author: ANDERSON, PAUL H„ Justice.

text:
    William J. McDonough, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A05-500.
    Supreme Court of Minnesota.
    Jan. 5, 2006.

      William Jeffrey McDonough, Stillwater, MN, for Appellant.
    Mike Hatch, Minnesota Attorney General, Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, St. Paul, MN, for Respondent.
   OPINION

ANDERSON, PAUL H„ Justice.

Petitioner William J. McDonough appeals from a summary denial of his third petition for postconviction relief alleging seven claims of error. We affirm the post-conviction court’s denial of McDonough’s petition.

On April 17, 2000, petitioner William McDonough was convicted of first-degree murder and attempted first-degree murder and was sentenced to life imprisonment for the murder and a consecutive 180-month sentence for the attempt. Our opinion issued in response to McDonough’s direct appeal provides a full statement of the facts in this case. State v. McDonough, 631 N.W.2d 373, 379-82 (Minn.2001) (McDonough I).. In his direct appeal, McDon-ough raised eight claims of error, but we affirmed his conviction. Id. at 379.

McDonough made eight additional claims of error in his first postconviction petition for relief, making the following arguments: (1) he was arrested without probable cause; (2) the search warrant was deficient; (3) his Miranda rights were violated; (4) the state committed prosecu-torial misconduct; (5) the grand jury lacked jurisdiction; (6) his right to a speedy trial was violated; (7) he received ineffective assistance of trial counsel; and (8) he received ineffective assistance of appellate counsel. The first postconviction court rejected all of McDonough’s claims, determining that he had raised four of the claims in his direct appeal, that he should have known of three of the claims at the time of his direct appeal, and that he failed to explain the basis for his claim of ineffective assistance of appellate counsel. Mc-Donough did not appeal the denial of this petition. See McDonough v. State, 675 N.W.2d 53, 55 (Minn.2004) (McDonough II).

McDonough then filed a second petition for postconviction relief, raising three claims. The postconviction court denied relief, and McDonough appealed to this court. On the postconviction appeal, we concluded that in his direct appeal we had rejected two claims that were raised in this petition — that the evidence was insufficient and that his indictment was improper. Id. at 55-56. We also concluded that McDon-ough did not allege facts that if proved would have entitled him to relief on his third claim, ineffective assistance of appellate counsel. Id. at 56. We therefore affirmed the second postconviction court’s denial of relief. Id. at 57.

In this, his third petition for postconviction relief, McDonough makes the following arguments: (1) the district court erred by allowing false and misleading statements to be made at trial; (2) the state engaged in prosecutorial misconduct when it used false or perjured testimony; (3) the grand jury lacked jurisdiction to issue the indictment; (4) the district court erred in providing jury instructions on the offenses; (5) the district court erred by failing to disclose that a jury question had been asked and answered; (6) he was denied his right to a speedy trial; and (7) he received ineffective assistance of trial counsel. In denying this third petition for relief, the postconviction court determined that Mc-Donough either had already raised the claims in a previous proceeding or should have known of the claims when he made his direct appeal. McDonough now appeals all of the issues raised in his third postconviction petition.

A defendant is permitted to seek posteonviction relief “to vacate and set aside the judgment * * * or grant a new trial * * * or make other disposition as may be appropriate.” Minn.Stat. § 590.01, subd. 1 (2004) (amended 2005). “Review of a postconviction proceeding is limited to determining “whether there is sufficient evidence to sustain the postconviction court’s findings, and a postconviction court’s decision will not be disturbed absent an abuse of discretion.’ ” Zenanko v. State, 688 N.W.2d 861, 864 (Minn.2004) (quoting Sanders v. State, 628 N.W.2d 597, 600 (Minn.2001)). A postconviction court “may summarily deny a petition when the issues raised in it have previously been decided by the Court of Appeals or the Supreme Court in the same case.” Minn.Stat. § 590.04, subd. 3 (2004). “Additionally, once a direct appeal has been taken ‘all matters raised' therein, and all claims known but not raised, will not be considered upon a subsequent petition for post-conviction relief.’ ” McDonough II, 675 N.W.2d at 55 (quoting State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976)) (Knaffla rule).

There are two exceptions to the Knaffla rule: (1) if a novel legal issue is presented, or (2) if the interests of justice require review. The second exception may be applied if fairness requires it and the petitioner did not “deliberately and inexcusably” fail to raise the issue on direct appeal.

Taylor v. State, 691 N.W.2d 78, 79 (Minn.2005) (citations omitted).

We have previously rejected, in somewhat different form, three of the claims that McDonough raises in his current postconviction appeal. His first two claims are that the district court erred in allowing, and the state committed misconduct in eliciting, the testimony of two officers regarding their understanding of his alibi witness’s testimony. Both of these claims are recharacterizations of his previously rejected claims that the evidence was insufficient to sustain a conviction. See McDonough I, 631 N.W.2d at 389-90 (concluding that McDonough’s “alibi witness’ testimony was discredited and contradicted by a significant amount of other evidence”); see also McDonough II, 675 N.W.2d at 55-56 (holding that McDon-ough’s claim of innocence “had previously been decided by this court in the same case”). McDonough’s third claim is that we must dismiss his indictment because the grand jury lacked both subject matter and personal jurisdiction over him. Although it is difficult to determine the exact basis for this third claim, it appears that McDonough is merely recharacterizing his previously rejected claim that exculpatory evidence was withheld from the grand jury. See McDonough I, 631 N.W.2d at 386-87 (concluding “that the district court did not err in denying McDonough’s motion to dismiss the indictment”).

Minnesota Statutes § 590.04, subd. 3, allows a postconviction court to “summarily deny a petition when the issues raised in it have previously been decided by the Court of Appeals or the Supreme Court in the same case.” We have previously implicitly determined that there was no error when the two officers testified about their discussions with McDonough’s alibi witness. See McDonough I, 631 N.W.2d at 381, 386-87, 390-91. Thus, the district court could not have erred in allowing the officers to testify nor could the prosecutor have committed misconduct by calling them to testify. Additionally, we have previously decided that the district court did not err in denying McDonough’s motion to dismiss the indictment, implicitly concluding that the grand jury had both personal and subject matter jurisdiction over him. See id. at 386-87, 390-91. We therefore conclude that the postconviction court did not abuse its discretion when it denied McDonough relief on these three claims.

Once a direct appeal has been taken, the Knaffla rule bars all claims that were raised in the direct appeal and all claims that were known or should have been known but were not raised. See Hanley v. State, 534 N.W.2d 277, 279 (Minn.1995); Knaffla, 309 Minn. at 252, 243 N.W.2d at 741. We conclude that McDonough’s remaining four claims are barred by the Knaffla rule because he knew or should have known of all of them at the time of his direct appeal. Additionally, the Knaffla rule entitles a defendant “to one right of review by an appellate or postconviction court.” Doppler v. State, 660 N.W.2d 797, 802 (Minn.2003). The postconviction court reviewed and rejected two of McDonough’s four remaining claims when he made them in his first petition for postconviction relief.

McDonough does not argue that any of his four remaining claims present novel legal issues. Our review of the claims confirms that they are not novel. We therefore conclude that the postconviction court did not abuse its discretion when it declined to apply the first of the two exceptions to the Knaffla rule to McDon-ough’s remaining claims.

McDonough also argues that we should review all • of his claims under-Knaffla⅛ second exception — in the interests of justice. While McDonough makes a circular argument that the interests of justice exception should be applied because it would be unjust not to review his claims, he articulates no new, relevant facts that would support an application of this exception. We have previously declined to review a claim barred by the Knaffla rule when the petitioner failed to articulate such facts, and we do so again here. See Jones v. State, 671 N.W.2d 743, 746 (Minn.2003).

Finally, even though the Knaffla rule bars all of McDonough’s claims, we have nonetheless reviewed each of the four claims that we had not previously reviewed and determine each to be without merit.

Affirmed.

BLATZ, C. J., took no part in the consideration or decision of this case.


source: Caselaw Access Project

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Mark Howard GARDNER, a Minnesota Attorney, Registration No. 228801.
    No. A05-2489.
    Supreme Court of Minnesota.
    Jan. 5, 2006.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Mark Howard Gardner committed professional misconduct warranting public discipline, namely, use of profanity to opposing counsel, disclosure of confidential information, and failure to timely convey a counteroffer, in violation of Minn. R. Prof. Conduct (MPRC) 4.4, 8.4(d), 1.6(a)(1), 1.2(a) and 1.4(b).

Respondent has admitted his conduct violated the Rules of Professional Conduct, has waived his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is public reprimand and two years’ probation subject to the following conditions:

a. Respondent shall maintain total abstinence from alcohol or other mood-altering chemicals, except that respondent may use prescription drugs in accordance with the directions of a prescribing physician who is fully advised of respondent’s chemical dependency before issuing the prescription.
b. Respondent shall attend weekly meetings of Alcoholics Anonymous or other out-patient alcohol treatment program acceptable to the Director. Respondent shall, by the tenth of each month, without a specific reminder or request, submit to the Director an attendance verification, on a form provided by the Director, that provides the name, address and telephone number of the person personally verifying the attendance. Such attendance verification shall also, upon request, be provided to the respondent’s supervisor, if any.
c. Respondent shall initiate or continue current treatment by a licensed consulting psychologist or other mental health professional acceptable to the Director, and shall complete all therapy programs recommended by the therapist.
d. Respondent shall initiate and maintain office procedures that ensure there are prompt responses to correspondence, telephone calls, and other important communications from clients, courts and other persons interested in matters respondent is handling, and that will ensure respondent regularly reviews each and every file and completes legal matters on a timely basis.
e. Respondent shall abide by the Minnesota Rules of Professional Conduct.
f. Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct that may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Mark Howard Gardner is publicly reprimanded, that he is placed on probation for two years from the date of this order, subject to the conditions set forth above, and that he shall pay $900 in costs pursuant to Rule 24, RLPR.

BY THE COURT:

/s/Russell A. Anderson Associate Justice


text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST Yvonne B. MOORE, a Minnesota Attorney, Registration No. 74895.
    No. A05-1383.
    Supreme Court of Minnesota.
    Jan. 5, 2006.
    See also 692 N.W.2d 446.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Yvonne B. Moore committed professional misconduct warranting public discipline, namely, making an improper ex parte communication with a judge during a lawyer discipline proceeding and falsely certifying she had never been disciplined and was not then the subject of disciplinary proceedings, in violation of Minn. R. Prof. Conduct 8.4(a), (c) and (d).

On November 22, 2005, the referee appointed by this court made his findings of fact, conclusions of law, and recommendation for discipline. The referee found respondent knowingly made false statements of fact when she indicated on two applications to provide volunteer legal services that no disciplinary actions had ever been taken against her and that she was not the subject of a current disciplinary proceeding. The referee found this-conduct violated Minn. R. Prof. Conduct 8.4(c) and (d). The referee further found respondent attempted to make an improper ex parte contact with a judge in connection with a then-pending disciplinary petition. The referee found this conduct also violated Minn. R. Prof. Conduct 8.4(c) and (d). The referee found respondent’s previous disciplinary history, the fact that the conduct occurred during and directly relating to a disciplinary proceeding, and respondent’s failure to acknowledge the wrongful nature of her misconduct to be factors substantially aggravating respondent’s misconduct.

Respondent stipulates the referee’s findings of fact and conclusions of law are conclusive, waives briefing and oral argument before this court, and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is suspension from the practice of law for 90 days under Rule 15, RLPR, effective 14 days from the date of the court’s suspension order, subject to the following conditions:

(1) The reinstatement hearing provided for in Rule 18, RLPR, is waived.
(2) Respondent shall successfully complete the professional responsibility portion of the state bar examination within one year of the date of this court’s order.
(3) Respondent shall comply with Rule 26, RLPR.
(4) Respondent shall pay $900 in costs pursuant to Rule 24(a), RLPR.
(5) Respondent be reinstated following the expiration of the suspension period provided that, at least 15 days before the expiration of the suspension period, respondent shall file an affidavit with the Clerk of Appellate Courts and the Director’s Office establishing that respondent is current with all continuing legal education requirements, has fully complied with Rules 24 and 26, RLPR, and has satisfactorily completed all other conditions imposed by the court in this order.
(6) Following respondent’s reinstatement, respondent is placed on supervised probation for two years upon the terms set forth in the court’s February 24, 2005, opinion (In re Moore, 692 N.W.2d 446 (Minn.2005)).

This court has independently reviewed the file and approves the jointly recommended disposition with the exception that respondent be required to petition this court for reinstatement.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Yvonne B. Moore be suspended from the practice of law for a period of ninety (90) days, effective 14 days from the date of this order, subject to the conditions set forth above except that the reinstatement procedures set forth in Rule 18(a)— (d), RLPR, shall apply. Respondent shall pay $900 in costs and disbursements pursuant to Rule 24, RLPR.

BY THE COURT

/s/Russell A. Anderson Associate Justice


author: GORDON SHUMAKER, Judge.

text:
    STATE of Minnesota, Respondent, v. Keith Edward MONTGOMERY, Appellant.
    No. A04-2050.
    Court of Appeals of Minnesota.
    Dec. 27, 2005.

      Mike Hatch, Attorney General, St. Paul, MN; and Paul J. Kiltinen, Dodge County Attorney, Mantorville, MN, for respondent.
    John M. Stuart, State Public Defender, Bridget Kearns Sabo, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by LANSING, Presiding Judge; GORDON SHUMAKER, Judge; and HUDSON, Judge.
   OPINION

GORDON SHUMAKER, Judge.

A jury found appellant Keith Edward Montgomery guilty of first-degree and second-degree sale of a controlled substance. On appeal, he argues that the district court abused its discretion by admitting Spreigl evidence and by denying his motion for a mitigated sentencing departure. He also claims the prosecutor committed misconduct.

FACTS

According to testimony in the trial that began on April 19, 2004, Brenda Peterson, a recovering drug user who worked as a police informant, received a telephone call from a man who identified himself as Hak-eem. Peterson knew Hakeem to be Keith Montgomery, a person with whom she had had a personal relationship in the past. Hakeem wanted to sell to her an ounce of cocaine for $700 or $800, and they agreed that he would come the next day to Kas-son, where Peterson lived, to make the sale. Peterson then notified the Kasson police, and they decided to equip her with a “wire” so that they could listen to further conversations she might have with Hak-eem. Through additional calls, Peterson arranged to meet Hakeem at the carwash in Kasson.

The next day, Hakeem arrived in Kas-son in a car driven by Hyson Harper and owned by Shawntan Smith’s aunt. Hak-eem sat in the front passenger seat and Smith was in the back. When Hakeem notified Peterson of his arrival, she directed him to go to the carwash.

At the carwash, Peterson got into the back seat of the car and sat next to Smith. She counted out the money for the cocaine and gave it to Smith. Smith, who was holding a napkin that he said contained the cocaine, handed the money- back to her. Then Peterson saw the lights of police cars, and the police arrested the men.

Harper testified that he had not known Hakeem prior to this date but that he saw Hakeem put drugs in a glove and then place the glove somewhere under the hood of the car. When the police searched the car, they found a glove containing baggies of cocaine in the car’s air-filter housing, and they found baggies without drugs in them in the backseat. None of the occupants of the car had actual possession of any drags, but Smith had $1,700 in his shoe. When originally questioned, Harper lied to the police about knowing that there were drugs in the car, but he maintained that he was not involved in a drag sale.

Montgomery testified that he ended his relationship with Peterson despite her many efforts to become intimate with him. He stated that, at the time in question, it was Peterson who contacted him and that she asked him to come and see her. He told her that he was going to take some friends to a party in the area and that she could come along. She agreed.

When Peterson got into the car next to Smith, Montgomery heard some counting of money but he was not aware of the reason for it. He testified that he did not know that drugs were in the car, that he did not place any drugs under the hood, and that he knew nothing of a drug sale to Peterson.

Prior to trial, the state notified Montgomery that it would offer Spreigl evidence of two past convictions of possession of a controlled substance from 1993 and 1998 respectively. In discussions outside the presence of the jury, the prosecutor noted the court’s obligations regarding the offer of the Spreigl evidence:

The court has to make a finding that under the circumstances of the case the state’s case is particularly weak or that it completes a pattern of behavior that would be of assistance to the jury, and the admission of the prior convictions would not be unduly prejudicial to the defendant.

Opposing the Spreigl offer, defense counsel argued that the prior crimes were for possession and not a sale and thus did not show any pattern of behavior and that they were remote in time.

Without analysis or disclosure of the basis for the admission of the evidence, the court stated, “Well, I’m going to permit it.” The prosecutor later informed the court that it needed “to make findings on the record, articulated ... as to why you are allowing this particular Spreigl evidence to come in.” The court responded that the

findings are predicated on the fact that the state’s case is largely circumstantial, which in and of itself is going to make a finding that the case is weak and that the two convictions are relevant to show opportunity, intent, knowledge and common scheme or plan, and it has probative value, and the probative value outweighs the potential of unfair prejudice to the defendant.

The court then indicated that it would give a cautionary instruction that the Spreigl evidence “is admitted only for your consideration concerning whether Keith Edward Montgomery is telling the truth in this case” and the evidence cannot be considered as to his “character or conduct except as you may think it reflects his believability.” The court gave that instruction before the state offered the Spreigl evidence.

Montgomery alleges three instances of prosecutorial misconduct during the trial. First, the prosecutor began his opening statement by saying, “The headline could have read, ‘Twin Cities Drug Dealer Caught in Kasson Sting.’ ” Second, during his cross-examination of Montgomery, the prosecutor asked questions about Shawn-tan Smith’s failure to testify:

Q. We don’t hear that from Shawntan, do we?
A. Pardon me?
Q. We hear that from you, right?
A. Yes
Q. And you know Shawntan Smith is refusing to talk to anybody, don’t you?
A. Like ...
Q. You know that, don’t you?
A. What do you mean?
Q. He is refusing to talk.
A. No, I don’t know that.
Q. And you didn’t subpoena him, did you?
A. No, I did not.
Q. And that’s because he is afraid of you, isn’t it?

The court then sustained defense counsel’s objection. Third, Montgomery claims the prosecutor disparaged the defense theory during final argument.

Montgomery’s final contention is that the court abused its discretion by denying his motion for a mitigated dispositional or durational sentencing departure.

ISSUES

1. Did the district court err by admitting Spreigl evidence without determining a legitimate purpose for the evidence and without conducting a rule 403 balancing test?

2. Did the prosecutor commit misconduct by suggesting that appellant was a drug dealer, that appellant had a duty to call a witness to testify, and that appellant was of a violent nature?

ANALYSIS

Spreigl Evidence

We review the admission of evidence of other crimes, wrongs, or acts for an abuse of discretion. State v. Blom, 682 N.W.2d 578, 611 (Minn.2004) (citing State v. Kennedy, 585 N.W.2d 385, 389 (Minn.1998)).

Minn. R. Evid. 404(b) precludes evidence of other crimes, wrongs, or acts if it is offered to prove a person’s character and conduct in conformity with that character. But the rule allows such evidence for other purposes, such as showing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In Minnesota, admissible 404(b) evidence is known- as Spreigl evidence after State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965).

There are several procedural requirements that must be met before Spreigl evidence may be admitted, only two of which are argued by Montgomery as being at issue here: (1) the evidence “shall not be admitted in a criminal prosecution unless ... the state clearly indicates what the evidence is being offered to prove”; Kennedy, 585 N.W.2d at 389; and (2) the court must assess and evaluate the evidence under Minn. R. Evid. 403 to determine whether it “will create unfair prejudice. ...” State v. Bolte, 530 N.W.2d 191, 197 (Minn.1995).

The only thing that approximates a disclosure of the purpose for which the Spreigl evidence was being offered is the state’s suggestion that “it completes a pattern of behavior.” Perhaps the state was alluding to the “common scheme or plan” provision of rule 404(b). To fit that provision, the Spreigl evidence must be “sufficiently or substantially similar to the charged offense — determined by time, place and modus operandi.” Kennedy, 585 N.W.2d at 391 (citing State v. Cógshell, 538 N.W.2d 120, 123-24 (Minn.1995)). The Spreigl evidence here does not satisfy the test of time, place, and modus operandi. The convictions are relatively remote, especially the first which occurred nine years before the trial. The place of neither conviction was disclosed. And there is no similarity whatever between the possession crimes and the instant sale crimes. We know only that on two prior occasions Montgomery possessed a controlled substance. The record does not indicate that the substance was cocaine, and nothing suggests that the prior crimes involved any effort or intent to sell whatever controlled substance Montgomery possessed. There was no showing of sufficiently similar circumstances between the past crimes and the crimes charged to satisfy the mo-dus operandi requirement. The state failed to show any legitimate purpose for the admission of the Spreigl evidence. Without such a showing, the evidence smacked of character evidence, inviting the inference that Montgomery has been connected with drugs in the past and he probably was connected with drugs on this occasion.

The court admitted the evidence for a variety of ostensible rule 404(b) purposes. However, it did so without any analysis of the legitimacy of any of those purposes. Montgomery’s defense was that he did not know that cocaine was under the hood of the car. The court indicated that the prior crimes showed opportunity, intent, knowledge, and common scheme or plan. We have already concluded that there was no basis for admission under the common scheme or plan provision. And we are not persuaded that Montgomery’s possession of drugs several years earlier showed that he had an opportunity to sell drugs now, that he intended to do so (unless he could be classified impermissibly as a drug dealer), or that he knew there were drugs under the hood of the car..

Implicit in the requirement that the proponent of Spreigl evidence disclose its purpose is that there also be some showing or determination that the evidence reasonably and genuinely fits that purpose. It is not sufficient simply to recite a 404(b) purpose without also demonstrating at least an arguable legitimacy of that purpose. Furthermore, although the district court has the ultimate responsibility for determining admissibility, the party offering the Spreigl evidence has the burden of persuading the court that all Spreigl requirements and safeguards are met. Blom, 682 N.W.2d at 611.

The record also shows that the court made an inadequate analysis of the possible prejudice to the defendant if the prior crimes were admitted. The supreme court has noted this obligation of district courts when a party desires to offer Spreigl evidence:

In determining admissibility, the trial court should engage in a balancing of factors such as the relevance or probative value of the evidence, the need for the evidence, and the danger that the evidence will be used by the jury for an improper purpose,- or that the evidence will create unfair prejudice pursuant to Minn. R. Evid. 403.

Bolte, 530 N.W.2d at 197 (footnotes omitted).

The district court correctly determined that the state’s case was weak, depending mostly on circumstantial evidence. We also note that credibility was the central issue in the case and that all three principals were subject to attack on that issue. Peterson had been rejected by Montgomery and arguably had a motive to testify unfavorably to him. Harper lied to the police in giving his initial statement and admitted at trial that he lied. Montgomery obviously had a self-interest in fabricating a story to escape conviction. Under State v. DeWald, 464 N.W.2d 500, 504 (Minn.1991), a court considering the admissibility of Spreigl evidence should make assessments as to the strength of the state’s case and the state’s need for the evidence to meet its burden of proof.

But even if the state’s case is weak, rule 403 requires the court to determine whether the probative value of the Spreigl evidence is substantially outweighed by the danger of unfair prejudice. Minn. R. Evid. 403. Unfair prejudice “refers to the unfair advantage that results from the capacity of the evidence to persuade by illegitimate means.” Bolte, 530 N.W.2d at 197 n. 3 (citing State v. Cermak, 365 N.W.2d 243, 247 n. 2 (Minn.1985)).

The state’s proposition here is that Montgomery was a drug seller. Considering that Montgomery was in someone else’s car, had no drugs in his actual possession, did not receive the buy money, and did not become involved in the drug-transaction conversation in the car, the state’s contention was difficult to prove. But if the jury became aware that Montgomery had two prior felony convictions for being involved with drugs, it reasonably could conclude that he is the type of person likely to participate in a drug sale. However, this would be impermissible character evidence and would unfairly prejudice him. We hold that the Spreigl evidence, on this record, was not admissible and the district court abused its discretion in allowing it.

Although Montgomery did not complain about the court’s Spreigl limiting instruction, we note two further errors. First, the court gave the wrong instruction, stating that the jury could consider the other crimes only to determine Montgomery’s credibility. This is an impeachment instruction, albeit abbreviated, similar to that in 10 Minnesota Practice, CRIMJIG 3.15 (2004). The Spreigl instruction is found in 10 Minnesota Practice, CRIMJIG 2.01 (2004) and indicates, in part, that the other-crimes evidence is offered to assist the jury “in determining whether the defendant committed those acts with which [he] is charged in the complaint.” Thus, the jury may use the Spreigl evidence not to test and weigh a defendant’s believability but as circumstantial evidence that he committed the crime charged.

The court’s second instructional error was that it gave the instruction only just before the evidence was received and did not repeat it in the final charge as required by caselaw. State v. Billstrom, 276 Minn. 174, 179, 149 N.W.2d 281, 285 (1967). Prosecutorial Misconduct

A conviction may be reversed for prosecutorial misconduct only “when the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired.” State v. Johnson, 616 N.W.2d 720, 727-28 (Minn.2000).

In assessing the probable impact of prosecutorial misconduct, we apply two possible standards. If the misconduct was serious, we determine whether it was harmless beyond a reasonable doubt. State v. Hunt, 615 N.W.2d 294, 302 (Minn.2000). If the conduct was less than serious, we consider whether it likely played a substantial part in influencing the jury to convict. Id.

a. Opening Statement

An opening statement may not contain argument but rather must be confined to a description or outline of the facts a party expects to prove:

The prosecution may outline the facts in the opening statement which he expects to prove to aid the jury in following the testimony. This statement is not evidence but a recital of factual claims expressed with an intention and expectation that testimony will be offered and received to support them.

Tucker v. State, 309 Minn. 482, 486, 245 N.W.2d 199, 202 (1976) (quotation omitted).

Furthermore, in describing the expected proof, the prosecutor must refrain from language that might inflame the passions and prejudices of the jury. State v. Salitros, 499 N.W.2d 815, 817 (Minn.1993). And appellate courts “will pay special attention to statements that may inflame or prejudice the jury where credibility is a central issue.” State v. Porter, 526 N.W.2d 359, 363 (Minn.1995) (citation omitted).

When the prosecutor here began his opening statement with a reference to an imaginary newspaper headline announcing that a Twin Cities drug dealer was caught in a small-town sting, it might be argued that that is precisely what the prosecutor intended to prove and, in hindsight, did prove. But the language was inflammatory and could have little effect other than to arouse jurors’ negative emotions toward Montgomery. As such, the statement was prosecutorial misconduct.

Before the opening statements, the district court clearly instructed the jury that what the lawyers say is not evidence and that the evidence would come only from the witnesses and exhibits. “We presume that the jury followed the court’s instruction.” State v. Taylor, 650 N.W.2d 190, 207 (Minn.2002) (citation omitted).

Even though the prosecutor’s characterization of the case was inflammatory, considering that the statement occurred at the very outset of the trial and that the court had just previously instructed the jury that statements by the lawyers could not be considered evidence, we hold that the misconduct was of the less-than-serious type and did not likely play a substantial part in influencing the verdict.

b. Cross-Examination

Montgomery argues that the prosecutor’s cross-examination of him implied that he had a duty to present evidence and implied that he was of bad character. We agree.

In a criminal case, the state has the burden of proving every element of the charged crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). A defendant is not required to present evidence in his own behalf, and any suggestion or insinuation to the contrary is improper. State v. Brechon, 352 N.W.2d 745, 748 (Minn.1984). Furthermore, “a prosecutor may not comment on a defendant’s failure to call witnesses.” State v. Gassier, 505 N.W.2d 62, 69 (Minn.1993).

Of the four principals in this case, only three testified. Shawntan Smith did not testify. When the prosecutor cross-examined Montgomery about Smith’s failure to testify and then obtained Montgomery’s affirmative answer to the question, “And you didn’t subpoena him, did you?” he clearly implied that, if Montgomery were going to be believed, he had a duty to subpoena Smith to testify. This was improper.

And when the prosecutor sought to explain Smith’s refusal to testify by asking “And that’s because he is afraid of you, isn’t it?” the prosecutor suggested that Montgomery has a violent character. Subject to some exceptions, character evidence of an accused is not admissible. Minn. R. Evid. 404(a). No exception applies here. Even though the question, which was not answered, was not itself evidence, it was likely to inflame the prejudices of the jury against Montgomery.

These cross-examination questions were serious prosecutorial misconduct in that one suggested that Montgomery had a duty to present evidence on his own behalf and the other insinuated that he had a sufficiently bad trait of character that even a principal witness was afraid to come to court to testify. Both questions were of a nature that infringed Montgomery’s right to a fair trial.

c. Prosecutor’s Closing Argument

Montgomery claims the prosecutor disparaged his theory of defense, suggesting that he came up with a story of “plausible deniability,” and that he belittled Montgomery’s testimony.

We do not find that the prosecutor improperly disparaged Montgomery’s defense. Rather, he argued that it is part of a drug dealer’s modus operandi to construct the drug sale in such a manner that he will not be implicated. This was not improper.

Nor do we find that the prosecutor belittled Montgomery’s testimony. Instead, he pointed out inconsistencies and implausibilities in what Montgomery said and in his theory of defense. This was not improper.

Cumulative Error

The Spreigl evidence was improperly admitted and served to support an impermissible character inference. The limiting instruction was substantively incorrect. The prosecutor called Montgomery a drug dealer at the opening of the trial, insinuated that he was of sufficiently violent character to prevent another witness to testify, and suggested that Montgomery had a burden to present evidence in his own behalf.

Although the Spreigl and cross-examination errors are likely sufficient standing alone to warrant a reversal, we hold that surely the cumulative effect of all of the errors was to deprive Montgomery of a fair trial. See State v. Duncan, 608 N.W.2d 551, 558 (Minn.App.2000) (cumulative effect of trial errors, including prose-cutorial misconduct, warranted a new trial). As a result, Montgomery is entitled to a new trial.

Sentencing

Because Montgomery is entitled to a new trial under our disposition of the Spreigl and prosecutorial misconduct issues, we need not reach the question of the propriety of the sentence.

DECISION

Because the district court admitted unfairly prejudicial Spreigl evidence and because the prosecutor committed serious misconduct, appellant is entitled to a new trial.

Reversed and remanded.


author: SANDSTROM, Justice. CROTHERS, Justice,

text:
    2005 ND 214
    STATE of North Dakota, Plaintiff and Appellee v. Luis Ignacio HERNANDEZ, Sr., Defendant and Appellant.
    No. 20050047.
    Supreme Court of North Dakota.
    Dec. 20, 2005.

      Birch P. Burdick (argued), State’s Attorney, and Charles B. Neff, Jr. (appeared), third-year law student, under the Rule on Limited Practice of Law by Law Students, Fargo, N.D., for plaintiff and appellee.
    Dennis D. Fisher, Stefanson, Plambeck, Foss & Fisher, Moorhead, MN, for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Luis I. Hernandez, Sr., appeals from a judgment entered after a jury found him guilty of gross sexual imposition, and from an order denying his motions for a new trial. We hold the trial court did not abuse its discretion in allowing the State’s handwriting expert to identify Hernandez as the author of a letter handwritten in Spanish, the court did not obviously err in permitting the jury to see an unredacted copy of an English translation of the letter, the court did not abuse its discretion in admitting testimony about Hernandez’s prior sexual abuse of the complainant, and the court did not err in admitting testimony and a report that non-motile sperm was found in a swab taken from the complainant during an examination by an emergency room pediatrician. We affirm.

I

[¶ 2] The State charged Hernandez with gross sexual imposition under N.D.C.C. § 12.1-20-03 for allegedly engaging in a sexual act with the complainant, the twelve-year-old daughter of his former girlfriend. At trial, the State presented evidence that Hernandez picked up the complainant after school on May 22, 2003, and took her to a Fargo motel, where he engaged in sexual acts with her. The complainant testified Hernandez ultimately drove her to her mother’s home, where the complainant told her mother that Hernandez had raped her. The complainant’s mother testified she found a letter handwritten in Spanish in the screen door of her house about a day or two after Hernandez was arrested.' The letter was not addressed to a recipient and was not signed by its author. The State introduced an English translation of the letter, which stated “she went to the hotel with me and we had sex and that I didn’t rape her” and “I don’t deny that I got involved with her but she gave it to me voluntarily.” The State also introduced expert testimony that identified Hernandez as the author of the handwritten letter.

[¶ 3] Hernandez claimed the complainant’s mother manipulated her daughter to fabricate the prosecution against him. There was evidence that Hernandez and the complainant’s mother had a stormy relationship over the previous ten years. They were never married, but they had a son together in 1994. According to Hernandez, the complainant’s mother did not approve of his relationship with his current girlfriend, and in May 2003, his physical mobility was severely limited by a February 2003 automobile accident and a “halo” device he wore as part of his rehabilitation for a spinal cord injury. Hernandez testified he met his son, the complainant’s mother, and the complainant at a Fargo motel on May 22, 2003. According to Hernandez, his son and the complainant went swimming in the motel pool, and the complainant’s mother then tried to engage in sexual activity with him in the motel room. Hernandez testified the two children subsequently returned from swimming and then showered, and everyone left the motel together. He claimed he did not engage in any sexual activity with the complainant on May 22, 2003. A jury found Hernandez guilty of gross sexual imposition. The trial court denied Hernandez’s motion and amended motion for a new trial.

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

II

[¶ 5] Hernandez argues the trial court erred in permitting a licensed private investigator to testify as a handwriting expert without properly exercising the gatek-eeping functions required by Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Hernandez claims this Court must follow the Daubert and Kumho Tire decisions. Hernandez also argues the private investigator lacked the qualifications, proficiency, and scientific methodology to analyze the writing in the Spanish letter, and the court erred in allowing him to testify that Hernandez wrote the letter.

[¶ 6] This Court has never explicitly adopted Daubert and Kumho Tire. See Howe v. Microsoft Corp., 2003 ND 12, ¶ 27 n. 1, 656 N.W.2d 285. Contrary to Hernandez’s assertion, this Court is not required to follow Daubert and Kumho Tire, which involved admissibility of expert testimony in federal courts under the federal rules of evidence. This Court has a formal process for adopting procedural rules after appropriate study and recommendation by the Joint Procedure Committee, and we decline Hernandez’s invitation to adopt Daubert by judicial decision. See State v. Osier, 1997 ND 170, ¶ 5 n. 1, 569 N.W.2d 441 (refusing to adopt procedural rule by opinion in litigated appeal).

[¶ 7] Under North Dakota law, the admission of expert testimony is governed by N.D.R.Ev. 702, which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

[¶ 8] Rule 702, N.D.R.Ev., envisions generous allowance of the use of expert testimony if the witness is shown to have some degree of expertise in the field in which the witness is to testify. Gonzalez v. Tounjian, 2003 ND 121, ¶ 24, 665 N.W.2d 705. An expert need not be a specialist in a highly particularized field if the expert’s knowledge, training, education, and experience will assist the trier of fact. Myer v. Rygg, 2001 ND 123, ¶ 14, 630 N.W.2d 62. A trial court has broad discretion to determine whether a witness is qualified as an expert and whether the witness’s testimony will assist the trier of fact. Harfield v. Tate, 2004 ND 45, ¶ 21, 675 N.W.2d 155. A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned decision, or it misinterprets or misapplies the law. Rygg, at ¶ 8. We have said we are reluctant to interfere with the broad discretion given to a trial court to decide the qualifications and usefulness of expert witnesses. Id. A trial court does not abuse its discretion in admitting expert testimony whenever the expert’s specialized knowledge will assist the trier of fact, even if the expert does not possess a particular expertise or special certification. Id. at ¶ 15.

[¶ 9] This Court has implicitly recognized the admissibility of expert opinions about handwriting. See State v. Noorlun, 2005 ND 189, ¶¶ 15-19, 705 N.W.2d 819; Timmerman Leasing, Inc. v. Christianson, 525 N.W.2d 659, 663 (N.D.1994); In re Peterson, 178 N.W.2d 738, 740-41 (N.D.1970); Klundt v. Pfeifle, 77 N.D. 132, 139-41, 41 N.W.2d 416, 420-21 (1950). Here, the private investigator testified he had worked as an agent for the North Dakota Bureau of Criminal Investigation for almost 30 years, and in 1981 he received training for comparing questioned writing with known writing. He testified he had assisted in analyzing handwriting in 100 to 200 cases. Under our standard for the allowance of expert testimony, we conclude the trial court did not act arbitrarily, unreasonably, or unconscionably, or misinterpret or misapply the law in determining the private investigator was qualified as an expert in handwriting analysis and deciding his testimony would assist the jury. We therefore hold the court did not abuse its discretion in determining the private investigator was qualified to testify as an expert and his testimony would assist the jury.

Ill

[¶ 10] Hernandez argues the trial court erred in admitting into evidence an unredacted English translation of the Spanish letter. He argues the unredacted English translation of the letter included statements about prior uncharged sexual misconduct by him and violated the parties’ agreement to redact references to prior sexual contact between him and the complainant in all documents submitted to the jury. Hernandez specifically cites and emphasizes the following passage from the English translation of the letter:

Do you remember when she went with me before that in the red truck and she came back with a smile from ear to ear because that day she was able to get it off twice and she was really hwp-py. If I had raped her she wouldn’t have been happy when I left her at the house. She would have been mad and she would have told you that I raped her but I didn’t rape her she just put out willingly. She should say that we had sex not that I raped her. And if they ask you if you want to press charges say no. My lawyer wants me to tell the court that you were seeing me after the charges. And already checked the hotels where we were seeing each other and that you had the yellow car then I gave you the truck because a lot of people saw me in the truck but if I tell them that -Child Protection will take the children away from you I don’t want that. You better tell her that it was really voluntary sex not rape and you shouldn’t press charges because if you don’t do it they want to give me 20 years 15 at least. And if I say that you were seeing me I could do less and that you were my accomplice they can lock you up too because you didn’t call the police on me. I don’t want that to happen. Take care of it between you and her.

[¶ 11] The English translation of the Spanish letter was not specifically identified as a document subject to the State’s proposed redaction agreement, and it was admitted into evidence without an objection by Hernandez. Moreover, before the exhibits were submitted to the jury, the court noted the State had redacted parts of some exhibits. The court then asked defense counsel whether there were any objections to the exhibits, and counsel responded that he did not have any objections.

[¶ 12] A party may not assert alleged irregularities during a trial unless the party objects when they occur and allows the trial court an opportunity to take appropriate action to remedy any prejudice that may result from the alleged irregularities. State v. Lee, 2004 ND 176, ¶ 10, 687 N.W.2d 237. A party, not the trial judge, must take the initiative to object to offered evidence. Id. A party’s failure to object to evidence admitted at trial generally waives the party’s right to complain on appeal about the admission of the evidence. Id. The rationale for that rule precludes a defendant from inviting error in the hope that if the defendant does not prevail in the trial court, he will prevail upon appellate review of the invited error. Id. at ¶ 11.

[¶ 13] Here, Hernandez did more than not object to the admission of the unredacted portion of the letter cited by him; his counsel specifically indicated he did not object to the letter. Because Hernandez did not object to the admission of the unredacted letter at trial, our standard of review requires a showing of obvious error under N.D.R.Crim.P. 52(b). See State v. Olander, 1998 ND 50, ¶ 11, 575 N.W.2d 658. We exercise our power to consider obvious error cautiously and only in exceptional situations in which the defendant has suffered a serious injustice. Id. at ¶ 12. A defendant has the burden of establishing obvious error by showing error that is plain and affects substantial rights. Id. at ¶ 15. An error is not obvious unless there is a “clear deviation from an applicable legal rule under current law.” Id. at ¶ 14. A clear deviation from an applicable rule also must affect substantial rights, which requires the defendant to show the error was prejudicial, or affected the outcome of the proceeding. Id. at ¶ 15. In Olander, at ¶ 16 (quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)), this Court explained that once an accused establishes an obvious error affects substantial rights, an appellate court has discretion to correct the error and should correct it if it “ ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ”

[¶ 14] The context of the English translation of the Spanish letter indicates the letter was intended for the complainant’s mother and referred to the immediate circumstances culminating in this criminal charge against Hernandez. The interpreter’s note for the English translation of the letter indicates the Spanish version of the letter was notable for its lack of punctuation, incorrect spelling, and illegible handwriting. Immediately before the part of the letter cited by Hernandez, the letter provides:

The day of Court I got a letter making fun of me like always that I am here because of you and that I am here for this and for that, If all of you give me the opportunity I want to do things right where I did things wrong I don’t want to live the way I am living I want things to be like they were when I got out of jail the last time. And for the two of us to get ahead. But for that to happen she has to tell the truth, that she went to the hotel with me and we had sex and that I didn’t rape her. She told me to come up I told her that I couldn’t she went up but she couldn’t get it off by herself and that I should come up but when I went up my right hand was hurting and it went to sleep on me She got mad and tried to throw me to one side and I fell on top of her and I hit her in the face with the (illegible) She got mad, I told her that we couldn’t do it anymore She even told me that she wanted (illegible) we were going to stop. She made fun of me and told me that after the accident I was not good for sex anymore. I told her that I wanted to tell you and she told me that I had better not ever tell you because you were not going to believe me I told her that even so I was going to tell you when we got to the house She was mad and scared that I was going to tell you about the sex. She went and told you and the police She told me on the way that if I told you she was going to kill herself. That you were going to believe me but (illegible) her instead because blood is thicker than water and that is what happened. You caught her talking on the telephone and you heard her telling me that blood is thicker than water that you were not going to believe me just her But what were you going to believe if I didn’t tell you any thing. That is why I think she was mad about what happened in .the room and what I told her that I was going to tell you She got scared of what you were going to say that is why she said what she said. I don’t deny that I got involved with her but she gave it to me voluntarily.

[¶ 15] Although the language about “remember[ing] when she went with me before that in the red truck” suggests prior acts, the context of the entire letter indicates Hernandez was discussing the circumstances of the conduct charged in this action. The letter states Hernandez’s belief that the twelve-year-old complainant voluntarily engaged in sexual relations with him. Section 12.1-20-03, N.D.C.C., makes it a crime to have sexual contact with a person who is less than 15 years old regardless of consent. See State v. Schill, 406 N.W.2d 660 (N.D.1987). In the context of the English translation of the entire letter, we conclude Hernandez has not demonstrated that any error in failing to ensure redaction of the language cited by him affected his substantial rights, or that correcting any such error would preserve the fairness, integrity, or public reputation of judicial proceedings. We therefore conclude Hernandez has failed to show obvious error under N.D.R.Crim.P. 52(b).

rv

[¶ 16] Hernandez argues the trial court erred in allowing two pediatricians to testify that the complainant reported she had been sexually abused by Hernandez on numerous occasions over the previous seven years. The trial court initially granted Hernandez’s motion in limine to suppress testimony about specific incidences of prior sexual misconduct by him against the complainant. At trial, an emergency room pediatrician, Dr. Añila Jacob, testified on direct examination by the State that she tested the complainant for sexually transmitted diseases on May 22, 2003, and the complainant tested positive for gonorrhea. On cross-examination by Hernandez, Dr. Jacob testified it takes about five days after a person has been exposed to gonorrhea to become infected. On re-examination by the State, Dr. Jacob testified the complainant reported she had been sexually abused by Hernandez on numerous occasions over the past seven years and had been sexually abused by Hernandez about a week before May 22. The State also elicited testimony from Dr. Alonna Nor-berg, a pediatrician who examined the complainant about six days after the May 22 examination. Dr. Norberg testified the complainant reported she had been sexually assaulted by Hernandez one week before May 22 and there had been other prior assaults by him.

[¶ 17] Hernandez argues the trial court erred in admitting the pediatricians’ testimony that the complainant reported there had been prior sexual abuse of the complainant by him. The State argues Hernandez failed to preserve this issue at trial because he did not object to the State’s initial question about tests for sexually transmitted diseases and gonorrhea. The State also argues the trial court properly exercised its discretion in allowing the pediatricians’ testimony, because Hernandez opened the door for limited testimony about his prior misconduct against the complainant when he asked Dr. Jacob how long it took for gonorrhea to incubate and she responded it took five days.

[¶ 18] We conclude Hernandez’s failure to object to the State’s questions about tests for sexually transmitted diseases and gonorrhea did not waive his right to raise the issue about the pediatricians’ subsequent testimony regarding prior sexual misconduct by him against the complainant. Hernandez objected to the pediatricians’ testimony when it was elicited during trial, and the issue is whether Hernandez opened the door for the pediatricians’ testimony about his pri- or sexual acts with the complainant.

[¶ 19] Evidence of prior bad acts or crimes is generally not admissible under N.D.R.Ev. 404(b) to show the defendant acted in conformity therewith, but may be admissible for some other purpose. See State v. Anderson, 2008 ND 30, ¶¶ 13-14, 657 N.W.2d 245. Rule 404(b), N.D.R.Ev., acknowledges the inherent prejudicial effect that prior bad act evidence may have on the trier of fact. State v. Micho, 393 N.W.2d 741, 744 (N.D.1986). Rule 404(b), N.D.R.Ev., excludes evidence of other acts and crimes committed by a defendant when they are independent of the charged crime and do not fit into one of the rule’s exceptions. Anderson, at ¶ 14.

[¶ 20] This Court also has considered the admissibility of otherwise inadmissible evidence after the opposing party opened the door for the admission of that evidence. State v. Jensen, 2000 ND 28, ¶¶ 5-14, 606 N.W.2d 507 (concluding trial court did not abuse discretion in refusing to allow. defendant to introduce evidence of prior anal intercourse and rough sex between defendant and victim because limited introduction of evidence regarding prior sex between defendant and victim did not open door for evidence offered by defendant); State v. Purdy, 491 N.W.2d 402, 409-10 (N.D.1992) (holding no obvious error to allow questioning of defendant about arrest at clinic because defendant opened door for that evidence during testimony on direct examination); State v. Flynn, 479 N.W.2d 477, 479-80 (N.D.1992) (holding no error in allowing police officer’s rebuttal testimony regarding use of multiple social security numbers because defendant opened door for officer’s testimony by attempting to show person writing check had used different social security number); State v. Jensen, 282 N.W.2d 55, 64-69 (N.D.1979) (allowing admission of otherwise inadmissible evidence about prior altercation between defendant and another because defendant opened door for evidence during examination of witnesses).

[¶ 21] The common thread in those decisions is that a trial court is vested with discretion to decide whether a party has opened the door for the admission of otherwise inadmissible evidence. See 2 Clifford S. Fishman, Jones on Evidence, Civil and Criminal § 11:34 (7th ed.1994); 1 John Henry Wigmore, Evidence in Trials at Common Law § 15, at 746-47 (Tillers rev. 1983); 1 John W. Strong, McCormick on Evidence § 57 (5th ed.1999). In Jensen, 2000 ND 28, ¶¶ 11-14, 606 N.W.2d 507, this Court specifically recognized the concept of opening the door for the admission of otherwise inadmissible evidence was not unlimited, and a trial court’s decision about the extent of an opened door was reviewed under the abuse-of-discretion standard. That abuse-of-discretion standard comports with this Court’s standard of review of evidentiary rulings. State v. Christensen, 1997 ND 57, ¶ 5, 561 N.W.2d 631.

[¶ 22] Here, issues about opening the door for evidence about Hernandez’s prior sexual misconduct against the complainant initially arose during the testimony of both the complainant and the complainant’s mother. During cross-examination of the complainant, defense counsel indicated the complainant had not called her mother after the May 22, 2003, incident. Outside the presence of the jury, the trial court indicated defense counsel had opened the door for the State to ask why the complainant had not called her mother and for the complainant to respond that she had not planned on telling her mother this had been going on for several years. The complainant subsequently testified she did not call her mother after the May 22, 2003, incident, because she did not plan on telling her mother she had been raped. During cross-examination of the complainant’s mother, defense counsel asked her if Hernandez had always treated the complainant with respect before May 22, 2003, and the complainant’s mother responded “not exactly.” After a discussion outside the presence of the jury, the court allowed defense counsel to withdraw that question and response, but the court admonished counsel “one more time, if there’s anything that gets remotely close to opening this door that is partway open now, I’m going to take the prosecutor’s position on this.” Thereafter, the jury heard testimony that the complainant tested positive for gonorrhea and the incubation period for gonorrhea was five days. When the State asked the emergency room pediatrician, Dr. Jacob, about the complainant’s history, the court said it would allow the State a “reasonable opportunity to rebut [the] implication” the complainant had some other kind of sexual activity that caused the gonorrhea. The State thereafter elicited Dr. Jacob’s testimony that the complainant reported she had been sexually abused by Hernandez on numerous occasions over the past seven years and most recently about a week before May 22. The State subsequently elicited Dr. Norberg’s testimony that the complainant reported she had been sexually assaulted by Hernandez one week before May 22 and there had been other prior assaults by him.

[¶ 23] In the context of the proceedings in this case, we conclude the trial court’s determination that Hernandez had opened the door for limited testimony about his prior sexual misconduct against the complainant was the product of a rational mental process leading to a reasoned decision and was not an abuse of discretion. In response to testimony about the five-day incubation period for gonorrhea, the trial court limited the State to a “reasonable opportunity to rebut [the] implication” the complainant had some other kind of sexual activity that caused the gonorrhea. The pediatricians’ testimony about prior sexual assaults by Hernandez, with the most recent assault about one week before May 22, was within the parameters of the door opened by Hernandez. Although the reference to assaults over the previous seven years may have stretched the temporal limits of the opened door, we are not persuaded any possible error in that limited reference to seven years was reversible error. The trial court instructed the jury about the use of that evidence:

The State of North Dakota charged this defendant with Gross Sexual Imposition occurring on or about May 22, 2003, for a specific occurrence between the defendant and [the complainant]. [The complainant] did not testify about any other past incidents that occurred with this defendant.
However, pursuant to certain questions asked of Dr. Añila Jacob, and her answers, the question arose as to how [the complainant] acquired gonorrhea, which takes five days to incubate. In order to present one possible explanation as to how [the complainant] acquired gonorrhea, Dr. Añila Jacob and Dr. Alonna Norberg were allowed to testify as to the medical history provided to them by [the complainant]. The testimony of Dr. Jacob and Dr. Norberg was offered for this specific purpose only. This testimony should not be considered by you in your determination of the ultimate fact as to whether or not the defendant is guilty of the crime charged in the Information on the date in question, May 22, 2003.

[¶ 24] A jury is generally presumed to follow instructions, and a curative instruction to disregard certain evidence is generally sufficient to remove improper prejudice. State v. Ellis, 2001 ND 84, ¶ 23, 625 N.W.2d 544; State v. Asbridge, 555 N.W.2d 571, 575 (N.D.1996). Here, the jury was specifically instructed about the limited use of the testimony by Dr. Jacob and Dr. Norberg. During closing argument, the State did not unduly focus on their testimony about Hernandez’s prior sexual misconduct against the complainant. Rather, the State briefly argued it charged Hernandez with “an assault occurring on May 22, 2003, not something that happened before that, so we’re asking you to focus on what happened on May 22, 2003, but you needed to have a perspective on how [the complainant] might have gotten the gonorrhea that the doctors found.”

[¶ 25] This case involved two conflicting theories of the event. The State presented evidence that Hernandez committed gross sexual imposition and Hernandez claimed that he did not engage in any sexual activity with the complainant on May 22, 2003. Although this case involved conflicting factual theories and credibility issues, from our review of the record, we are not persuaded the pediatricians’ limited testimony about Hernandez’s prior sexual activity with the complainant was reversible error. Dr. Jacob testified the complainant suffered bruising inside the vulva area, which she testified was consistent with forced sexual contact. The English translation of Hernandez’s Spanish letter includes incriminating statements that he admitted to sexual acts with the complainant and he viewed those sexual acts with the twelve-year-old girl as consensual. Section 12.1-20-03, N.D.C.C., makes it a crime to have sexual contact with a person who is less than 15 years old regardless of consent. See Schill, 406 N.W.2d at 660. We have carefully reviewed the entire record in this case, and we are not persuaded the trial court abused its discretion in admitting limited testimony about Hernandez’s prior sexual activity with the complainant, which was admitted in response to Hernandez’s question about the incubation period for gonorrhea. Moreover, in the context of this record and the court’s curative instruction, we are not persuaded any error in the limited reference to prior sexual abuse was reversible error.

V

[¶ 26] Hernandez argues the trial court erred in allowing the State to introduce testimony that non-motile sperm was collected from the complainant on May 22, 2003, during the emergency room examination at MeritCare Hospital. Hernandez claims the State permitted the destruction of potentially exculpatory evidence.

[¶ 27] A sexual assault kit was performed on the complainant by MeritCare personnel on May 22, 2003. According to MeritCare personnel, after “debris”- collected for the sexual assault kit was gathered and the sexual assault kit had been completed, Dr. Jacob noted dry secretions on the complainant and Dr. Jacob collected a swab from the complainant under Merit-Care’s internal procedures in sexual assault cases. According to MeritCare personnel, the swab was in addition to the usual sexual assault kit. The swab was taken to MeritCare’s lab for testing, and a MeritCare technician found non-motile sperm. After that test, the technician destroyed the sample.

[¶ 28] Hernandez argues he was not able to test the sample, and without a DNA analysis, the report and testimony that the sample contained non-motile sperm should have been excluded under N.D.R.Ev. 403. Hernandez also argues the destruction of the sample was sanctioned by the State and violated his due process rights under California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). The State responds the evidence was relevant and admissible under N.D.R.Ev. 403, and Hernandez failed to prove the evidence was destroyed in bad faith.

[¶ 29] Under N.D.R.Ev. 403, a trial court has broad discretion to balance the probative value of evidence against the risk of unfair prejudice, and we review the trial court’s decision under the abuse-of-discretion standard. State v. Bell, 2002 ND 130, ¶ 14, 649 N.W.2d 243. We conclude the trial court did not act arbitrarily, unreasonably, or unconscionably in balancing the probative value of the report and testimony about the results of MeritCare’s internal tests against the risk of unfair prejudice.

[¶ 30] We also conclude this record does not establish the State violated Hernandez’s due process rights. In Trombetta, 467 U.S. at 488, 491, 104 S.Ct. 2528, the United States Supreme Court held there was no due process violation for a State’s failure to preserve breath samples for a defendant charged with driving under the influence. The Court held there was no evidence of bad faith by the police, the breath samples did not possess an exculpatory value that was apparent before the sample was destroyed, and the sample was not of such a nature that the defendant was unable to obtain comparable evidence by other reasonably available means. Id. at 488-90, 104 S.Ct. 2528.

[¶ 31] In Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), the United States Supreme Court held that unless a defendant can show bad faith by the police, the failure to preserve potentially useful evidence does not constitute a denial of due process. In Youngblood, at 56-57, 109 S.Ct. 333, the preservation of semen samples was at issue. The Court explained the “possibility that the semen samples could have exculpated respondent if preserved or tested is not enough to satisfy the standard of constitutional materiality in Trombetta,” and the “exculpatory value of the evidence must be apparent ‘before the evidence was destroyed.’ ” Youngblood, at 56-57, 109 S.Ct. 333 (quoting Trombetta, 467 U.S. at 489, 104 S.Ct. 2528). The Court said the semen samples were “simply an avenue of investigation that might have led in any number of directions,” and the “presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.” Young-blood, at 57, 109 S.Ct. 333.

[¶ 32] In State v. Steffes, 500 N.W.2d 608, 613 (N.D.1993), this Court defined bad faith, as used in cases involving destroyed evidence, to mean the evidence was deliberately destroyed by or at the direction of a State agent who intended to thwart and to deprive the defense of information. Hernandez has not marshaled any evidence to show bad faith by the State. See Steffes, at 613-14. Moreover, “the possibility that the semen samples could have exculpated [Hernandez] if preserved or tested is not enough to satisfy the standard of constitutional materiality in Trombetta.” Youngblood, 488 U.S. at 56, 109 S.Ct. 333. We reject Hernandez’s due process argument.

VI

[¶ 33] Hernandez argues a search warrant to extract bodily fluid and tissue samples from him was defective. The court initially issued a search warrant authorizing law enforcement to extract bodily fluid and tissue samples from Hernandez; however, hospital personnel refused to take samples from Hernandez without a specific court order authorizing them to take the samples. The State ultimately obtained a court order directing the hospital to take the samples. Hernandez argues the court’s later order, issued without an additional affidavit, and the samples taken from him violated his rights under N.D.R.Crim.P. 41 and the warrant requirements of the state and federal constitutions.

[¶ 34] Hernandez raised this issue in his pretrial motion in limine, and the trial court denied his motion. Hernandez did not raise this issue in his motion for new trial, or his first amended motion for new trial. This Court has said that although a motion for new trial is not necessary for appellate review, when a new trial is sought, the party making the motion is limited on appeal to the grounds presented to the trial court in the motion for a new trial. State v. Jordheim, 508 N.W.2d 878, 880-81 (N.D.1993). We conclude Hernandez has not preserved issues about the search warrant for appellate review.

VII

[¶ 35] We affirm the conviction and the order denying Hernandez’s motions for a new trial.

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

CROTHERS, Justice,

concurring specially.

[¶ 37] I concur in the result reached in Part II and join the majority in the remainder of its opinion. I write separately because of my belief it is time we consider adopting Daubert and its progeny as the law in North Dakota.

[¶ 38] I agree with that portion of Part II rejecting Hernandez’s contention that the supremacy clause of United States Constitution requires this Court to follow Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) when determining admissibility of expert testimony. However, I disagree with the remainder of the majority’s opinion regarding Daubert and would accept Hernandez’s invitation to adopt the federal court’s rationale and analysis for determining admissibility of expert testimony.

[¶ 89] “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596, 113 S.Ct. 2786. The question of what constitutes “admissible evidence” is determined by the court, in reliance on the rules of evidence. N.D.R.Ev. 104(a). The rules of evidence, in turn, exist to provide a predictable groundwork for admission of evidence, presentation of witnesses, and the conduct of trials. N.D.R.Ev. 101 and 102.

[¶ 40] The problem developing in North Dakota is that the handling of expert testimony is tending toward anything but predictable because, as explained below, this Court, the district courts, and the practicing bar appear adrift with uncertainty whether proceedings are controlled by the Frye test, the plain reading of N.D.R.Ev. 104(a) and 702, Daubert, Dau-bert and Kumho, or any combination of the above.

[¶ 41] Admission of expert testimony in North Dakota courts is fundamentally governed by N.D.R.Ev. 702, which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Rule 702 is read in conjunction with N.D.R.Ev. 104(a), which requires that the court address “[p]reliminary questions concerning the qualification of a person to be a witness.”

[¶ 42] The majority refuses to adopt current federal analysis for expert testimony, instead stating in paragraph 6, “This Court has a formal process for adopting procedural rules after appropriate study and recommendation by the Joint Procedure Committee, and we decline Hernandez’s invitation to adopt Daubert by judicial decision.”

[¶ 48] I am troubled by the majority’s conclusion for at least two reasons. First, the version of Fed.R.Evid. 702 considered in Daubert and Kumho was identical to North Dakota’s current Rule 702. See Daubert, 509 U.S. at 588, 113 S.Ct. 2786 (“Here there is a specific Rule that speaks to the contested issue. Rule 702, governing expert testimony, provides: ‘If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.’ ”) and Kumho, 526 U.S. at 147, 119 S.Ct. 1167 (“Rule 702 itself says: ‘If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.’ ”).

[¶ 44] Rule 702, Fed.R.Evid., was amended after Daubert, and, in fact, in response to Daubert. See Fed.R.Evid. 702 advisory committee’s note. However, the 2000 amendments to Fed.R.Evid. 702 cannot be used to cloud the fact it was Rule 702 itself — and not the Daubert decision — • that changed the federal analytical approach to admission of expert testimony. Daubert, 509 U.S. at 589 and 589 n. 6, 113 S.Ct. 2786 {Frye test was “displaced” and “superseded” by Rules of Evidence). This conclusion was acknowledged by our own Court in City of Fargo v. McLaughlin, 512 N.W.2d 700, 705 n. 2 (N.D.1994) (“The United States Supreme Court has recently held that the Frye test, requiring general acceptance within the relevant scientific community, has been superseded by FREv 702.”). From this, I conclude the changes embodied in Daubert and Kumho were the result of rules of evidence that were identical to North Dakota’s rules. I am therefore further compelled to conclude that the decision whether to adopt Daubert and its progeny is more appropriately a judicial function for this Court than an assignment to the Joint Procedures Committee.

[¶45] Secondly, this Court’s failure to follow the federal analysis departs from our long-standing and often stated practice that “we are guided by and give deference to” federal case law interpreting the federal rule when we construe our rule. Gruebele v. Gruebele, 338 N.W.2d 805, 811 n. 5 (N.D.1983). See Malchose v. Kalfell, 2003 ND 75, ¶ 5, 664 N.W.2d 508 (“Because N.D.R.Ev. 901 is taken from the Federal Rules of Evidence, with minor revision, we also consider federal cases to help interpret our rule.”) and State v. Forsland, 326 N.W.2d 688, 692 (N.D.1982) (“Rule 404(b) was adopted from the Federal Rules of Evidence, and as such the construction and interpretation placed upon the rule by the federal authorities are entitled to appreciable weight.”).

[¶ 46] Given the common text and origin of North Dakota’s Rule 702 and the version of Federal Rule 702 applied in Daubert and Kumho, I see no reasonable basis for this Court’s reluctance to at least consider, if not embrace, the federal interpretation.

[¶ 47] I also have trouble with the majority’s inflexibility on this issue because of this Court’s evidentiary rules and opinions that contain or have incorporated, in whole or in part, significant portions of the Dau-bert and Kumho doctrines. The Daubert Court focused on the admissibility of scientific expert testimony and held that such testimony is admissible only if it is both relevant and reliable. 509 U.S. at 589, 113 S.Ct. 2786. It further held that the federal rules of evidence “assign to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Id. at 597,113 S.Ct. 2786.

[¶ 48] In Kumho, the Court extended Daubert to include all expert testimony, holding, “In Daubert, this Court held that Federal Rule of Evidence 702 imposes a special obligation upon a trial judge to ‘ensure that any and all scientific testimony ... is not only relevant, but reliable.’ The initial question before us is whether this basic gatekeeping obligation applies only to ‘scientific’ testimony or to all expert testimony. We, like the parties, believe that it applies to all expert testimony.” Kumho, 526 U.S. at 147, 119 S.Ct. 1167 (internal citations omitted).

[¶49] Rule 104(a), N.D.R.Ev., imposes a “gatekeeper” function much like that discussed in Daubert and Kumho. Not surprisingly, opinions from this Court recognize as much. See State v. Zimmerman, 516 N.W.2d 638, 642 (N.D.1994) (“Whether a blood test was fairly administered is a preliminary question of admissibility left to the discretion of the trial judge.”) and State v. Miller, 466 N.W.2d 128, 131 (N.D.1991) (“The trial court controls admission and exclusion of evidence.”).

[¶ 50] The North Dakota Rules of Evidence and cases from this Court also require as a prerequisite to admissibility that an expert’s testimony be both relevant and reliable. See N.D.R.Ev. 402 (“All relevant evidence is admissible.... Evidence which is not relevant is not admissible.”) and State v. Burke, 2000 ND 25, ¶ 18, 606 N.W.2d 108 (“DNA test results may be inadmissible if the means used in the particular case were not sufficiently reliable”).

[¶ 51] My reading of both our rules of evidence and these cases suggests that this Court should act on calls to decide whether North Dakota will adopt, in whole or in part, the so-called Daubert and Kumho doctrine. Our failure to do so leaves a void that is not in keeping with Rule 102, N.D.R.Ev., requiring construction of the rules of evidence “to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence, to the end that the truth may be ascertained and proceedings justly determined.”

[¶ 52] Daniel J. Crothers


author: CROTHERS, Justice.

text:
    2005 ND 212
    STATE of North Dakota, Plaintiff and Appellee. v. Clyde RAULSTON, Defendant and Appellant. Clyde Raulston, Petitioner and Appellant, v. State of North Dakota, Respondent and Appellee.
    Nos. 20050159-20050161.
    Supreme Court of North Dakota.
    Dec. 20, 2005.

      Eric P. Baumann, Minot, N.D., for defendant and appellant.
    Nicole E. Foster, State’s Attorney, Willi-ston, N.D., for plaintiff and appellee.
   CROTHERS, Justice.

[¶ 1] Clyde Raulston appeals from a district court order denying post-conviction relief and an order denying his motion under Rule 35(a), N.D.R.Crim.P. We affirm.

I

[¶ 2] Raulston pled guilty to interference with an emergency call and aggravated assault. Criminal judgments were entered on December 10; 2004, at which time Raulston was to begin serving a three-year prison sentence with all but 60 days suspended. Raulston was not immediately incarcerated.

[¶ 3] ' During the period before he began serving his sentence, Raulston violated several probation conditions, including failing to report for incarceration, consuming alcohol, and violating a no-contact order. A hearing was held on December 17, 2004, to address the violations. At the hearing, the district court explained the minimum and maximum penalties of the underlying convictions and informed Raulston of the possible consequences of an admission. Raulston then admitted the probation condition violations without benefit of a plea agreement.

[¶ 4] The court sentenced Raulston to five years imprisonment, three and one-half years suspended, and stated at the close of the hearing, ‘Who knows, you might be out — back here in eight, nine months if you go through the process right.” A recommendation was made that Raulston be placed in the Tompkins Rehabilitation and Corrections Unit (“Tompkins”) for alcohol treatment.

[¶ 5] Raulston subsequently learned his aggravated assault conviction required him to serve 85 percent of the 18-month sentence, rendering him ineligible for placement at Tompkins. He promptly applied for post-conviction relief, arguing that neither his guilty pleas nor his probation violation admissions were knowingly, intelligently, and voluntarily entered and that he was denied effective assistance of counsel. He additionally moved for reduction of an illegal sentence under Rule 35, N.D.R.Crim.P. His application and motion were denied. This appeal followed.

II

[¶ 6] Relying on State v. Trieb, 516 N.W.2d 287 (N.D.1994), Raulston argues the district court erred in denying his motion for reduction of an illegal sentence under N.D.R.Crim.P. 35(a).

[¶ 7] A sentence is illegal under Rule 35(a), N.D.R.Crim.P., if it is not authorized by the judgment of conviction. Trieb, 516 N.W.2d at 291-92. Such a sentence may be contrary to statute, fail to comply with a promise of a plea bargain, or be inconsistent with the oral pronouncement of the sentence. Trieb, at 292 (citing 3 Wright, Federal Practice and Procedure: Criminal 2d §§ 582 and 585 (1982)). Raulston argues the latter situation is present here. During sentencing, the district court stated:

I’m going to follow the State’s recommendation. Five years at Department of Corrections, 18 months to serve. Credit for 11 days [already served]. Three and a half years suspended for three years from release with all the same terms and conditions of probation .... I will join in the State’s recommendation for Tompkins and for anger management and ask that those be placed in the judgment so that they’ll get you into those tracks as soon as you can. Who knows, you might be out— back here in eight, nine months if you go through the process right.

Because Raulston’s aggravated assault conviction required him to serve 85 percent of his sentence, placement in Tompkins and release in eight or nine months were impossibilities.

[¶ 8] When a direct conflict exists between an unambiguous oral pronouncement of a sentence and the written judgment and commitment, federal precedent has held the oral pronouncement must control. United States v. Munoz-Dela Rosa, 495 F.2d 253, 256 (9th Cir.1974). However, if only an ambiguity exists between the two sentences, the record must be examined to determine the district court’s intent. United States v. Del Barrio, 427 F.3d 280, 284 (5th Cir.2005).

[¶ 9] The judge told Raulston in open court that Raulston would be recommended for placement in Tompkins. Such a recommendation was actually placed in the district court’s written order. Raulston was also told he might be released in as few as eight or nine months, but this statement was not part of the written order. These statements are at best analogous to an ambiguous oral sentence. Following Del Barrio, the intent of the district court controls in such a situation, and the clear intent here was for Raulston to serve as much of his 18-month sentence as required by law. We therefore conclude Raulston’s Rule 35(a), N.D.R.Crim.P., motion was properly denied, and the decision of the district court is affirmed.

Ill

[¶ 10] Raulston argues the district court erred in denying his application for post-conviction relief. Raulston argues four bases existed for granting post-conviction relief: his pleas were not knowingly, intelligently, and voluntarily entered; he received ineffective assistance of counsel; he should have been awarded default judgment due to the State’s failure to timely respond; and the district court’s findings were insufficient.

A

[¶ 11] Guilty pleas must be knowingly, intelligently, and voluntarily entered to be valid. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); N.D.R.CrimJP. 11. The principles of due process apply to probation revocation proceedings as well. Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Raul-ston was not advised by the court or his counsel prior to entry of his pleas or admissions that defendants convicted of aggravated assault must serve 85 percent of their sentences pursuant to N.D.C.C. § 12.1-32-09.1. He argues this omission is akin to the failure to inform a criminal defendant of a mandatory minimum sentence, which is required under state and federal law for a guilty plea to be considered knowing, intelligent, and voluntary. State v. Schweitzer, 510 N.W.2d 612, 615 (N.D.1994); N.D.R.Crim.P. 11(b)(2). This, he argues, renders his pleas and admissions invalid.

[¶ 12] This Court has held the 85 percent service requirement under N.D.C.C. § 12.1-32-09.1 imposes a parole condition and not a “mandatory minimum.” State v. Magnuson, 1997 ND 228, ¶ 21, 571 N.W.2d 642. Although a district court may inform a defendant of the N.D.C.C. § 12.1-32-09.1 requirements, and is encouraged to do so, there is no such requirement under the rules of criminal procedure or North Dakota law. Magnuson, at ¶ 21. Raulston invites us to overturn Magnuson, but has failed to provide a compelling reason to do so. Thus, we decline to overturn Magnuson and conclude the district court was correct in determining that Raulston’s' pleas were voluntary and intelligent.

B

[¶ 13] Raulston argues he was deprived of his right to effective assistance of counsel, guaranteed by the Sixth Amendment of the United States Constitution and Article I, § 12 of the North Dakota Constitution because his attorney didn’t inform Raulston either that he was required to serve 85 percent of his sentence or that he was ineligible for placement at Tompkins.

[¶ 14] To prevail on an ineffective assistance of counsel claim, a defendant must prove that (1) counsel’s representation fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defendant. Heckelsmiller v. State, 2004 ND 191, ¶ 3, 687 N.W.2d 454. The first prong of the test requires Raulston to overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” State v. Skaro, 474 N.W.2d 711, 715 (N.D.1991) (quoting Strickland, v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The second prong requires Raulston to show that “but for his counsel’s errors, the result of the proceeding would have been different.” Syvertson v. State, 2000 ND 185, ¶ 22, 620 N.W.2d 362.

[¶ 15] Here, Raulston’s defense counsel had experience in criminal defense and appears to have handled this case competently. It is unlikely that counsel’s failure to inform Raulston of the 85 percent service requirement and Raulston’s ineligibility for Tompkins rendered counsel’s performance outside the “wide range of professional assistance.”

[¶ 16] However, Raulston fails on prong two, even assuming for purposes of discussion the first element was met and counsel’s performance was insufficient. Raulston admitted his parole violations without the benefit of any sort of plea agreement or arrangement, knowing his sentence may be as great as ten years and his probation conditions may change. The record also shows Raulston failed to timely begin his incarceration and he violated two probation conditions — a prohibition on alcohol consumption and a no-contact order. In fact, after the time he was required to report for incarceration, Raulston was found intoxicated and in the company of the subject of the no-contact order. Due to this evidence, the result would not have changed even if Raulston declined to admit his violations after having been informed of the 85 percent requirement. Therefore, Raulston’s ineffective assistance of counsel claim fails.

C

[¶ 17] Raulston next argues that the district court erred in denying his timely motion for default judgment because the State failed to respond to his January 26, 2005 application for post-conviction relief until April 8, 2005. Section 29-32.1-06(1), N.D.C.C., requires the State to respond to a motion for post-conviction relief within 30 days or “within any further time the court may allow.”

[¶ 18] Section 29-32.1-06, N.D.C.C., gives a district court discretion to extend the State’s allowable time to respond to a post-conviction relief action beyond the stated thirty-day response requirement. Bell v. State, 1998 ND 35, ¶ 24, 575 N.W.2d 211. Furthermore, Raulston’s claims were considered on their merits by the court. Under these circumstances, a district court does not abuse its discretion by refusing to grant default judgment. Id. at ¶ 30.

D

[¶ 19] Raulston argues the district court failed to make proper findings of fact in its denial of post-conviction relief. We agree that N.D.C.C. § 29-32.1-11(1) requires a court to make findings on material questions of fact and to state its conclusions of law. Here, as in Owens v. State, 1998 ND 106, ¶43, 578 N.W.2d 542, the district court issued an order addressing “various facets” of the ineffective assistance of counsel claims. While we do not encourage district courts to engage in such a “minimalist” approach, we conclude based on the record before us that the failure to make more explicit findings and conclusions was harmless error.

IV

[¶ 20] We conclude the district court’s denial of post-conviction relief and rejection of Raulston’s N.D.R.Crim.P. 35(a) motion were appropriate, and we therefore affirm both orders of the district court.

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