author: ROSS, Judge.

text:
    Gregory PHILLIPS, Appellant, v. STATE of Minnesota, et al., Respondents.
    No. A06-627.
    Court of Appeals of Minnesota.
    Jan. 16, 2007.

      Judith K. Schermer, Judith K. Schermer PLLC, Minneapolis, MN, for appellant.
    Lori Swanson, Attorney General, Gary R. Cunningham, Assistant Attorney General, St. Paul, MN, for respondents.
    Considered and decided by KLAPHAKE, Presiding Judge; ROSS, Judge; and HUSPENI, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

ROSS, Judge.

Gregory Phillips, an instructor at a community college, challenges the college’s decision not to rehire him following an investigation that substantiated a complaint that he sexually harassed a student. On appeal from summary judgment, Phillips argues that the district court erred by determining that Phillips did not have a protected property interest and the college did not infringe his liberty interest to violate his due process rights, and by not sanctioning the college for spoliation of evidence. Because Phillips had only a unilateral, subjective expectation of future employment at the college and the college did not publicize its reasons for not rehiring Phillips, we affirm the district court’s conclusion that Phillips did not have a protected property interest and the college did not violate his liberty interest under the Due Process Clause. Because the spoliation claim is mooted by our due process analysis, we decline to address the issue.

FACTS

Minneapolis Community and Technical College hired Gregory Phillips in January 2001 as a temporary, part-time English instructor. The state’s collective-bargaining agreement, which governed Phillips’s employment relationship with the college, provided that Phillips’s employment was on a fixed-term basis and his employment concluded at the end of the appointed term. Each semester the college provided Phillips with a letter appointing him as an instructor for the following semester. His most recent appointment ended on December 19, 2003.

In early December 2003, the college received a written complaint from a student alleging that Phillips had sexually harassed her for several weeks. The student, who worked at the campus bookstore, claimed that Phillips continuously asked her out despite her repeated refusals, repeatedly visited or passed by the bookstore, stared at her while she was working, and repeatedly attempted to speak with her during her breaks, which she often spent outside. The college’s director of legal affairs informed Phillips that a student had filed a sexual-harassment complaint against him and instructed him to stay away from the bookstore. The director, however, did not adhere to the college’s policy and procedures for investigating sexual-harassment complaints. Specifically, she did not give Phillips written notice of the complaint or a copy of the college’s policies and procedures for addressing harassment complaints, and she did not advise Phillips that he could provide a written response to the allegations.

As part of her investigation, the director interviewed the student, three witnesses, and Phillips. When she interviewed Phillips, she did not give him a written Ten-nessen notice as required by Minnesota Statutes section 13.04, subdivision 2. During the interviews, the director took notes, which she discarded after incorporating them into her formal report. Based on her investigation, the director concluded that Phillips violated the college’s sexual-harassment policy, and she submitted her findings to the college’s vice president of student and academic affairs. In a letter dated December 18, 2003, the vice president informed Phillips of the college’s decision not to rehire him. Although Phillips had ordered course books and selected the courses he planned to teach the following semester, the college had not given him a letter of appointment for the Spring 2004 semester.

In January 2004, Phillips and his attorney each sent letters to the college’s president. The letters contested the sexual-harassment allegations and challenged the college’s decision not to rehire Phillips, asserting that the college failed to follow its required procedures while investigating the sexual-harassment complaint. In response, the president provided Phillips with written notice of the complaint, a written notice that Phillips could respond to the allegations, a written Tennessen warning, and a one-page summary of the investigation. Phillips did not respond further, and in March 2004 the president affirmed the decision not to rehire Phillips, finding that sufficient evidence demonstrated that he had harassed the student.

In September 2004, Phillips filed a civil complaint in district court against the state, the college, the state college and university system and its board of trustees, and the college’s president and vice president of student and academic affairs. The complaint alleged that the college racially discriminated against him and violated his due process rights. Phillips later claimed spoliation of evidence by the college based on the investigator’s decision to discard her notes. The district court granted the defendants’ motion for summary judgment. Phillips appeals, arguing that the district court erred by finding that he did not have a protected property or liberty interest that entitled him to due process. He further challenges the district court’s conclusion that his spoliation claim lacked a legal and factual basis.

ISSUES

I. Does a state employee working under a fixed-term contract have a property interest entitling the employee to due process when the employee is not rehired at the end of the appointed term?

II. When a government employer decides not to rehire an employee after an internal investigation substantiates a sexual-harassment complaint against the employee, but does not publish the reasons for the separation from employment, does the employee have a protected liberty interest entitling him to due process?

III.Does a party engage in spoliation of evidence when an investigator discards notes she produced in the course of the investigation after she incorporates them into her final report?

ANALYSIS

Phillips challenges the district court’s summary-judgment determination that he had neither a constitutionally protected property nor liberty interest. On appeal from summary judgment, we review whether any genuine issues of material fact exist and whether the district court erred in its application of the law. Prior Lake Am. v. Mader, 642 N.W.2d 729, 735 (Minn.2002). The material facts in this case are undisputed. We therefore review de novo the district court’s legal conclusions. Id. Summary judgment is appropriate when a plaintiff cannot prove an essential element of his claim. Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn.1995).

The United States Constitution forbids a state to “deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV. To establish the existence of a procedural due process violation, a plaintiff must first show that he had a liberty or property interest and that state action deprived him of that protected interest. See Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 901, 47 L.Ed.2d 18 (1976) (holding that procedural due process constrains only government decisions depriving individuals of interests protected under Due Process Clauses of federal constitution). Without a protected interest, the government has no constitutional obligation to provide due process. Singleton v. Cecil, 155 F.3d 983, 987 (8th Cir.1998). A university’s failure to follow its procedural rules and regulations does not, by itself, give rise to a protected property or liberty interest. Batra v. Bd. of Regents, 79 F.3d 717, 720 (8th Cir.1996).

I

We first consider Phillips’s asserted property interest in continued employment after December 2003. To have a property interest, a government employee must have a legitimate claim of entitlement to continued employment; a unilateral expectancy is insufficient. Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Property interests are protected by, but not created by, the Constitution. Id. A property interest stems from an independent source, such as a statute or contract “that secure[s] certain benefits and that supports] claims of entitlement to those benefits.” Id.; see also Washington v. Indep. Sch. Dist. No. 625, 590 N.W.2d 655, 659 (Minn.App.1999) (noting that subjective expectation of continued employment is not protected by procedural due process). In many settings, a public employee has a constitutionally protected property interest in continued employment. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985) (holding that security guard hired by board of education had property interest in continued employment when state statute provided that civil servants could be terminated only for cause). An untenured teacher at a public school, however, has no constitutional right to due process after his contractual term of employment expires and the school decides not to rehire him. See Roth, 408 U.S. at 569, 92 S.Ct. at 2705 (holding that unten-ured professor at state university had no right to procedural due process on university’s decision not to rehire him after his term expired); Geddes v. Northwest Mo. State Univ., 49 F.3d 426, 429 (8th Cir.1995) (“Absent unusual circumstances, a teacher in a position without tenure or a formal contract does not have a legitimate entitlement to continued employment.”).

Because Phillips does not point to any statute that gives rise to a property interest, any property interest in employment must arise from the terms of his appointment. We agree with the district court that the terms of Phillips’s employment did not provide him a protected property interest entitling him to due process. Phillips’s employment at the college was part-time and temporary. Under the terms of the collective-bargaining agreement, his employment relationship with the college ended for each appointment period at the end of the semester. Phillips acknowledged in an affidavit that, before each semester began, the college provided him with notice of his official appointment for the coming semester. It is undisputed that his last appointment ended December 19, 2003. And Phillips does not contest the district court’s finding that the college did not give him an official appointment letter for the spring semester. Instead, the college gave him notice of its decision not to rehire him. The terms of Phillips’s appointment did not provide for renewal and gave him no property interest in reemployment for the coming semester. The college did not discharge Phillips; it simply did not rehire him.

Phillips has not demonstrated that he had a legitimate expectation of continued employment. Although he claims a property interest existed because he selected courses from the college catalogue that he would teach in the spring and ordered course books, as he had for prior semesters, he took these actions based on his own expectation of continued employ-naent, not on the college’s direction. And a unilateral expectation in continued employment cannot create a protected property interest. See Geddes, 49 F.3d at 429-30 (holding that untenured professor with annual contract expressly limiting employment to one academic year had only unilateral expectation of continued employment despite university president’s promise of lifetime employment). The district court properly held that Phillips did not have a constitutionally protected property interest entitling him to due process.

II

We turn next to Phillips’s assertion that the college violated his due process rights because he had a liberty interest in continued employment. A person’s liberty interest in continued employment may be implicated when his “good name, reputation, honor, or integrity is at stake” because of government action that “impose[s] on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities.” Roth, 408 U.S. at 573, 92 S.Ct. at 2707. If the reasons for the separation from employment are not made public, they cannot form the basis for a claimed liberty-interest violation based on impairment of the employee’s good name or reputation. Bishop v. Wood, 426 U.S. 341, 348-49, 96 S.Ct. 2074, 2079-80, 48 L.Ed.2d 684 (1976); see also McIntire v. State, 458 N.W.2d 714, 719 (Minn.App.1990) (observing that Bishop amplified Supreme Court’s holding in Roth), review denied (Minn. Sept. 28, 1990). To demonstrate a violation of a liberty interest, an employee must therefore show that the reasons for the separation from employment were stigmatizing and that the employer made these reasons public. Allen v. City of Pocahontas, 340 F.3d 551, 556 (8th Cir.2003).

Phillips claims that an allegation of sexual harassment in the teaching profession is stigmatizing, and he details his troubles in finding subsequent employment. He notes that he did not receive an interview when he applied for a tenured position with the college in early 2004, and that, with the exception of a one-semester teaching position in Louisiana, he has been unable to obtain employment despite making numerous applications. But Phillips fails to allege an essential element of his claim, that the college publicized its reasons for not rehiring him. Nonrenewal of a contract without publication cannot alone support a claimed liberty-interest violation. See Buhr v. Buffalo Pub. Sch. Dist. No. 38, 509 F.2d 1196, 1199 (8th Cir.1974) (holding that school did not violate teacher’s liberty interest when school did not renew teacher’s contract and did not publish reasons for nonrenewal or otherwise incorporate reasons into document available to prospective employers). The district court found that the college did not make public either the letter informing Phillips of the college’s decision not to rehire him or the investigator’s report substantiating the sexual-harassment allegation. The record supports this finding.

But Phillips suggests that publication occurred nonetheless, because of the college’s decision. In his affidavit, Phillips noted that some of his colleagues at the college asked about his sudden departure and that he explained to them “what the college had charged [him with] and why they let [him] go.” Phillips, not the college, disseminated the details of the college’s decision not to rehire him. Phillips therefore appears to rely on what amounts to a claim of compelled self-publication. We must therefore decide whether his alleged compelled self-publication creates due process liability for the college by stigmatizing Phillips and impairing his employment opportunities. We hold that it does not.

“Compelled self-publication” is a self-defined concept; it is an exception to the publication requirement for certain causes of action in which publication by the defendant is an essential element of the plaintiffs case. The exception rests on the idea that a plaintiff might be compelled to disclose the information to others in some circumstances, such as, for example, when she is applying for a position with another potential employer who requires the disclosure. See generally David A. Elder, Defamation: A Lawyer’s Guide § 1:25 (2006).

Minnesota has recognized the doctrine of compelled self-publication, but only as it relates to defamation actions. See Lewis v. Equitable Life Assurance Soc’y, 389 N.W.2d 876, 888 (Minn.1986) (recognizing that doctrine applies in defamation action following separation of employment and person making defamatory statement knows that “the defamed person has no reasonable means of avoiding publication of the statement”); Keuchle v. Life’s Companion P.C.A, Inc., 653 N.W.2d 214, 219 (Minn.App.2002) (applying doctrine of compelled self-publication in defamation context), revieto dismissed (Minn. Jan. 21, 2003). We appreciate that federal courts are divided regarding whether self-publication might modify the requirement of dissemination by a public employer in a due process analysis. See Olivieri v. Rodriguez, 122 F.3d 406, 408 (7th Cir.1997) (discussing split in federal courts of appeals on application of self-publication to due process analysis), cert. denied, 522 U.S. 1110, 118 S.Ct. 1040, 140 L.Ed.2d 106 (1998). But we hold that, in Minnesota, the doctrine of compelled self-publication as it relates to separation from employment is limited to defamation actions and does not support a claim alleging violation of a liberty interest. See id. at 408-09 (observing that doctrine of compelled self-publication “is inconsistent with the fundamental principle of mitigation of damages” because likelihood of self-publication is speculative and applying doctrine in due process context would encourage plaintiffs to unnecessarily publish to increase damages); McIntire, 458 N.W.2d at 719 (finding no liberty-interest violation when public employer did not disseminate reasons for discharging employee). Because Phillips failed to prove an essential element of his due process claim, the district court properly ordered summary judgment in favor of the defendants.

In addition to his procedural due process theory, Phillips suggests in an undeveloped argument that the college also violated his substantive due process rights. To prove a substantive due process violation, a public teacher must demonstrate that his employer either acted arbitrarily in dismissing him, or that the dismissal substantially departed from accepted academic norms in a manner that demonstrates that the person responsible for the dismissal did not exercise professional judgment. Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225, 106 S.Ct. 507, 513, 88 L.Ed.2d 523 (1985); Chronopoulos v. Univ. of Minn., 520 N.W.2d 437, 445 (Minn.App.1994), review denied (Minn. Oct. 27, 1994). The Eighth Circuit Court of Appeals has clarified that this level of arbitrariness is one that is so beyond reason that it shocks the conscience. Herts v. Smith, 345 F.3d 581, 587-88 (8th Cir.2003) (rejecting claim by employee that employer violated substantive due process rights because failure to renew did not “rise to the level of conscience-shocking”). Our supreme court has adopted that same standard in a non-employment setting, explaining that “[a] cognizable claim of a Fourteenth Amendment substantive due process violation must describe governmental conduct so egregious that it shocks the conscience.” Mumm v. Mornson 708 N.W.2d 475, 487 (Minn.2006). Phillips has not identified any facts to persuade us that the college violated his substantive due process rights. The college reasonably chose not to rehire Phillips and extend his employment beyond his appointed term after investigating a sexual-harassment complaint against him. Nothing- in that decision or in the imperfections in the investigative process rises to the level of a conscience-shocking concern.

HI

Finally, Phillips asserts that the district court erred by not sanctioning the college for the investigator’s destruction of her notes after she incorporated them into her report. The district court noted that Phillips’s claim had no apparent legal or factual basis, and, regardless, was likely moot. Because we hold that the district court properly entered summary judgment for the college, the spoliation issue is moot and we need not reach its merits.

DECISION

We affirm the district court’s entry of summary judgment. Because the college employed Phillips on a fixed-term basis and he had not been offered employment beyond his appointed term, he did not have a constitutionally protected property interest in employment after his term expired. Because the college did not publish the reasons for its decision not to rehire Phillips, and the doctrine of compelled self-publication does not apply to a due process liberty-interest claim, Phillips cannot establish that the college violated a liberty interest.

Affirmed.


source: Caselaw Access Project

author: SANDSTROM, Justice.

license: Public Domain

text:
    2007 ND 6
    STATE of North Dakota, Plaintiff and Appellee, v. Ryan STENSAKER, Defendant and Appellant.
    Nos. 20050453, 20050454.
    Supreme Court of North Dakota.
    Jan. 11, 2007.

      Nicole E. Foster, State’s Attorney, Willi-ston, N.D., for plaintiff and appellee.
    Tom P. Slorby, Minot, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Ryan Stensaker appeals after a jury found him guilty of criminal attempt to manufacture methamphetamine and he conditionally pled guilty to fleeing by vehicle. Concluding that the jury instructions taken as a whole adequately informed the jury on the law and that the intentional gathering and preparation of ingredients, whose purchase, possession, or transportation is regulated by state law, with the intent to manufacture methamphetamine provides sufficient evidence for criminal attempt to manufacture methamphetamine, we affirm.

I

[¶2] In May 2005, the State charged Stensaker with fleeing or attempting to elude a police officer, possession of a controlled substance, and criminal attempt to manufacture methamphetamine. According to Stensaker, he was charged in Willi-ston municipal court with “Fleeing a Police Officer in violation of N.D.C.C. § 12.1-08-11 or equivalent ordinance,” to which he pled guilty.

[¶ 3] In October 2005, Stensaker moved to dismiss the charge of “fleeing or attempting to elude a police officer.” Stensaker argued that prosecution for this offense was “barred by the Double Jeopardy Clause contained in the Fifth Amendment of the United States Constitution and Article 1 Section 12 of the North Dakota Constitution” because he had already pled guilty in municipal court to the charge of fleeing a police officer. The district court denied Stensaker’s motion, concluding “there are different elements enough to justify that they would be two separate offenses, as there are separate elements under the test....”

[¶ 4] At Stensaker’s jury trial on the criminal-attempt-to-manufacture charge, a Williston police officer testified that he had recognized Stensaker driving and knew that his license was suspended. The officer testified that he tried to stop him by using his emergency lights and siren. After a brief pursuit, Stensaker stopped his vehicle and ran from the officer. The officer testified he found Stensaker hiding nearby, arrested him, and went back to the vehicle Stensaker had been driving. The officer searched the vehicle and in it found a small plastic bag filled with 84 pills, empty blister packs and cold medicine boxes, cellophane, coffee filters with one containing some sort of residue, and a small plastic jug filled with a pungent liquid. Lab testing revealed the residue was methamphetamine, the pills were ephedrine or pseudoephedrine, and the liquid was anhydrous ammonia. The officer also testified that he found a vehicle insurance card listing Terry Wold as the insured and that the vehicle was also registered in Wold’s name. Another officer testified that when she interviewed Stensaker’s brother, he said that the vehicle Ryan had been driving was actually purchased by him as a “rig vehicle” for driving to the oil fields.

[¶ 5] The jury found Stensaker guilty of criminal attempt to manufacture methamphetamine. The district court entered a criminal judgment based on Stensaker’s conditional guilty plea for fleeing or attempting to elude a peace officer. Sten-saker appeals both judgments.

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

II

[¶ 7] Stensaker argues the district court “erred in its instruction setting forth the essential elements” of criminal attempt to manufacture methamphetamine and by not including his requested instruction “that preparation for an offense is insufficient to constitute attempt.”

A

[¶ 8] “On appeal, jury instructions are fully reviewable.” State v. Wilson, 2004 ND 51, ¶ 11, 676 N.W.2d 98 (citing State v. Steffes, 500 N.W.2d 608, 611 (N.D.1993)). “Instructions are reviewed as a whole, and we determine ‘whether they correctly and adequately inform the jury of the applicable law, even though part of the instructions when standing alone may be insufficient or erroneous.’ ” Id. (quoting State v. Hammeren, 2003 ND 6, ¶ 13, 655 N.W.2d 707). “We will reverse only if the instructions, as a whole, are (1) erroneous, (2) relate to a central subject in the case, and (3) affect a substantial right of the accused.” Wilson, at ¶ 11 (citation omitted).

[¶ 9] “The crime of attempt does not exist in the abstract, but rather exists only in relation to other offenses; a defendant must be charged with an attempt to commit a specifically designated crime, and it is to that crime one must look in identifying the kind of intent required .... It is not enough to show that the defendant intended to do some unspecified criminal act.” 2 Wayne R. LaFave, Substantive Criminal Law § 11.3(a) (2d ed.2003). “Our criminal attempt statute is derived from the identical provision in the proposed Federal Criminal Code. Thus, the history of the federal code can be persuasive when we interpret our statute.” State v. Erban, 429 N.W.2d 408, 412 (N.D.1988) (citation omitted). The drafters of the proposed Federal Criminal Code explained:

Implicit in the notion of attempt is the requirement that ivhatever the person is doing is being done with the purpose of committing a crime. Present Federal case law recognizes this. Proposed section 1001 makes this requirement explicit by requiring that the conduct be intentionally engaged in but otherwise with the culpability required for the offense.
... it is explicit that, except for the intentional conduct constituting the substantial step, the requisite culpability- is that provided for in the definition of the offense .... we recognize, by precise definition and use of terms, that different elements of a crime may require different kinds of culpability.

I Working Papers of the National Commission on Reform of Federal Criminal Laws 354-55 (1970) (emphasis added) (footnotes omitted).

[¶ 10] In this case, the specifically designated crime is manufacturing a controlled substance. Under N.D.C.C. § 19-03.1-23(1), “it is unlawful for any person to willfully ... manufacture ... a controlled substance....” In North Dakota, “willfully” encompasses three different culpability levels: “intentionally, knowingly, or recklessly.” N.D.C.C. § 12.1-02-02(l)(e). An individual engages in conduct “intentionally” if it is the individual’s purpose to engage in the conduct, N.D.C.C. § 12.1-02-02(l)(a); “knowingly” if “he knows or has a firm.belief, unaccompanied by substantial doubt, that he is doing so, whether or not it is his purpose to do so,” N.D.C.C. § 12.1-02-02(l)(b); “recklessly” if “he engages in the conduct in conscious and clearly unjustifiable disregard of a substantial likelihood of the existence of the relevant facts or risks, such disregard involving a gross deviation from acceptable standards of conduct,” N.D.C.C. § 12.1-02-02(l)(c).

[¶ 11] Under N.D.C.C. § 19-03.1-01(16), “manufacture” means:

the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis and includes any packaging or repackaging of the substance or labeling or relabeling of its container....

N.D.C.C. § 19-03.1-01(16). Therefore, if a person is found to have performed any of these acts intentionally, knowingly, or recklessly, he is guilty of manufacturing a controlled substance.

[1112] Section 12.1-06-01, N.D.C.C., governs criminal attempt and provides in part:

A person is guilty of criminal attempt if, acting with the kind of culpability otherwise required for commission of a crime, he intentionally engages in conduct which, in fact, constitutes a substantial step toward commission of the crime. A “substantial step” is any conduct which is strongly corroborative of the firmness of the actor’s intent to complete the commission of the crime. Factual or legal impossibility of committing the crime is not a defense, if the crime could have been committed had the attendant circumstances been as the actor believed them to be.

N.D.C.C. § 12.1-06-01(1). To satisfy the element of “acting with the kind of culpability otherwise required for commission of a crime,” we look to the culpability required for manufacturing a controlled substance, which is “willfully.” Therefore, whatever the accused has done, he must have had the willful criminal intent to manufacture a controlled substance. To satisfy the next element of attempt, the culpability level for conduct constituting a substantial step toward the commission of the crime is set as the highest level of culpability — “intentionally.” See N.D.C.C. § 12.1-06-01(1). This is so, in part, because the underlying crime was never completed; in other words, the substantial-step requirement “is intended to prevent a conviction based on the accused’s mere declaration of his criminal intent.” A Hornbook to the North Dakota Criminal Code, 50 NJD.L.Rev. 639, 682 (1974) (footnote omitted); accord I Working Papers at 357. Therefore, the State faces a higher burden to convince the fact-finder that the accused should be punished, even for falling short of completing the underlying offense. See 2 LaFave, supra, § 11.2(b) (discussing the rationale of attempt).

[¶ 13] In this case, the State alleged that the substantial step was “obtaining and preparing precursors for the manufacture of methamphetamine.” Therefore, if a jury could find that it was Stensaker’s purpose to obtain and prepare the precursors and that he did so with the requisite willful culpability to manufacture methamphetamine, he would be guilty of criminal attempt to manufacture methamphetamine. He would not be guilty if he acted “knowingly or recklessly” in obtaining and preparing the precursors, even though he did so with the required culpability to manufacture methamphetamine, because “[u]nder the prevailing view, an attempt ... cannot be committed by recklessness or negligence or on a strict liability basis, even if the underlying crime can be so committed.” 2 LaFave, supra, § 11.3.

[¶ 14] In its instructions, the district court correctly provided the culpability level for the underlying offense of unlawful manufacture of a controlled substance, which is “willfully.” N.D.C.C. § 19-03.1-23(1). The district court also included the statutory definitions of “intentionally, knowingly, or recklessly.” After a rather lengthy debate by both sides in chambers, the district court issued a final jury instruction for the offense of “criminal attempt/manufacture a controlled substance, methamphetamine.” This instruction was contained on a single page, captioned with the title in capital letters and underlined like the other various instructions, e.g., “Definitions — Controlled Substance Instructions,” “Duty of Jury,” and “Weight and Credibility.” The district court also added a sentence to the instruction for criminal attempt: “It is unlawful to willfully manufacture a controlled substance.” This properly states the culpability required for the offense of unlawful manufacture of a controlled substance under N.D.C.C. § 19-03.1-23(1); however, the district court’s instruction includes the phrase “willfully attempted”:

CRIMINAL ATTEMPT/MANUFACTURE A CONTROLLED SUBSTANCE, METHAMPHETAMINE

A person is guilty of Criminal Attempt if, acting with the knd of culpability otherwise required for commission of a crime, that person intentionally engages in conduct that constitutes a substantial step toward commission of the crime. “A substantial step” is any conduct that tends toward but falls short of actual commission and is strongly corroborative of the firmness of the actor’s intent to complete the commission of the crime.
It is unlawful to willfully manufacture a controlled substance.

ESSENTIAL ELEMENTS OF THE OFFENSE

The State’s burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:

1. On or about May 19, 2005, in Williams County, North Dakota, the Defendant, Ryan Stensaker;
2. Willfully attempted to manufacture a controlled substance, methamphetamine, by obtaining and preparing precursors for the manufacture of methamphetamine with the intent to manufacture methamphetamine.

Although “willfully” encompasses “intentionally, knowingly, and recklessly,” the offense of criminal attempt requires — and therefore the jury instructions must convey — that “in order to find [Stensaker] guilty it had to find that he intentionally engaged in conduct that constituted a substantial step toward the commission of a crime and that [he willfully] intended to manufacture methamphetamine.” See State v. Erban, 429 N.W.2d 408, 412 (N.D.1988). In State v. Jaster, we agreed with the district court in its refusal of Jaster’s request for a jury instruction on “willfully” when the prescribed culpability was “recklessly.” 2004 ND 223, ¶20, 690 N.W.2d 213. We noted that although “ ‘willfully’ is defined in N.D.C.C. § 12.1-02-02(l)(e) as including the term ‘recklessly[,]’ [ijnclusion of the term ‘willfully’ in the instruction is therefore unnecessary and would likely result in misleading or confusing the jurors.” Jaster, at ¶ 21. The essential-elements instruction must substantively correspond only to the underlying offense — here, manufacturing a controlled substance. In other words, there should be two distinctly separate instructions: (1) criminal attempt; and (2) manufacturing a controlled substance.

[¶ 15] While the phrase “willfully attempted” in the instruction for the charged offense may have been insufficient without more, the jury instructions, taken as a whole, correctly and adequately informed the jury of the applicable law. The correct instruction should have omitted the word “willfully” before the word “attempted” from the essential elements, because the underlying offense of manufacturing a controlled substance provides only the kind of culpability otherwise required for commission of a crime when criminal attempt is charged. The jury’s focus in this case was whether Stensaker intentionally obtained and prepared the precursors for methamphetamine with a willful intent to manufacture methamphetamine. The jury received instructions that defined the relevant culpability levels and a proper instruction on criminal attempt with an additional sentence that properly recited the culpability for the underlying offense. We conclude that the jury instruction for criminal attempt to manufacture a controlled substance relates to a central subject of this case and affects Stensaker’s substantial rights; however, we do not conclude that taken as whole, the instructions are erroneous.

B

[¶ 16] Stensaker also argues that the district court erred when it failed to include the instruction, “preparation for an offense is insufficient to constitute attempt.”

[¶ 17] “The district court is not required to instruct the jury in the exact language sought by a party if the instructions are not misleading or confusing, and if they fairly advise the jury of the law on the essential issues of the case.” Strand v. Cass County, 2006 ND 190, ¶ 7, 721 N.W.2d 374 (citation omitted).

[¶ 18] Stensaker’s requested language has met with long- and well-established criticism, because although “[preparation is not an attempt ... some preparations may amount to an attempt. It is a question of degree.” United States v. Coplon, 185 F.2d 629, 633 (2d Cir.1950) (quoting Commonwealth v. Peaslee, 177 Mass. 267, 272, 59 N.E. 55, 56 (1901) (Holmes, C.J.)); see also I Working Papers at 355 (“the Federal courts sought to improve on the old common law distinction between ‘mere preparation,’ which is not an attempt, and conduct beyond that, which constitutes an attempt”). ' Although “it is difficult to draw the line between the preparation to commit an offense, which does not constitute an attempt, and the taking of a substantial step toward the commission of a crime, which does,” that inquiry is left to the fact-finder. See 21 Am.Jur.2d Criminal Law § 177 (1998). “[T]o distinguish preparation from attempt empirically is difficult if not impossible.” Jerome Hall, Criminal Attempt — A Study of Foundations of Criminal Liability, 49 Yale L.J. 789, 821 (1940). Stensaker relies on State v. Maresch, 75 N.D. 229, 27 N.W.2d 1 (1947), which predates the revision of our criminal law and does not conform to our present criminal attempt statute. See 1973 N.D. Sess. Laws chs. 116, 117 (establishing the effective date of July 1, 1975, for the revision). Therefore, the district court did not err by rejecting Sten-saker’s proposed instruction.

Ill

[¶ 19] Stensaker argues that the evidence was insufficient as a matter of law to support his conviction of criminal attempt to manufacture methamphetamine.

[¶ 20] At trial, Stensaker moved for an acquittal under N.D.R.Crim.P. 29. Therefore, he preserved the issue of sufficiency of the evidence for appellate review. State v. Steen, 2000 ND 152, ¶ 16, 615 N.W.2d 555. “This Court will reverse a conviction on the ground of insufficient evidence only if, after viewing the evidence and all reasonable inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt.” Id. at ¶ 17 (citation omitted).

[¶ 21] “A verdict based on circumstantial evidence carries the same presumption of correctness as other verdicts.” State v. Noorlun, 2005 ND 189, ¶ 20, 705 N.W.2d 819 (citing State v. Steinbach, 1998 ND 18, ¶ 16, 575 N.W.2d 193). “A conviction may be justified on circumstantial evidence alone if the circumstantial evidence has such probative force as to enable the trier of fact to find the defendant guilty beyond a reasonable doubt.” Noorlun, at ¶ 20 (citation omitted). “Moreover, a jury may find a defendant guilty even though evidence exists which, if believed, could lead to a not guilty verdict.” Id. (citing State v. Wilson, 2004 ND 51, ¶ 9, 676 N.W.2d 98). “Often, the only method of proving criminal intent is by circumstantial evidence.” State v. Olson, 552 N.W.2d 362, 364 (N.D.1996) (citation omitted).

[¶ 22] Whether the accused committed an act sufficient for an attempt is a question of fact. N.D.C.C. § 12.1-06-01. The State alleged the conduct constituting a substantial step was “obtaining and preparing precursors for the manufacture of methamphetamine.” Therefore, there had to have been enough evidence for a jury to find that Stensaker intentionally obtained and prepared precursors with the intent to manufacture methamphetamine to support the guilty verdict.

[¶ 23] An agent with the Northwest Narcotics Task Force testified that the materials found in the vehicle Stensaker was driving were insufficient to make methamphetamine. The agent testified that Stensaker possessed “two prepared precursors” — the cold pills and the anhydrous ammonia. These are two of the six required chemical components of methamphetamine. According to the agent’s testimony, the cold pills and anhydrous ammonia are the two most difficult elements of methamphetamine to obtain, because each is regulated by state law. The agent testified that Stensaker possessed enough of each of those two ingredients to manufacture methamphetamine, but he still needed the other over-the-counter items, including lithium batteries, gasoline, and drain cleaner, to complete the manufacturing process. The agent testified that the “combination ... [of] the cold pills, the pseudoephed-rine, ephedrine, and ... the anhydrous ammonia, as well as the methamphetamine and the coffee filters indicate [an] intention to manufacture methamphetamine.”

[¶ 24] After viewing the evidence and all reasonable inferences in the light most favorable to the verdict, we conclude the evidence was sufficient for a jury to find Stensaker guilty of criminal attempt to manufacture methamphetamine.

IV

[¶ 25] Stensaker argues the district court erred by improperly admitting evidence that he owned or admitted to possessing the methamphetamine in the vehicle as demonstrated by his guilty plea to that charge. A review of the trial transcript shows there was no evidence of Stensaker’s guilty plea to the possession of methamphetamine charge admitted at trial; however, the district court properly admitted evidence that the residue found on one of the coffee filters was, in fact, methamphetamine.

[¶ 26] Stensaker also argues that he was denied a fair trial because of the narcotics agent’s unresponsive answers on cross-examination.

[¶ 27] The district court is allowed “reasonable control over the mode and order of interrogating witnesses and presenting evidence.... ” NJD.R.Ev. 611(a). “The propriety of examination and cross-examination of witnesses ... are matters largely within the sound discretion of the trial court ... [and] will not be disturbed in absence of a showing of abuse of discretion.” Killmer v. Duchscherer, 72 N.W.2d 650, 657 (N.D.1955).

[¶ 28] When the agent testified that Stensaker had purchased. four boxes of cold pills, Stensaker objected to the apparent assumption or conclusion. The district court sustained the objection. The district court again sustained Stensaker’s objection to the State’s question that asked for a conclusion as to whom the cold pills belonged. Stensaker’s objection was overruled when he objected to the agent’s opinion on how anhydrous ammonia is safely obtained and stored, because the district court noted that the agent had been admitted as an expert. The agent did admit that she did not know who actually “acquired or obtained” miscellaneous items found in Stensaker’s vehicle.

[¶ 29] Stensaker’s claim that the agent was a non-responsive witness, or his implication that the district court failed to properly manage the examination of the witness, lacks merit, both factually and for his failure to cite any authority for his proposition that he was denied a fair trial. The district court did not abuse its discretion in its conduct of the agent’s examination.

V

[¶ 30] Stensaker argues that double jeopardy bars his conviction under N.D.C.C. § 39-10-71 for fleeing in a motor vehicle, because he had been convicted of fleeing on foot in municipal court “under NDCC § 12.1-08-11 or equivalent ordinance.”

[¶ 31] Under the “same elements” or “Bloekburger” test from Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), a court analyzes each offense to conclude “whether each offense contains an element not contained in the other; if not, they are the ‘same offence’ and double jeopardy bars additional punishment and successive prosecution.” State v. Bertram, 2006 ND 10, ¶ 14, 708 N.W.2d 913 (internal quotations and citations omitted). Furthermore, “[t]he same evidence may be used to prove separate offenses.” City of Fargo v. Hector, 534 N.W.2d 821, 824 (N.D.1995) (footnote omitted).

[¶ 32] “In the absence of a statutory requirement, courts of general jurisdiction may not take judicial notice of a municipal ordinance, and the ordinance must be introduced into evidence or stipulated to by the parties just as any other evidence.” Keyes v. Amundson, 391 N.W.2d 602, 607 (N.D.1986) (citations omitted); see, e.g., N.D.C.C. § 40-18-19 (“On all appeals from a determination in a municipal court, the district court shall take judicial notice of all of the ordinances of the city.”). Even when judicial notice of a municipal ordinance is required, “it is essential that the trial court be supplied with the necessary information.” City of Mandan v. Mertz, 399 N.W.2d 298, 300 (N.D.1987).

[¶ 33] Prior to trial, Stensaker moved to dismiss on grounds of double jeopardy, but he did not provide the Williston ordinance in his motion, nor did he cite to it. Without the city ordinance or the charging documents, we are prevented from comparing the elements of the two offenses. There might be evidence of the State’s stipulation to the substitution of the state law for the city ordinance, because the State did not object to the absence of the ordinance and continued to refer to N.D.C.C. § 12.1-08-11 rather than the Williston ordinance.

[¶ 34] Even if the City of Willi-ston had adopted N.D.C.C. § 12.1-08-11 verbatim or the State had stipulated to the substitution, double jeopardy still does not attach, because one statute governs flight by motor vehicle and the other governs flight by means expressly other than by motor vehicle. Section 12.1-08-11, N.D.C.C., “fleeing a police officer,” provides in part:

Any person, other than the driver of a motor vehicle under section 39-10-71, who willfully fails or refuses to stop or who otherwise flees or attempts to elude, in any manner, a pursuing peace officer, when given a visual or audible signal to stop, is guilty of a class B misdemeanor for a first or second offense and a class A misdemeanor for a subsequent offense.

N.D.C.C. § 12.1-08-11 (emphasis added). Stensaker entered a conditional plea of guilty in the district court for his violation of N.D.C.C. § 39-10-71, which governs fleeing or attempting to elude a peace officer, and provides in part:

Any driver of a motor vehicle who willfully fails or refuses to bring the vehicle to a stop, or who otherwise flees or attempts to elude, in any manner, a pursuing police vehicle or peace officer, when given a visual or audible signal to bring the vehicle to a stop, is guilty of a class A misdemeanor for a first offense and a class C felony for a subsequent offense within three years. An individual who violates this section while fleeing after or in the commission of a felony is guilty of a class C felony.

N.D.C.C. § 39-10-71(1). A comparison of these two offenses reveals that they are two distinctly different crimes. Therefore, double jeopardy cannot attach.

VI

[¶ 35] We affirm the judgments of the district court.

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


author: KAPSNER, Justice.

text:
    2007 ND 2
    STATE of North Dakota, Plaintiff and Appellee, v. Wayne ZAHN, Defendant and Appellant.
    Nos. 20060045, 20060046, 20060047.
    Supreme Court of North Dakota.
    Jan. 11, 2007.

      Robert P. Bennett (argued), Assistant Attorney General, Office of Attorney General, Bismarck, ND, for plaintiff and appel-lee.
    TaLisa A. Nemec (argued), Bismarck, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Wayne Zahn appeals from judgments of conviction entered upon jury verdicts for reckless endangerment and seven counts of a violation of a protection order. We conclude a party may not collaterally challenge the validity of a protection order without first raising the issue with the trial court, service of the application for a protection order is not a prerequisite to a criminal conviction for a violation of the order under N.D.C.C. § 14-07.1-06, and there was sufficient evidence to support the jury verdict for reckless endangerment. We affirm.

I

[¶ 2] Zahn and his brother have had a tenuous relationship for years. In September of 2005, Zahn’s brother petitioned the district court for an ex parte temporary protection order. On September 14, 2005, the court issued the temporary order, preventing Zahn from having contact with his brother, excluding Zahn from his brother’s residence, and requiring Zahn to surrender his firearms or other weapons. On September 18, 2005, the order was served on Zahn, but a copy of the application for the protection order was not served with it. The protection order was amended and served again on October 5. Again, a copy of the application for the amended protection order was not served on Zahn. While the protection order was in effect, Zahn made several telephone calls to his brother’s home in violation of the order.

[¶3] Zahn’s brother also complained that Zahn had fired a rifle in the brother’s direction while the brother was working in a ditch. Zahn’s brother testified he saw Zahn and a passenger drive by him and park approximately 200 yards away. Although Zahn’s brother did not see Zahn fire a rifle, the brother testified he heard a whistling noise from what he thought was a bullet traveling overhead, and a rifle report. Shortly after hearing the noises, the brother saw Zahn and the passenger drive off. At trial, Zahn and the passenger disputed his brother’s allegation, testifying Zahn did not fire a rifle in his brother’s direction. After weighing the conflicting testimony, a jury convicted Zahn of reckless endangerment and seven counts of violating a protection order.

II

[¶ 4] On appeal, Zahn argues the protection order was invalid because the State failed to serve the application for the order with the temporary protection order, as specified in N.D.C.C. § 14-07.1-03. Zahn concedes he failed to present this argument at the trial court. Zahn also argues the evidence was insufficient to support a jury verdict for reckless endangerment. The State argues the service of an application for the protection order is not required for the validity of the order, and the evidence was sufficient to support Zahn’s conviction for reckless endangerment.

Ill

[¶ 5] Zahn argues he cannot be held criminally responsible for violating the protection order because he claims it is invalid. Zahn did not challenge the validity of the protection order in the court that issued the order. In essence, Zahn is collaterally attacking the validity of the protection order after failing to present his argument to the trial court.

[¶ 6] Generally, a defendant cannot raise an argument for the first time on appeal when it was not made at the trial court for its consideration. State v. Myers, 2006 ND 242, ¶ 16, 724 N.W.2d 168; State v. Keller, 550 N.W.2d 411, 412 (N.D.1996); State v. Woehlhoff, 540 N.W.2d 162, 164 (N.D.1995); City of Fargo v. Hector, 534 N.W.2d 821, 822 (N.D.1995); State v. Brown, 420 N.W.2d 5, 7 (N.D.1988). By statute, a temporary protection' order issued under N.D.C.C. § 14-07.1-03 “remains in effect until an order issued under section 14-07.1-02 is served,” unless the temporary order is otherwise terminated by the court. N.D.C.C. § 14-07.1-03(3). Further, a court order is presumed to be valid unless the court lacked jurisdiction over the matter. Gruebele v. Gruebele, 338 N.W.2d 805, 810 (N.D.1983); 56 Am.Jur.2d Motions, Rules, and Orders § 54 (2006) (providing that orders must be obeyed until reversed, modified, or set aside). “Jurisdiction will be deemed to exist in the face of a collateral attack unless the record affirmatively shows that the tribunal did not have jurisdiction to make the order in question.” Gruebele, at 810 (internal quotations omitted). The district court that issued the protection order had jurisdiction over the matter under N.D. Const, art. VI, § 8, N.D.C.C. § 27-05-06, and N.D.C.C. eh. 14-07.1.

[¶ 7] Here, Zahn had the opportunity to present his argument to the court that issued the protection orders. Both protection orders set hearing dates within fourteen days of their respective issuance dates. Zahn failed to appear at these hearings to challenge the issuance of the orders. Zahn makes no showing the court was without jurisdiction to issue the order. As such, the order was valid and in effect at the time he concededly violated it. Zahn cannot merely claim he was not subject to criminal liability because the order he violated was invalid.

IV

[¶ 8] Zahn argues, as a matter of law, he cannot be convicted of violating a protection order under N.D.C.C. § 14-07.1-06 unless the State proved the service of the order was accompanied by a copy of the application for the order. In pertinent part, section 14-07.1-06 provides:

Whenever a protection order is granted under section ... 14-07.1-03 and the respondent ... has been served a copy of the order, the first violation of any order is a class A misdemeanor and also constitutes contempt of court. A second or subsequent violation of any protection order is a class C felony.

Zahn argues section 14-07.1-06 is ambiguous because it requires the State to only serve a copy of the order, whereas N.D.C.C. § 14-07.1-03(4) requires the State to also serve a copy of the application and notice of a hearing date. Section 14-07.1-03(4) provides:

A full hearing as provided by section 14-07.1-02 must be set for not later than fourteen days from the issuance of the temporary order. The respondent must be served forthwith with a copy of the ex parte order along with a copy of the application and notice of the date set for the hearing.

Zahn argues the State must prove he was served with both the “order” and the “application.” Otherwise, he argues, the language referring to the application in N.D.C.C. § 14-07.1-03(4) is surplusage.

[¶ 9] The primary goal in interpreting statutes is to ascertain the Legislature’s intent. State v. Buchholz, 2005 ND 30, ¶ 6, 692 N.W.2d 105 (Buchholz I) (quoting State v. Laib, 2002 ND 95, ¶ 13, 644 N.W.2d 878). “Legislative intent must first be sought from the language of the statute.” Adams County Record v. Greater N.D. Ass’n, 529 N.W.2d 830, 833 (N.D.1995); Burlington N.R.R. v. State, 500 N.W.2d 615, 617 (N.D.1993). We give the words their plain, ordinary, and commonly understood meaning. Buchholz I, at ¶ 6; N.D.C.C. § 1-02-03. The Court interprets statutes “to give meaning and effect to every word, phrase, and sentence, and do not adopt a construction which would render part of the statute mere sur-plusage.” Buchholz I, at ¶ 6 (quoting Laib, at ¶ 13). If possible, we construe statutes on the same subject to harmonize them and to give full force and effect to the Legislature’s intent. State v. Higgins, 2004 ND 115, ¶ 13, 680 N.W.2d 645. We construe statutes relating to the same subject matter to give effect to both. Id. If the statute’s language is ambiguous, we can consider extrinsic aids to determine the Legislature’s intent. Id.; N.D.C.C. § 1-02-39. Ambiguous statutes are construed against the government and in favor of the defendant. Higgins, at ¶ 13.

[¶ 10] Zahn’s argument is analogous to the issue presented in State v. Sundquist, 542 N.W.2d 90 (N.D.1996). In Sundquist, the defendant argued the failure to attach a copy of the stalking law invalidated a protection order. Id. at 90. The tidal court granted Sundquist’s motion to dismiss the protection order violation because “the protection order which formed the basis for the criminal charge did not include or have attached to it a copy of [the stalking law]....” Id. Therefore, the trial court reasoned, “the protection order did not conform to the statute under which Sundquist was charged.” Id. We reversed and remanded, holding the “State’s failure to comply with section 14-07.1-03.1[did] not deprive the trial court of jurisdiction to hear the charge against Sundquist.” Id. at 91. In other words, we held that a technical violation of the service requirement “was procedural rather than jurisdictional.... ”Id.

[¶ 11] Contrary to Zahn’s position, the requirements of N.D.C.C. § 14-07.1-06 are clear. From the plain meaning of section 14-07.1-06, the Legislature clearly intended for only the service of the protection order as a prerequisite to a criminal action. In other sections in chapter 14-07.1, the Legislature used the phrase “along with a copy of the application” where it intended to do so. Service of the protection order and conduct violating the restraints imposed by the order are the only prerequisites to criminal liability under N.D.C.C. § 14-07.1-06. A copy of the application for the order is not required to be served for criminal prosecution purposes.

V

[¶ 12] Zahn argues the evidence does not support the guilty verdict on the reckless endangerment charge. Zahn contends that had he fired a rifle at his brother on the date alleged, it would have been disclosed in the amended protection order application, which was filed after ■ the shooting incident. Zahn and his passenger testified he did not fire a rifle in his brother’s direction. Zahn’s brother, however, testified he heard the shot after he watched Zahn park approximately 200 yards away. The brother also testified he has been a hunter for more than 40 years and knows what a rifle report sounds like.

[¶ 13] Under our standard of review for “insufficiency of the evidence” claims, Zahn’s claim is without merit. As we recently explained in State v. Buchholz, 2006 ND 227, 723 N.W.2d 534 (Buchholz ID:

When we review a challenge to the sufficiency of the evidence, we only consider the evidence and reasonable inferences most favorable to the verdict to determine if there is sufficient evidence to warrant a conviction. State v. Bertram, 2006 ND 10, ¶ 5, 708 N.W.2d 913. “ ‘A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact finder could find the defendant guilty beyond a reasonable doubt.’ ” Id. (quoting State v. Noorlun, 2005 ND 189, ¶ 20, 705 N.W.2d 819). We do not weigh conflicting evidence or judge witness credibility. Bertram, at ¶ 5.

Buchholz II, at ¶ 20. Here, the jury was presented with diametrically opposed testimony concerning the rifle shot. That is, the jury was asked to weigh conflicting evidence and judge the credibility of the witnesses. The jury, believing his brother’s testimony, found Zahn guilty of reckless endangerment. We do not weigh conflicting evidence. Id. In evaluating the evidence in the light most favorable to the prosecution, the evidence was sufficient to support the jury verdict.

VI

[¶ 14] We hold a party may not collaterally challenge the validity of a protection order without first raising the issue in the court that issued the order, service of the application for a protection order is not a prerequisite to a criminal conviction for a violation of the order under N.D.C.C. § 14-07.1-06, and there was sufficient evidence to support the jury verdict for reckless endangerment. The judgments of conviction are affirmed.

[¶ 15] GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ., concur.

DALE V. SANDSTROM, J.

I concur in the result.

      . We do not condone the State’s noncompliance with the service requirements of N.D.C.C. § 14-07.1-03(4). A copy of the application must be served to allow the respondent to prepare for the permanent domestic violence protection order hearing. Dismissal of the protection order proceeding may have resulted from the failure to serve the application had Zahn raised this issue before the court issuing the protection order.


text:
    2007 ND 3
    Therese Joan LUCIER, Plaintiff and Appellant, v. Lewis Joseph LUCIER, Defendant and Appellee.
    No. 20060060.
    Supreme Court of North Dakota.
    Jan. 11, 2007.

      James D. Hovey, Pearson Christensen & Clapp, P.L.L.P., Grand Forks, N.D., for plaintiff and appellant; submitted on brief.
    Matthew F. Shimanek, Hammarback, Dusek & Associates, P.L.C., East Grand Forks, MN, for defendant and appellee; submitted on brief.
   KAPSNER, Justice.

[¶ 1] Therese Lucier appeals from an amended judgment modifying Lewis Lucier’s spousal support obligation. We affirm, concluding the district court’s finding of a material change in circumstances is not clearly erroneous.

I

[¶ 2] Lewis and Therese Lucier were married in 1994, and have one child together. In September 2004, Therese Lucier sued for divorce. On August 2, 2005, the parties executed a marital termination agreement, in which they agreed to sell their home in Sammamish, Washington, using some of the proceeds to pay off a mortgage and home equity loan on that home, and to divide the remaining proceeds. They agreed that Therese Lucier would be awarded the parties’ Grand Forks home, and Lewis Lucier would execute a quit claim deed conveying his interest in that home to Therese Lucier. Therese Lucier agreed to pay any liens, mortgages and encumbrances on the Grand Forks home, which included paying $2,150.78 per month for the mortgage. The parties also agreed that Lewis Lucier would pay spousal support in the amount of “$2,400 per month payable on the 5th day of each and every month until the sale of the Washington home and distribution of proceeds has been accomplished.” The parties agreed Lewis Lucier’s spousal support obligation would terminate after the sale of the Washington home. Lewis Lucier agreed to pay $700 per month in child support. The termination agreement was incorporated into a divorce decree that was filed on August 10, 2005.

[¶ 8] When the parties signed the termination agreement, the Luciers had accepted an offer to purchase the Washington property, but the offer was conditioned on the buyer obtaining building permits for the property. The offer allowed the buyer to rescind if the city adopted an ordinance restricting the issuance of new building permits. Lewis Lucier took out a home equity loan on the Washington property to pay his monthly spousal support obligation until the scheduled sale of the property was final in January 2006. In an affidavit Lewis Lucier claimed, and Therese Lucier did not contest, that the City of Sammamish passed an ordinance on August 15, 2005, prohibiting the issuance of new building permits until August 2007. On August 31, 2005, the buyer rescinded the offer to purchase the Washington property.

[¶ 4] After the divorce, Therese Lucier sold the Grand Forks home and moved to Erskine, Minnesota, where she rented an apartment under a one-year lease for $585 per month. Although Therese Lucier was unemployed, she had been a licensed cosmetologist in Minnesota and sought re-certification with plans to open a new salon after she received her share of the proceeds from the sale of the Washington property.

[¶ 5] On November 28, 2005, Lewis Lu-cier moved to modify his spousal support obligation. After a hearing, the district court granted the motion, finding:

Testimony presented by [Lewis Lucier] during hearing asserted that, at the time that the Marital Termination Agreement was entered into and Judgment based thereon entered, there was an anticipated imminent sale of the Washington property and further that [Therese Lu-cier] was expected to remain in Grand Forks so that their [child] could continue to attend Century Elementary School. He asserted further that, based upon those circumstances, a temporary spousal support award for [Therese Lucier] was arrived at which would allow her to maintain the Grand Forks home. [Lewis Lucier] testified that, shortly after divorce, the sale of the Washington state property fell through, [Therese Lucier] sold the Grand Forks property, and she then relocated to Erskine, Minnesota with the parties’ [child]. He testified further that although the parties both were confident that the sale pending at the time of divorce would culminate, there was also discussion between the two parties with regard to the need for the spousal support issue to be re-addressed if it did not. (The court noted from [Lewis Lucier’s] testimony as well as [Therese Lucier’s] affidavit that both parties were apparently aware that this sale was conditioned upon the local county in Washington approving building permits, and further that the local government was also considering a moratorium on building permits. Such a moratorium went into effect after divorce.). He also indicated that the Washington property remains unsold although the selling price has been reduced substantially, and that the equity loan proceeds on that property which he was utilizing for his monthly spousal support obligation have been exhausted. Although [Therese Lucier] had filed a responsive affidavit prior to hearing to that filed by [Lewis Lucier] in support of his motion, she was not cross-examined on its content during hearing. From documentation received during hearing, however, it is clear that it was the intent of the parties at time of divorce, despite a different earlier agreement between them at a pre-divorce mediation, that all interest in the Grand Forks property would be transferred to [Therese Lucier] subject to its existing indebtedness, and further that she would be free to sell that property without restriction. However, unrefuted was [Lewis Lucier’s] assertion that, at time of divorce, [Therese Lucier] had a $2,150.78 monthly mortgage expense on the property she received in the divorce. Also unrefuted was that her current monthly rent approximates $600.00 monthly. Finally, and also unrefuted by [Therese Lucier], is the fact that the parties both acknowledged the need to re-address [Lewis Lucier’s] ongoing spousal support obligation should the Washington property not sell as anticipated at time of divorce.

The court found the failure of the Washington property to sell, the exhaustion of the home equity loan proceeds used to meet Lewis Lucier’s spousal support obligation, and the reduction in Therese Lucier’s living expenses, are all material changes of circumstances. The court reduced Lewis Lucier’s spousal support obligation from $2,400 per month to $1,000 per month until August 2006, and thereafter to $700 per month if the Washington property has not sold.

II

[¶ 6] Therese Lucier argues the district court’s findings of material changes in circumstances are clearly erroneous because the parties contemplated these changes could occur at the time they entered into the termination agreement.

[¶ 7] “When the original divorce judgment includes an award of spousal support, the district court retains jurisdiction to modify the award.” Rothberg v. Rothberg, 2006 ND 65, ¶ 10, 711 N.W.2d 219. In Wheeler v. Wheeler, 419 N.W.2d 923, 925 (N.D.1988) (citations omitted), we explained the standard for modifying spousal support:

To modify spousal support, circumstances must have changed materially. Slight, or even moderate, changes in the parties’ relative incomes are not necessarily material. “Material change” means something which substantially affects the financial abilities or needs of a party. The reason for changes in income must be examined, as well as the extent that the changes were contemplated at the time of the agreed decree.

A change that was contemplated by the parties at the time of the initial decree is not a material change in circumstances. Gibb v. Sepe, 2004 ND 227, ¶ 7, 690 N.W.2d 230. A contemplated change is one the parties considered when entering a termination agreement or one the district court considered in fashioning its original decree, but a change is not necessarily contemplated simply because it can now be called foreseeable with the benefit of hindsight. Quamme v. Bellino, 2002 ND 159, ¶ 14, 652 N.W.2d 360. When a decree is based on a stipulated agreement, we view the issue of whether the change was contemplated with greater scrutiny, because the parties are in a better position to understand their circumstances. Wheeler v. Wheeler, 548 N.W.2d 27, 30 (N.D.1996). The party seeking modification bears the burden of proof. Rothberg, at ¶ 10.

[¶ 8] The district court’s determination whether there has been a material change in circumstances warranting modification of spousal support is a finding of fact and will not be reversed on appeal unless it is clearly erroneous. Rothberg, 2006 ND 65, ¶ 10, 711 N.W.2d 219. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or upon review of . all the evidence, we are left with a definite and firm conviction a mistake has been made. Ebach v. Ebach, 2005 ND 123, ¶ 10, 700 N.W.2d 684.

A

[¶ 9] Therese Lucier claims it was foreseeable that her living expenses might decrease after the divorce, because she was awarded the parties’ interest in the Grand Forks property and was free to sell it. She argues the district court’s finding that her reduced living expenses was a material change in circumstances is clearly erroneous.

[¶ 10] A change is not necessarily contemplated simply because it can now be called foreseeable with the benefit of hindsight. Quamme, 2002 ND 159, ¶ 14, 652 N.W.2d 360. The parties agreed that Lewis Lucier would pay $2,400 per month in spousal support and $700 per month in child support until the Washington property was sold, which would provide Therese Lucier with enough money to pay the mortgage and her monthly living expenses until she received her share of the proceeds from the sale of the Washington property. The district court found the parties anticipated and agreed to an amount of spousal support that would allow Therese Lucier and the parties’ child to continue living in the Grand Forks home so the child would be able to continue attending the same school. Although it may be foreseeable that Therese Lucier could sell the Grand Forks home, there is no evidence the parties contemplated that she would sell the home and greatly decrease her need for spousal support within months of the divorce.

[¶ 11] We are not left with a definite and firm conviction the district court made a mistake in finding that Therese Lucier’s sale of the Grand Forks home and the resulting reduction in her living expenses was a material change in circumstances. We conclude the court’s finding is not clearly erroneous.

B

[¶ 12] Therese Lucier also argues the parties contemplated that the Washington property might not sell and the proceeds of the home equity loan could be exhausted when they entered into the termination agreement, and therefore the district court’s findings about these changes are clearly erroneous. She claims the changes were contemplated because the offer to purchase the property was conditioned on obtaining building permits and the parties were aware that there was going to be moratorium on building permits.

[¶ 13] We concluded the district court’s finding that Therese Lucier’s reduction in living expenses is a material change in circumstances is not clearly erroneous, therefore, whether the court’s findings about the failure of the Washington property to sell and the exhaustion of the home equity loan proceeds are clearly erroneous are issues that will not affect the outcome of this case, and we will not address them.

C

[¶ 14] Therese Lucier nevertheless claims the district court did not adequately consider that Lewis Lucier’s original spousal support obligation was based on the parties’ termination agreement and therefore should not have been modified.

[¶ 15] We encourage agreements between divorcing parties and have recognized that stipulated spousal support awards should be changed only with great reluctance. Rothberg, 2006 ND 65, ¶ 11, 711 N.W.2d 219. We have also recognized that a spousal support award based on a stipulated agreement can be modified if there is a material change in circumstances. Meyer v. Meyer, 2004 ND 89, ¶ 8, 679 N.W.2d 273. We are not persuaded that the district court failed to consider the spousal support obligation was based on a stipulated agreement. The court adequately considered the parties’ agreement, but concluded Therese Lucier’s reduction in living expenses was a material change in circumstances justifying a modification of the support obligation. We conclude the district court’s finding is not clearly erroneous.

Ill

[¶ 16] Therese Lucier argues the district court did not adequately explain the reduced amounts of spousal support. She claims the court’s rationale for selecting the modified support amounts is not discernable through inference or deduction, and therefore the court’s decision is clearly erroneous.

[¶ 17] When a district court modifies spousal support, the court must adequately explain its rationale in determining the new support amount. See Meyer, 2004 ND 89, ¶ 9, 679 N.W.2d 273 (court did not adequately explain its rationale for determining the amount of the spousal support reduction). In determining a modified support obligation, the court must evaluate the obligor’s current ability to pay along with the recipient’s current need for support and award support in an amount that is adequately proportional to the reduction in the obligor’s income, taking into consideration the recipient’s need for support. Id. We generally remand for clarification of missing or con-clusory findings of fact, but we will not remand if we can infer or deduce the district court’s rationale. Wheeler, 548 N.W.2d at 30. “We may rely upon implied findings of fact when the record enables us to understand the factual determinations made by the [district] court and the basis for its conclusions of law and judgment.” Id.

[¶ 18] The district court reduced Lewis Lucier’s spousal support obligation from $2,400 per month to $1,000 per month until August 2006, at which time the obligation would be reduced to $700 per month if the Washington property still had not sold. The court found Therese Lucier’s monthly housing expense had decreased from $2,150.78 to approximately $600 per month. The court found the failure of the Washington property to sell and the exhaustion of the equity loan proceeds had substantially affected Lewis Lucier’s financial ability to continue paying $2,400 per month in spousal support.

[¶ 19] Although the court did not directly explain how it determined the amounts of the modified spousal support obligation, we can infer the court’s rationale for its decision. The parties agreed Lewis Lucier would use the proceeds from the home equity loan to pay his spousal support obligation through the expected sale of the Washington property in January 2006 because he could not otherwise afford to pay the agreed upon amount. After the offer on the property was rescinded, the loan proceeds were exhausted and Lewis Lucier was no longer financially able to meet his support obligation. Meanwhile, Therese Lucier’s living expenses were drastically reduced after she sold the Grand Forks home. Similar to the original spousal support award, the modified support award provides sufficient support to allow Therese Lucier to pay her monthly housing expenses. The court evaluated Lewis Lucier’s ability to pay support along with Therese Lucier’s need for support when it determined the amount of Lewis Lucier’s modified support obligation, and we conclude the court’s findings are sufficient to understand the court’s rationale for determining the modified support amounts.

IV

[¶ 20] We affirm the amended judgment modifying Lewis Lucier’s spousal support obligation.

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


author: CROTHERS, Justice.

text:
    2007 ND 5
    Daniel O. DONLIN, Plaintiff, Appellee and Cross-Appellant, v. June A. DONLIN, Defendant, Appellant and Cross-Appellee.
    No. 20060128.
    Supreme Court of North Dakota.
    Jan. 11, 2007.

      Michael Geiermann, Schulz Geiermann & Bergeson Law Offices, P.C., Bismarck, N.D., for plaintiff, appellee and cross-appellant.
    Richard B. Baer, Richard B. Baer, P.C., Bismarck N.D., for defendant, appellant and cross-appellee.
   CROTHERS, Justice.

[¶ 1] June Donlin appeals and Daniel Donlin cross-appeals from a divorce judgment equally dividing the parties’ marital property and awarding June Donlin spousal support. We affirm the judgment and dismiss the cross-appeal.

I

[¶2] June Donlin and Daniel Donlin were married in May 1989 and had no children from their marriage. This was Daniel Donlin’s first marriage and June Donlin’s third marriage. June Donlin had two children from a prior marriage. In June 2005, Daniel Donlin commenced this divorce action, and a trial was held in the district court in March 2006.

[¶ 3] At the time of trial, June Donlin was forty-eight years old, and Daniel Don-lin was forty-two years old. The district court found that because the Donlins had been married for more than sixteen years, it was a marriage of relatively long duration. Daniel Donlin was employed with the Bismarck police department, while June Donlin was unemployed and receiving social security disability income. The court found June Donlin was not likely to be employed in the near future in a new career at a high level of pay.

[¶ 4] June Donlin had struggled with alcohol abuse throughout their marriage. The court found that June Donlin had revealed to Daniel Donlin her history of alcohol use and of having been sexually abused as a young child. The court also found that during the marriage, June Don-lin had sought psychiatric help, but her psychiatrist had abused her trust by starting a sexual affair with her leading to the breakup of the marriage. June Donlin and Daniel Donlin have pursued a lawsuit based upon the actions of June’s psychiatrist, resulting in settlement proceeds paid by one defendant. The court found that while Daniel Donlin has been very supportive of June Donlin and her struggle with alcohol and sexual abuse, June Don-lin’s deception and her affair ultimately led Daniel Donlin to initiate this divorce action.

[¶ 5] The district court found June Donlin and Daniel Donlin enjoyed a modest, middle-class lifestyle. However, while Daniel Donlin appears to be in good health, June Donlin’s mental health has been problematic. The court found all of the parties’ property and debts had been accumulated during their marriage, with the exception of some stock Daniel Donlin received from his father prior to the marriage. The court also found both parties had accrued significant credit card debt before and after their separation.

[¶ 6] After consideration of the Ruff-Fischer guidelines, the district court concluded an equitable division of the marital estate was an equal division of the estate. The court found the Donlins’ assets of $205,210, less their total debts of $36,285 resulted in a net marital estate of $168,925, and the court awarded an equal value of $84,462 to both Daniel Donlin and June Donlin. The court awarded each party half of the lawsuit net proceeds stemming from the psychiatrist’s actions, net funds from the sale of their house, and life insurance proceeds.

[¶ 7] The district court ordered the sale of the company stock Daniel Donlin had received from his father prior to marriage, with the proceeds to be equally divided between the parties. The court also ordered an equal division of Daniel Don-lin’s Bismarck police pension. Additionally, the court ordered Daniel Donlin to pay June Donlin $600 per month in rehabilitative spousal support for three years.

[¶ 8] June Donlin appealed and Daniel Donlin cross-appealed from the judgment. After oral argument to this Court and based upon the parties’ motion “for the consideration and entry of an Amended Judgment in this matter [to] eliminate the cross[-]appeal issue raised by” Daniel Don-lin, we temporarily remanded to the district court “for the limited purpose of the District Court’s consideration and entry of an Amended Judgment.” On remand, the parties stipulated to entry of an amended judgment that ultimately awarded Daniel Donlin his Bismarck police pension and awarded June Donlin one-half of the pension’s value from other assets awarded to Daniel Donlin.

II

[¶ 9] June Donlin argues the district court clearly erred in equally dividing the parties’ marital property and awarding her $600 per month in rehabilitative spousal support for three years.

A

[¶ 10] This Court reviews a district court’s determination regarding the distribution of property as a finding of fact and will not reverse unless the district court’s findings are clearly erroneous. Dvorak v. Dvorak, 2006 ND 171, ¶ 19, 719 N.W.2d 362. “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence the reviewing court is left with a definite and firm conviction a mistake has been made.” Kautzman v. Kautzman, 1998 ND 192, ¶ 8, 585 N.W.2d 561.

[¶ 11] “When distributing marital property, all of the parties’ assets must be considered to insure the division is equitable.” Kostelecky v. Kostelecky, 2006 ND 120, ¶ 12, 714 N.W.2d 845. Under the Ruff-Fischer guidelines, the court must consider:

the respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity, if any, whether accumulated before or after the marriage, and such other matters as may be material.

Id.‘[A] property division need not be equal to be equitable, but a substantial disparity must be explained.’ ” Amsbaugh v. Amsbaugh, 2004 ND 11, ¶ 23, 673 N.W.2d 601 (quoting Bladow v. Bladow, 2003 ND 123, ¶ 5, 665 N.W.2d 724). This Court has also recognized that a long-term marriage supports an equal distribution of property. Dvorak, 2006 ND 171, ¶ 34, 719 N.W.2d 362; Schoenwald v. Schoenwald, 1999 ND 93, ¶ 23, 593 N.W.2d 350.

[¶ 12] Here, the district court found the parties’ marriage of more than sixteen years was of a long duration and, through application of the Ruff-Fischer guidelines, concluded an equitable distribution is an equal division of the marital estate. The court considered the ages of the parties, their earning ability, the conduct of the parties during the marriage, and their station in life. The court also considered the health and physical condition of the parties, specifically discussing June Donlin’s mental health.

[¶ 13] Although June Donlin asserts on appeal the district court needed to place greater emphasis on her needs arising out of her medical condition, her history, and her poor outlook for the future, the court evaluated June Donlin’s needs with regard to those issues. The record reflects June Donlin has an educational background in business management and work experience in bookkeeping. The court also found that while she is presently receiving social security disability income, there is no evidence of a permanent award. Although June Donlin’s mental health concerns may be significant, we are not left with a definite and firm conviction the district court made a mistake in distributing the parties’ marital estate equally. We conclude the district court did not clearly err in concluding an equal division of the marital property was equitable.

B

[¶ 14], June Donlin argues the district court’s award of spousal support of $600 per month for three years is insufficient, particularly considering her disability and lack of employment and income.

[¶ 15] Determinations of spousal support are also findings of fact, and the court’s decision on spousal support will not be set aside on appeal unless clearly erroneous. Kostelecky, 2006 ND 120, ¶ 14, 714 N.W.2d 845. In determining spousal support, the district court must consider the relevant factors under the Ruff-Fischer guidelines. Sack v. Sack, 2006 ND 57, ¶ 12, 711 N.W.2d 157. “Property division and spousal support are interrelated and intertwined and often must be considered together.” Kostelecky, at ¶ 14.

[¶ 16] In awarding June Donlin spousal support, the court found that both Daniel Donlin and June Donlin have a modest standard of living, which would remain modest for a period of time after divorce, and that their circumstances and necessities would remain largely the same after they are divorced. The court also considered, however, that neither party would have any debts as a result of the divorce and that both parties would have an equal share of what was left of their marital estate. In explaining its award of spousal support, the district court further considered Daniel Donlin’s continued employment as police officer with a net monthly income of $3,233, and recognized June Donlin’s emotional condition is such that she is receiving social security disability income in the amount of $887 per month. In its memorandum opinion, however, the district court also appears to have relied upon specific facts in an appellee’s brief from a prior case before this Court to justify the range of sufficient spousal support in this case. Each case must be decided on its own specific facts and, although we do not condone the district court’s consideration of an appellate brief in another case to justify the amount of the spousal support award here, we are not left with a definite and firm conviction the district court made a mistake in this case.

[¶ 17] The district court concluded the award of rehabilitative support would “assist June in coming to a resolution with her problems,” but did not find any need for permanent spousal support. Based upon our review of the record in light of the Ruff-Fischer guidelines, the facts as established in this case, and the equal distribution of the parties’ marital property, we conclude the district court did not clearly err in awarding June Donlin rehabilitative spousal support of $600 per month for three years.

Ill

[¶ 18] In his cross-appeal, Daniel Donlin argues the district court erred in ordering his Bismarck police pension be equally divided between the parties. Based upon the parties’ stipulation during the limited remand of this case, an amended judgment awarded the pension to Daniel Donlin and awarded one-half of the pension’s value to June Donlin from other assets awarded to Daniel Donlin.

[¶ 19] “We will dismiss an appeal if the issues become moot or academic and no actual controversy is left to be determined.” Ramsey Fin. Corp. v. Haugland, 2006 ND 167, ¶ 8, 719 N.W.2d 346 (citing DeCoteau v. Nodak Mut. Ins. Co., 2001 ND 182, ¶ 10, 636 N.W.2d 432). Because the amended judgment resolves the issue raised by Daniel Donlin in his cross-appeal, we conclude the issue is now moot. Accordingly, we dismiss the cross-appeal.

IV

[¶ 20] We dismiss the cross-appeal and affirm the judgment.

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


author: MAKING, Justice.

text:
    2007 ND 7
    STATE of North Dakota, Plaintiff and Appellee, v. Gary Howard MOORE, Defendant and Appellant.
    No. 20060131.
    Supreme Court of North Dakota.
    Jan. 11, 2007.

      James A. Hope, Assistant State’s Attorney, Dickinson, N.D., for plaintiff and ap-pellee.
    Kevin McCabe, Office of the Public Defender, Dickinson, N.D., for defendant and appellant.
   MAKING, Justice.

[¶ 1] Gary Howard Moore appeals from a criminal judgment entered on a conditional guilty plea under N.D.R.Crim.P. 11(a)(2), after the trial court granted the State’s motion for additional time to bring Moore’s case to trial. Moore argues his case should be dismissed with prejudice because his trial did not occur within the ninety-day period required by the Uniform Mandatory Disposition of Detainers Act. We affirm.

I

[¶ 2] On July 30, 2005, a stolen truck was backed into a business in Dickinson. Extensive damage was done to the building and a large sum of money was stolen. On September 15, 2005, Gary Howard Moore, while incarcerated, was charged with burglary, theft of property, and criminal mischief. On November 28, 2005, Moore filed a request for disposition of indictments, information, or complaints, and notice of place of imprisonment. On December 7, 2005, Moore was served a notice of hearing for an initial appearance on January 9, 2006. Moore, however, did not show up for his initial appearance on January 9, 2006, and the State requested a continuance. The Stark County sheriff had traveled to Bismarck to transport Moore to Dickinson for the initial appearance, but Moore was already in court in Jamestown for an unrelated matter. At the rescheduled initial appearance and preliminary hearing on February 6, 2006, Moore requested appointed counsel. The preliminary hearing was therefore postponed until February 16, 2006, at which time, Moore pled not guilty. The State moved for additional time to bring Moore’s case to trial because of the rescheduling of the initial appearance due to Moore’s unrelated court appearance, and the rescheduling of the preliminary hearing due to Moore’s request for appointed counsel. In an oral ruling on the State’s motion, the trial court found the State had shown good cause for additional time and ordered that the case be brought to trial within ninety days from February 16, 2006. On March 24, 2006, the trial court signed a written order granting additional time, which was filed on March 27, 2006. A trial was scheduled for April 6, 2006, at which time Moore entered a conditional guilty plea, reserving the right to appeal the criminal judgment.

II

[¶ 3] Moore argues that his case should be dismissed because his trial did not occur before or on February 27, 2006, which was ninety days after he filed his request for disposition. He contends the trial court abused its discretion by finding the State had shown good cause for the additional time, the oral ruling did not properly grant additional time because it was not a final order, and the written order did not properly grant additional time because it was signed after the ninety-day period.

[¶ 4] The Uniform Mandatory Disposition of Detainers Act, codified in part under N.D.C.C. § 29-33-03, provides:

Within ninety days after the receipt of the request and certificate by the court and prosecuting official or within such additional time as the court for good cause shown in open court may grant, the prisoner or the prisoner’s counsel being present, the indictment, information, or complaint must be brought to trial.... If, after such a request, the indictment, information, or complaint is not brought to trial within that period, no court of this state any longer has jurisdiction thereof, nor may the untried indictment, information, or complaint be of any further force or effect, and the court shall dismiss it with prejudice.

A

[¶ 5] This Court has explained the standard of review for determining whether good cause exists for a grant of additional time:

“Legal logic dictates sound discretion is the proper standard to be applied on the question whether or not good cause existed for extension or continuance, and that an appellate court will not reverse such decision except in instances where the trial judge abused his discretion. We have repeatedly stated that abuse of discretion is the equivalent of acting unreasonably, arbitrarily or unconscionably.”

State v. Foster, 1997 ND 8, ¶ 6, 560 N.W.2d 194 (quoting State v. Kania, 341 N.W.2d 361, 365 (N.D.1983)).

[¶ 6] The factors we consider when deciding whether good cause exists to grant additional time are: the length of delay; the reason for delay; defendant’s assertion of his right; and, prejudice to the defendant. Foster, 1997 ND 8, ¶ 7, 560 N.W.2d 194 (relying on Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)). Each of the factors must be given weight, but no factor, including the length of the delay, is controlling. State v. Murchison, 541 N.W.2d 435, 438-39. (N.D.1995). “Delay is not presumptively prejudicial.” Foster, 1997 ND 8, ¶ 12, 560 N.W.2d 194. A lack of prejudice substantially weakens a claim. Murchison, 541 N.W.2d at 439.

[¶ 7] Whether a delay is too long is dependant on the specific circumstances of the case. Barker, 407 U.S. at 530-31, 92 S.Ct. 2182. The allowable delay for a minor street crime is considerably less than that for a more serious and complex charge. Id. at 531, 92 S.Ct. 2182. The ninety-day period to conduct Moore’s trial commenced on November 28, 2005, and ended on February 27, 2006. The trial, which became a plea hearing, occurred on April 6, 2006, thirty-eight days after the ninety-day period ended. In Murchison, a delay of nearly one year was determined to be significant, but not presumptively prejudicial. 541 N.W.2d at 438-39; Foster, 1997 ND 8, ¶ 13, 560 N.W.2d 194 (holding good cause was shown when there was an extension of twenty-six days and an actual delay of fourteen days). Thirty-eight days was a minimal delay for the serious crimes for which Moore was charged.

[¶ 8] The State cites Moore’s absence at the originally-scheduled initial appearance, and his request for appointed counsel as the reasons for the delay of his trial. The need to reschedule the initial appearance caused a delay, but Moore was not responsible for the delay because he had another court appearance that required his attendance. Nor was the State responsible for the delay by failing to ensure Moore’s availability. The missed initial appearance was merely a mutual and innocent mistake that required additional time for the trial to be held.

[¶ 9] A defendant’s assertion of his right and any prejudice to the defendant must also be weighed. See Foster, 1997 ND 8, ¶ 7, 560 N.W.2d 194. Moore properly asserted his right to have his trial within ninety days. Prejudice can take three forms: oppressive pretrial incarceration, anxiety and concern caused by the delay, and an impaired defense. Foster, at ¶ 12. In Foster, the defendant had already been incarcerated when he filed his detain-er, and did not claim anxiety and concern, and there was no evidence of an impaired defense. Id. Moore, like Foster, was already incarcerated, and he never claimed anxiety and concern caused by the delay, or an impaired defense. We conclude Moore was not prejudiced by the delay because he was incarcerated on another charge during the length of the delay in the scheduling of his trial.

[¶ 10] The trial court reasonably concluded good cause existed based on the short length of delay and the seriousness of the crimes, the mutual innocent mistake resulting in the postponed initial appearance, and the lack of prejudice. We conclude the trial court, for good cause shown, granted additional time and did not abuse its discretion.

B

[¶ 11] Moore contends that the trial court’s oral order did not properly extend the time for trial. This Court has long held that an oral ruling does not constitute an order on a motion. See State v. New, 75 N.D. 433, 435, 28 N.W.2d 522, 523 (1947). An order must be in writing and signed by a judge. Id. A motion is pending until a written order is signed by the court. Id.; State v. Olsen, 540 N.W.2d 149, 150 (N.D.1995).

[¶ 12] However, N.D.C.C. § 29-33-03 provides an exception to the requirement that an order be written and signed before it is final. Section 29-33-03, in pertinent part, states: “Within ninety days after the receipt of the request and certificate by the court and prosecuting official or within such additional time as the court for good cause shown in open court may grant, the prisoner or the prisoner’s counsel being present, the indictment, information, or complaint must be brought to trial.... ” Section 29-33-03 clearly allows the trial court to rule on the request for additional time in open court. This view is supported by State v. Kania, 341 N.W.2d 361 (N.D.1983). In Kania, the trial court orally granted additional time for the trial under N.D.C.C. § 29-33-03, after finding good cause had been shown in open court. Id. at 363. This Court held good cause existed for the trial court to grant additional time based on the oral ruling, and Kama’s conviction was affirmed. Id. at 366. In the present case, the trial court’s oral ruling finding good cause was a final order under N.D.C.C. § 29-33-03 that properly granted the State’s motion for additional time to bring Moore’s case to trial. Therefore, the late signing and entry of the written order were not significant.

Ill

[¶ 13] We affirm the criminal judgment.

[¶ 14] GERALD W. VANDE WALLE, C.J., and DANIEL J. CROTHERS, DALE Y. SANDSTROM, and CAROL RONNING KAPSNER, JL, concur.