author: R.A. RANDALL, Judge.

text:
    STATE of Minnesota, Respondent, v. John Ray McCOY, Appellant.
    No. C9-01-349.
    Court of Appeals of Minnesota.
    July 31, 2001.

      John J. Muhar, Itasca County Attorney, Todd S. Webb, Assistant Itasca County Attorney, Grand Rapids, for respondent.
    James Perunovich, Law Offices of James Perunovich, Hibbing, for appellant.
    Considered and decided by SCHMUACHER, Presiding Judge, RANDALL, Judge and G. BARRY ANDERSON, Judge.
   OPINION

R.A. RANDALL, Judge.

Appellant challenges his sentence for second-degree criminal sexual conduct. Appellant argues that his sentence under Minnesota’s patterned sex offender statute, Minn.Stat. § 609.108 (1998), violated his due-process rights because it authorizes a sentence beyond the prescribed statutory maximum of 25 years for the charged offense based on findings made by the sentencing court rather than the jury. Appellant also argues that, even if the statute is not unconstitutional, the sentencing court erred in finding that he is a patterned sex offender because the court (a) should not have relied on appellant’s prior uncharged offenses and (b) failed to determine whether the professional assessment required by the patterned sex offender statute was performed by an examiner who was experienced in evaluating sex offenders. Finally, appellant asserts that his sentence of 144 months is excessive, unreasonable, and unsupported by the court’s findings. We affirm.

FACTS

Appellant John Ray McCoy was convicted of second-degree criminal sexual assault involving a 12-year-old boy. Following his conviction, the state requested that the court sentence appellant as a patterned sex offender under Minn.Stat. § 609.108 (1998). Appellant’s presumptive sentence was 86 months because appellant was convicted of first-degree criminal sexual conduct within 16 years of his current conviction. Along with this previous conviction, the psychological evaluation and the PSI reported that appellant had committed three other sexual assaults against adolescents, but appellant was not convicted of any of these offenses. Both reports also indicated that appellant has not taken responsibility for his past or current conduct and has refused treatment. Dr. John Selden, who performed the psychological evaluation, concluded that appellant was a patterned sex offender with ingrained criminal sexual behavior and that appellant had a high risk of repeating his behavior. Based on this conclusion, Dr. Sel-den recommended an increased sentence. The PSI recommended that the court sentence appellant to 40 years, the maximum sentenced allowed under Minn.Stat. § 609.108. The court sentenced appellant to 144 months, which is four times the presumptive sentence. Appellant appeals from this sentence.

ISSUES

I. Did appellant’s sentence under the patterned sex offender statute, Minn.Stat. § 609.108 (1998), violate his due process rights?

II. Did the sentencing court err by considering appellant’s prior uncharged offenses and failing to determine whether the psychological assessment was performed by a qualified professional when it sentenced appellant as a patterned sex offender?

III.Did the sentencing court err by sentencing appellant to four times the presumptive sentence?

ANALYSIS

I. Constitutionality of Minnesota’s Patterned Sex Offender Statute

Appellant argues that his sentence under Minnesota’s patterned sex offender statute, Minn.Stat. § 609.108 (1998), violated his due process rights because the statute allows for a sentence beyond the statutory maximum for the charged offense based on findings made by the sentencing court rather than the jury. Because appellant believes that Minn.Stat. § 609.108 is unconstitutional, he requests that this matter be remanded for proper sentencing or, in the alternative, that this court amend his sentence to the three-year minimum-presumptive sentence specified under MinmStat. § 609.109 (1998).

This court reviews whether a statute is constitutional under a de novo standard of review. State v. Wolf, 605 N.W.2d 381, 386 (Minn.2000). A statute is presumed constitutional, and the statute’s “challenger bears the very heavy burden of demonstrating beyond a reasonable doubt that the statute is unconstitutional.” State v. Behl, 564 N.W.2d.560, 566 (Minn.1997) (quotation omitted).

The maximum sentence prescribed by statute for second-degree criminal sexual conduct is 25 years. Minn.Stat. § 609.343, subd. 2 (1998). Because appellant was previously convicted of first-degree criminal sexual conduct within 15 years of his current conviction, the presumptive sentence was 36 months. See Minn.Stat. § 609.109 (1998) (stating presumptive sentence is “not less than three years” for person convicted of first-through fourth-degree criminal sexual conduct within 15 years of previous sex-offense conviction). But, under the patterned sex offender statute, a person convicted of certain patterned and predatory sex offenses “shall” be sentenced to “not less than double the presumptive sentence under the sentencing guidelines and not more than the statutory maximum” if the court determines that the person (1) was motivated by sexual impulses or the crime “was part of a predatory pattern of behavior that had criminal sexual conduct as its goal,” (2) endangers public safety, and (3) “needs long-term treatment or supervision beyond the presumptive term of imprisonment and supervised release.” Minn.Stat. § 609.108, subd. 1(a). In addition, the statutory maximum can be enhanced to 40 years

[i]f the factfinder determines * * * that a predatory offense was motivated by, committed in the course of, or committed in furtherance of sexual contact or penetration * * * and the court is imposing a sentence under [Minn.Stat. § 609.108, subd. 1].

Minn.Stat. § 609.108, subd. 2.

Appellant bases his constitutional argument on a recent United States Supreme Court decision that stated:

[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000) (emphasis added). In Apprendi, the defendant pleaded guilty to possession of a firearm, a second-degree offense, punishable by imprisonment for five to ten years. Id. at 469-70, 120 S.Ct. at 2352. After the plea trial, the prosecutor moved to enhance the defendant’s sentence based on New Jersey’s hate-crimes statute, which increased the maximum sentence to 20 years for second-degree offenses. Id. at 469-70, 120 S.Ct. at 2351-52. Based on the hate-crimes statute, the defendant was sentenced to 12 years for the firearm-possession conviction. Id. at 471, 120 S.Ct. at 2352. Although the defendant was also convicted of another crime, the court articulated that the narrow constitutional question was “whether the 12-year sentence imposed” for the firearm possession conviction “was permissible, given that it was above the 10-year maximum” allowed by the firearm-possession statute. Id. at 474, 120 S.Ct. at 2354. Ultimately, the court held that New Jersey’s hate-crimes statute was unconstitutional because it allowed the district court to impose a sentence on the defendant that exceeded the statutory maximum for the charged offense, based on findings which should have been determined beyond a reasonable doubt by a jury. Id. at 491-97, 120 S.Ct. at 2363-67. In essence, the court concluded that it was unconstitutional for a defendant to be convicted of a lower severity-level crime but receive a sentence identical to the sentence of a higher severity-level crime without a jury determination that the defendant was culpable for the higher severity-level crime. Id.

Appellant argues that he has an “Ap-prendi issue.” We conclude that he does not. This court recently decided an issue nearly identical to the issue in Apprendi. In State v. Grossman, 622 N.W.2d 394, 396 (Minn.App.2001), review granted (Minn. Apr. 19, 2001), the defendant was convicted of three counts of first-degree criminal sexual conduct, among other charges. The maximum sentence prescribed by statute for this offense is 30 years. Minn.Stat. § 609.342, subd. 2 (1998). The sentencing court first determined that the factors outlined in Minn.Stat. § 609.108, subd. 1(a), were present. Grossman, 622 N.W.2d at 396. Relying on Minn.Stat. § 609.108, subd. 2, the court then sentenced the defendant to 40 years as a patterned sex offender, which exceeded the statutory maximum for first-degree criminal sexual conduct. Grossman, 622 N.W.2d at 396. This court held that Minn.Stat. § 609.108, “as applied [in the defendant’s case] to increase [the defendant’s] maximum sentence, violates due process under Apprendi.” Id. at 399.

Appellant asserts that the holdings of Apprendi and Grossman should apply to his case. In contrast, the state contends that Apprendi and Grossman are inapplicable because appellant’s sentence was not greater than the statutory maximum allowed for second-degree criminal sexual conduct.

Although we understand appellant’s argument, we agree with the state that Apprendi and Grossman apply only to situations where a court sentences a defendant to a term that exceeds the statutory maximum. Here, appellant was sentenced to 144 months, which is less than half of the statutory maximum of 25 years. Further, unlike the defendant in Grossman, appellant was not sentenced under Minn.Stat. § 609.108, subd. 2, which increases the maximum sentence to 40 years. Appellant’s sentence did not exceed the statutory maximum of 25 years for second-degree criminal sexual assault. Thus, the rules set forth in Apprendi and Grossman are not applicable to this case. Appellant’s due process rights were not violated. See Apprendi, 530 U.S. at 481, 120 S.Ct. at 2358 (noting that “judges in this country have long exercised discretion * * * in imposing [a] sentence within statutory limits in the individual case ” (emphasis added)).

II. Finding Appellant is a Patterned Sex Offender

Appellant argues that the sentencing court erred in finding thát he was a patterned sex offender for two reasons. First, appellant asserts that the court should not have relied on prior uncharged offenses of criminal sexual conduct in deciding whether to sentence appellant under Minn.Stat. § 609.108. Appellant asserts that, because the court ruled the evidence was inadmissible as Spreigl evidence at trial, the sentencing court erred by considering the uncharged offenses when it sentenced him. Second, appellant contends that the court should not have relied on the psychological assessment by Dr. Sel-den because the court failed to formally find that' the examiner was experienced in evaluating sex offenders.

A. Uncharged Offenses

Appellant correctly notes the district court ruled that his uncharged offenses were inadmissible Spreigl evidence. First, we examine how the offered Spreigl evidence was rejected. Spreigl evidence may not be used to show the appellant acted in conformity with bad character, but a court may admit Spreigl evidence to show identity, a common plan or scheme, and to refute allegations of fabrication, if its probative value substantially outweighs the danger of unfair prejudice. Minn. R. Evid. 404(b), 403; State v. Profit, 591 N.W.2d 451, 461 (Minn.1999). Such evidence should be limited to cases where the district court determines that

(1) there is clear and convincing evidence that defendant participated in the Spreigl offense; (2) the evidence is relevant and material to the state’s case, and (3) the probative value of the evidence is not outweighed by its potential for unfair prejudice.

State v. Robinson, 604 N.W.2d 355, 363 (Minn.2000) (citation omitted). The supreme court has made clear:

Both at the time the evidence is received and in the final charge, the court should admonish the jury that the testimony is received for the limited purpose of establishing identity. It is the court’s duty to advise the jury in unequivocal language that defendant is not being tried and may not be convicted for any offense except that charged, warning them that to convict for other offenses may result in unjust double punishment.

Billstrom, 276 Minn. 174, 179, 149 N.W.2d 281, 285 (1967).

First, it was appropriate here for the district court to rule the state’s offered Spreigl evidence inadmissible. That ruling protected the trial from the jury impermis-sibly using the Spreigl evidence as evidence of appellant’s bad character. The exclusion of the Spreigl evidence helped guarantee that the fact-finder would come to its verdict under the Minnesota and federal constitutional guarantees of due process and a fair trial. But once a defendant has been found guilty, the factors to be considered by the sentencing court (which are not considered by a jury, as Minnesota has long been one of the several states where judges, not juries, determine the appropriate sentence) are significantly broader. As conceded by appellant’s counsel, a presentence investigation (PSI) can include facts and details that neither the prosecution nor the defense would even consider attempting to enter as evidence at trial. Such facts may include hearsay, second-hand information, opinion, etc., always, of course, subject to the sentencing judge’s evaluation of weight and credibility. We note that a PSI should include details about “the defendant’s individual characteristics, circumstances, needs, potentialities, criminal record and social history.” Minn.Stat. § 609.115, subd. 1 (2000). When determining whether to sentence a defendant as a patterned sex offender, the sentencing court must determine “if it reasonably appears ⅝ * * that the crime was motivated by the offender’s sexual impulses or was part of a predatory pattern of behavior.” Minn.Stat. § 609.108, subd. 1(a)(1) (emphasis added). This statute does not limit a sentencing court to consideration of only offenses for which a defendant was previously convicted.

In addition to appellant’s first-degree criminal sexual assault conviction in 1987, at some point during the trial for this previous conviction, appellant admitted assaulting another adolescent, although he was never charged with this assault. See State v. McCoy, 400 N.W.2d 807, 809 (Minn.App.1987) (indicating appellant admitted sexually assaulting his wife’s adolescent sister), review denied (Minn. Mar. 25, 1987). Appellant was also charged with a sexual assault of an adolescent babysitter, but the case was dismissed because the arrest warrant had not been served upon appellant for a period of 11 months after its issuance. Given a sentencing court’s latitude to consider factors not admitted at trial, we conclude that the sentencing court did not commit error by considering appellant’s uncharged offenses as part of its decision to sentence appellant as a patterned sex offender. Cf. State v. Gorman, 546 N.W.2d 5, 9 (Minn.1996) (concluding that, under career-offender statute, pattern of criminal conduct can be demonstrated by uncharged offenses where acts were similar to charged offense “in motive, purpose, results, participants, victims, or other characteristics”).

B. Experience of Examiner

As part of the sentencing court’s factorial analysis under the patterned sex offender statute, the court was required to find that appellant needed long-term treatment or supervision beyond the presumptive sentence and supervised release. Minn. Stat. § 609.108, subd. 1(a)(3). This finding “must be based on a professional assessment by an examiner experienced in evaluating sex offenders.” Id.

Appellant correctly notes that the burden of proof is on the state to offer evidence sufficient to demonstrate that appellant should be sentenced as a patterned sex offender. See State v. Christie, 506 N.W.2d 293, 299 (Minn.1993) (stating facts found at sentencing stage must be established by preponderance of evidence). We reject the state’s assertion that appellant missed his opportunity to challenge Sel-den’s qualifications because he did not subpoena Selden for the sentencing hearing, put him on the stand, and cross-examine him. This attempt by the state to place the burden on appellant to show that Sel-den is unqualified is an impermissible shifting of the burden of proof.

Despite the state’s improper attempt to shift the burden of proof onto appellant, we find sufficient record evidence to establish Selden’s qualifications to offer his opinion. Dr. Selden is a member of the Iron Range Mental Health Center (IRMHC), which has serviced northern Minnesota, hospitals, clinics, lawyers, and courts with consultants and professionals on mental health issues for decades. Sel-den’s report indicates that he employed a variety of psychological tests on appellant before he reached his conclusion that appellant is a patterned sex offender with a high risk of re-offending. The sentencing court referred to Dr. Selden as a “professional.” The record shows that the court accepted Selden as an expert and qualified to administer the assessment, even though the record lacks a formal statement by the sentencing court that “Dr. Selden is an expert.” Based on Selden’s report arid the entire record, we conclude that the court did not err by relying on Dr. Selden’s report when sentencing appellant as a patterned sex offender.

III. Sentencing Departure

Sentencing under the patterned sex offender statute constitutes a departure from the sentencing guidelines. MinmStat. § 609.108, subd. 5. A sentencing court “has broad discretion to depart only if aggravating or mitigating circumstances are present.” State v. Best, 449 N.W.2d 426, 427 (Minn.1989). If such circumstances are present, we review a sentencing court’s decision to depart for an abuse of discretion. Rairdon v. State, 557 N.W.2d 318, 326 (Minn.1996).

Appellant argues that his sentence of 144 months is excessive, unreasonable, and unsupported by the sentencing court’s findings. In making this argument, appellant relies on caselaw for durational departures, which states that generally, when an upward departure is justified, the upper limit is double the presumptive. State v. Williams, 608 N.W.2d 837, 840 (Minn.2000). First, we note that when severe aggravating factors are present, the court may depart all the way up to the statutory maximum. Id. Second, and more importantly, severe aggravating factors need not be present to justify a greater than double departure under the patterned sex offender statute. The plain language of the patterned sex offender statute does not require those factors. State v. Halvorson, 506 N.W.2d 331, 339 (Minn.App.1993).

Here, the sentencing court sentenced appellant to four times the presumptive sentence. In addition to its findings under the patterned sex offender statute, the court found that appellant’s position of trust in relation to the victim constituted a separate aggravating factor justifying departure. The court imposed the 144-month sentence because it believed that such a sentence would balance “out the need for substantial incarceration and for long-term treatment.” Although we understand appellant’s argument that the court’s departure was quadruple the presumptive sentence, the end result was a sentence of 12 years, which is still well below the 25-year maximum sentence allowed by statute.

Based on appellant’s conduct in prior uncharged offenses, his prior conviction for first-degree criminal sexual conduct, his unwillingness to seek treatment, the PSI report, and Dr. Selden’s report, we conclude that the court did not abuse its discretion by sentencing appellant to four times the presumptive sentence. See State v. Stirens, 506 N.W.2d 302, 305-06 (Minn.1993) (agreeing that sentence departure for second-degree criminal sexual conduct under patterned sex offender statute was justified where defendant was not amenable to probation and lacked remorse, but reducing sentence from over eight times presumptive sentence to over five times presumptive sentence).

DECISION

Appellant’s sentence under the patterned sex offender statute did not violate his due-process rights. His prison term does not exceed the statutory maximum allowed for second-degree criminal sexual conduct.

When sentencing appellant as a patterned sex offender, the court did not err when it considered appellant’s prior uncharged offenses. The mental health professional had the requisite qualifications to give the sentencing court a professional assessment.

Finally, severe aggravating factors are not required to justify a greater than double departure from the presumptive sentence when the sentencing court is using the patterned sex offender statute.

Affirmed.

      . To determine the prescribed statutory maximum discussed in Apprendi, most courts post-Apprendi have looked to the statutory language of the charged offense rather than the sentencing guidelines. United States v. Kinter, 235 F.3d 192, 199-200 (4th Cir.2000); see also United States v. Nealy, 232 F.3d 825, 829 n. 3 (11th Cir.2000); United States v. Doggett, 230 F.3d 160, 166 (5th Cir.2000); Talbott v. Indiana, 226 F.3d 866, 869 (7th Cir.2000).

      . The state points out in its brief that it moved to supplement the record on appeal with Dr. Selden's curriculum vitae. This court denied the state’s motion because it had not been presented to the district court.


source: Caselaw Access Project

author: NEUMANN, Justice.

license: Public Domain

text:
    2001 ND 138
    Shari SELZLER, Plaintiff and Appellant, v. Terry SELZLER, Defendant and Appellee.
    No. 20000247.
    Supreme Court of North Dakota.
    July 20, 2001.

      Lynn M. Boughey, Boughey Law Firm, Minot, for plaintiff and appellant.
    Michael S. Mclntee, Mclntee Law Firm, Towner, for defendant and appellee.
   NEUMANN, Justice.

[¶ 1] Shari Selzler appealed from an amended divorce judgment changing physical custody of the parties’ ten-year-old daughter to Terry Selzler. We conclude the trial court did not err in changing custody, and we affirm.

I

[¶ 2] The Selzlers were married in 1985. When they divorced in January 1996, the decree granted Shari sole legal and physical custody of a thirteen-year-old who was Shari’s natural and Terry’s adoptive daughter. The parties were granted joint legal custody of their natural daughter, a six-year-old, and Shari was granted care, custody and control of that child. Terry was granted reasonable and liberal visitation rights with the younger daughter.

[¶ 3] Terry was employed as a farm laborer and Shari was employed as a social worker for Pierce County, at one time as a child abuse and neglect investigator. The latter years of the marriage were marred by problems. In December 1994, a juvenile court referee found the older daughter to be a deprived child based upon the referee’s finding that Terry had sexually abused her on four occasions. The referee recommended the older daughter’s care, custody and control be placed with Pierce County Social Services for one year. Criminal charges based on the older daughter’s allegations of sexual abuse were not pursued against Terry.

[¶ 4] After the divorce, Shari experienced disciplinary problems with the older daughter. The older daughter quit school before completing high school. She twice received treatment for chemical abuse when she was fifteen and seventeen years old, and had been arrested for driving without a license. Police were called to Shari’s residence on numerous occasions on account of late night parties, dogs barking, and a registered sex offender, who was Shari’s friend, being in the home with the young girls. In June 1999, an abuse and neglect report was filed against Shari and a petition for deprivation was proposed, but not filed. Instead, Shari was given an option to be supervised by a social worker from McHenry County Social Services. Shari entered into a contractual agreement requiring her to undergo therapy services, to allow no contact between the children and the registered sex offender, to allow only her children and herself to reside in the home, and to participate in future parent aid services if needed.

[¶ 5] In May 1999, Terry brought a motion to change custody of the younger daughter from Shari to himself. The trial court, after consulting counsel for the parties, appointed Sharon Hauschulz as the custody investigator. Hauschulz recommended custody of the younger daughter be changed from Shari to Terry. After three days of testimony, the trial court found a significant change of circumstances had occurred and granted the motion. Shari appealed.

II

[¶ 6] Shari argues the trial court erred in accepting the custody investigator’s report because the record does not show whether the investigator met the preferred qualifications imposed by N.D.R.Ct. 8.6.

[¶ 7] When Hauschulz was proposed to serve as the custody investigator in this case, Shari’s trial counsel did not object. During the pretrial, trial and post-trial proceedings, Shari’s counsel also raised no objection about Hauschulz’s qualifications. We do not consider questions that were not presented to the trial court and are raised for the first time on appeal. Overboe v. Farm Credit Serv., 2001 ND 58, ¶ 11, 623 N.W.2d 372. Because Shari’s counsel did not raise this issue before the trial court, the issue is not reviewable on appeal. Id.

III

[¶ 8] Shari argues the trial court erred in allowing the custody investigator to be excused from the court proceedings, rather than requiring her to be present throughout the three days of hearings. After the custody investigator testified during the first day of hearings, the trial court allowed her to leave the court proceedings for medical reasons. The trial court provided that the investigator could review, if requested by a party, tapes or transcripts of the hearings held outside of her presence, and further provided that she could be recalled as a witness, if requested by a party. Shari did not request the investigator to review the tapes or transcripts, or recall her as a witness.

[¶ 9] Rule 8.6(c), N.D.R.Ct., provides “[a] custody investigator shall attend all court proceedings and shall testify when requested.” We reject Terry’s contention that, although the custody investigator must attend court proceedings, the investigator need not remain present throughout the entire court proceedings. The obvious purpose of this requirement is to have the investigator hear the testimony of other witnesses and be prepared to testify whether the investigator’s opinion has been changed by any additional testimony. However, we decline to adopt Shari’s view that the failure to have the custody investigator present throughout the entire proceedings always constitutes reversible error.

[¶ 10] A trial court has great latitude and discretion in conducting a trial and, absent an abuse of discretion, its decision on matters relating to the conduct of a trial will not be set aside on appeal. See Schaefer v. Souris River Telecomm. Coop., 2000 ND 187, ¶ 13, 618 N.W.2d 175; State v. Boehler, 542 N.W.2d 745, 747 (N.D.1996); Great Plains Supply Co. v. Erickson, 398 N.W.2d 732, 734 (N.D.1986). Likewise, a trial court has broad discretion in its control of the presentation of evidence. See Mayo v. Mayo, 2000 ND 204, ¶ 39, 619 N.W.2d 631; N.D.R.Ev. 611. Although the trial court has broad discretion over the presentation of evidence and the conduct of trial, it must exercise this discretion in a manner that best comports with substantial justice. See Slaubaugh v. Slaubaugh, 466 N.W.2d 573, 580 (N.D.1991). Moreover, we do not construe rules of court to produce absurd or ludicrous results, Disciplinary Bd. of Supreme Court v. O’Neil, 326 N.W.2d 879, 882 (N.D.1982), but we construe them, like statutes, in a practical manner. See Huber v. Oliver County, 1999 ND 220, ¶ 16, 602 N.W.2d 710.

[¶ 11] Because unforeseen circumstances may make it impossible for a custody investigator to be present throughout the entire proceedings, we construe N.D.R.Ct. 8.6(c) to allow the court, for good cause, to excuse a custody investigator from attending the entire proceedings, but only if the court makes reasonable accommodations to preserve the parties’ right to examine the investigator in light of all of the testimony given. See generally Quarne v. Quarne, 1999 ND 188, ¶ 6, 601 N.W.2d 256. Here, the custody investigator’s medical problems constituted good cause to deviate from the procedural requirements. The trial court made reasonable accommodations by providing the investigator could review tapes or transcripts of the hearing, if requested by a party to do so, and by providing the investigator could be recalled as a witness, if requested by a party. The custody investigator was not requested to review tapes or transcripts of the hearing and was not recalled by the parties to testify. Consequently, Shari has shown no prejudice resulted from the accommodations made by the trial court. See Graber v. Engstrom, 384 N.W.2d 307, 311 (N.D.1986).

[¶ 12] We conclude the trial court did not abuse its discretion in allowing the custody investigator to be excused from the proceedings after testifying.

IV

[¶ 13] Shari argues the trial court erred in relying on hearsay information relating to sexual abuse risk factors contained in the custody investigator’s testimony and in rejecting contrary evidence supplied by a social worker with a master’s degree in clinical social work.

[¶ 14] The custody investigator testified she was told by three unnamed professionals that, although there are no guarantees, there is less chance that the biological parent of a child will sexually abuse the child than the chance that a nonbiological parent will sexually abuse the child. The social worker testified she was unaware of any research to support that opinion.

[¶ 15] Shari’s trial counsel did not make a hearsay objection to the custody investigator’s comments, which were given in response to a question by Shari’s trial counsel during cross-examination. Moreover, the credibility of witnesses, including expert witnesses, and the weight to be given their testimony are questions of fact subject to the clearly erroneous standard of review under N.D.R.Civ.P. 52(a). Mayo, 2000 ND 204, ¶24, 619 N.W.2d 631. In this case, the social worker who testified was not formally qualified as an expert witness by the trial court, and was Shari’s case manager from McHenry County Social Services. The trial court was not required to accept the testimony of Shari’s fellow social worker who was working with and assisting Shari. Shari has failed to establish that the trial court’s acceptance of the custody investigator’s testimony over the social worker’s testimony is clearly erroneous.

V

[¶ 16] Shari argues the trial court erred in its handling of the prior juvenile court finding that Terry had sexually abused his older, adopted daughter. In November 1994, a juvenile court referee found by clear and convincing evidence that Terry had abused the older daughter in the family home by sexually touching her on four separate occasions in 1992. Shari argues these findings of sexual abuse should create a presumption against Terry having custody of the younger daughter under N.D.C.C. § 14-09-06.2(l)(j).

[¶ 17] There is a rebuttable presumption against awarding custody to a parent who has perpetrated domestic violence. Cox v. Cox, 2000 ND 144, ¶ 17, 613 N.W.2d 516. Under N.D.C.C. § 14-09-06.2(l)(j), the presumption against awarding custody to the perpetrator arises in three circumstances: (1) “there exists one incident of domestic violence which resulted in serious bodily injury;” (2) there exists one incident of domestic violence which “involved the use of a dangerous weapon;” or (3) “there exists a pattern of domestic violence within a reasonable time proximate to the proceeding.” Tulintseff v. Jacobsen, 2000 ND 147, ¶ 9, 615 N.W.2d 129. Sexual abuse can be a form of domestic violence. See N.D.C.C. § 14-07.1-01(2). However, unless serious bodily injury resulted or a dangerous weapon was used, N.D.C.C. § 14-09—06.2(1)(j) requires a pattern of abuse to occur “within a reasonable time proximate to the proceeding.” Shari concedes that sexual abuse in this case did not result in serious bodily injury, involve the use of a dangerous weapon, or occur within a reasonable time proximate to the proceeding. Shari nevertheless invites this Court to create a rebuttable presumption against custody under N.D.C.C. § 14-09-06.2(1)(m) when a parent has been found to have committed sexual abuse against the child of a family or household member as defined by N.D.C.C. § 14-07.1-01(4). We decline Shari’s invitation.

[¶ 18] Our primary objective in construing a statute is to ascertain the intent of the Legislature by looking at the language of the statute itself and giving it its plain, ordinary, and commonly understood meaning. Overboe, 2001 ND 58, ¶ 9, 623 N.W.2d 372. We presume the Legislature intended all that it said, and that it said all that it intended to say, and where the statutory language is plain and unambiguous, a court cannot indulge in speculation as to the probable or possible qualifications which might have been in the mind of the Legislature. Little v. Tracy, 497 N.W.2d 700, 705 (N.D.1993). The factors for determining the best interest and welfare of the child are set forth in N.D.C.C. § 14-09-06.2(1), and subdivision m refers only to “[a]ny other factors considered by the court to be relevant to a particular child custody dispute.” Subdivision m does not refer to a presumption against custody, as does N.D.C.C. § 14-09-06.2(1)(j). Indeed, the last sentence of N.D.C.C. § 14-09-06.2(1)(j) provides “[a] court may consider, but is not bound by, a finding of domestic violence in another proceeding under chapter 14-07.1,” thereby indicating a legislative intention that previous court findings of domestic violence not be given presumptive effect. We refuse to correct what Shari terms a legislative “oversight” by rewriting the presumption statute to cover the circumstances of this case.

[¶ 19] Evidence of domestic violence which is insufficient to trigger the presumption remains a factor to be considered in determining a child’s best interest under N.D.C.C. § 14-09-06.2(1). Holtz v. Holtz, 1999 ND 105, ¶ 27, 595 N.W.2d 1. The trial court in this case did not err in failing to invoke the presumption against custody based on the older daughter’s allegations and the juvenile court referee’s findings of sexual abuse by Terry.

VI

[¶ 20] Shari argues the trial court erred in changing custody of the younger daughter from her to Terry.

[¶ 21] Under N.D.C.C. § 14-09-06.6(6):

The court may modify a prior custody order after the two-year period following the date of entry of an order establishing custody if the court finds:
a. On the basis of facts that have arisen since the prior order or which were unknown to the court at the time of the prior order, a material change has occurred in the circumstances of the child or the parties; and
b. The modification is necessary to serve the best interest of the child.

Under this statute, the court, in deciding whether to change custody, must consider whether there has been a significant change of circumstances since the original custody decree, and, if so, whether the change requires the court to change custody to serve the best interest of the child. Anderson v. Resler, 2000 ND 183, ¶ 8, 618 N.W.2d 480. A material change in circumstances occurs when new facts are presented that were unknown to the moving party at the time the divorce decree was entered. Mayo, 2000 ND 204, ¶ 16, 619 N.W.2d 631. A material change of circumstances can occur if a child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development. Holtz, 1999 ND 105, ¶ 17, 595 N.W.2d 1. The party seeking modification of a custody order bears the burden of showing a change is required. N.D.C.C. § 14-09-06.6(8). The trial court’s decision whether a change is required is a finding of fact subject to the clearly erroneous standard of review. Hendrickson v. Hendrickson, 2000 ND 1, ¶ 16, 603 N.W.2d 896. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if the reviewing court is left with a definite and firm conviction a mistake has been made. Mosbrucker v. Mosbrucker, 1997 ND 72, ¶ 5, 562 N.W.2d 390.

[¶ 22] In a thorough opinion, the trial court detailed its reasons for changing custody. Since the divorce, the younger daughter has developed attention deficit disorder. The court noted the younger daughter was currently having difficulty in school and had been absent 21.5 days and tardy 35 times during the 1998-1999 school term. Shari had been the subject of a Social Service investigation based on a report of neglect. Investigators found that Shari’s home was unclean, the younger daughter had no bed to sleep in, and Shari had been spending time with a convicted child molester.

[¶ 23] The court analyzed the best interest factors under N.D.C.C. § 14-09-06.2(1). The court found love, affection and other emotional ties exist between the younger daughter and both of her parents, and noted the lack of the parties’ ability to effectively communicate with each other had resulted in irregular contact between the younger daughter and Terry. The court found the “most relevant factor” in its decision to be the capacity and disposition of the parents to give the child love, affection and guidance, and to continue the education of the child. Because the younger daughter bad lived with Shari since her birth, the court found the emotional ties and continuity favored Shari, but the court doubted whether Shari could continue to provide her necessary guidance.

[¶ 24] The court noted law enforcement officers had been summoned to Shari’s home on twelve occasions in response to calls about barking dogs, loud noise from parties, and the convicted sex offender being at the home. In summer 1999, a child protection team investigated and found services were required. Shari was asked to keep the convicted sex offender out of their home, have a psychiatric evaluation, provide a bed for the younger daughter, and no longer allow the older daughter to drive without a license. Because Shari was allowing other adolescent children to reside in her home with the older daughter, Shari was also asked to discontinue this practice. The contract Shari signed to avoid a placement of her children through Social Services required her to assure the younger daughter arrived on time to school and to have no contact with the convicted sex offender.

[¶ 25] The custody investigator had reported Shari’s home was “chaotic” and a “mess” when she visited. The older daughter, age 17 at the time, was living in the home along with her boyfriend, according to the younger daughter. The older daughter had earlier undergone treatment for alcohol and drug abuse. Her boyfriend was hollering and swearing at the younger daughter and two other young children she was babysitting. At the time of trial, the older daughter was pregnant and living with her boyfriend in Minot. The custody investigator described Terry’s home as orderly, clean and well maintained. Terry currently lives with his financee and her two sons.

[¶ 26] In considering whether Terry could provide the guidance necessary, the court addressed the prior juvenile court referee’s findings of sexual contact between Terry and the older daughter. The court noted the older daughter’s allegations and the referee’s findings “make this case very difficult,” but found this factor nevertheless weighed in favor of Terry because “he has the more stable home where structure could be provided.”

[¶ 27] The court found the length of time the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity weighed against Shari. Although the younger daughter had always lived with Shari, the home was not satisfactory or stable. According to the court, Shari’s allowing late night parties and a convicted child molester to be present in the home after the older daughter had alleged sexual fondling by Terry showed “an inability to make responsible adult decisions as a parent and an inability to put a child’s needs before her own.” The court found the domestic violence presumption did not apply under the circumstances, and regarding the other statutory factors, ruled they did not favor either party or were inapplicable.

[¶ 28] The court concluded:

Due to the chaotic lifestyle and parenting choices of Shari Selzler [a] material and significant change of circumstances warrants a change of custody in the best interests of [the younger daughter] specifically based on:
1. The inability to get [the younger daughter] to school on time, her absences from school and provide structure for her. The inability to complete her homework.
2. The Plaintiffs association with a convicted sex offender allowing him to be around her two young daughters.
3. The plaintiff allowing her 17 year old daughter to have her boyfriend live at their home with her in her bedroom as well as another juvenile girl.
4. All other factors as previously noted.
This is a most difficult case because the plaintiff has had custody of [the younger daughter] since she was born. [The younger daughter] has a very strong bond with her mother. Yet her mother has been unable to provide the structure and discipline necessary for this child. Because [the younger daughter] has been diagnosed with ADD she has an even greater need for structure than a child without ADD. The defendant on the other hand has this cloud of inappropriate sexual conduct with [the older daughter]. The defendant however does appear to have a more stable home environment at this time. This child deserves an opportunity to have a stable consistent home with appropriate supervision and guidance.

[¶ 29] In this difficult case, the trial court weighed the appropriate factors in reaching its decision to change custody of the younger daughter from Shari to Terry. We conclude the trial court’s modification of custody is not clearly erroneous.

VII

[¶ 30] We have considered Shari’s other arguments and deem them to be without merit. The amended divorce judgment is affirmed.

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

      . The appellant was represented by different counsel in the trial court.


author: KAPSNER, Justice.

text:
    2001 ND 131
    Bonnie KRAFT, Petitioner and Appellant, v. North Dakota STATE BOARD OF NURSING, Respondent and Appellee.
    No. 20000320.
    Supreme Court of North Dakota.
    July 20, 2001.
    Rehearing Denied Aug. 30, 2001.

      Carl 0. Flagstad, Minot, ND, for petitioner and appellant.
    Calvin N. Rolfson (argued), Special Assistant Attorney General for the Board of Nursing and Brian L. Bergeson (appeared), Rolfson Schulz Lervick <& Geier-mann Law Offices, P.C., Bismarck, ND, for respondent and appellee.
   KAPSNER, Justice.

[¶ 1] Bonnie Kraft appeals from the district court order affirming, with one exception, the order of the North Dakota State Board of Nursing (“Board”), which suspended for one year Kraft’s license to practice nursing in North Dakota, and appeals from the district court order denying Kraft’s motion for relief on the basis of alleged improper ex parte communications. We affirm the Board’s order in all respects and affirm the district court’s denial of the motion for relief.

I

[¶ 2] In 1988, Kraft was licensed by the Board as a registered nurse. In November 1999, the Board filed a complaint against Kraft alleging that Kraft was observed to be under the influence of a chemical substance at work; refused her employer’s request to submit to a chemical screening evaluation; was suspended from her employment as a result of her refusal to consent to the screening test; and was convicted of simple assault in April 1998.

[¶ 3] After a hearing, the administrative law judge (“ALJ”) recommended findings of fact and conclusions of law, as well as an order. The recommended findings indicated Kraft was observed at work on January 22,1999, by two doctors and three nurses who reported Kraft slurred her speech, mispronounced two easy first names of patients, had problems with equilibrium, laughed frequently, and her breath smelled fruity like alcohol or acetone. Both doctors notified the nursing supervisor that Kraft needed a blood or urine test to detect chemical impairment. Kraft was transported to the emergency room where a nurse twice informed Kraft she needed to be medically screened to rule out the presence of any alcohol or drugs, and if she refused to be tested, hospital policy mandated her suspension from work. Kraft refused to be tested, without offering an explanation. Two emergency room nurses observed Kraft to be agitated while talking on the phone apparently to an attorney. The nurses also observed Kraft to be belligerent, red-faced with dilated and red-rimmed eyes, and Kraft had difficulty speaking and gave inaccurate and unusual answers to the nurses’ questions. Subsequently, Kraft was suspended from practicing at the medical center for refusing to take the required chemical tests. The medical center’s published policy is that refusal to submit to a drug and alcohol test shall be considered a positive test and insubordination which may result in termination.

[¶ 4] The ALJ stated the greater weight of the evidence did not show Kraft was obviously or definitely impaired by alcohol or a prohibited chemical substance at work; rather, the evidence showed Kraft was possibly or likely impaired. The ALJ indicated the doctors’ observations of Kraft presented the possibility of a clear and present danger to patients, but Kraft possibly could have worked her shift without incident. The ALJ concluded Kraft did not refuse unreasonably a proper request of her employer to submit to a chemical evaluation, as Kraft based her refusal on her attorney’s advice and on basic notions of unfairness because the medical center did not follow its own testing procedures; thus, Kraft did not have a “real opportunity to explain her situation.” The ALJ noted the medical center’s procedural irregularities in testing, such as not completing all required forms and failing to involve various other staff in the testing.

[¶ 5] The evidence before the ALJ showed Kraft was arrested and charged with a misdemeanor assault for domestic violence in April 1998, after hitting and scratching a man at her home while she was under the influence of alcohol. Kraft pled guilty and spent three nights in jail. The ALJ concluded Kraft’s conviction for misdemeanor assault is a crime of violence of willfully causing bodily injury to another human being, which is “opposite” to the standards of nursing practice and adversely relates to the practice of nursing. Because five years had not passed since the assault, there was no presumption of rehabilitation, and no evidence showed Kraft was rehabilitated. However, because the assault was in Kraft’s own home and she was intoxicated at the time, the ALJ recommended not subjecting Kraft to severe disciplinary action for committing this crime alone, as it was the only allegation in the complaint proved by the evidence. The ALJ recommended ordering a one-year suspension of Kraft’s license, but not invoking the suspension unless Kraft further violated nursing practices within one year.

[¶ 6] The Board accepted some of the ALJ’s recommendations, with the following exceptions. The Board found sufficient evidence to prove by a preponderance that Kraft came to work under the influence of a chemical substance. The failure of the medical center to complete its own chemical screening forms did not excuse Kraft’s obligation to submit to the required chemical screening test, and her behavior was not excused by the ALJ’s belief that Kraft was not given a real opportunity to explain her situation. The employer’s technically incomplete fulfillment of its policy provisions does not bind the Board. The evidence need not show Kraft was definitely impaired, but rather the burden of proof requires a preponderance of the evidence showing her impairment. Thus, the Board concluded sufficient facts were presented at the hearing to demonstrate by a preponderance of the evidence that (1) Kraft engaged in actions inconsistent with the practice of nursing; (2) Kraft is unfit or incompetent to practice nursing by reason of negligence, patterns of behavior, or other causes established by the Board; and (3) Kraft practiced nursing without sufficient knowledge, skills, or nursing judgment and in a manner inconsistent with acceptable nursing standards. The Board ordered Kraft’s license to practice nursing suspended for one year, ordered Kraft to obtain chemical dependency and psychiatric evaluations from treatment professionals approved by the Board, and assessed a $1,000 penalty.

[¶ 7] Kraft appealed the Board’s order to the district court and also moved for leave to obtain additional evidence, if the Board denied making improper ex parte communications, to prove the discipline imposed by the Board was excessive. The district court denied her motion, as Kraft cited no supporting authority or argument and did not say what additional evidence would be adduced or why it would be appropriate to allow her to supplement the record. Kraft then moved the district court to reconsider her motion for leave to obtain additional evidence, arguing the executive director of the Board and the Board’s counsel participated in the hearing and later had improper ex parte communications influencing the Board’s decision-making process, so additional evidence was necessary to determine the extent of the violation. The district court denied Kraft’s motion for reconsideration on the basis that it was dilatory and because Kraft had “nothing but a hunch” that the executive director had engaged in anything other than ministerial acts outside her role as an expert witness at the hearing.

[¶ 8] Subsequently, the district court issued a memorandum opinion, affirming the Board’s order except as to Kraft’s refusal to submit to blood or urine testing. The district court agreed Kraft was under the influence of a chemical substance at work and her prior conviction for simple assault, with no evidence of rehabilitation, was inconsistent with the standards of nursing practice. However, the district court disagreed that Kraft unreasonably refused to submit to a chemical and medical screening evaluation, as the medical center did not follow internal testing policies and procedures and Kraft’s attorney advised her not to submit to testing.

[¶ 9] Kraft next moved for relief from the district court’s order, alleging the minutes of the Board’s meeting on March 16, 2000 and the affidavits of the Board’s counsel and a registered nurse who investigates for the Board provided evidence of a systemic disregard of improper ex parte communications by the Board’s counsel in advising the Board. The district court denied the motion, stating there was no authority for the motion, the argument was considered previously, and “[njothing new is presented.” Kraft appeals from this order and from the district court’s order affirming the Board’s decision.

II

[¶ 10] On appeal from a district court’s review of an administrative agency’s decision, we review the agency decision, not the district court decision. Vernon v. N.D. Workers Comp. Bureau, 1999 ND 153, ¶ 8, 598 N.W.2d 139. However, the district court’s analysis is entitled to respect if its reasoning is sound, because the legislatively mandated review by the district court cannot be ineffectual. Sherman v. N.D. Workers Comp. Bureau, 1998 ND 97, ¶ 7, 578 N.W.2d 517. We must affirm the agency’s decision unless: (1) the agency’s decision is not in accordance with the law, (2) the agency’s decision violates the appellant’s constitutional rights, (3) the agency failed to comply with the provisions of N.D.C.C. ch. 28-32 during its proceedings, (4) the agency rules or procedures have not afforded the appellant a fair hearing, (5) the agency findings of fact are not supported by a preponderance of the evidence, or (6) the agency’s conclusions of law and decision are not supported by its findings of fact. N.D.C.C. §§ 28-32-19, 28-32-21; see also Singha v. N.D. State Bd. of Med. Exam’rs, 2000 ND 134, ¶ 6, 613 N.W.2d 34. Our review of the agency’s findings of fact is limited to deciding whether a reasoning mind reasonably could have determined the factual conclusions were proven by the weight of the evidence based only on the record filed with the court. Robertson v. N.D. Workers Comp. Bureau, 2000 ND 167, ¶ 8, 616 N.W.2d 844; N.D.C.C. § 28-32-19. In deciding if the agency’s findings of fact are supported by a preponderance of the evidence, we exercise restraint and do not substitute our judgment for that of the agency or make independent findings of fact. Vernon, at ¶ 8. In technical matters involving agency expertise, we acknowledge the agency decision is entitled to appreciable deference. Singha, at ¶ 7.

[¶ 11] Under N.D.C.C. § 43-12.1-14, the Board may take disciplinary action against a registered nurse.to suspend, revoke, place on probation, or refuse to issue or renew a license, or to reprimand a licensee if the nurse:

1. Has been arrested, charged, or convicted by a court, or has entered a plea of nolo contendere to a crime in any jurisdiction that relates adversely to the practice of nursing and the licensee or registrant has not demonstrated sufficient rehabilitation under section 12.1-33-02.1;
3. Has engaged in any practice inconsistent with the standards of nursing practice;
5. Is unfit or incompetent to practice nursing by reason of negligence, patterns of behavior, or other causes as established under rules adopted by the board[.]

[¶ 12] The administrative rules for disciplinary action against nurses are contained in N.D. Admin. Code § 54-02-07-01.1, which provides:

Practice inconsistent with acceptable standards of nursing practice by a licensee or registrant means behavior that may place a client or other person at risk for harm. Inconsistent practice includes incompetence by reason of negligence, patterns of behavior indicating the individual is unfit to practice nursing, as well as any of the following:
5. Practice of nursing without sufficient knowledge, skills, or nursing judgment.
6. Performance of nursing interventions in a manner inconsistent with acceptable nursing standards.

Ill

[¶ 13] Kraft appeals from the district court’s order affirming the Board’s decision, arguing (1) the Board failed to adequately discuss its findings of fact, conclusions of law, and order; (2) Kraft was not impaired at work or, alternately, if she was impaired, her employer had been forewarned and required her to work despite any impairment; (3) evidence of Kraft’s refusal to submit to a chemical test should be considered along with all other factors in determining if she came to work impaired; (4) Kraft’s conviction for simple assault is not a violation of the standards of nursing practice and does not relate adversely to nursing practice; and (5) the Board did not timely serve its order to Kraft.

A

[¶ 14] Kraft contends the Board did not adequately discuss its findings of fact, conclusions of law, and order. Although Kraft concedes the Board has a statutory prerogative to substitute its own findings and conclusions for those of the ALJ, Kraft asserts the Board’s decision still must be supported by a preponderance of the evidence. Kraft insists the Board presented a “one-sided interpretation of ... [t]he facts ... [which] are all self-serving.” Kraft insists ALJs are experts in administrative hearings and interpretation of legal standards, whereas the Board consists of nurses who may not be as impartial, due to bias or pressures that may arise in an agency, or as well versed in standards of proof.

[¶ 15] Adjudicative proceedings are governed by N.D.C.C. § 28-32-13, which provides:

1. In an adjudicative proceeding an administrative agency shall make and state concisely and explicitly its findings of fact and its separate conclusions of law, and the order of the agency based upon its findings and conclusions.
2. If the agency head, or another person authorized by the agency head or by law to issue a final order, is presiding, the order issued is the final order....
3. If [such person] ... is not presiding, then the person presiding shall issue recommended findings of fact and conclusions of law and a recommended order ... [which] become final unless specifically amended or rejected by the agency head....

On appeal, we review an agency’s findings of fact to ascertain if they are supported by a preponderance of evidence and review the agency’s conclusions of law and order to determine if they are supported by its findings of fact. N.D.C.C. § 28-32-19(5), (6). Our review of the agency’s findings of fact is limited to deciding whether a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence based only on the record filed with the court. Robertson v. N.D. Workers Comp. Bureau, 2000 ND 167, ¶ 8, 616 N.W.2d 844; N.D.C.C. § 28-32-19.

[¶ 16] As Kraft concedes, the Board has the prerogative to accept, amend, or reject an ALJ’s recommended findings, conclusions, and order. In its final order, the Board specifically incorporated by reference the ALJ’s recommendations after “[t]he evidence of the record was duly considered.” The Board determined whether each allegation in the complaint had been proved by a preponderance of the evidence. The Board accepted specific recommendations of the ALJ, as proven or disproven by a preponderance of the evidence, but rejected the ALJ’s recommended finding that Kraft was not under the influence of a chemical substance at work. In rejecting this recommendation, the Board thoroughly discussed facts presented at the hearing and concluded a preponderance of the evidence proved Kraft was chemically impaired while on nursing duty. See Robertson, 2000 ND 167, ¶ 8, 616 N.W.2d 844 (reviewing agency findings of fact based on whether a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence on the entire record).

[¶ 17] The Board discussed the reports of medical professionals regarding Kraft’s impaired condition, her refusal to submit to a chemical screening test, as well as her testimony that she periodically consumes alcohol despite her diagnosis as an alcoholic, her use of psychotropic medications, and her certification in psychiatric nursing. The Board also discussed Kraft’s denial of drinking alcohol before presenting to work, her claims of taking inhalers and cough syrup instead, and her testimony that she was “in shock” at being requested to submit to the chemical screening test. Thus, the Board’s discussion of the facts was not “one-sided”; rather, the Board exhaustively discussed the facts to support its conclusion that a preponderance of the evidence demonstrated Kraft was impaired and engaged in actions inconsistent with standards of nursing. See Vernon v. N.D. Workers Comp. Bureau, 1999 ND 153, ¶ 8, 598 N.W.2d 139 (exercising restraint and not substituting our judgment for that of the agency or making independent findings of fact, when deciding if the agency’s findings are supported by a preponderance of the evidence).

[¶ 18] Although Kraft claims the Board is composed of nurses who may not be as impartial or well versed in legal standards as the ALJ, the fact that nurses serve on the Board makes the Board better equipped to determine whether Kraft’s actions were inconsistent with standards of nursing practice. See Singha v. N.D. State Bd. of Med. Exam’rs, 2000 ND 134, ¶ 7, 613 N.W.2d 34 (affording agency decisions appreciable deference in technical matters involving agency expertise).

[¶ 19] The Board properly rejected the ALJ’s recommendations, meticulously describing its rationale in weighing the evidence. Moreover, Kraft failed to show the Board selected only evidence favorable to its decision and failed to state any basis for bias by the Board. Thus, we conclude a reasoning mind reasonably could have determined the agency’s findings were proven by the weight of the evidence.

B

[¶ 20] Kraft argues the evidence does not prove by a preponderance she was impaired at work, or alternately, if she was impaired, the medical center had been forewarned and required her to work despite any impairment. Kraft contends she has asthma and sinusitis, and she had been using inhalers and taking antibiotics and cough syrup before reporting to work on January 22, 1999. According to Kraft, the evidence of her alcohol use from the hearing testimony was equivocal, as the witnesses stated Kraft’s fruity breath could have been from alcohol or acetone. The witnesses also equivocated regarding Kraft’s behaviors, as one doctor reported Kraft’s speech was normal and she did not seem impaired, but only “giddy.” Kraft then admits that “she was not fit to work on that day due to illness.” Kraft claims she was ill, but the medical center required her to report to work although she called and requested to be excused.

[¶ 21] A preponderance of the evidence is “evidence more worthy of belief,” “the greater weight of evidence,” or “testimony that brings the greater conviction of truth.” Jimison v. N.D. Workmen’s Comp. Bureau, 331 N.W.2d 822, 824 (N.D.1983) (citations omitted). That is, the preponderance standard is met by evidence which is more convincing or of greater weight than the opposing evidence, namely, evidence which as a whole shows the fact to be proved is more probable than not. Black’s Law Dictionary 1182 (6th ed.1990). We have defined the preponderance of the evidence standard in terms of whether a reasoning mind reasonably could have determined factual conclusions reached were proved by the weight of the evidence from the entire record. Nelson v. Cass County Soc. Servs., 424 N.W.2d 371, 372 (N.D.1988).

[¶ 22] The evidence indicates all witnesses who smelled Kraft’s fruity breath on January 22, 1999 attributed the odor to either alcohol or ketoacidosis (also referred to as an odor of acetone or ketone). Testimony in the record establishes that ketoacidosis affects diabetic individuals, but Kraft admitted she is not diabetic and offered no evidence that her medications could produce such a breath odor. Two doctors and three nurses noted Kraft’s unusual behavior, and both doctors believed Kraft was sufficiently impaired to promptly suspend her employment and require chemical screening under the medical center’s policy. The same doctor who stated Kraft did not seem impaired, but only “giddy,” testified that after he passed by her and noticed the “unmistakable” odor on her breath, he determined:

[I]f you have reason to believe that someone is chemically impaired, ... you can’t let them provide care. There are ... responsibilities that we all carry, and in this situation, the one that would come to mind first would be preparing and giving injections where you’re capable of doing great harm if you’re not a hundred percent.
And — and that really, frankly, is why I pulled her off the job, is that this is — if she was, as we suspected, intoxicated, she represented a clear and present danger to the health of the patients....

See N.D. Admin. Code § 54-02-07-01.1 (indicating practice inconsistent with acceptable standards of nursing practice means behavior that may place a client or other person at risk for harm).

[¶ 23] The Board carefully discussed all the testimony by professional medical staff who observed Kraft to have a fruity odor consistent with impairment, bloodshot and dilated eyes, imbalance, mispronunciation of names, inappropriate laughter, and un-cooperativeness. Kraft admitted being diagnosed as an alcoholic and having entered treatment previously. She also acknowledged being clinically depressed and taking psychotropic medication for the depression. Nevertheless, Kraft admitted she periodically consumes alcohol. In light of her special certification in psychiatric nursing, the Board concluded Kraft knew or should have known that consuming alcohol with such medication impairs her judgment. Moreover, a physician testified none of her psychotropic medications produces an alcoholic-smelling breath.

[¶ 24] Kraft conceded in her brief she was “not fit” to work on January 22, 1999, purportedly due to her illness. Kraft contends she was required to come to work after calling her employer three times to report her illness; however, the evidence shows Kraft informed the medical center her daughter was ill, but did not mention her own illness. Kraft also informed her employer she would be at work but would merely be late as she was “working at Pediatrics and they were still seeing patients.” However, the director of the medical center stated Kraft did not work in the pediatrics clinic that day. Kraft later informed her supervisor that when she arrived at the medical center, she put patients in the rooms and counted narcotics; however, other testimony indicated no narcotics were located at the clinic.

[¶ 25] It is the agency’s responsibility to assess the credibility of witnesses and to resolve conflicts in the evidence. Blanchard, v. N.D. Workers Comp. Bureau, 1997 ND 118, ¶ 23, 565 N.W.2d 485. We conclude a reasoning mind reasonably could have made the factual determination that Kraft’s impairment at work was proven by the weight of the evidence from the entire record. This finding supports the Board’s conclusion that Kraft was engaged in practices inconsistent with the practice of nursing; was unfit or incompetent to practice nursing by reason of negligence, patterns of behavior, or other causes established by the Board; practiced nursing without sufficient knowledge, skills, or nursing judgment; and performed nursing interventions in a manner inconsistent with acceptable nursing standards. See N.D.C.C. § 43-12.1-14(3), (5); N.D. Admin. Code § 54-07-01.1(5), (6).

C

[¶ 26] Kraft argues evidence of her refusal to submit to a chemical test for alcohol screening should be considered along with all the other factors to determine if she came to work impaired, because both the ALJ and the district court concluded her refusal to take the chemical test did not constitute evidence of alcohol usage.

[¶ 27] Conversely, the Board contends the district court erred in finding Kraft’s refusal to submit to chemical testing did not violate nursing standards. The Nurse Practices Act sets out legislative public policy in a statement of legislative intent. Specifically, N.D.C.C. § 43-12.1-01 establishes the vital role nurses play in public health, thus the practice of nursing “is subject to regulation and control in the public interest to assure that qualified, competent practitioners and high quality standards are available.” The Board notes the public’s health requires the sober judgment of impairment-free nurses caring for their patients.

[¶ 28] Kraft misstates the conclusions of both the ALJ and the district court. The medical center’s policies and procedures guide, as well as its employee handbook, state the policy that “[r]efusal to submit to a drug/alcohol test shall be considered to be a positive test.” The ALJ found Kraft likely received a copy of the handbook or at least was made aware of it, so she knew or should have known about the policy regarding testing for drugs and alcohol and the results of failure or refusal to test. Kraft testified she refused the chemical testing because she believed she was not given an opportunity to explain herself; however, she admitted she did not assert an explanation at all. The ALJ concluded the medical center’s failure to completely follow its own policies and procedures regarding chemical testing, as well as the advice of Kraft’s attorney not to submit to the test, showed Kraft was not unreasonable in refusing to be tested (emphasis added). Thus, Kraft errs in stating the ALJ found her refusal to take the chemical test did not constitute evidence of alcohol usage. In fact, the ALJ stated:

Therefore, although it may have been poor overall judgment on Kraft’s part for her to have refused a test that may have exonerated her in regard to the observations made regarding her activities and behavior on January 22, 1999, it was not poor judgment specifically as to the mechanics of testing at [the medical center] — However, again, overall, Kraft used poor judgment in leaving the ER before the supervisory nurse came back to further pursue the matter of tests. Perhaps, [the medical center] would have gotten the matter straight before Kraft was tested, ie., the correct people would have been involved and Kraft tested in accordance with [the medical center’s] policy and procedure. (Emphasis added.)

The ALJ objected to the medical center’s lack of strict compliance with the testing policy, but the ALJ never stated Kraft’s refusal to submit to chemical testing did not violate nursing standards or not constitute evidence of alcohol usage.

[¶ 29] The district court agreed with the ALJ’s findings, but concluded Kraft’s refusal to submit to the chemical test did not constitute a violation of the Nurse Practices Act or grounds for discipline. However, on appeal from a district court’s review of an administrative agency’s decision, we review the agency decision, not the district court decision, while giving due respect to the reasoning of the district court. Vernon v. N.D. Workers Comp. Bureau, 1999 ND 153, ¶ 8, 598 N.W.2d 139; Sherman v. N.D. Workers Comp. Bureau, 1998 ND 97, ¶ 7, 578 N.W.2d 517. The Board thoroughly discussed the facts surrounding Kraft’s refusal to test, after two doctors believed Kraft “was sufficiently out of control to immediately prevent her from working in the health care setting and to require her to take a chemical screening test”:

F. [Kraft] was offered a chance by her employer to take a chemical screening test, as required by employer policy, to rule out any presence of alcohol or drug substances that might have caused her behavior that day, but she refused, reportedly upon the advice of her counsel.
G. The primary reason to refuse to take a chemical screening test is to avoid confirmation of the test results. [Kraft] presented no evidence to show she could not physically take such a test. Any failure of her employer to subsequently complete its own chemical screening forms perfectly does not excuse the obligation of [Kraft] to submit to the chemical screening test as required by her employer and its policy-
K. [Kraft’s] refusal to take the required chemical screening test constituted an admission under [the medical center’s] written policy that the test would have produced a positive result.
L. The belief by the ALJ in his Recommendations that [Kraft] was not given a “real opportunity” to explain her situation does not exonerate, explain nor excuse the behavior itself. Any action by [the medical center] regarding the technically ... incomplete fulfillment of its policy provisions does not bind the Board.
M. All [medical center] employees are required to take chemical screening tests when requested. The belief by [Kraft] that she was “in shock” over having been asked to take chemical screening tests she knew she could be required to take as a [medical center] employee does not excuse or justify her conduct.

[¶ 30] Because a reasoning mind reasonably could have determined the Board’s findings were proven by the weight of the evidence from the entire record, we conclude the Board did not err in considering Kraft’s refusal to submit to chemical testing as an admission of a positive result and as a violation of nursing standards. See Singha v. N.D. State Bd. of Med. Exam’rs, 2000 ND 134, ¶ 7, 613 N.W.2d 34 (deferring to agency decisions, rather than substituting our judgment for that of the agency, because it is not our function to act as a super board when reviewing decisions by an administrative agency).

D

[¶ 31] Kraft argues her conviction for simple assault does not constitute a violation of nursing standards nor relate adversely to the practice of nursing. Kraft contends neither the ALJ nor the district court found a rational relationship between the criminal behavior and her professional license. The simple assault was committed while Kraft was off duty and off hospital premises, and Kraft insists it had nothing to do with her nursing profession because she did not place any patients at risk of harm. Kraft argues one incident of alcohol usage in a non-nursing environment does not constitute a pattern of practices inconsistent with nursing standards.

[¶ 32] The Nurse Practices Act statutorily entitles the Board to suspend the license of a registered nurse who has been arrested, charged, or convicted of a crime that relates adversely to the practice of nursing and the nurse has not shown sufficient rehabilitation. N.D.C.C. § 43-12.1-14(1). Actions adverse to acceptable standards of nursing practice include behavior that may place a client or other person at risk for harm or incompetence by reason of negligence, patterns of behavior indicating the person is unfit to practice nursing, as well as practice of nursing without sufficient knowledge, skills, or nursing judgment or performing nursing interventions in a manner inconsistent with acceptable nursing standards. N.D. Admin. Code § 54-02-07-01.1(5), (6). Under the criminal code, although a person may not be disqualified to practice in a profession for which a license is required by a state agency solely because of a prior conviction of an offense, such license may be denied if the person “has not been sufficiently rehabilitated, or that the offense has a direct bearing upon a person’s ability to serve the public in the specific occupation, trade, or profession.” N.D.C.C. § 12.1-33-02.1(1). In determining whether rehabilitation is sufficient, the agency shall consider:

a. The nature of the offense and whether it has a direct bearing upon the qualifications, functions, or duties of the specific occupation, trade, or profession.
b. Information pertaining to the degree of rehabilitation of the convicted person.
c. The time elapsed since the conviction or release. Completion of a period of five years after final discharge or release from any term of probation, parole or other form of community corrections, or imprisonment, without subsequent conviction shall be deemed prima facie evidence of sufficient rehabilitation.

N.D.C.C. § 12.1-33-02.1(2).

[¶ 33] The ALJ, the district court, and the Board all agreed that Kraft’s conviction for simple assault relates adversely to the practice of nursing and she had not demonstrated sufficient rehabilitation. The evidence also showed Kraft was under the influence of alcohol at the time of her arrest. As the ALJ explained, “Although the crime of which Kraft was convicted was simple assault for domestic violence, a class B misdemeanor, it is a crime of violence of willfulness in causing bodily injury to another human being.” The district court indicated such crime is diametrically opposed to nursing, one of the healing arts. Regulatory grounds for discipline of nurses include placing not only clients or patients at a risk for harm and improper nursing practices or interventions, but also placing “other person[s]” at risk for harm or patterns of behavior indicating the person is unfit to practice nursing. See N.D. Admin. Code § 54-02-07-01.1. Thus, a crime may adversely relate to nursing even if not involving a patient or while performing nursing duties. Furthermore, the executive director of the Board testified as an expert witness that Kraft’s conviction for assault adversely relates to the practice of nursing. See Aggie Invs. GP v. Pub. Serv. Comm’n of N.D., 470 N.W.2d 805, 813 (N.D.1991) (stating courts do not substitute their judgment for that of qualified experts of an agency).

[¶ 34] Kraft’s conviction occurred less than five years before the Board’s decision in this matter. Kraft was under the influence of alcohol during the assault, was diagnosed as an alcoholic, entered treatment for alcoholism, was certified in psychiatric nursing, and yet presented to work under the influence of a chemical substance on January 22, 1999. This is not evidence of rehabilitation, but rather demonstrates a pattern of behavior indicating Kraft is unfit to practice nursing. See N.D. Admin. Code § 54-02-07-01.1.

[¶35] Because simple assault is adversely related to nursing practices and Kraft has not provided evidence of rehabilitation, we conclude the Board did not err in determining Kraft’s conviction relates adversely to the practice of nursing.

E

[¶36] Kraft argues the Board’s order was not served on Kraft in a timely manner because evidence was received, briefs were filed, and arguments were made by January 31, 2000 at the latest, which placed a deadline of March 31, 2000 for the Board to serve a copy of the final order to the parties. However, the Board did not serve the final order until about April 10, 2000, even though it was dated March 16,2000. The Board gave no explanation for this delay.

[¶87] Under N.D.C.C. § 28-32-13(3), administrative agencies are required to issue their decisions without undue delay:

If a recommended order is issued, the agency must serve a copy of any final order issued and the findings of fact and conclusions of law on which it is based upon all the parties to the proceeding within sixty days after the evidence has been received, briefs filed, and arguments closed, or as soon thereafter as possible, in the manner allowed for service under the North Dakota Rules of Civil Procedure. (Emphasis added.)

[¶ 38] Kraft’s administrative hearing was conducted on December 17, 1999, the parties concluded their post-hearing briefing on January 31, 2000, and the ALJ issued his recommended order on February 7, 2000. The Board met to review the recommended order on March 16, 2000 and accepted the ALJ’s recommendations, with several revisions, on that same date. The Board’s formal written order was prepared later, but dated March 16, 2000 to reflect the date of the Board’s actual decision. The Board served the final order to Kraft on April 10, 2000, which was within 63 days after the ALJ’s recommended order was issued.

[¶ 39] Although the Board technically did not serve the final order within 60 days, Kraft has not shown she was prejudiced by the additional time before receiving this order. We conclude the Board’s order was served timely.

IV

[¶ 40] Kraft also appeals from the district court’s denial of her motion for relief, alleging improper ex parte communications by the Board’s counsel regarding the final decision and a systemic disregard of unauthorized communications. Kraft contends the minutes of the Board’s meeting on March 16, 2000 and affidavits of the Board’s counsel and a nurse consultant to the Board provide evidence of improper ex parte communications between the Board’s counsel and the Board.

A

[¶ 41] Kraft argues the Board’s counsel participated in the hearing before the ALJ as an advocate against Kraft’s interest and then “selectively determined what the [Board] should consider and gave advice accordingly.”, Kraft notes the date of the Board’s final order is March 16, 2000, the same date as the Board’s meeting; but the hearing transcript is dated July 10, 2000. Thus, Kraft contends the Board made its decision in one day without the benefit of a transcript of the testimony, in a meeting where many other matters were also scheduled, so the Board apparently became familiar with Kraft’s case by ex parte communications with the Board’s counsel.

[¶ 42] Generally, an agency is allowed to consult with its outside counsel when reviewing a pending ALJ recommendation, unless those consultations are ex parte. Lawrence v. N.D. Workers Comp. Bureau, 2000 ND 60, ¶ 20, 608 N.W.2d 254. Such ex parte communications are addressed under N.D.C.C. § 28-32-12,1;

1. Except as provided in subsections 2 and 4 or unless required for the disposition of ex parte matters specifically authorized by another statute, an agency head or hearing officer in an adjudicative proceeding may not communicate, directly or indirectly, regarding any issue in the proceeding, while the proceeding is pending, ... with any other person allowed to participate in the proceeding, ... without notice and opportunity for all parties to participate in the communication.
3. Except as provided in subsection 4 or unless required for the disposition of ex parte matters specifically authorized by statute, no party to an adjudicative proceeding, ... no person allowed to participate in the proceeding ... may communicate directly or indirectly in connection with any issue in that proceeding, while the proceeding is pending, with any agency head or hearing officer in the proceeding without notice and opportunity for all parties to participate in the communication.
4. In an adjudicative proceeding conducted by a hearing officer other than the agency head, counsel for the administrative agency and the agency head, without notice and opportunity for all parties to participate, may communicate and consult regarding the status of the adjudicative proceeding, discovery, settlement, litigation decisions, and other matters commonly communicated between attorney and client, to permit the agency head to make informed decisions. This subsection does not apply after recommended findings of fact, conclusions of law, and orders have been issued, except counsel for the administrative agency and the agency head may communicate regarding settlement and negotiation after recommended findings of fact, conclusions of law, and orders have been issued.

[¶ 43] We considered an administrative agency’s proper use of counsel after counsel appeared at a hearing in a position adversarial to a claimant in Scott v. N.D. Workers Comp. Bureau, 1998 ND 221, ¶ 8, 587 N.W.2d 153. In Scott, the agency conceded, as a matter of general practice, outside counsel appeared at the hearing on behalf of the agency and later consulted with the agency head who would decide whether to accept or reject the ALJ’s recommendations. Id. Because outside counsel advised the agency decision-maker to reject the ALJ’s decision, and indeed drafted several versions of findings, conclusions, and orders for the agency head to review — all without notice or copies forwarded to the claimant, we concluded the ex parte contacts were improper. Id. at ¶¶ 8, 18.

[¶ 44] We have emphasized the strong policy reasons underpinning the prohibition against such ex parte communications, stating these contacts would render adversarial hearings “virtually meaningless.” Elshaug v. N.D. Workers Comp. Bureau, 2000 ND 42, ¶ 8, 607 N.W.2d 568. “It is difficult to imagine a more serious incursion on fairness than to permit the representative of one of the parties to privately communicate his [or her] recommendations to the decision makers.” Id. (emphasis added). The benchmark is these communications must be ex parte, that is, “without notice and opportunity for all parties to participate in the communication.” N.D.C.C. § 28-32-12.1.

[¶ 45] Our review of the evidence indicates the Board’s counsel testified he had a “firm belief’ he sent Kraft notice of the Board’s meeting on March 16, 2000 to discuss the ALJ’s recommendations. The Board’s counsel stated, “To the best of my[ ] knowledge, information and belief, I had sent a communication to [Kraft’s attorney] in advance of the meeting ...,” although he was unable to locate a copy of such communication. Kraft offered no evidence to the contrary. The Board meeting was open to the public, and its agenda was publicly posted outside the Board’s conference room.

[¶ 46] In the absence of any affidavits by Kraft, testifying as to the lack of notice of the Board meeting discussing the ALJ’s recommendations, we conclude the communications between the Board and the Board’s counsel did not violate N.D.C.C. § 28-82-12.1.

B

[¶ 47] Kraft contends the evidence demonstrates a systemic disregard of the statutory prohibition against improper ex parte communications because the Board’s counsel admitted in his affidavit he has been counsel for the Board since 1985 and advises the Board each time it considers recommendations of an AL J.

[¶ 48] An agency’s systemic disregard of the law may warrant reversing the agency decision to ensure the government acts consistently and predictably in accordance with the law. Greenwood v. Moore, 545 N.W.2d 790, 793 (N.D.1996). To establish systemic disregard, a party must show at least some persistent pattern of improper agency conduct, that is, evidence of a single improper act is not sufficient. Id.; see also Scott v. N.D. Workers Comp. Bureau, 1998 ND 221, ¶ 21, 587 N.W.2d 153 (finding systemic disregard when an agency conceded it routinely allowed improper ex parte communications to occur).

[¶ 49] In his affidavit, the Board’s counsel testified:

3. While meeting with the Board of Nursing on March 16, 2000, regarding this matter, and at the Board’s request, I reviewed with the Board the factual and legal procedures and the legal alternatives available to the Board in this case. Each time the Board is required to consider Recommended Findings of Fact, Conclusions of Law and Order issued by an administrative law judge in a matter pending before the Board, it is my routine practice to advise the Board accordingly....

[¶ 50] The Board’s counsel stated his “regular practice” is to invite opposing counsel to attend Board meetings in which ALJ’s recommendations will be discussed. Kraft presents no evidence to the contrary. We conclude there is no evidence of a systemic disregard of the law regarding ex parte communications between the Board decision-maker and the Board’s counsel pending final resolution of Kraft’s administrative proceeding. The trial court did not abuse its discretion in denying Kraft’s motion for relief.

V

[¶ 51] We affirm in all respects both the district court order denying Kraft’s motion for relief and the final order of the Board, suspending Kraft’s registered nurse license for one year, ordering Kraft to obtain chemical dependency and psychiatric evaluations, and assessing a $1,000 penalty.

[¶ 52] GERALD W. VANDE WALLE, C.J., and DALE V. SANDSTROM, WILLIAM A. NEUMANN and MARY MUEHLEN MARINO, JJ., concur.

      . Although the Board has not cross-appealed, an appellee for whom a favorable judgment was rendered may attempt to save the judgment by arguing, without cross-appealing, any ground asserted in the proceedings below. See Tkach v. Am. Sportsman, Inc., 316 N.W.2d 785, 787 (N.D.1982); see also N.D. Pub. Serv. Comm’n v. Jamestown Farmers Elevator, Inc., 422 N.W.2d 405, 407 (N.D.1988) (holding the administrative agency could not seek a more favorable result on appeal without cross-appealing); Ward v. Shipp, 340 N.W.2d 14, 18 n. 1 (N.D.1983) (indicating it is unnecessary for an appellee to file a cross-appeal when the judgment below is entirely favorable to the appellee, but may urge any ground asserted below).