry O'Donnell owned Lots 1, 2, and 16, the current L-shaped parcel, from 1904 to 1981. He acquired Lot 15 in 1928 and owned it until 1951 when the lot was sold to leave the L-shaped parcel. The L-shaped parcel continued to be owned by O’Donnell or his family until 1998 when Glass bought it. Meanwhile, Lot, 15 changed hands several times until 1981, when it was sold to the Bolens. In 1986, the Bolens purchased their parcel on the other side of 40th Street, including Lots 11 and 24, and they sold Lot 15 to Zajac. The use of 40th Street to access Lot 1 appears to have changed when the Bolens and then Zajac purchased Lot 15. The Bo-lens testified that on rare occasions, they allowed Pamela Haugen, O’Donnell’s granddaughter, to use 40th Street when she owned the L-shaped lot. In a 1990 dispute between Haugen and Zajac, the Duluth City Attorney opined in a letter that the Bolens and Zajac each had the right to control the use of the street in front of their lots.


author: MEIERHENRY, Justice.

text:
    2007 SD 84
    HAMAD ASSAM CORPORATION, Plaintiff and Appellant, v. Thomas NOVOTNY, Defendant and Appellee.
    No. 24184.
    Supreme Court of South Dakota.
    Considered on Briefs March 19, 2007.
    Decided Aug. 8, 2007.

      Kenneth W. Cotton of Wipf & Cotton, L.L.C. Wagner, SD, Timothy J. Grande of MacKall, Crounse & Moore, Minneapolis, MN, Attorneys for plaintiff and appellant.
    Timothy R. Whalen, Lake Andes, SD, Attorney for defendant and appellee.
   MEIERHENRY, Justice.

[¶ 1.] Hamad Assam Corporation (Assam) brought this action claiming it had a prescriptive easement over a portion of farmland owned by Thomas Novotny (Thomas). The trial court ruled against Assam. Assam appeals and we affirm.

FACTS

[¶2.] Assam purchased forty acres of land in Charles Mix County in 1993 (referred to as the Corporate 40). The Corporate 40 abuts forty acres of land owned by the Novotny family since 1946. A creek bed runs from the northwest corner to the southeast corner of the Corporate 40. An unimproved section line runs along the property’s west boundary and a minimally maintained township road runs along the south boundary. Assam leases the Corporate 40 to Brad Bechen, a farmer who lives nearby.

[¶ 3.] The Novotny land, referred to as the Novotny 40, was originally purchased by Thomas’ father, Frank Novotny, in 1946 and passed to Thomas in 1996 after Frank’s death. The portion of the Novot-ny 40 over which Assam claims an easement was originally a nine acre strip of uncultivated native grass. Frank Novot-ny, who farmed the land from 1946 until he retired in 1968, used the strip of native grass to prevent erosion, to serve as a turn-around point for his farm machinery, and to park equipment, trucks, and vehicles while working in the nearby field. As a result of such use, a pathway was created along the east side of the nine acre strip of grass running north to south. After Frank retired from farming, he leased the Novotny 40 to Vincent and Virgil Be-chen, .who were also relatives of Frank. The Bechens used the pathway on the Novotny 40 in the same fashion as Frank had and also occasionally allowed others to use the pathway to reach the Corporate 40. Frank did not oversee or restrict the Bechen’s use of the land or pathway. Because of his relationship with and trust of the Bechens, Frank exercised very little oversight or management of the property. Shortly after Thomas acquired the Novot-ny 40,- he leased the property to someone other than the Bechens. Thomas’ most recent tenant, Terri Svatos (Svatos), began renting the property in 2003. Brad Be-chen, son of Virgil Bechen, farms several pieces of Bechen property in the vicinity, some of which abuts the Corporate 40 to the east.

[¶ 4.] The creek bed running through the Corporate 40 was generally dry but temporarily accumulated water when the area received rain. Witnesses testified that after a substantial rainfall the creek remained wet and soggy for a few days, making it difficult for a vehicle to drive across and creating an obstacle in reaching the northern portion of the Corporate 40 from the west section line or south township road. Aerial maps and pictures showed attempts to create pathways across the creek by past and current owners/tenants. One former tenant created a causeway across the creek by piling rocks and other materials in the creek. There was also testimony that occasionally when the creek contained water, the pathway on the Novotny 40 was used to access the northern portion of the Corporate 40.

[¶ 5.] Use of the pathway to access the northern portion of the Corporate 40 ceased in 2003 when Thomas’ current tenant tilled up the Novotny 40 nine acre grass strip in order to plant crops. Assam contacted Thomas claiming he had an easement to use the pathway. Thomas disagreed. Assam subsequently brought an action to resolve the issue of whether Assam had a prescriptive easement over Novotny’s land.

[¶ 6.] At trial, there was testimony about using the nine acre strip on the Novotny 40 to access the northern portion of the Corporate 40 after a “substantial rainfall.” What constituted a “substantial rainfall” or the frequency of occurrence was unclear. Additionally, pictures showed several access points located along the creek that were well-worn, indicating that the northern portion of the Corporate 40 was normally accessed by entering the property by way of the east section line or south township road and then by driving over the dry creek bed. Ultimately, the trial court concluded that Assam had failed to establish that it possessed a prescriptive easement. Assam appeals and raises the following issue:

Whether the trial court erred in determining that Assam did not have a prescriptive easement over Novotny’s land.

ANALYSIS

[¶ 7.] To establish a prescriptive easement, Assam must prove by clear and convincing evidence an “open, continued, and unmolested use” of the pathway across the Novotny land for twenty years and that the use was in a manner that was hostile or adverse to Novotny. Vivian Scott Trust v. Parker, 2004 SD 105, ¶ 6, 687 N.W.2d 731, 733. “In addition, for a prescriptive easement to exist, a party seeking the easement must use the property in a manner that is hostile or adverse to the owner.” Thompson v. E.I.G. Palace Mall, LLC, 2003 SD 12, ¶ 7, 657 N.W.2d 300, 304. We have also said that the adverse “possession must be of such hostile, visible and continuous nature as to give the true owner notice of actual possession and to put him on inquiry as to the invasion of his rights.... ” Sioux City Boat Club v. Mulhall, 79 S.D. 668, 117 N.W.2d 92, 96 (S.D.1962).

[¶ 8.]The trial court concluded that Assam failed to carry its burden to prove the elements necessary for a prescriptive easement by clear and convincing evidence. In a memorandum decision, the trial court found that there was no evidence that No-votny knew “of the irregular use of the pathway over his land by [Assam].” As part of the findings of fact, the trial court found:

16. That [Assam] did not take any action nor make any effort to show that it used the pathway on the Novotny 40 to the physical exclusion of all others, including [Novot-ny], under a claim of right to said pathway.
17. That [Assam] did not fence in or otherwise enclose the pathway.
18. That [Assam] made no‘ effort to improve the pathway; it did not gravel the pathwáy; it did not maintain the pathway; it did not grade or otherwise improve the pathway in any regard.
24. That there was evidence that persons other than the Novotny family utilized the pathway created by Frank on the Novotny 40 from time to time over the past years, but such use was irregular and sporadic. The use of this pathway by the [Assam] and others, however, did not interfere with the Novotnys’ use of the Novotny 40 in any regard and, therefore, such use was not objectionable by the Novotnys.
25. That while the Bechens leased the Novotny 40, they did not stop the aforesaid persons from using the pathway on the Novotny 40 nor did they report to Frank or to the [No-votnys] that persons were using the pathway in any regard.
31. That neither Frank Novotny nor the [Novotnys] had any knowledge of who may or may not be using the pathway on the Novotny 40 during the time that they owned the property and [Assam] did not produce any evidence to show that [Novotny] or his predecessors in title had knowledge of the use of the pathway by [Assam] or anyone else under a claim of right.

[¶ 9.]Assam does not contest any of the trial court’s findings of fact; therefore, the sole issue is whether the facts as delineated by the court are sufficient to constitute adverse possession, thereby under the circumstances constituting a question of law for this Court to determine. Schultz v. Dew, 1997 SD 72, ¶ 11, 564 N.W.2d 320, 322. Specifically, Assam contends that it made a prima facie case because it showed an open and continuous use of Novotny’s land for the statutory period with Novot-ny’s knowledge.

[¶ 10.] A prima facie case for a prescriptive easement is established and a presumption that such use is adverse and under a claim of right arises when a party shows “an open and continuous use of another’s land with the owner’s knowledge .... ” Thompson, 2003 SD 12, ¶ 8, 657 N.W.2d at 304. The presumption is created from the proof of an uninterrupted adverse use for the prescriptive period. Id. Novotny argues that Assam did not establish a prima facie case because its use was sporadic and irregular. Assam does not dispute this characterization, but contends that sporadic and irregular use does not defeat its claim. Thus, the issue becomes whether Assam’s intermittent and sporadic use of the Novotny 40 can be characterized as open and continuous.

[¶ ll.]To establish prescriptive rights, “possession must be of such hostile, visible and continuous nature as to give the true owner notice of actual possession and to put him on inquiry as to the invasion of his rights.... ” Sioux City Boat Club v. Mulhall, 117 N.W.2d at 96. Our prior case law discussing the importance of giving the servient land owner notice is also consistent with the Restatement of Property’s description of the claimant’s burden in regards to the “open and continuous use” requirement. The Restatement provides that to constitute an open and continuous use, “the adverse use must be made in such a way that a reasonably diligent owner would learn of its existence, nature, and extent.... Sporadic and casual uses are generally not open or notorious.” Restatement (Third) Property (Servitudes) § 2.17 (2000). The open requirement means that the use is not made in secret, but is otherwise visible or apparent. Kokesh v. Running, 2002 SD 126, ¶ 13, 652 N.W.2d 790, 794; see also Restatement (Third) Property (Servitudes) § 2.17 (2000).

[¶ 12.] The continuity requirement has two aspects, one mental and the other physical. Cook v. Hartman, 317 Mont. 343, 77 P.3d 231, 238 (2003) (quoting Restatement (Third) Property (Servitudes) § 2.17 (2000)). The mental aspect requires “that the prescriptive user remain in an adverse posture to the holder of the servient estate throughout the prescriptive period” while the physical aspect requires “that the use be open or notorious throughout the prescriptive period.” Id. (quoting Restatement (Third) Property (Servitudes) § 2.17 (2000)); see also Epstein, Elliot & Bissonnette, Ronald, Easements Ain’t Easy, 15 MEBJ 52, 55 (2000). As long as the claimant’s use is characterized as open, the fact that there is intermittent physical use of the estate is not fatal to the establishment of a prescriptive easement. See Great Northern Paper Co., Inc. v. Eldredge, 686 A.2d 1075, 1077 (Me. 1996) (stating that intermittent use may be continuous enough to establish an easement if it is sufficiently open and notorious); Ward v. Harper, 234 Va. 68, 360 S.E.2d 179, 182 (1987) (stating that use need not be daily, weeMy, monthly to be continuous); Ellison v. Fellows, 121 N.H. 978, 437 A.2d 278, 280 (N.H.1981) (stating that intermittent use is sufficient to establish prescriptive rights); Concerned Citizens of Brunswick Co. Taxpayers Ass’n v. NC ex rel. Rhodes, 329 N.C. 37, 404 S.E.2d 677, 686-87 (1991) (stating that use must be often enough and with such regularity as to constitute notice to servient land owner); Restatement (Third) Property (Servitudes) § 2.17 (2000). Therefore, the continuity element does not necessarily require the claimant to have used the ser-vient estate constantly or frequently. See Restatement (Third) Property (Servitudes) § 2.17 (2000). Rather, where the claimant’s use is intermittent, the question becomes whether such use is “consistent with the normal use that an owner of the property would make and is sufficiently open and notorious to give notice to the owner of the servient estate that the user is asserting an easement.” Great Northern Paper Co. Inc., 686 A.2d at 1077.

[¶ 13.] In this case, the record reveals that Assam’s use of the Novotny 40 was not sufficiently open or continuous. The Novotny 40 was not the usual way of access to the Corporate 40. Assam only used the Novotny 40 to access the northern portion of the Corporate 40 when there was a “substantial rainfall” making access to the Corporate 40 difficult. There was no testimony that specified how often or how much it had. to rain before Assam was required to use the pathway. One witness observed that when the creek filled with rain, the field was too wet to farm and there would be no need to access the property.

[¶ 14.] This sporadic and intermittent use cannot fairly be characterized as definite or substantial so as to constitute an open and continuous use. The elements that a claimant must prove to establish a prescriptive easement serve to protect the servient land owner by providing him with notice of a prescriptive right. We are hesitant to alter property rights where the claimant’s use of the servient estate is so infrequent that the title holder may have no notice as to its use or as to an adverse claim. The trial court found the evidence in this case insufficient to show an open and continuous use. Based on the record and applying our standard of review, we cannot say that the trial court erred when it determined the evidence was insufficient to establish a prescriptive easement.

[¶ 15.] Thus, we affirm the trial court based on Assam’s failure to establish that the use of the Novotny 40 was open and continuous for the statutory period.

[¶ 16.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur.

      . Assam further argues that according to our holding in Shippy v. Hollopeter, 304 N.W.2d 118 (S.D.1981), the continuous use of the field margin for the past twenty years was not necessary to establish a prescriptive easement. However, Shippy involved whether a previously established easement had been extinguished by irregular use. Id. Because we conclude that an easement was never created, we need not address whether it was extinguished.

      . The court alternatively determined that the Novotny 40 was wild, unimproved, and unenclosed land and applied the test set forth in Rancour v. Golden Reward Mining Co., L.P., wherein we recognized that where land is wild, unimproved, and unenclosed, the uninterrupted use of the land for the statutorily prescribed period does not raise a presumption that the use is adverse. 2005 SD 28, ¶ 9, 694 N.W.2d 51, 54. We need not address whether the trial court erred by applying Rancour since we affirm on the alternative theory.


author: MARING, Justice.

text:
    2007 ND 133
    STATE of North Dakota, Plaintiff and Appellee, v. Terry KAUTZMAN, Defendant and Appellant.
    No. 20060329.
    Supreme Court of North Dakota.
    Aug. 22, 2007.
    Rehearing Denied Oct. 16, 2007.

      Michael G. Liffrig, State’s Attorney, Mandan, N.D., for plaintiff and appellee.
    Kent M. Morrow, Bismarck, N.D., for defendant and appellant.
   MARING, Justice.

[¶ 1] Terry Kautzman appeals from a criminal judgment entered on a jury verdict finding him guilty of gross sexual imposition and terrorizing. We affirm the criminal judgment.

I

[¶ 2] Terry Kautzman was charged with gross sexual imposition, terrorizing, and attempted murder for events that occurred on February 9, 2006. Kautzman testified at trial that on February 9, 2006, he was sleeping at his girlfriend’s apartment when she arrived home. Kautzman testified he woke to her on top of him, with his belt unbuckled. Kautzman testified they engaged in sexual intercourse. According to Kautzman’s testimony, he asked her if she wanted to engage in anal intercourse. He testified they briefly engaged in anal intercourse after she indicated consent, but stopped when she expressed discomfort. According to Kautzman, he was out of bed and tying his shoe when he saw his girlfriend holding a knife in a threatening position. Kautzman testified he defended himself by grabbing her by the neck with one hand, pushing her against the hallway wall, and knocking the knife out of her hand. Kautzman testified he carried his girlfriend to the bedroom after he realized she was unconscious. According to Kautzman, he went to his brother’s apartment to get help for her, but his brother was not home. Kautzman testified he called 911 when he returned to his girlfriend’s apartment and discovered she was still unconscious.

[¶ 3] The alleged victim testified that on February 9, 2006, she returned to her apartment after visiting her brother, and soon began arguing with Kautzman. She testified Kautzman pulled her off the love seat and threw her to the floor. According to the alleged victim, Kautzman picked her up, verbally abused her, and threw her against the kitchen wall, which caused her to lose consciousness. She testified she regained consciousness while on the living room floor as Kautzman was pouring whiskey down her throat and choking her. According to the alleged victim, she later woke to Kautzman anally penetrating her and pulling her hair. She testified she did not consent to anal intercourse.

[¶ 4] Before trial, Kautzman moved to determine admissibility of evidence that, among other sexual history, the alleged victim previously engaged in and enjoyed anal intercourse with her estranged husband. The trial court denied Kautzman’s motion.

[¶ 5] The jury returned guilty verdicts on the gross sexual imposition and terrorizing charges, but found Kautzman not guilty of attempted murder. The gross sexual imposition verdict form first inquired whether the jury found Kautzman guilty or not guilty of gross sexual imposition. The jury marked guilty. The form next inquired: “If you find ..: Kautzman, guilty of the crime of Gross Sexual Imposition, do you find that the' State proved beyond a reasonable doubt that [Kautz-man] inflicted serious bodily injury on [the alleged victim]?” The jury did not answer the second inquiry. The trial court asked the jury whether it was deadlocked on that inquiry. The jury foreperson answered affirmatively. The trial court announced the terrorizing verdict as “not guilty,” but the jury protested that verdict. The trial court directed the jurors to return to the jury room. After deliberating, the jury returned with a “guilty” verdict. The trial court’s poll of the jurors indicated their agreement with the three verdicts.

[¶ 6] After the trial court excused the jury, Kautzman orally moved for the trial court to overturn the jury’s gross sexual imposition verdict, but did not object to the terrorizing verdict. The trial court denied Kautzman’s motion. Later, Kautz-man moved for judgment of acquittal or mistrial on the gross sexual imposition and terrorizing convictions. Kautzman contended the trial court should have granted him an acquittal or mistrial because the jury did not answer the second inquiry on the gross sexual imposition verdict form, and because a verdict of “not guilty” was originally received for the terrorizing charge. The trial court denied Kautz-man’s motion. Kautzman was convicted of class A felony gross sexual imposition and class C felony terrorizing. Kautzman appeals.

II

[¶ 7] Kautzman argues the trial court erred when it denied his motion for mistrial on his gross sexual imposition and terrorizing convictions. The grant of a mistrial is an extreme remedy that should only be resorted to when there is a fundamental defect or occurrence in the trial proceedings that “makes it evident that further proceedings would be productive of manifest injustice.” State v. Klose, 2003 ND 39, ¶ 14, 657 N.W.2d 276.

[¶ 8] When a problem occurs during trial, the affected party must bring the irregularity to the trial court’s attention and seek the appropriate remedy. Klose, 2003 ND 39, ¶ 15, 657 N.W.2d 276. When defense counsel moves for a mistrial because of the prejudicial effect of the defect or occurrence, counsel ordinarily must request the trial court provide a cautionary instruction to the jury to properly preserve the question for appellate review. Id. A party’s failure to request an instruction waives the objection to the allegedly prejudicial error. Id. “A mistrial must be declared before the trial is over and before the jury has been discharged.” Id.; see N.D.R.Crim.P. 31(d) (a mistrial may be declared before the jury is discharged); N.D.R.Crim.P. 33, Explanatory Note (“[Rule 33] does not affect the power of the court to declare a mistrial and order a new trial prior to the verdict or finding of guilty.”).

[¶ 9] In this case, Kautzman argues the irregularity lies in the failure of the trial court to include “serious bodily injury” as an element of the offense of gross sexual imposition, in the failure of the jury to answer the second question on the verdict form, and in the trial court’s handling of the terrorizing verdict. Kautz-man did not request an instruction on any of these matters and did not move for a mistrial until after the jury was discharged. Therefore, Kautzman did not properly preserve these issues for appeal and, in addition, his motion for a mistrial was untimely. In this appeal, we will only consider Kautzman’s motion for judgment of acquittal on his gross sexual imposition and terrorizing convictions.

Ill

[¶ 10] To grant a judgment of acquittal, “a trial court must find the evidence is insufficient to sustain a conviction of the offenses charged.” State v. Delaney, 1999 ND 189, ¶ 4, 601 N.W.2d 573; N.D.R.Crim.P. 29(a). When considering the sufficiency of the evidence on appeal, this Court views the evidence and all reasonable inferences in the light most favorable to the prosecution and then determines whether a rational factfinder could have found guilt beyond a reasonable doubt. State v. Lambert, 539 N.W.2d 288, 289 (N.D.1995). This Court only allows for the entry of a judgment of acquittal if the evidence is insufficient to sustain a conviction. Id.

[¶ 11] Kautzman argues the trial court erred when it denied his motion for judgment of acquittal on his gross sexual imposition conviction because the inclusion of “serious bodily injury” to the gross sexual imposition verdict form created an additional element the State had to prove beyond a reasonable doubt. Kautzman contends he should have been acquitted because the State did not prove the alleged victim suffered a serious bodily injury. The State argues that “serious bodily injury” was agreed to by both parties to be a requirement for the enhancement of the penalty for gross sexual imposition and that Kautzman suggested the “penalty enhancement” question. Kautzman additionally argues he cannot be convicted of a lesser offense because neither party requested a lesser included offense instruction and there was no acquittal of the greater offense. At the trial court level, serious bodily injury was treated as a sentence enhancement to gross sexual imposition. We conclude we do not need to address whether serious bodily injury is an element of gross sexual imposition or if it is merely a sentence enhancement.

[¶ 12] Section 12.1-20-03, N.D.C.C., establishes the requirements for the crime of gross sexual imposition:

1. A person who engages in a sexual act with another, or who causes another to engage in a sexual act, is guilty of an offense if:
a. That person compels the victim to submit by force or by threat of imminent death, serious bodily injury, or kidnapping, to be inflicted on any human being;
3. a. An offense under this section is a class AA felony if in the course of the offense the actor inflicts serious bodily injury upon the victim, if the actor’s conduct violates subdivision a of subsection 1, or if the actor’s conduct violates subdivision d of subsection 1 and the actor was more than five years older than the victim at the time of the offense.
c. Otherwise the offense is a class A felony.

Count one of the Second Amended Information against Kautzman read:

GROSS SEXUAL IMPOSITION in violation of N.D.C.C. Section 12.1-20-03(l)(a) by then and there,
Engaging in a sexual act with [the alleged victim], compelling her to submit by force or threat of imminent death or serious bodily injury to be inflicted upon her, and/or [Kautzman] knew the victim was unconscious and unaware that the sexual act was being committed upon her, and in the course of the offense, [Kautzman] inflicted serious bodily injury upon the vietim[.]
Class AA Felony, penalty sections 12.1— 20-03(3)(a) and 12.1-32-01(l)[.]

[¶ 13] Before trial, the trial court and counsel discussed the jury instructions and verdict form for the gross sexual imposition charge. In the opening jury instructions, the crime of gross sexual imposition was defined: “[a] person who willfully engages in a sexual act with another person is guilty of Gross Sexual Imposition if the actor compels another person to submit by force or by threat of imminent death or serious bodily injury.” The jury was instructed that the essential elements of gross sexual imposition were:

The State’s burden of proof is satisfied only if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about February, 9th, 2006, in Oliver County, North Dakota, the defendant, Terry Kautzman willfully engaged in a sexual act with [the alleged victim];
2) The defendant did so by willfully compelling [the alleged victim] to submit by force or by threat of imminent death or serious bodily injury.

The gross sexual imposition verdict form provided:

We, the jury duly impaneled and sworn to try the above-entitled action, do find the Defendant, Terry Kautzman, (Mark X on appropriate blank),
_ Not Guilty_Guilty
of the crime of Gross Sexual Imposition. Dated this_day of July, 2006.
Jury Leader
If you find the Defendant, Terry Kautzman, guilty of the crime of Gross Sexual Imposition, do you find that the State proved beyond a reasonable doubt that the Defendant inflicted serious bodily injury on [the alleged victim]? (Mark an X on appropriate blank),
_ Yes or_No
Dated this_day of July, 2006.
Jury Leader

[IT 14] “Under N.D.R.CrimJP. 30, if the trial court gives counsel an opportunity to object to proposed instructions, counsel must designate objectionable parts of the instructions and thereafter only the parts so designated are deemed excepted to by counsel.” State v. Flanagan, 2004 ND 112, ¶ 5, 680 N.W.2d 241. Kautzman was present during discussions on the jury instructions and verdict form but never objected. Instead, Kautzman consented to all jury instructions and verdict forms as given to the jury. Additionally, Kautzman requested the second inquiry on the gross sexual imposition verdict form. If counsel does not object to the trial court’s instructions, the issue is not adequately preserved. Id. The inquiry is then “limited under N.D.R.Crim.P. 52(b) to whether the court’s failure to instruct the jury was obvious error affecting substantial rights.” Flanagan, at ¶ 5.

[¶ 15] This Court cautiously exercises its authority to notice obvious error and does so only in exceptional circumstances in which a party has suffered a serious injustice. Flanagan, 2004 ND 112, ¶ 6, 680 N.W.2d 241. This Court may notice a claimed error not brought to the attention of the trial court if there was (1) error, (2) that is plain, and (3) affects substantial rights. Id. When “a defendant establishes that a forfeited plain error affects substantial rights, we have discretion to correct the error and should correct it if it ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’ ” Id. (quoting State v. Olander, 1998 ND 50, ¶ 16, 575 N.W.2d 658).

[¶ 16] At the trial court level, Kautz-man actively participated in the drafting of the verdict form and specifically requested that the inquiry regarding whether there was serious bodily injury be added in the order it was presented to the jury. The form of this second inquiry did not request a “guilty” .or “not guilty” response, but merely a “yes” or “no” response. Taken together, Kautzman’s actions led the trial court to, submit the case as a sentence enhancement case.

[¶ 17] Our Court does not need to decide today whether serious bodily injury is an element of gross sexual imposition or if it is a sentence enhancement of the offense because “[i]t is a cardinal rule of appellate review that a party may not challenge as error a ruling or other trial proceeding invited by that party.” State v. Grager, 2006 ND 102, ¶ 7, 713 N.W.2d 531 (citation omitted); see also Olander, 1998 ND 50, ¶ 14, 575 N.W.2d 658 (stating “[florfeiture is the failure to timely assert a right, while waiver is the intentional relinquishment of a right, and F.R.Crim.P. 52(b) applies only to ‘forfeited’ and not to ‘waived’ errors.”). Kautzman attempts to challenge the trial proceeding, which resulted in serious bodily injury being treated as a sentence enhancement and not an element of the offense. However, because Kautzman invited the treatment of serious bodily injury as a sentence enhancement, he cannot now claim it was error to treat it as such. Therefore, Kautzman cannot now challenge as error the trial court’s handling of serious bodily injury. There was sufficient evidence to convict Kautzman of gross sexual imposition. The trial court did not err in denying Kautzman’s motion for judgment of acquittal.

IV

[¶ 18] Kautzman argues the trial court erred when it denied his motion for judgment of acquittal on his terrorizing conviction. Kautzman contends the trial court failed to immediately poll the jurors individually after there was disagreement in open court with the announced verdict of “not guilty” on the terrorizing charge. Kautzman argues it was error to order the jury to return to deliberate, thereby allowing it to change the verdict. Kautzman contends the trial court should have accepted as final the “not guilty” verdict that was read in open court.

A

[¶ 19] Under N.D.R.Crim.P. 31(a), a jury must return its verdict to a judge in open court. After the verdict is returned, but before the trial court discharges the jury, the trial court must poll the jurors individually if requested by a party, or may on its own, poll the jurors individually. N.D.R.Crim.P. 31(d). If the poll indicates the jury lacks unanimity, the trial court may direct the jury to deliberate further or may declare a mistrial and discharge the jury. Id.

[¶ 20] When a problem occurs during trial, the affected party must bring the irregularity to the trial court’s attention and seek the appropriate remedy. Klose, 2003 ND 39, ¶ 15, 657 N.W.2d 276. Kautzman chose not to request that the jurors be polled individually after the “not guilty” verdict was read and the jury protested. When the trial court directed the jury to return to the jury room to deliberate on its terrorizing verdict, Kautzman did not object to the lack of an individualized poll, the second deliberation, or the resulting “guilty” verdict that was read after the second deliberation.

[¶ 21] We have said that issues not raised before the trial court generally will not be addressed on appeal unless the alleged error rises to the level of obvious error under N.D.R.Crim.P. 52(b). State v. Parisien, 2005 ND 152, ¶ 17, 703 N.W.2d 306. This Court may notice a claimed error not brought to the trial court’s attention if there was obvious error that affected substantial rights. Flanagan, 2004 ND 112, ¶ 6, 680 N.W.2d 241. Using the discretion granted it under N.D.R.Crim.P. 31(d), the trial court chose not to poll the jurors individually, instead allowing the jury to return to deliberate following the jury’s general protestation of the verdict read. The trial court then, on its own accord, polled the jury individually after it returned its verdict of guilty. The trial court knew, based on the protests of the jury, there was not unanimity on the verdict as originally read. Under N.D.R.Crim.P. 31(a), the verdict must be unanimous. We conclude the trial court properly exercised its discretion in allowing the jury to deliberate and clarify its verdict without first polling the jury individually when it was clear there was not unanimity on the verdict as read.

B

[¶ 22] An individual is guilty of class C felony terrorizing if, with intent to place another individual in fear for that individual’s safety, the individual threatens to commit any violent crime or act dangerous to human life. N.D.C.C. § 12.1-17-04. Viewing the record in the light most favorable to the verdict, we conclude there is sufficient evidence to sustain Kautzman’s terrorizing conviction. The trial court did not err in denying Kautzman’s motion for judgment of acquittal on his terrorizing conviction.

V

[¶ 23] Kautzman argues the trial court erred when it denied his motion to determine admissibility of evidence of the alleged victim’s sexual history. Kautzman contends the alleged victim’s alleged past engagement in and enjoyment of anal intercourse with her estranged husband was relevant evidence under N.D.R.Ev. 412. Kautzman further argues the exclusion of the alleged victim’s sexual history denied Kautzman his constitutional right of confrontation.

[¶ 24] Under ND.R.Ev. 412(a), evidence offered to prove an alleged victim engaged in other sexual behavior or an alleged victim’s sexual predisposition is not admissible in a criminal proceeding involving sexual misconduct. However, there are three types of evidence that are admissible under N.D.R.Ev. 412:(1) evidence of specific instances of the alleged victim’s sexual behavior to prove that an individual other than the accused was the source of physical evidence; (2) evidence of specific instances of sexual behavior by the alleged victim with the accused, if offered by the accused to prove consent, or by the prosecution; and (3) evidence that if excluded would violate the defendant’s constitutional rights. N.D.R.Ev. 412(b). The party looking to offer evidence must file a written motion at least fourteen days before trial specifically describing the evidence and stating its purpose. N.D.R.Ev. 412(c). The party must serve the motion on all parties and notify the alleged victim. Id.

[¶ 25] A trial court has broad discretion when deciding evidentiary matters, and its admission or exclusion of evidence will not be overturned on appeal unless that discretion has been abused. Davis v. Killu, 2006 ND 32, ¶ 6, 710 N.W.2d 118. “A trial court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably, or when its decision is not the product of a rational mental process.” Id.

[¶ 26] The alleged victim’s sexual history with her estranged husband is inadmissible under N.D.R.Ev. 412. The evidence Kautzman attempted to have admitted was not offered to prove that an individual other than Kautzman was the source of physical evidence, and it was not of specific instances of the alleged victim’s past sexual conduct with Kautzman. Therefore, the first two exceptions to N.D.R.Ev. 412(a) do not apply.

[¶27] The third exception is evidence that, if excluded, would violate the defendant’s constitutional rights. N.D.R.Ev. 412(b). The depth and the magnitude of constitutional arguments require an individual making such a challenge to either prepare an adequate and thorough foundation to support the argument, or forego its presentation. State v. Osier, 1999 ND 28, ¶ 33, 590 N.W.2d 205. “The mere reference to a statute’s constitutionality, with nothing more, does not meet the standard of persuasion required to mount an attack on constitutional grounds.” Id. Any constitutional claim Kautzman may have had, he has foregone because he has failed to meet the standard of persuasion required to show the application of N.D.R.Ev. 412 was constitutionally infirm.

[IT 28] Under N.D.R.Ev. 412, the alleged victim’s alleged sexual behavior and sexual predisposition are inadmissible because Kautzman failed to prove any of the three exceptions apply. The trial court did not abuse its discretion when it denied Kautzman’s motion to determine admissibility of evidence.

VI

[¶29] We affirm the criminal judgment.

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