author: KAPSNER, Justice.

text:
    2006 ND 211
    STATE of North Dakota, Plaintiff and Appellee v. Alan Daniel SEVIGNY, Defendant and Appellant.
    No. 20050315.
    Supreme Court of North Dakota.
    Oct. 17, 2006.

      Barbara L. Whelan, Special Assistant State’s Attorney, Crystal, N.D., for plaintiff and appellee.
    Jay D. Knudson, Reichert Law Office, Grand Forks, N.D., for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Alan Sevigny appeals from a criminal judgment entered after a jury found him guilty of two counts of gross sexual imposition. Sevigny claims the district court abused its discretion in excluding evidence of an alibi defense, admitting testimony about out-of-court statements of the child accusers, denying his request to alter the sequence of the State’s presentation of witnesses, and finding Sevigny’s attorney in contempt during closing arguments. We affirm.

I

[¶ 2] On November 16, 2004, seven-year-old S.J.M. engaged in a conversation with her first grade teacher, Patricia Bar-ta, while they were alone in the classroom during recess. S.J.M. told Barta about visiting her father who lived with his sister and Alan Sevigny. S.J.M. said she did not like Sevigny because he does “mean disgusting things to children,” and he did these things to her. S.J.M. also said Sev-igny tickled her. Barta asked where he tickled her and S.J.M. pointed to her lower abdomen and upper thighs. On November 23, 2004, S.J.M. again talked to Barta about visiting her father and said Sevigny did disgusting things to children. Barta asked S.J.M. if she had to take her clothes off or if Sevigny took his clothes off, and S.J.M. answered yes to both questions. S.J.M. told Barta, “Alan likes to press it against little girls.”

[¶ 3] On November 30, 2004, after S.J.M.’s allegations were reported to social services, she was taken to the Children’s Advocacy Center at MedCenter One in Bismarck. Paula Condol, a forensic interviewer, conducted a videotaped interview with S.J.M. During the interview, S.J.M. told Condol that Sevigny was only wearing a shirt and rubbed his “private part” on her “private part.” She also told Condol that another child, S.S., was in the room when this happened and that he did it to her too. S.J.M. only recalled the one incident, and said it occurred a long time ago when her father was moving into Sevigny’s house.

[¶ 4] As a result of the interview with S.J.M., on December 2, 2004, Elizabeth Suda, a licensed social worker for Pembina County Social Services, received a report that seven-year-old S.S. may have been sexually abused by Sevigny. Suda went to S.S.’s elementary school to interview her. Pembina County Sheriffs Deputy Steve Yttredahl was present during the interview and took notes. Using drawings of a female child’s body, S.S. told Suda about an incident that occurred during Christmas vacation in 2003 when she was getting ready to take a shower and Sevigny came into the bathroom and touched her vaginal area, butt, and chest. S.S. also described in detail several other occasions when Sev-igny sexually abused her, including an incident on the living room couch when Sevig-ny touched her underneath her bath towel and touched the inside of her body with his hands where she “pees and poops.” S.S. said the touches felt funny and sometimes hurt, and it would hurt when she went to the bathroom after these incidents. Suda asked if Sevigny ever asked S.S. to touch him, and S.S. used a drawing of the male body to point to where he asked her to touch him, including the penis, stomach, arm, elbow, butt, and chest. S.S. told Suda the incidents happened too many times to remember, but she believed it started when she was in kindergarten.

[¶ 5] On December 14, 2004, S.S. was taken to the MeritCare Coordinated Treatment Center in Fargo, where Brenda Martin, a forensic interviewer, conducted a videotaped interview with S.S. S.S. told Martin the incidents with Sevigny began when she was in kindergarten and said it happened “too many times for me to remember.” S.S. drew pictures to help tell Martin about an incident in the summer when she was home alone with Sevigny. She drew a picture of the layout of her house and told Martin that she was walking to her bedroom wearing only a towel after her shower and Sevigny grabbed her, pulled her on to the couch and squeezed her butt. She also said he touched her “privates,” butt, and chest, and he asked her to touch his “privates.” S.S. drew an anatomically correct picture of what Sevig-ny’s genitals looked like. After the interview, S.S. was examined by Dr. Alonna Norberg. S.S. told Dr. Norberg that Sev-igny would touch her inside where she “pees and poops” and it would often hurt afterward when she would go to the bathroom.

[¶ 6] Sevigny was arrested in December 2004, and charged with two counts of gross sexual imposition. The criminal complaint alleged Sevigny committed numerous incidents of sexual assault on S.S. between September 2003 and December 2004, and alleged Sevigny committed numerous incidents of sexual contact against S.J.M. between September 2002 and November 2004. The complaint was later amended to allege Sevigny committed numerous incidents of sexual contact against S.J.M. between August 2002 and November 2004.

[¶ 7] Before trial, the State moved for the admission of S.S. and S.J.M.’s out-of-court statements under N.D.R.Ev. 803(24). At a March 2005 hearing, Barta; Condol; Martin; Suda; Roberta Carson, S.S.’s therapist; Kyann Schneider, S.J.M.’s therapist; and S.J.M.’s mother testified about statements S.S. and S.J.M. made to them. The videotaped interviews of S.S. and S.J.M. were also played for the court. The district court granted the State’s motion to allow Barta, Condol, Martin, Suda, Carson, and Schneider to testify to S.S. and S.J.M.’s out-of-court statements. The court denied the request to permit S.J.M.’s mother to testify, finding her testimony was confusing as to the dates and times S. J.M.’s statements were made.

[¶ 8] At an April 2005 jury trial, S.S. and S.J.M. testified, but were reluctant to discuss what happened and gave limited testimony. Both girls confirmed they had been sexually abused by Sevigny, although S.S.’s testimony was very limited. The jury was shown the girls’ videotaped interviews, and Barta, Condol, Martin, Suda, Carson, and Schneider testified about the statements the girls made to them. Dr. Norberg also testified about the statements S.S. made during her examination, and based upon S.S.’s statements, Dr. Nor-berg testified with a reasonable degree of certainty that S.S. was sexually abused. During the trial, Sevigny attempted to raise an alibi defense for the dates of one of the alleged incidents with S.S. The State moved to deny admission of any alibi evidence. The court granted the State’s motion because Sevigny failed to give notice of his alibi defense under N.D.R.Crim.P. 12.1, which sets out the rules for admission of alibi evidence.

[¶ 9] The jury found Sevigny guilty on both counts of gross sexual imposition, and he received concurrent sentences of 20 years imprisonment, with 15 years suspended for the acts against S.S., and 10 years imprisonment, with 5 years suspended for the acts against S.J.M.

II

[¶ 10] Sevigny argues the district court abused its discretion in refusing to allow the introduction of his alibi evidence after finding Sevigny did not have “good cause” for failing to provide notice of his alibi defense under N.D.R.Crim.P. 12.1. Sevig-ny also claims his Due Process rights under the United States Constitution were violated because the court did not allow him to testify about his alibi.

A

[¶11] Rule 12.1(a), N.D.R.Crim.P., provides, “[a] defendant who intends to offer an alibi defense must serve written notice on the prosecuting attorney of any intended alibi defense and file the notice within the time provided for the making of pretrial motions or afterward as the court directs.” If the defendant fails to comply with the notice requirement, “the court may exclude the testimony of any undisclosed witness regarding the defendant’s alibi. This rule does not limit the defendant’s right to testify.” N.D.R.Crim.P. 12.1(e). The main purpose of the rule requiring notice of an alibi defense is to prevent surprise. State v. Flohr, 301 N.W.2d 367, 371 (N.D. 1980).

[¶ 12] A district court’s decision to exclude evidence of an alibi under N.D.R.Crim.P. 12.1 is reviewable under the abuse of discretion standard. Flohr, at 372. A court abuses its discretion if it acts unreasonably, arbitrarily, or capriciously, or if it misinterprets or misapplies the law. State v. Ramsey, 2005 ND 42, ¶ 8, 692 N.W.2d 498. When determining whether to allow alibi evidence when the notice requirements of Rule 12.1 have not been met, “a court ought to take into account, among other particulars of the case, the actual prejudice that will redound to the prosecution if the testimony is allowed and whether the defendant’s failure to inform was in good faith and for good cause.” Flohr, at 372.

[¶ 13] Sevigny argues he should have been allowed to present an alibi defense for one of the incidents S.S. claimed occurred during Christmas vacation in 2003. Sevigny claimed he was not at home during that time period because he was working as a truck driver and was out of town. However, Sevigny did not make a formal offer of proof to support his claim, and he did not provide notice of an alibi defense under N.D.R.Crim.P. 12.1(a). During cross-examination of Suda, Sevigny’s attorney questioned her about the Christmas 2003 incident, and asked, “So you’re not aware of the fact that Mr. Sevigny wasn’t home at all during Christmas vacation 2003?” The State objected to the question, and the court sustained the objection. Later, the State moved to exclude all evidence related to Sevigny’s alibi defense, arguing he did not give proper notice. Sevigny claimed he could not give proper notice because the complaint did. not charge that the abuse occurred on specific dates, and instead alleged that the acts occurred over a period of three years. Sevigny acknowledged that, during discovery, he received reports that indicated one incident occurred during Christmas vacation in 2003.

[¶ 14] The district court concluded Sev-igny failed to comply with the notice requirement of Rule 12.1, and therefore he was not entitled to present evidence of an alibi defense. The court cited State v. Vance, 537 N.W.2d 545 (N.D.1995), in which this Court said time is not an element of the offense of gross sexual imposition, and an alibi defense is not likely to be a viable defense when a defendant has had continuous access to the child because the defendant is not asserting that he was not alone with the child, but instead is challenging the credibility of the child’s testimony. Id. at 551. The district court concluded Sevigny did not have a right to an alibi defense under Vance. The court also said Sevigny had notice of the allegations for Christmas vacation in 2003 and did not have good cause for his failure to give notice of his intent to raise an alibi defense.

[¶ 15] Sevigny did not comply with the notice requirement of Rule 12.1. The district court had discretion to exclude the evidence after considering the prejudice that would occur if the evidence was allowed and whether Sevigny’s failure to give notice was for good cause or in good faith. Although Sevigny claims he had good cause because the allegations covered an extended period of time without alleging specific dates, Sevigny admitted he had received reports about the Christmas vacation 2003 incident before trial. Sevigny had notice of the alleged dates and failed to provide timely notice of his alibi evidence. We conclude the court did not act in an arbitrary, unreasonable, or unconscionable manner, and therefore did not abuse its discretion in excluding Sevigny’s alibi evidence.

B

[¶ 16] Sevigny also claims his constitutional rights were violated because he was not allowed to testify that he was not in town during , Christmas vacation in 2003.

[¶ 17] Sevigny urges this Court should adopt the holding of Alicea v. Gagnon, 675 F.2d 913, 923 (7th Cir.1982), that a defendant has a constitutional right to testify truthfully, and it is a violation of the defendant’s constitutional rights to exclude the defendant’s alibi testimony under Rule 12.1 if a defendant fails to comply with the Rule’s notice requirement. But see State v. Burroughs, 117 Wis.2d 293, 344 N.W.2d 149, 155-56 (1984) (excluding a defendant’s alibi testimony for failure to give notice does not deny the defendant the right to testify). But, we do not need to decide whether excluding a defendant’s alibi testimony is a violation of his constitutional right to testify, because in Flohr, 301 N.W.2d at 372 (citations omitted), we discussed when a court can exclude evidence for failure to give notice, and we said:

Excluding evidence can be an appropriate means for dealing with a recalcitrant defendant. An absolute bar to defendant’s evidence is of course unacceptable, but selective use of the sanction does not necessarily offend the standard fairness which the Sixth Amendment requires above all. Rule 12.1 certainly does not represent an unconditional restriction on a defendant’s ability to make out his case. The defendant is forbidden nothing, but is required only to proceed in a certain manner. The rule upholds in all cases an opportunity of the defendant himself to give alibi testimony.

We specifically said Rule 12.1 does not limit the defendant’s right to personally give alibi testimony, and therefore if the district court excluded Sevigny’s testimony about his alibi it would be error.

[¶ 18] The district court’s ruling on the alibi defense came during the trial. After the court announced its ruling, Sevigny’s attorney asked the court to reconsider its decision and allow Sevigny to testify about where he was during Christmas vacation 2003. The court said to Sevigny’s attorney, “If the testimony that you’re going to put forth is specifically I wasn’t there or he wasn’t there from this date to this date when she said, that to me is an alibi defense, I wasn’t there.” The court refused to reconsider its ruling. Based on the court’s statements about the alibi evidence, it is unclear whether the court would have allowed Sevigny to testify about his alibi. Sevigny did not attempt to give testimony about his alibi defense and there was not a court order specifically excluding Sevigny’s testimony. We conclude the court did not improperly exclude Sevigny’s testimony because Sevigny never attempted to testify about his alibi.

[¶ 19] Assuming the court’s order can be interpreted to exclude Sevig-ny’s testimony, a defendant is entitled to a fair trial, not a perfect trial. State v. Johnson, 379 N.W.2d 291, 294 (N.D.1986) (defendant entitled to fair trial). Even if we were to agree with Sevigny that the court excluded his testimony and denied his constitutional right to testify, even constitutional errors do not automatically require reversal if the error is harmless beyond a reasonable doubt. State v. Blue, 2006 ND 134, ¶ 29, 717 N.W.2d 558 (harmless error standard). “Before determining an error is harmless beyond a reasonable doubt, the court must review the entire record and determine, in light of all of the evidence, the probable effect of the alleged error upon the defendant’s rights.” Id. at ¶ 29. A federal constitutional error is harmless if we are convinced the error did not contribute to the verdict.' Id.

[¶ 20] We conclude any exclusion of Sevigny’s testimony about his alibi was harmless beyond a reasonable doubt. Sev-igny did not make an offer of proof to show that he had an alibi for the allegation of sexual assault on S.S. during the 2003 Christmas vacation. Moreover, Sevigny had continuous access to S.S. We have said that time is not an element of the offense of gross sexual imposition and an alibi defense is not likely to be a viable defense when a defendant has continuous access to a child, especially since it may be impossible to specify when an event occurred if the allegations are by a minor child. Vance, 537 N.W.2d at 551. Sevigny claimed an alibi for one incident out of several alleged incidents with S.S., and we are not persuaded his claimed alibi would necessarily have made an acquittal more likely. On this record, we conclude any exclusion of Sevigny’s testimony about his alibi is harmless beyond a reasonable doubt.

C

[¶ 21] In his reply brief, Sevigny claims his trial lawyer’s failure to provide notice of an alibi defense amounted to ineffective assistance of counsel.

[¶ 22] Ineffective assistance of counsel claims should be resolved in a post conviction proceeding “so the parties can fully develop a record on the issue of counsel’s performance and its impact on the defendant’s claim.” State v. Bertram, 2006 ND 10, ¶ 39, 708 N.W.2d 913. We will not address issues raised for the first time in an appellant’s reply brief because the reply brief is limited to issues raised in the appellee’s brief. Hendrickson v. Hendrickson, 2000 ND 1, ¶ 20, 603 N.W.2d 896. Sevigny raised this issue for the first time in his reply brief, and we will not consider it in this appeal.

Ill

[¶ 23] Sevigny argues the district court abused its discretion in admitting into evidence testimony about the children’s out-of-court statements under N.D.R.Ev. 803(24), because the evidence was insufficient in reliability of time, content, and circumstances of the statements, and the court did not make sufficient findings of fact. Sevigny also claims a violation of his Sixth Amendment right to confront his accuser.

A

[¶ 24] We review a district court’s evidentiary ruling under an abuse-of-discretion standard. Ramsey, 2005 ND 42, ¶ 8, 692 N.W.2d 498. A district court abuses its discretion when it “acts arbitrarily, capriciously, or unreasonably or if it misinterprets or misapplies the law.” Id.

[¶ 25] Testimony about a child’s out-of-court statements about sexual abuse is admissible under N.D.R.Ev. 803(24), which provides:

An out-of-court statement by a child under the age of 12 years about sexual abuse of that child or witnessed by that child is admissible as evidence (when not otherwise admissible under another hearsay exception) if:
(a) The trial court finds, after hearing upon notice in advance of the trial of the sexual abuse issue, that the time, content, and circumstances of the statement provide sufficient guarantees of trustworthiness; and
(b) The child either:
(i) Testifies at the proceedings; or
(ii) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.

Factors the court must consider when deciding whether to admit a child’s out-of-court statements are the spontaneity and consistent repetition of the statements, the mental state of the declarant, the use of terminology unexpected of a child of similar age, and a lack of a motive to fabricate. State v. Hirschkorn, 2002 ND 36, ¶ 13, 640 N.W.2d 439. “A [district] court must make explicit findings as to what evidence it relied upon regarding the factors and explain its reasons for either admitting or excluding the testimony so a defendant can be assured the required appraisal has been made.... ” Id. The court must make specific findings of fact relevant to reliability and trustworthiness and explain how the facts support the court’s conclusion of admissibility. Id. at ¶ 18. Non-detailed findings may be sufficient when there is an adequate factual basis in the offer of proof to support the court’s decision. Id. On review, we are limited to reviewing the offer of proof made during the pretrial hearing. Id.

[¶ 26] In this case, the district court made the following findings when it granted the State’s motion to admit the children’s out-of-court statements under N.D.R.Ev. 803(24):

The Court specifically finds in regards to Liz Suda that she’s a licensed social worker, that she was the first person who had contact with the minor child, S.S., that she has special training to interview children, and did not ask any leading questions that in the Court’s opinion would have led to any statements made alleging sexual contact. I find that that statement, based on those specific facts, hearsay statement, is credible.
In regard to Brenda Martins and Paula Condol, both of those women performed a videotaped interview with— each of them with one minor child. There are two minor child victims. Both of these women have done this type of work. I’m not going to go through specifically. Their credential [sic] speak for themselves, but they have special training that I reviewed the videotapes they made, and the questions they asked. The majority of those questions were not leading. Circumstances to me demonstrate sufficient guarantee of trustworthiness of the videotaped statements.
Patricia Barta is a [first] grade school teacher of the minor child S.M., the statements made to her were without any prompting whatsoever. They were unsolicited statements to her [first] grade teacher with no prompting whatsoever, and no questioning whatsoever. They were made during periods of school when the teacher was alone with the minor child S.M....
The Court would note that based on those circumstances, I find sufficient guarantees of trustworthiness and Bobby Carson and Ms. Schneider are both seeing this children [sic].
Also respectively, Ms. Carson is seeing the minor child S.S.; Ms. Schneider is seeing the minor child S.M. in a therapeutic setting. Some very minimal statements have come out to them during the therapeutic sessions, that both of these individuals have educational background and training to perform therapeutic counseling with the children. That the manner in which the statements have come out have been during a course of therapy, not within — over a course of therapy, not in the initial session. The Court finds that the questions were not leading, that there were no circumstances that would have caused the statements to be unreliable in the therapeutic session, and finds those statements to have sufficient guarantees of trustworthiness.
I don’t find the statements to be necessarily cumulative. None of them are the same person testifying repetitively to the same statement. I admit that the State omitted Deputy Yttredahl and Susan Fetch-Crockett. I don’t know what she would have testified to, but the Court would grant the motion if they were repetitive, two witnesses testifying on this date, they said this statement.
None of these witnesses are that way, and there are two children involved, so all of these witnesses are not in regard to one child, in fact, they’re fairly equally divided among the minor child S.S., and the minor child S.M.
I specifically also find that the children will be testifying at trial. That’s anticipated, as stated, and indicated in the motion by the State, and that the children are clearly under the age of 12 as required by the rule.

[¶27] While the district court could have given a more detailed explanation of its decision, its findings are adequate and there is sufficient information from the pretrial hearing to support the court’s decision. The court heard testimony from each of the individuals the children made the statements to, and the court viewed the children’s videotaped interviews. Suda, Martin, Condol, Carson, and Schneider each gave extensive testimony on their training and the methods they use to question children about sexual abuse. Each individual testified to when the statements took place, what the environment was like during the questioning, who was present, what type of questions the girls were asked, whether the questions were leading, and how many times the girls had been interviewed. The children’s statements to the witnesses were consistent, although both children were very reluctant to discuss the abuse. Both children used pictures to aid the discussion during the forensic interviews. S.S. used drawings to help facilitate the discussion, including drawing the layout of her house and where people were when one incident occurred. S.S. drew an accurate picture of the male anatomy, which is not expected from a seven-year-old. There was also no evidence of any motive to fabricate these stories. The court had sufficient information to assess the reliability of the out-of-court statements. We conclude the district court did not abuse its discretion in admitting the State’s motion to admit the children’s out-of-court statements.

B

[¶ 28] Sevigny also argues his Sixth Amendment right to confront his accuser was violated. Our standard of review for violations of constitutional rights is de novo. State v. Messner, 1998 ND 151, ¶ 8, 583 N.W.2d 109.

[¶ 29] In Blue, 2006 ND 134, ¶7, 717 N.W.2d 558, we clarified when a witness testifying to a child’s out-of-court statements about sexual abuse violates a defendant’s constitutional right to confront his accuser. We held an out-of-court testimonial statement may not be admitted into evidence when the child is unavailable to testify unless the defendant has had an opportunity to cross-examine the child. Id. at ¶ 8. We also said,

If a defendant has an opportunity to cross-examine the witness at trial, the admission of testimonial statements would not violate the Confrontation Clause. The core constitutional problem is eliminated when there is confrontation. Crawford makes clear that, “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.... ”

Id. at ¶ 23 (citations omitted) (quoting Crawford v. Washington, 541 U.S. 36, 59-60 n. 9, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). In this case, S.S. and S.J.M. both testified at the trial and Sevigny had the opportunity to cross-examine both children. We conclude Sevigny’s Sixth Amendment rights were not violated.

IV.

[¶ 30] Sevigny argues the district court abused its discretion in denying his request to require S.S. and S.J.M. to testify before the State’s other witnesses. He claims it was highly prejudicial for other witnesses to give testimony about S.S. and S.M.J.’s out-of-court statements before the children testified.

[¶ 31] Under N.D.R.Ev. 611(a), the court shall “exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.” The court is given “wide discretion over the mode and order of interrogating witnesses and presenting evidence, and the [district] court’s rulings in that respect will not be disturbed on appeal unless the record establishes that the discretion was abused to the prejudice of the complainant.” Graber v. Engstrom, 384 N.W.2d 307, 311 (N.D.1986).

[¶ 32] Sevigny asked the court to require the children to testify first in order to eliminate any taint or prejudice the jury may have if it heard the children’s out-of-court statements first. He argued that the children must testify in order to admit the out-of-court statements under N.D.R.Ev. 803(24), and therefore the court should have required them to testify first. The district court balanced Sevigny’s rights and the State’s rights to choose the order in which it presented its witnesses, and concluded Rule 803(24) does not require a child to testify first. The court said Sevigny would be entitled to an acquittal if the child witnesses did not testify, which was sufficient to satisfy Sevigny’s concerns.

[¶ 33] Sevigny alleges he was prejudiced because the jury heard the children’s out-of-court statements before it heard the children’s testimony. Sevigny claims the State’s presentation of evidence was highly prejudicial because the children’s testimony was confusing and hardly incriminating, and the jury would have had a different picture of the events if the children had testified first. Sevigny does not explain how the sequence of testimony would have changed the outcome of the trial. The jury heard the children’s testimony and Sevigny had the opportunity to cross-examine the children. The children’s testimony, particularly S.J.M.’s testimony, confirmed what the jury heard from the other witnesses. We conclude the court did not abuse its discretion in denying Sevigny’s request.

V

[¶ 34] Sevigny claims the district court abused its discretion in finding his attorney in contempt of court in the presence of the jury. He argues the court erred in concluding an attorney may not give his opinion about evidence during closing argument, but admits his attorney continued to state his opinion after the court warned his attorney that he was not allowed to state his personal opinion in his argument. Sevigny claims the court’s finding of contempt in front of the jury had a prejudicial effect on the jury, and should have been done at a sidebar or out of the presence of the jury.

[¶ 35] During Sevigny’s closing argument, the State objected on numerous occasions. The State first objected after Sevigny’s attorney addressed two members of the jury by name, arguing it is improper to personally address the members of the jury. The court sustained the State’s objection. The State objected after Sevigny’s attorney said, “I have watched several videos of people being interviewed, even children in situations like this. I have never seen ... a worse — ” The court sustained that objection and advised the jury that information from the attorney’s personal background are not facts that are in evidence. The State raised a third objection after Sevigny’s attorney told the jury the State had complete access to S.S. before trial. The court sustained that objection, concluding the attorney was arguing facts not in evidence. The State objected a fourth time, after Sevigny’s attorney told the jury he was not allowed to interview S.S. in a normal manner. The State objected a fifth time, after Sevigny’s attorney said:

And then I asked him if he did any of these acts that he was charged with or if he had any idea of what they were talking about as far as the incidences. And [Sevigny] gave the expected answer; “No.” But I think it was sincere. I think it was a sincere answer—

The court sustained the objection and warned the attorney that he could not voice his personal opinion. Later, Sevig-ny’s attorney said:

He was upset that his daughter hadn’t seen her mother. And upset that he had to go through this whole process and not just the trial when he swore to you that he hadn’t done any of these acts.
I can’t tell you what I think or the Judge will probably rap me again—

The court warned Sevigny’s attorney he would be held in contempt if he continued to mention his personal opinion or his disagreement with the court. After receiving the judge’s warning, Sevigny’s attorney said, “The conduct of social service toward Cheryl and toward S.[SJ I believe borders on abuse.” The judge asked the attorney if he said that he believes it borders on abuse and the attorney said yes, “That’s my belief. That’s my belief.” The judge held Sevigny’s attorney in contempt and fined him $500.

[¶ 36] Section 27-10-01.1(1), N.D.C.C., defines contempt of court as:

a. Intentional misconduct in the presence of the court which interferes with the court proceeding or with the administration of justice, or which impairs the respect due the court;
c. Intentional disobedience, resistance, or obstruction of the authority, process, or order of a court....

“The ultimate determination of whether a contempt has been committed is within the [district] court’s sound discretion[,]” and the court’s decision will not be overturned unless there is a plain abuse of discretion. City of Grand Forks v. Dohman, 552 N.W.2d 69, 70 (N.D.1996). We will not find a court abused its discretion “ ‘if the decision is the product of a rational mental process in which the facts and law are stated and are considered together for the purpose of achieving a reasoned and reasonable determination.’ ” Id. at 70-71 (quoting Gissel v. Kenmare Twp., 512 N.W.2d 470, 473 (N.D.1994)).

[¶ 37] Intentional disobedience of a court order constitutes contempt, and absent a showing that an order is transparently invalid or frivolous, the order must be obeyed until stayed or reversed by orderly review. State v. Zahn, 1997 ND 65, ¶¶ 12-14, 562 N.W.2d 737. The court ordered Sevigny’s attorney not to give his personal belief during his closing argument, and the order was not transparently invalid or frivolous. See State v. Clark, 2004 ND 85, ¶ 9, 678 N.W.2d 765 (prosecutor may not create evidence by argument or by incorporating personal beliefs into closing argument). Sevigny’s attorney did not obey the court’s order and the intentional failure to obey the court’s order constitutes contempt. The court warned Sevigny’s attorney that if he continued disobeying its order to refrain from giving his personal opinion he would be held in contempt. After the attorney intentionally disregarded the court’s order, the court found him in contempt. We conclude the district court did not abuse its discretion in finding Sevigny’s attorney in contempt of court.

[¶ 38] Sevigny claims the court should not have found his attorney in contempt in front of the jury because it had a prejudicial effect on the jury. While we recognize that it is preferable for the court to discuss the attorney’s behavior out of the presence of the jury, the court must stop any disrespectful behavior, and when previous warnings fail to work, we cannot conclude the court abused its discretion by finding the attorney in contempt in front of the jury. Any prejudicial effect the court’s order may have had can ordinarily be cured with an instruction to the jury that the attorney’s sanction should in no way affect the jury’s consideration of the evidence or of whether the state has met its burden of proof. See, e.g., State v. Conroy, 194 Conn. 623, 484 A.2d 448, 454 (1984); People v. Fox, 177 Ill.App.3d 602, 126 Ill. Dec. 787, 532 N.E.2d 472, 479 (1988); People v. Williams, 162 Mich.App. 542, 414 N.W.2d 139, 141 (1987). Although the district court did not give the jury a curative instruction, Sevigny does not explain how the court’s contempt decision prejudiced the jury against him. Sevigny’s attorney was found in contempt during the closing argument and the court’s decision did not limit the presentation of evidence. We conclude Sevigny was not prejudiced by the court’s decision to find his attorney in contempt in front of the jury.

VI

[¶ 39] We conclude the district court did not abuse its discretion in excluding evidence of Sevigny’s alibi defense, admitting testimony about the out-of-court statements of the child accusers, denying Sevig-ny’s request to change the sequence of the State’s witnesses at trial, and finding Sev-igny’s attorney in contempt during closing arguments. We affirm the judgment.

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


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2006 ND 216
    Werner RUMMER, f.k.a. Werner Kunkel, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
    No. 20050341.
    Supreme Court of North Dakota.
    Oct. 17, 2006.
    Rehearing Denied Nov. 7, 2006.

      Douglas Leo Broden, Devils Lake, N.D., for petitioner and appellant.
    Lonnie Olson, State’s Attorney, Devils Lake, N.D., for respondent and appellee.
   MARING, Justice.

[¶ 1] Werner Rümmer, formerly known as Werner Kunkel, appealed from a district court judgment denying his petition for post-conviction relief. We conclude Rümmer has failed to establish his trial counsel was ineffective, failed to establish the State withheld potentially exculpatory evidence, and failed to establish the State violated his rights under the Vienna Convention on Consular Relations. We affirm.

I

[¶ 2] In 1995, a jury found Rümmer guilty of murdering Gilbert Fassett in Ramsey County. Fassett’s body had been found in August 1986 in a wooded area on the Fort Totten Indian reservation. Fas-sett had been stabbed more than one hundred times. On direct appeal to this Court, Rümmer argued the State presented insufficient evidence to sustain the jury’s verdict, claiming the verdict was unsupported by physical evidence or eyewitness testimony and the existing physical evidence pointed to his innocence. State v. Kunkel, 548 N.W.2d 773, 773 (N.D. 1996).

[¶ 3] This Court, reviewing the evidence in the light most favorable to the verdict, concluded the jury could reasonably have found:

Kunkel and Fassett were together for a significant amount of time on August 1, 1986, the last day Fassett was seen alive; Fassett was carrying a great deal of money that day; when last seen alive around 10:30 p.m. on August 1, Fassett was with Kunkel; Kunkel was nervous and behaving strangely at the time; Fassett probably died sometime in the late evening of August 1 or early morning of August 2.

Id. at 773-74. This Court also concluded that the record clearly demonstrated Rüm-mer made several admissions implicating himself in Fassett’s killing:

Christopher Anderson testified Kunkel showed him a ring that belonged to Fas-sett, and said “You see this? You’re going to get the same thing that Gilbert got.” Mark Demarce testified that Kunkel admitted he killed and mutilated Fassett and dumped Fassett’s body on the Fort Totten reservation. Sandra Austin testified that Kunkel admitted “stabbing [Fassett] over and over and over and over.” Rodney Maier and Shelley Rutten testified that Kunkel admitted fighting with Fassett and said “the better man won.” Nicholas Elston testified that Kunkel admitted stabbing Fas-sett with the help of a third person. Fred Nakken testified that Kunkel admitted holding Fassett while a third person stabbed Fassett.

Id. at 774.

[¶ 4] In affirming Rümmer’s conviction, we concluded there was substantial competent evidence to support the jury’s verdict finding him guilty of murder and that substantial evidence supported the jury’s finding Rümmer murdered Fassett in Ramsey County. Id. at 774.

[¶ 5] During Rümmer’s trial, the State presented the testimony of Dr. Roel Gallo, a pathologist who performed Fassett’s autopsy. Dr. Gallo testified that based upon his observations of the body’s decomposition, Fassett’s death occurred at least seven or eight days before being found. The State also presented the testimony of Dr. Omer Larson, a zoology professor at the University of North Dakota, who specialized in parasitology and entomology. Dr. Larson testified that maggots removed from the body during the autopsy on August 11, 1986, were between nine and ten days old, which placed the date of larvae colonization of Fassett’s body on either August 1 or August 2,1986.

[¶ 6] Thereafter, Rümmer sought post-conviction relief under N.D.C.C. ch. 29-32.1. At a hearing on his petition, Rümmer presented the expert testimony of Dr. Neil Haskell, a forensic entomologist. Dr. Has-kell testified that Fassett likely died between sunrise on August 3, and sunset on August 6, 1986. The State again called Dr. Larson to rebut the testimony of Dr. Haskell. Rümmer also presented the testimony of four additional witnesses, claiming they established an alibi for him during the time period when Dr. Haskell determined Fassett had died. Rümmer also presented testimony relating to his German citizenship fi;om a representative of the German Consulate in Chicago.

[¶ 7] The district court denied Rüm-mer’s application for post-conviction relief and Rümmer appeals.

II

[¶ 8] Rümmer argues that he had ineffective assistance of trial counsel.

[¶ 9] Post-conviction relief proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure. Flanagan v. State, 2006 ND 76, ¶ 9, 712 N.W.2d 602. The issue of ineffective assistance of counsel is a mixed question of law and fact and is fully reviewable on appeal. Klose v. State, 2005 ND 192, ¶ 10, 705 N.W.2d 809. The district court’s findings of fact in a post-conviction proceeding will not be disturbed on appeal unless clearly erroneous under N.D.R.Civ.P. 52(a). Laib v. State, 2005 ND 187, ¶ 11, 705 N.W.2d 845.

[¶ 10] The petitioner has the burden of establishing grounds for post-conviction relief. Flanagan, 2006 ND 76, ¶ 10, 712 N.W.2d 602; State v. Steen, 2004 ND 228, ¶ 9, 690 N.W.2d 239. In order to prevail on a post-conviction claim for ineffective assistance of counsel, we have explained the petitioner carries a “heavy burden”:

The Sixth Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment, and Article I, § 12 of the North Dakota Constitution guarantee a criminal defendant effective assistance of counsel. In accord with the test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 ..., a defendant claiming ineffective assistance of counsel has a heavy burden of proving (1) counsel’s representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by counsel’s deficient performance. “Effectiveness of counsel is measured by an ‘objective standard of reasonableness’ considering ‘prevailing professional norms.’ ” The defendant must first overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Trial counsel’s conduct is presumed to be reasonable and courts consciously attempt to limit the distorting effect of hindsight.
The prejudice element requires a defendant to “establish a reasonable probability that, but for his counsel’s errors, the result of the proceeding would have been different.” Not only does a criminal defendant have “the heavy, demanding burden of proving counsel’s assistance was ineffective,” a defendant claiming ineffective assistance of counsel “must specify how and where trial counsel was incompetent and the probable different result.” A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”

Flanagan, at ¶ 10 (quoting Heckelsmiller v. State, 2004 ND 191, ¶¶ 3-4, 687 N.W.2d 454 (citations omitted)). We use the same Strickland test to assess ineffective assistance of counsel claims under the state constitution. Flanagan, at ¶ 11 (citing Woehlhoff v. State, 487 N.W.2d 16, 17 (N.D.1992)).

[¶ 11] Rümmer argues his trial counsel was ineffective in failing to adequately investigate various scientific evidence. Rümmer asserts trial counsel inadequately investigated forensic entomological evidence offered by the State to establish the time of Fassett’s death and counsel was inadequately prepared to meet that evidence at trial. Rümmer also argues trial counsel inadequately investigated scientific evidence offered by the State to show that a fire in the defendant’s car occurring several years after the crime was intentionally set and counsel was inadequately prepared to meet that evidence at trial.

[¶ 12] “A defendant must offer evidence that any additional witnesses would have aided the defense’s claim.” Damron v. State, 2003 ND 102, ¶ 16, 663 N.W.2d 650. We do not second guess matters of trial tactics on appeal, such as whether to call a certain witness. Sayler v. State, 2005 ND 166, ¶ 10, 704 N.W.2d 559; Mathre v. State, 2000 ND 201, ¶ 7, 619 N.W.2d 627. Strategic choices by trial counsel “made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable”. State v. Schlickenmayer, 364 N.W.2d 108, 112 (N.D.1985) (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052).

[¶ 13] “This Court’s role is not to superimpose our collective judgment upon that of a trial counsel on a tactical decision as to whether a witness should testify.” Sayler, at ¶ 10; Smith v. Woodley, 164 N.W.2d 594, 598 (N.D.1969). A trial counsel’s failure to have a critical witness testify, coupled with other errors by trial counsel, may result in ineffective assistance of counsel. Sayler, at ¶ 10; Heckelsmiller, 2004 ND 191, ¶¶ 11-12, 687 N.W.2d 454 (2004). In a case premised on ineffective assistance of counsel, the challenger must identify with specificity or particularity how and where the trial counsel was incompetent and the probable different result. State v. Wolf, 347 N.W.2d 573, 575 (N.D.1984). In the absence of a specific showing, we are compelled to reject the contention that trial counsel acted incompetently. Id. at 575.

[¶ 14] In this case, the district court found:

Trial counsel’s strategy to minimize the methodology of dating the time of death as anything but science was an appropriate strategy among other alternatives in light of all of the other evidence presented. Even though another attorney may have chosen a different strategy ..., the strategy used by trial counsel was not a strategy that was below minimal standards.

The court found any failure to further investigate the evidentiary issue and then to bring forward testimony of an independent forensic entomologist and follow-up alibi witnesses would not have avoided other substantial evidence, including Rummer’s confessions and admissions against interest testified to by other witnesses, as well as the testimony by Dr. Gallo. The court thoroughly examined the testimony regarding Riimmer’s confessions and statements against interest, finding the common thread that tied them together was that Riimmer admitted to killing or participating in Fassett’s homicide with details accurately depicting the circumstances or corroborating events surrounding the murder. The court specifically found that “[t]he evidence of these confessions in the context of other evidence presented was far more damaging to the defendant than other evidence presented ■ including that of Doctor Larson.” The court found that, in addition to the testimony provided by Dr. Gallo and Dr. Larson, other evidence also supported an inference that Fassett was killed prior to the time frame suggested by Dr. Has-kell.

[¶ 15] From our review of the record, wé conclude Riimmer’s trial counsel’s representation did not fall below an objective standard of reasonableness and Rümmer has simply not demonstrated the testimony of any of his proposed additional witnesses would have changed the result in his criminal trial. Rümmer was not prejudiced by counsel’s alleged deficient performance and he has failed to establish ineffective assistance of counsel based upon a failure to investigate.

[¶ 16] Rümmer argues his trial counsel was ineffective in failing to object to evidence offered by the State to show that Fassett did not die where the body was found because the witness offering the testimony was not an expert qualified to give that opinion. Testimony by a law enforcement officer at trial stated that in his opinion Fassett’s body was dragged to the place where it was found and that Fassett was killed at another location.

[¶ 17] In Falcon v. State, 1997 ND 200, ¶¶ 24-25, 570 N.W.2d 719, this Court, in the context of N.D.R.Ev. 803(2), concluded that because the post-conviction court properly determined evidence would have been admissible over an objection, had one been made, the petitioner was not provided ineffective assistance of counsel.

[¶ 18] Here, the district court found that if there had been an objection under N.D.R.Ev. 702, the court would have “easily concluded” the witness had the expertise and qualifications to testify by way of his experience and training. The court found that it was even likely the witness would have been qualified to testify through lay opinion, and that, in any event, under the circumstances and foundation established for the opinions rendered, trial counsel’s failure to object was not deficient and did not fall below an objective standard of reasonableness. The court further stated,

Even if it may be concluded that the failure on the part of trial counsel to retain the expertise of a forensic entomologist to investigate and to testify at trial, to object to the [expert witness testimony that a fire in Rummer’s car was intentionally set], or to object to the testimony [that Fassett had been killed somewhere else and his body moved], was somehow deficient either individually or together so as to fall below an objective standard of reasonableness, the failure would still not have established prejudice to [Riimmer].

[¶ 19] We agree there is no reasonable probability that but for any claimed errors, and the new evidence offered, the result of these proceedings would have been different. Based upon our review of the record, we conclude Riimmer has not demonstrated his trial counsel provided ineffective assistance of counsel.

Ill

[¶ 20] Riimmer argues he is entitled to a new trial because the State withheld potentially exculpatory evidence which was in its possession. Riimmer asserts the State failed to provide evidence relating to a sworn statement of an individual who had overheard a conversation indicating Fassett had been killed by a law enforcement officer.

[IT 21] “In Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)], the United States Supreme Court held that suppression by the prosecution of evidence favorable to an accused violates due process if the evidence is material to guilt or punishment.” Syvertson v. State, 2005 ND 128, ¶ 6, 699 N.W.2d 855 (quoting City of Grand Forks v. Ramstad, 2003 ND 41, ¶ 9, 658 N.W.2d 731). To establish a Brady violation, the defendant must prove: “(1) the government possessed evidence favorable to the defendant; (2) the defendant did not possess the evidence and could not have obtained it with reasonable diligence; (3) the prosecution suppressed the evidence; and (4) a reasonable probability exists that the outcome of the proceedings would have been different if the evidence had been disclosed.” Syvertson, at ¶ 6 (quoting State v. Goulet, 1999 ND 80, ¶ 15, 593 N.W.2d 345).

[¶ 22] The district court found that the sworn statement was hearsay, speculative, and lacked credibility, particularly in terms of detail. The court further found that even without disclosure of the statement, the underlying claim that Fassett had been killed by another person was well known, and the defendant and his trial counsel were aware of the rumors relating to this allegation. Exhibits and police reports containing variations of the claim had been provided to Riimmer prior to trial. The court found the additional sworn statement made by an individual in an earlier and unrelated proceeding would not have made any probable difference in the outcome of the case.

[¶ 23] We agree with the findings and analysis of the district court on this issue. Riimmer has failed to establish the initial element of a Brady violation in that the sworn statement would have been favorable to Riimmer considering what had already been provided and was known at the time of trial. Further, we conclude the outcome of the proceedings would not have been different even if the evidence had been disclosed. We conclude Riimmer failed to establish a Brady violation.

IV

[¶ 24] Riimmer argues the State violated his rights as a German national to have the assistance of the German Consulate General as provided by Article 36 of the Vienna Convention on Consular Relations.

[¶ 25] Relying on Breard v. Greene, 523 U.S. 371, 377, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998), the district court found Riimmer had failed to meet his burden that he had been prejudiced by not being given notice of his rights under Article 36 of the Vienna Convention. Specifically, the district court found that Riimmer had been raised and educated in the United States and in North Dakota since his early childhood and was fluent in English, that Riimmer was familiar with the North Dakota criminal court system based upon his many prior criminal convictions and prosecutions, that Riimmer had already been assigned legal counsel and was not denied access to legal advice or assistance, that none of the services or benefits which could have been provided by the German consulate were relevant to Riimmer’s circumstances, and that the absence of the services demonstrated no prejudice to Riimmer. The court also questioned Riim-mer’s credibility on this issue because he was the only one who actually knew he was a foreign national. The court concluded Riimmer should not be allowed to gain by his failure to disclose his status as a foreign national until post-trial, post-conviction, and post-appeal.

[¶ 26] In Sanchez-Llamas v. Oregon, — U.S.-, 126 S.Ct. 2669, 165 L.Ed.2d 557 (2006), the United States Supreme Court recently addressed a similar situation under the Vienna Convention on Consular Relations. In Sanchez-Llamas, one of the petitioners was a Honduran national who was arrested and charged with murder; however, police never informed him that he could request the Honduran Consulate be notified of his detention. Id. at 2676-77. The Honduran national was ultimately convicted and sentenced to prison in state court, and his conviction and sentence were affirmed on appeal. Id. The Honduran national then filed a habeas petition in Virginia state court arguing for the first time that authorities had violated his Article 36 right to consular notification. Id. The state court dismissed his claim as procedurally barred because he had failed to raise it at trial or on appeal, and the Supreme Court of Virginia found no reversible error. Id.

[¶27] The Supreme Court declined to address whether Article 36 of the Vienna Convention granted enforceable rights that may be invoked by individuals in judicial proceedings. Id. at 2677-78. However, the Supreme Court concluded, even assuming the Convention creates judicially enforceable rights, a State may apply its regular rules of procedural default to Article 36 claims. Id. at 2674, 2687. The Supreme Court stated that the petitioner “asks us to require the States to hear Vienna Convention claims raised for the first time in state postconviction proceedings. Given that the Convention itself imposes no such requirement, we do not perceive any grounds for us to revise state procedural rules in this fashion.” Id. at 2687 (emphasis in original). The Supreme Court concluded, “as [it] did in Breard, [523 U.S. 371, 118 S.Ct. 1352 (1998),] that claims under Article 36 of the Vienna Convention may be subjected to the same procedural fault rules that apply generally to other federal-law claims.” Sanchez-Llamas, at 2687.

[¶ 28] We have previously stated, “ ‘Issues not raised by an applicant for post-conviction relief during the criminal trial, sentencing, on direct appeal, or in prior applications for post-conviction relief are properly dismissed for abuse of process, absent any showing of excuse for failure to timely raise such issues.’ ” Roth v. State, 2006 ND 106, ¶ 8, 713 N.W.2d 513 (quoting Greybull v. State, 2004 ND 116, ¶ 5, 680 N.W.2d 254). Rümmer did not raise his claims under Article 36 of the Vienna Convention in his prior criminal trial, or in his previous direct appeal. See Kunkel, 548 N.W.2d 773. Rümmer is, therefore, precluded from raising this issue in his post-conviction proceeding.

[¶ 29] We hold that Rümmer’s failure to raise this issue in his prior criminal proceedings bars raising the issue in his subsequent post-conviction relief proceeding.

V

[¶ 30] We have considered the remaining issues and arguments raised by Rüm-mer. They are either without merit or unnecessary to our decision. The district court judgment denying Rümmer’s application for post-conviction relief is affirmed.

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


author: MARING, Justice. SANDSTROM, Justice,

text:
    2006 ND 208
    Lynette FORBES, Claimant and Appellant, v. WORKFORCE SAFETY AND INSURANCE FUND, Appellee, and Mercy Medical Center, Respondent.
    No. 20050431.
    Supreme Court of North Dakota.
    Oct. 17, 2006.

      Stephen D. Little, Dietz & Little Lawyers, Bismarck, N.D., for claimant and appellant.
    Lawrence E. King, Special Assistant Attorney General, Bismarck, N.D., for appel-lee.
   MARING, Justice.

[¶ 1] Lynette Forbes appealed from a district court judgment affirming a Workforce Safety and Insurance (“WSI”) order terminating her future disability and medical benefits and ordering her to repay previously paid disability and medical benefits. We affirm in part, concluding a reasoning mind could reasonably have found by a preponderance of the evidence that Forbes made intentional and material false statements, which caused her doctors to remove her from work and resulted in payment by WSI of disability benefits pri- or to her surgery on April 29, 2003. We affirm WSI’s order requiring Forbes to forfeit all future benefits and to reimburse WSI for disability benefits paid up to April 29, 2003. However, we reverse those parts of the WSI order which require Forbes to reimburse WSI for disability benefits after April 29, 2003 and for all of her medical benefits paid by WSI after her work injury.

I

[¶ 2] In August 2002, Forbes submitted a claim to WSI for workers’ compensation benefits, reporting injuries to her low back, neck, left arm, and head sustained during the course of her employment at Mercy Medical Center as an operating room nurse. Forbes reported the injury occurred on August 13, 2002, indicating she injured herself while holding a camera for a surgical procedure. Forbes also filled out an incident report as required by her employer. WSI accepted Forbes’ claim, and Forbes began receiving disability and medical benefits.

[¶ 3] At the time of her August 2002 claim, Forbes also completed a prior injury questionnaire. On the questionnaire, Forbes was asked whether she had previously had any health problems or injuries to the portions of her body injured during the work incident. At that time, Forbes did not disclose a previous injury from July 2002. Almost a year later, Forbes submitted additional incident reports to her employer, claiming she wrenched her lower back while assisting a patient in July 2002, and she incurred pain in her neck while attempting to keep an x-ray machine from tipping in September 2002. In 2003, WSI conducted an investigation of whether Forbes had made false statements and misrepresentations regarding her physical condition, capabilities, and activities, and whether she had failed to report work activities and earned income.

[¶ 4] On January 20, 2004, WSI issued a notice of intention to discontinue benefits, informing Forbes she had violated N.D.C.C. § 65-05-33 relating to penalties for false claims or false statements in connection with a claim for WSI benefits. The notice said Forbes was not entitled to any further benefits after February 10, 2004, and previously paid disability benefits and medical benefits had been erroneously paid on the basis of her false statements, resulting in an overpayment. Forbes requested reconsideration.

[¶ 5] In a March 11, 2004, order on reconsideration, WSI found Forbes’ willful false statements had caused the erroneous payment of $20,438.55 in disability payments and $31,982.81 in medical benefits. WSI ordered that Forbes forfeit all future benefits on her claim after February 10, 2004, including medical, disability, vocational rehabilitation, and permanent partial impairment benefits. WSI further ordered Forbes to repay $52,421.36 for disability and medical benefits provided to her between September 13, 2002, and September 23, 2003.

[¶ 6] Forbes requested a rehearing, and an administrative hearing was held before an administrative law judge (“ALJ”). The ALJ issued recommended findings of fact, conclusions of law, and order. WSI adopted the recommended findings of fact, conclusions of law, and order.

[¶ 7] WSI found Forbes willfully failed to report earnings from physical examinations conducted for Portamedic from August 2002 to August 2003, and during that period, she also falsely stated to WSI that she was not working nor receiving income. WSI found Forbes did not report income she had received from her sales of Mary Kay-products, or $5,000 she had received from a doctor to start her Mary Kay business. WSI further found Forbes had willfully misrepresented her physical condition to her medical providers and her employer, resulting in her removal from work and in payment by WSI of benefits.

[¶ 8] WSI also found that despite numerous reports to her doctors of pain in her neck and back, including soreness, stiffness, and tingling, Forbes continued traveling to provide insurance physicals and even engaged in strenuous physical exercise, including weight-lifting, walking, and attending yoga and “trim and tone” classes. WSI found her significant physical activities were juxtaposed in time with reports to her doctors of pain and difficulty doing even simple tasks, such as washing dishes, peeling potatoes, putting on makeup, curling her hair, and stirring food. Specifically, WSI found:

2. On August 16, Ms. Forbes saw Dr. Wiens. She complained of being stiff and sore, with tingling in her arms. Dr. Wiens diagnosed muscle spasms of the neck and back, gave her some VIOXX, and thought she could continue to work. On August 19, 2002, he removed Ms. Forbes from work until August 21. Ms. Forbes however continued to conduct insurance physicals for Por-tamedic and did so on or about August 21, 2002. The next day, Ms. Forbes reported to Harry Wallner, her physical therapist, that she had been unable to work the last couple of days.
5.- On November 19, 2002, Ms. Forbes presented for follow-up of her neck pain. She said she had persistent neck pain radiating into her right arm and achiness in the left arm with numbness of the 4th and 5th digits of her left hand. She was diagnosed with neck pain, C5, C6 posterior disk bulge, pos-terolateral disc protrusion and small posterior osteophyte at C6, C7 and was taken off work “secondary to her pain.” She was referred to physical therapy and Dr. Arazi. During November, and while removed from work, she continued to perform insurance physicals for Por-tamedic.
9. On January 3, 2003, Ms. Forbes followed up with Dr. Nielsen and complained that she was going through physical therapy and now “her symptoms basically went back to Square One.” Dr. Nielsen continued her removal from work. That same day, Ms. Forbes attended the Healthy Hearts Wellness Center, exercising in the weight room. On January 13, 2003, Ms. Forbes followed up with Dr. Arazi, and complained that her symptoms were getting worse. She complained that she had difficulty doing dishes, peeling potatoes, putting on her makeup, curling her hair, and stirring. Upon examination, she had pain on hyperextension of the neck. Dr. Arazi noted that “[s]inee the patient’s symptoms appear to have gotten worse, I am not quite sure what to do at this point.” He removed Ms. Forbes from work indefinitely and considered a referral to Mayo Clinic. Dr. Arazi agrees that he removed her from work based upon Ms. Forbes’ representations to him regarding her inabilities.
10. On the other hand, while Ms. Forbes was complaining to her doctors and employer that her symptoms were getting worse and that she had difficulty brushing her teeth, talking on the phone, doing dishes, peeling potatoes, putting on her makeup, curling her hair, etc., she was also attending the Healthy Hearts Wellness Center, lifting weights, walking and attending yoga and trim and tone classes. On January 23, 27, and 29, she attended both classes.
11.Connie Wold, manager of the Healthy Hearts Wellness Center and instructor, taught both the yoga and trim and tone classes. She had occasion to observe Ms. Forbes in class. She stated that the yoga class was very tough and the positions are challenging. She testified that Ms. Forbes always does the advanced moves, not the modified positions. Ms. Wold regularly includes a Plank pose in the yoga class. That pose is not recommended for people with carpal tunnel or a shoulder problem, yet Ms. Forbes does that pose and is able to keep up with Ms. Wold, who competes in marathons and triathalons. At no time did she observe Ms. Forbes holding back or failing to complete an activity, even while doing shoulder presses with weights during the trim and tone class. Ms. Wold considers Ms. Forbes to be a very fit individual and considered her a nine, on a scale of one to ten, with ten being a very fit individual. Given the difficulty of the poses used in the yoga class, it is hard to reconcile Ms. Forbes’ complaints with her actual physical activity. Dr. Arazi testified during his deposition that he agreed there appeared to be a substantial difference between her actual physical activities and what he understood her physical condition to be. He believed it was more likely than not that Ms. Forbes had misrepresented her physical condition.
13. The greater weight of the evidence indicates that Ms. Forbes willfully misrepresented her physical condition to her medical providers and employer, resulting in her removal from work and payment by WSI of disability benefits. Ms. Forbes complained of significant pain and maintained that she could not return to work, any work, yet she continued to perform insurance physicals for Portamedic, driving to the appointments to complete the physicals, while complaining to doctors that she couldn’t drive to go to work at Mercy Hospital. She complained of significant pain and that her symptoms were getting worse, all the while she was lifting weights and attending yoga and trim and tone classes, doing advanced yoga moves, and keeping up with a triathlete, while complaining to her doctors that she had trouble performing the most basic self care. Ms. Forbes’s misrepresentations of her physical activities and condition caused WSI to pay medical and disability benefits in error.
14. The greater weight of the evidence indicates that Ms. Forbes willfully failed to disclose income and monies received from Portamedic, Mary Kay sales, and Dr. Vaughan. The only explanation Ms. Forbes offered was that she assumed WSI wanted only to know whether she had returned to work at Mercy Medical Hospital. When questioned about her employment with Portamedic, she characterized her employment as more of a “hobby.” As discussed, if that were true, the Injured Worker Status Report clearly required her to report it. She had no explanation for her failure to disclose income from Mary Kay, except to say that she started the business to get her products at cost and that she hadn’t made any money on it. As discussed, if that were true, the Injured Worker Status Report clearly required her to report any moneys received, whether for profit or loss. Likewise, she could not explain why she did not disclose the $5,000 she received from Dr. Vaughan, but she admits that he gave her the money to start her Mary Kay business. Ms. Forbes’s failure to disclose her work activities and income caused WSI to pay disability benefits in error.

[¶ 9] WSI concluded Forbes failed to report work and income, misrepresented her physical condition, and made intentional and material false statements, which constituted violations of N.D.C.C. § 65-05-33. WSI ordered that Forbes forfeit future disability benefits and reimburse WSI $52,421.36 for benefits paid on the basis of her false statements. The district court affirmed the WSI decision, and Forbes appealed.

II

[¶ 10] Courts exercise only a limited review in appeals from administrative agency decisions under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Sorlie v. Workforce Safety & Ins., 2005 ND 83, ¶ 7, 695 N.W.2d 453.

Under N.D.C.C. §§ 28-32-46 and 28-32 — 49, the district court, and this Court on further appeal, must affirm an administrative agency decision unless one of the following is present:
1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.
We exercise restraint in deciding whether an agency’s findings of fact are supported by a preponderance of the evidence, and we do not make independent findings or substitute our judgment for that of the agency. Barnes v. Workforce Safety and Ins., 2003 ND 141, ¶ 9, 668 N.W.2d 290.

Sorlie, at ¶ 7 (quoting Elshaug v. Workforce Safety & Ins., 2003 ND 177, ¶ 12, 671 N.W.2d 784). “We determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record.” Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979); see also Roberts v. North Dakota Workmen’s Comp. Bureau, 326 N.W.2d 702, 704-05 (N.D.1982). Questions of law, including the interpretation of a statute, are fully reviewable on appeal from an administrative decision. Sorlie, at ¶ 7.

Ill

[¶ 11] Forbes argues that WSI did not prove by the greater weight of the evidence that she made intentional, material false statements.

[¶ 12] WSI found Forbes violated N.D.C.C. § 65-05-33, which prohibits false claims or false statements and which, at the time WSI first ordered Forbes to forfeit and repay benefits in 2004, provided:

1. A person who claims benefits or payment for services under this title or the employer of a person who claims benefits or payments for services is guilty of a class A misdemeanor if the person or employer does any one or more of the following:
a. Willfully files a false claim or makes a false statement in an attempt to secure payment of benefits or payment for services.
b. Willfully misrepresents that person’s physical condition, including deceptive conduct which misrepresents that person’s physical ability.
c. Has a claim for disability benefits that has been accepted by the organization and willfully fails to notify the organization of:
(1) Work or other activities as required under subsection 3 of section 65-05-08;
(2) The receipt of income from work; or
(3) An increase in income from work.
2. If any of the acts in subsection 1 are committed to obtain, or pursuant to a scheme to obtain, more than five hundred dollars in benefits or payment for services, the offense is a class C felony.
3. In addition to any other penalties provided by law, the person claiming benefits or payment for services in violation of this section shall reimburse the organization for any benefits paid based upon the false claim or false statement and, if applicable, under section 65-05-29 and shall forfeit any additional benefits relative to that injury.
4. For purposes of this section, “statement” includes any testimony, claim form, notice, proof of injury, proof of return to work status, bill for services, diagnosis, prescription, hospital or doctor records, x-ray, test results, or other evidence of loss, injury, or expense.

[¶ 13] To trigger the statutory consequences of N.D.C.C. § 65-05-33 for a false statement, WSI must prove: (1) there is a false claim or statement; (2) the false claim or statement is willfully made; and (3) the false claim or statement is made in connection with any claim or application for benefits. Hausauer v. North Dakota Workers Comp. Bureau, 1997 ND 243, ¶ 12, 572 N.W.2d 426. For purposes of the statute’s civil penalties, this Court has defined “willfully” as conduct engaged in intentionally and not inadvertently. Dean v. North Dakota Workers Comp. Bureau, 1997 ND 165, ¶ 15, 567 N.W.2d 626 (citing F.O.E. Aerie 2337 v. North Dakota Workers Comp. Bureau, 464 N.W.2d 197, 201 (N.D.1990) (“a false statement must be intentional, not inadvertent, and material, not peripheral”)). WSI “must prove the claimant’s state of mind was purposeful in making the false statement.” Hausauer, at ¶ 14. “A state of mind can rarely be proven directly and must usually be inferred from conduct and circumstantial evidence.” Dean, at ¶ 20.

[¶ 14] In addition to proving that a false statement is willful, WSI must also prove the false statement is material. Hausauer, 1997 ND 243, ¶ 12, 572 N.W.2d 426; Dean, 1997 ND 165, ¶ 15, 567 N.W.2d 626. Based upon the language of N.D.C.C. § 65-05-33 and the civil penalty sought, two tests are used to determine “materiality.” If WSI seeks reimbursement for benefits paid, the level of materiality required is proof by WSI that the false claim or false statement caused the benefits to be paid in error. Hausauer, at ¶ 17. If WSI -seeks only forfeiture of future benefits, however, no such causal connection is required. Id. Thus, a false claim or false statement is sufficiently material for forfeiture of future benefits if the statement simply could have misled WSI or medical experts in deciding the claim. Jacobson v. North Dakota Workers Comp. Bureau, 2000 ND 225, If 10, 621 N.W.2d 141. Ultimately, WSI’s findings under N.D.C.C. § 65-05-33 must be affirmed if they are supported by a preponderance of the evidence. Sjostrand v. North Dakota Workers Comp. Bureau, 2002 ND 125, ¶ 30, 649 N.W.2d 537.

A

[¶ 15] WSI concluded that Forbes’ false statements were neither minor nor innocent and that a pattern of false statements existed, including misrepresenting her physical condition to doctors and failing to report work and income. WSI concluded Forbes’ statements to her medical providers regarding her physical condition were clearly intentional and meant to influence their consideration of her ability to work. WSI further concluded Forbes’ failure to report work and income to WSI while receiving disability benefits was also willful. Specifically, WSI found Forbes was paid $881.69 by Por-tamedic for insurance physical examinations between August 2002 and August 2003. She also did not report income she received from her Mary Kay business, nor did she report $5,000 she received from a doctor to start her business. Forbes completed sixteen injured-workers status reports from September 13, 2002, to September 9, 2003. Not until September 9, 2003, did Forbes report she had done insurance physicals for Portamedic, and then only reported that she earned $20.07. WSI noted that Forbes reported this income after it had begun its investigation and a private investigator had conducted some interviews.

[¶ 16] Forbes asserts she did not consider her Mary Kay activities to be work, and she reasonably believed WSI was aware of her “work” at Portamedic in calculating her disability benefits. However, WSI found Forbes testified she considered Portamedic more as a “hobby.” It was reasonable here for WSI to find that Forbes’ explanations of her understanding of work and income were not credible. See, e.g., Jacobson, 2000 ND 225, ¶ 15, 621 N.W.2d 141. WSI specifically found Forbes’ explanations for her failure to report work activities and income were not credible and were intentional, not inadvertent. We conclude a reasoning mind could have reasonably found by a preponderance of evidence that Forbes willfully failed to report the receipt of income from employment in violation of N.D.C.C. § 65-05-33. Forbes also asserts that she performed both yoga and the fitness exercises as a part of physical therapy and was not engaged in making false statements or misrepresentations relating to her physical condition. Again, however, WSI did not find Forbes credible in light of her physical activities when compared to the contemporaneous statements she made to her doctors and employer.

[¶ 17] There is substantial evidence regarding the nature and extent of Forbes’ work activities and income, in addition to her level of physical activity, from which a reasoning mind could reasonably find, that Forbes purposefully and intentionally made false statements. We conclude a reasoning mind reasonably could have found Forbes’ false statements were proven by the weight of the evidence in the record.

B

[¶ 18] With regard to the materiality of Forbes’ false statements, WSI specifically concluded that Forbes’ statements regarding her physical condition and her willful failure to report income not only misled WSI into paying disability benefits requiring Forbes to forfeit all future benefits but, in addition caused WSI to pay disability benefits requiring Forbes to reimburse WSI for all benefits paid. Our Court has said:

If the Bureau seeks reimbursement for benefits paid, the level of materiality required is proof by the Bureau that the false claim or false statement caused the benefits to be paid in error. However, if the Bureau is seeking only forfeiture of benefits, ..., no such causal connection is required. A false claim or false statement is sufficiently material for forfeiture of future benefits if it is a statement which could have misled the Bureau or medical experts in a determination of the claim.

Jacobson v. North Dakota Workers Compensation Bureau, 2000 ND 225, ¶ 10, 621 N.W.2d 141 (citations omitted). Dr. Arazi testified that if Forbes was able to do the yoga and other physical exercise described “and this is accurate, then, you know, she is likely to have been able to do more than I thought when I saw her.” He further testified that had he been aware of her apparent ability to undergo these activities, he would have “seriously considered it” when deciding whether to release Forbes to return to work on January 13, 2003. Based on this evidence a reasoning mind reasonably could have concluded that Forbes’ false statements could have misled WSI in paying disability benefits and caused WSI to pay disability benefits in error. We agree the false statements were material with regard to both the forfeiture of all future benefits and to the reimbursement of all disability benefits paid by WSI up to the surgery performed on April 29, 2003. We affirm the decision of WSI as to these findings.

[¶ 19] However, with regard to WSI’s findings that Forbes’ misrepresentations caused WSI to pay medical benefits in error and caused WSI to pay disability benefits in error after Forbes’ April 29, 2003, surgery, which would require reimbursement of all of those benefits to WSI, we reverse.

[¶ 20] WSI found that Forbes sustained an injury to her low back, neck, left arm, and hand on August 13, 2002, while employed as an operating room nurse. WSI accepted liability and paid benefits. However, WSI found Forbes worked after her injury for Portamedic conducting physicals on August 21, 26, 27, and September 4, 2002, and entered into a new contract agreement with Portamedic on October 1, 2002. The evidence established Forbes received a total of $881.69 from August 2002 to August 2003 from Por-tamedic. WSI also found Forbes received monies from Mary Kay sales during this time. WSI concluded that Forbes misrepresented her physical condition because from August 2002 through January 2003 she complained of significant neck pain, pain radiating into her right and left arms, and numbness in her right and left hand and fingers while, at the same time, attending the Healthy Hearts Wellness Center, lifting weights, and attending yoga and trim and tone classes. Dr. Arazi did testify that he agreed if she was attending all of these classes without difficulty there appeared to be a substantial difference between her actual physical activities and what he understood her condition to be. Dr. Arazi concluded that “it’s possible that she may have been exaggerating her symptoms.” Dr. Arazi removed Forbes from work, even sedentary, because of her representations of pain and restrictions. WSI’s conclusion that it paid disability benefits as a result of Forbes’ misrepresentations is therefore supported by evidence in the record.

[¶ 21] However, there is no evidence in the record, and no evidence mentioned in WSI’s findings that causally connect Forbes’ misrepresentations and the payment of her medical benefits. Neither Dr. Arazi nor any other doctor, testified that Forbes’ prescribed treatment would have been different had she not exaggerated her symptoms. Forbes underwent neuro-diagnostic studies, physical therapy, and took prescribed medications. There is no evidence she did not sustain a work injury. In fact, on November 19, 2002, Forbes was diagnosed with “neck pain, C5, C6 posteri- or disk bulge, posterolateral disc protrusion and small posterior osteophyte at C6, C7 ...” by Dr. Arazi. On April 29, 2003, Dr. Mike Moore performed an anterior cervical decompression and fusion at C5-6, C6-7. Forbes saw Dr. Arazi on June 9, 2003, and reported that the pain in her right arm was gone after the April 29 cervical surgery. Dr. Arazi’s impression was “post cervical fusion, suspect superimposed carpel tunnel syndrome and rule out possible thoracic outlet syndrome.” On July 24, 2003, Dr. Moore indicated Forbes was released to regular work four hours per day and to increase as tolerated. On July 29, 2003, Forbes was seen by Dr. Booth, who diagnosed thoracic outlet syndrome, which in his opinion was work-related. Dr. Booth recommended physical therapy and massage therapy. He also indicated she could return to work, but may have some limitations in using her right arm. After her surgery in April, the evidence of Forbes’ attendance at the Healthy Heart Wellness Center shows Forbes attended a trim and tone class on July 1, 2003, a yoga and trim and tone class on September 16, 2003, and used weights, walked, and used a stair stepper on September 19, 2003. Dr. Nielsen, one of her treating physicians, released Forbes to return to work without restrictions on August 28, 2003.

[IT 22] WSI has not provided any evidence that any of the medical benefits paid would not have been paid as a result of Forbes’ work-related injuries. In order for WSI to require Forbes to reimburse it for medical benefits it must establish their payment was caused by Forbes’ exaggerating her symptoms. The same is true for Forbes’ disability benefits following her April 29, 2003, surgery.

[¶ 23] The order of WSI and the judgment of the district court are affirmed with regard to Forbes’ responsibility to reimburse WSI for disability benefits paid from the date of the injury to April 29, 2003, and Forbes’ forfeiture of all future benefits. The order of WSI and the judgment of the district court with regard to Forbes’ responsibility to reimburse WSI for medical benefits and for disability benefits after April 29, 2003, is reversed and the case is remanded for a recalculation of the benefits which Forbes must repay to WSI.

[¶ 24] DANIEL J. CROTHERS, and CAROL RONNING KAPSNER, JJ., concur.

SANDSTROM, Justice,

concurring in part, and dissenting in part.

25] I concur in that part of the majority opinion concluding Forbes’ false statements were material with regard to both the forfeiture of all future benefits and to the reimbursement of all disability benefits paid by WSI up to the surgery performed on April 29, 2003. However, I dissent from that part of the majority opinion which concludes there is no evidence to support WSI’s findings that Forbes’ statements caused WSI to pay disability benefits in error after Forbes’ surgery and caused WSI to pay medical benefits in error. I would, therefore, require Forbes also to reimburse WSI for those benefits.

[¶ 26] WSI specifically found by a greater weight of the evidence that Forbes’ misrepresentations of her physical activities and condition caused it to pay both medical and disability benefits in error. WSI also found by the greater weight of the evidence that Forbes’ failure to disclose her work activities and income caused it to pay disability benefits in error. The majority opinion, however, states there is no evidence to support reimbursement of disability benefits after Forbes’ surgery or to support any reimbursement of medical benefits.

[¶ 27] On the contrary, there is evidence that Forbes’ false statements caused disability benefits to be paid following her April 29, 2003, surgery. The record contains evidence of Forbes’ pattern of false statements in failing to report work and income continuing after her surgery. Of the approximately $307 Forbes collected from Mary Kay sales, five of the eight checks, totaling $235.46, were dated after her surgery. Additionally, of the sixteen injured-worker status reports in which Forbes consistently failed to report work and income, five were dated, signed, and submitted to WSI after the date of her surgery. It was only in her September 9, 2003, report that she revealed $20.07 of the $881.69 she had earned conducting insur-anee physicals for Portamedic. In addition to Forbes’ failure to report work and income, WSI found Forbes’ willful misrepresentation of her physical condition to medical providers and her employer caused WSI to erroneously pay her benefits.

[¶ 28] The majority opinion does not adequately explain how these continuing false statements before and after her surgery are somehow cured and rendered “causally disconnected,” and thus immaterial, so as not to require the disability benefits paid after her surgery to be reimbursed to WSI. On the basis of this record, it is illogical to find Forbes’ pattern of false statements material for purposes of reimbursement of disability benefits prior to surgery but somehow immaterial for purposes of reimbursement of disability benefits after the surgery.

[¶ 29] This is also true with regard to the majority opinion’s assertion that WSI has not provided any evidence that any of the medical benefits paid would not have been paid as a result of Forbes’ work-related injuries. WSI found Forbes’ misrepresentation of her physical activities and condition caused WSI to pay medical benefits in error. Although neither Dr. Arazi, nor any other doctor, directly testified Forbes’ prescribed treatment would have been different had she not exaggerated her symptoms, the evidence in the record reflects that in response to Forbes’ statements that her symptoms were worsening, Dr. Arazi was uncertain about a course of treatment and even considered a referral to the Mayo Clinic. WSI found Dr. Arazi testified that he agreed there appeared to be a “substantial difference” between her actual physical activities and what he understood her condition to be, and that it was more likely than not that she had misrepresented her physical condition. It is a reasonable inference from the record that Forbes’ false statements, particularly with regard to the misrepresentation of her physical condition, affected and influenced Forbes’ course of treatment and the medical benefits paid. Without reweighing the evidence, Dr. Ara-zi’s testimony supports WSI’s specific finding that Forbes’ misrepresentation of her physical activities and condition caused medical benefits to be paid.

[¶ 30] This Court should not substitute its judgment for that of the fact-finder. See Toso v. Workforce Safety and Ins., 2006 ND 70, ¶ 8, 712 N.W.2d 312. “In evaluating WSI’s findings of fact, we do not make independent findings or substitute our judgment for that of WSI, rather, we determine only whether WSI reasonably reached its factual conclusions from the weight of the evidence on the entire record.” Id. (citing Hopfauf v. North Dakota Workers Comp. Bureau, 1998 ND 40, ¶8, 575 N.W.2d 436). This Court has previously stated that when a claimant fails to report income to WSI, the violation frustrates WSI’s attempt to demonstrate materiality. See Unser v. North Dakota Workers Comp. Bureau, 1999 ND 129, ¶¶ 18-20, 598 N.W.2d 89. “It may be difficult, if not impossible, for [WSI] to discover or unearth a claimant’s prior earnings which the claimant has intentionally concealed from [WSI].” Id. at ¶ 20. Failure to report work activities and income received in connection with unreported work activities impedes WSI’s process of determining eligibility and is thus material. See Snyder v. North Dakota Workers Comp. Bureau, 2001 ND 38, ¶ 18, 622 N.W.2d 712. Similarly, it is a reasonable inference that Forbes’ misrepresentations to her medical provider and her employer regarding her physical condition prevented WSI from accurately assessing the appropriateness of the medical benefits paid. Here, I believe from the record that all of Forbes’ misrepresentations and false statements considered together affected and influenced WSI’s decision whether to pay both disability and medical benefits, including the medical services recommended and received, which were a part of her claim for benefits.

[¶ 31] I would affirm.

[¶ 32] GERALD W. YANDE WALLE, C.J., concurs.

      . Forbes' notice of appeal purports to appeal from "the November 3, 2005, Order for Judgment entered on November 4, 2005, in the above-referenced matter.” The actual judgment was also entered on November 4, 2005. We treat Forbes’ appeal from the order for judgment as an appeal from the judgment. See Gray v. North Dakota Game & Fish Dep’t, 2005 ND 204, ¶ 1 n. 1, 706 N.W.2d 614 (an attempted appeal from the order will be treated as an appeal from a subsequently entered consistent judgment).