text:
    2007 SD 124
    STATE of South Dakota, Plaintiff and Appellee v. Karyl Michelle CONDON, Defendant and Appellant.
    No. 24336.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 1, 2007.
    Decided Dec. 5, 2007.
    Rehearing Denied Jan. 4, 2008.

      Lawrence E. Long, Attorney General, Steven R. Blair, Assistant Attorney General, Pierre, SD, for plaintiff and appellee.
    Mark Kadi, Office of the Public Advocate, Sioux Falls, SD, for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] On September 2, 2004, Karyl Michelle Condon (Condon) was indicted by a Minnehaha County grand jury on one count of grand theft. A jury trial was held in the South Dakota Second Judicial Circuit on January 24 and 25, 2005, after which Condon was found guilty of the charge. On July 12, 2006, Condon filed a motion for a new trial pursuant to SDCL 15 — 6—59(a)(4). The trial court heard the motion on July 24 and September 15, 2006. The trial court denied Condon’s motion and she was thereafter sentenced to eight years in the penitentiary with one year conditionally suspended. We affirm.

FACTS AND PROCEDURE

[¶ 2.] At around 3:00 p.m. on June 28, 2004, Miguel Comparan (Comparan) was visiting with Adriana Lores (Lores) the cashier at a Mexican grocery store in Sioux Falls, South Dakota, Nikki’s La Mexicana (La Mexicana), after completing his shopping. While they were visiting, a young woman, later described by Compar-an and Lores as an “American Indian,” 5'2" to 5'3", weighing about 200 lbs., came into the store and asked Lores for some “fajita meat.” Lores, who was working alone, left the cashier’s counter and walked to the meat department in the back of the store with the woman. Comparan then proceeded to leave the store.

[¶ 3.] As Comparan was exiting through the front door, a second woman, who he described as being an “American Indian,” “who looked like she was tall” and “a little obese” was about to enter the store. After leaving the store, Comparan got into his car on the passenger side because a blue Ford Taurus had parked close enough to the driver’s side of his ear that he could not enter on that side. Com-paran had just sat down in his car and was about to check the contents of his grocery bag against his shopping list when he noticed the second Indian woman emerging from the store with a handful of jewelry. At Condon’s trial, Comparan testified that when he looked at the woman, she pulled the jewelry behind her back and then got into the driver’s side of the blue Ford Taurus parked next to him. Comparan stated that he then backed out of his parking space and moved his car in front of the neighboring Subway restaurant.

[¶ 4.] Sensing that something wrong had occurred in the grocery store, Com-paran went back to La Mexicana to inquire as much with Lores. When he entered the store, the first woman was paying for her fajita meat and was about to leave. Com-paran testified that after that woman left, she got into the blue Ford Taurus on the passenger side and rode away with the woman who had emerged from La Mexica-na with the handful of jewelry.

[¶ 5.] Comparan asked Lores if anything was missing from the jewelry case that sat near the front door of the store. The two observed that there was an area in the case that had been cleared of jewelry. Comparan then left La Mexicana to follow the blue Ford Taurus. Within several blocks he lost the vehicle, so he then returned to La Mexicana. Since Lores did not speak much English, Comparan called 911 to report the theft.

[¶ 6.] Sioux Falls Police were dispatched to La Mexicana and Officer Richard Millette (Millette) interviewed Com-paran and Lores, taking their descriptions of the two women. Later that day Com-paran spoke to one of La Mexicana’s owners, Michelle Reta (Reta). Comparan’s description of the thief was consistent with that of Condon, who Reta had barred from the store for issuing bad checks. Reta then advised Millette that she thought Condon might be the thief.

[¶ 7.] On June 29, 2004, Detective Larry Heitkamp (Heitkamp) was assigned to follow up on Millette’s preliminary investigation. Based on Millette’s report, Heit-kamp put together a six-person photo lineup that included a picture of Condon. On July 2, 2004, Heitkamp interviewed Com-paran and showed him the photo lineup. Comparan identified the photo of Condon as matching the person that he saw leaving La Mexicana with the handful of jewelry.

[¶ 8.] Condon was indicted on one count of grand theft in violation of SDCL 22-30A-1 and SDCL 22-30A-17. At Con-don’s trial on January 24, 2005, the State called Comparan, Lores, Reta and Heit-kamp. On January 25, the jury returned a guilty verdict against Condon. Thereafter, she absconded and was not apprehended until June 6, 2006.

[¶ 9.] While in custody at the Minne-haha County Jail awaiting sentencing, Condon allegedly was informed by fellow inmates that Latasha Rodriquez (Rodriquez) was the person responsible for the jewelry theft at La Mexicana on June 28, 2004. On June 12, 2006, Condon informed defense counsel that fellow inmate Gaylina Jandreau (Jandreau) told her that she had been outside La Mexicana at the time of the June 28, 2004 jewelry theft and that she had observed Rodriquez, a person that Jandreau claimed had an appearance similar to Condon’s, leaving the store with jewelry in hand. Condon asked Jandreau to write out her account of the theft and Jandreau allegedly complied.

[¶ 10.] A second inmate, Wendy Yana-cheak (Yanacheak) allegedly had mistaken Condon for Rodriquez at the county jail. Yanacheak conveyed to Condon that she had a friend, Cameron, who had a daughter named Monica who was a Mend and roommate of Rodriquez’s. Yanacheak claimed to have been present when Monica offered Cameron a piece of jewelry and that Cameron had refused the jewelry because she thought it may have been acquired illegally.

[¶ 11.] Based on this new information, Condon filed a motion for a new trial on July 12, 2006. The trial court heard the motion on July 24, 2006. Yanacheak was present and testified at the hearing. Con-don attempted to produce Jandreau, but she did not appear. Alternatively, Condon offered Jandreau’s handwritten statement as evidence of her account. Supporting its decision with oral findings and conclusions, the trial court refused to allow the statement, but granted Condon a continuance until September 12, 2006, to produce Jan-dreau. Meanwhile, Rodriquez appeared at the July 24 hearing and testified that while she did visit Sioux Falls for a two-week period in July 2004, she otherwise had not been in Sioux Falls until she moved there on December 18, 2005. She further testified that she did not meet Monica until that time and that she had never given Monica any jewelry.

[¶ 12.] The trial court granted a second continuance until September 15, 2006, but Condon was still unable to produce Jan-dreau. When the court reconvened at that time, Condon’s motion for a new trial was denied and an oral sentence was pronounced. The trial court entered its judgment and sentence on November 1, 2006, and on November 27, entered findings of fact and conclusions of law in connection with its denial of Condon’s motion for a new trial.

[¶ 13.] Condon appeals raising the following issues:

1. Whether the trial court erred in noting for the record testifying witnesses’ in-court identifications of Condon.
2. Whether the trial court erred when it allowed the State to question Comparan as to Condon’s nationality and his ability to differentiate between persons of American Indian and Mexican descent.
3. Whether the trial court abused its discretion at the motions hearing by refusing Condon’s proffer of a handwritten statement as an exception to the statutory hearsay rule.
4. Whether the trial court abused its discretion by denying Condon’s motion for a new trial pursuant to SDCL 15 — 6—59(a)(4).

STANDARD OF REVIEW

[¶ 14.] This Court applies the de novo standard when reviewing appeals that assert an infringement of a constitutional right. State v. Asmussen, 2006 SD 37, ¶ 11, 713 N.W.2d 580, 586 (citing State v. Dillon, 2001 SD 97, ¶ 12, 632 N.W.2d 37, 43 (citing State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488)). “The trial court’s evidentiary rulings are presumed correct and will not be overturned absent an abuse of discretion. ‘An abuse of discretion refers to a discretion exercised to an end or purpose not justified by and clearly against reason and evidence.’ ” Id. ¶ 13 (citations and quotations omitted).

[¶ 15.] We apply the abuse of discretion standard to the trial court’s determination of whether to admit hearsay evidence. Matter of R.S.S., 474 N.W.2d 743, 749 (S.D.1991). While we review the trial court’s findings of fact under the clearly erroneous standard, we give no deference to its conclusions of law and thereby apply the de novo standard. State v. Runge, 2006 SD 111, ¶ 9, 725 N.W.2d 589, 592 (citations omitted). Having not observed witness testimony, we defer to the trial court’s assessment on the credibility of witnesses. State v. Piper, 2006 SD 1, ¶ 84, 709 N.W.2d 783, 815 (citing State v. Burtzlaff, 493 N.W.2d 1, 4-5 (S.D.1992)). Abuse of discretion is also the standard applied when reviewing whether the trial court should have granted a motion for a new trial. State v. Crawford, 2007 SD 20, ¶ 14, 729 N.W.2d 346, 349 (citing State v. Perovich, 2001 SD 96, ¶ 11, 632 N.W.2d 12, 15).

ANALYSIS AND DECISION

[¶ 16.] 1. Whether the trial court erred in noting for the record testifying witnesses’ in-court identifications of Condon.

[¶ 17.] At Condon’s trial on January 24, 2005, the State asked Comparan if the woman that he saw coming out of La Mexicana with the jewelry in hand was present in the courtroom. Comparan answered “[y]es” and when asked where she was seated and what she was wearing, he stated that she “[i]s in front of us [wearing] red.” Thereafter, the State asked the trial court for “the record [to] reflect that [the] witness ... identified the Defendant.” Over Condon’s objection, the trial court granted the State’s request by replying, “It’s noted.” Later, the State asked Reta if she knew Condon and if Condon was present in court, where she was seated and what she was wearing. After Reta pointed out Condon in the courtroom and that she was wearing “a red sweater.” The trial court, again at the State’s request and over Condon’s objection, “noted” for the record that Reta identified Condon.

[¶ 18.] Condon argues that the trial court erred by noting for the record Com-paran’s in-court identification of Condon as the person he saw leaving La Mexicana with jewelry in hand and Reta’s in-court identification of Condon as the person she knew by that name. Condon asserts that her right to a fair trial, guaranteed by the Sixth Amendment to the United States Constitution and Article 6, Sections 6 and 7 of the South Dakota Constitution, was violated by these notations for the record. She further asserts that these notations constituted judicial notice of a contested fact in violation of SDCL 19-10-2, testimony by the trial court in the role of a witness in violation of SDCL 19-14-5, or non-impartial bolstering of State’s witnesses. We disagree.

[¶ 19.] This Court has not specifically addressed these contentions raised by Condon. To secure a conviction, the State must identify the defendant as the party completing all requisite elements of the crime. It has perhaps been intuitive that when that identification, at least in part, is attributable to an in-court identification of the defendant, the State is also charged with the responsibility of preserving that identification for the record.

[¶ 20.] We have recognized that a courtroom identification is not necessary when the evidence is sufficient to establish the inference that the defendant is the person who committed the crime. State v. Sonen, 492 N.W.2d 303, 307 (S.D.1992) (citing United States v. Morrow, 925 F.2d 779, 781 (4thCir.1991) (citing United States v. Capozzi, 883 F.2d 608 (8th Cir.1989))). However, the instant case does not represent such an example. Reta’s testimony that Condon had been barred from La Mexicana for passing bad checks was used to establish a motive for the theft and her in-court identification of Condon was helpful in that regard. However, Comparan’s testimony about his eye-witness account of the theft and his in-court identification of Condon as the perpetrator, were pivotal in linking Condon to the crime. For the State to preserve these in-court identifications for appellate review, it was necessary that the trial court note them for the record.

[¶ 21.] While we have not previously addressed the issue, other courts have concluded recognition of a witness’s in-court identification is not error, but if anything, is necessary to establish the record of a critical aspect of trial for appellate review. See State v. Jacob, 253 Neb. 950, 574 N.W.2d 117 (1998); State v. Privat, 251 Neb. 233, 556 N.W.2d 29 (1996); State v. Rybolt, 133 Ariz. 276, 650 P.2d 1258 (Ct. App.1982), overruled on other grounds by State v. Diaz, 142 Ariz. 119, 688 P.2d 1011 (1984); Echols v. State, 517 S.W.2d 18 (Tenn.Cr.App.1974); State v. McMurry, 20 Ariz.App. 415, 513 P.2d 953 (Ct.App.1973).

[¶22.] As in the instant case, the defendant in Privat claimed the trial court erred by noting for the record the prosecution’s witnesses’ in-court identifications of him. 556 N.W.2d at 35. In response to the state’s request that witnesses’ in-court identifications be reflected in the record, the trial court responded, “The record will so reflect.” Id. at 36. The defendant argued that the trial court’s statement bolstered the credibility of the prosecution’s witnesses and effectuated judicial notice of a contested fact. Id. at 35. In Privat, the Nebraska Supreme Court rejected the defendant’s assertion of error, deciding that the trial court’s statement for the record did not constitute a comment on a fact in controversy or an opinion as to the significance or credibility of witness testimony. Id. at 36. Moreover, in Privat, the court specifically held that the subject statement in no way invaded the province of the jury by establishing any element of the charged crime. In conclusion, the court in Privat opined that trial court’s notation for the record of the in-court identifications was merely “an articulation of the obvious for purposes of appellate review.” 556 N.W.2d at 244; see also Rybolt, 650 P.2d at 1263-64 (holding that the trial court’s recognition of witness’s in-court identification did not constitute a statement of opinion on the evidence, but simply established for the record a fact that had occurred at trial); Echols, 517 S.W.2d at 22-23 (holding that it was necessary for the trial court to let the record show the witness’s in-court identification of the defendant because the bill of exceptions could not otherwise show that the defendant had been pointed out by a witness and that by creating such a record the trial court did not effectuate a comment on the evidence); McMurry, 513 P.2d at 957 (holding it was not error for the trial court to establish for the record the witness’s in-court identification of the defendant because the trial court’s statement, “The record may so reflect” could in no way be construed to express an opinion on the evidence).

[¶ 23.] In Jacob, the defendant alleged error where the trial court noted for the record the prosecution’s witness’s in-court identification of the defendant. The defendant argued that the court’s statement, “The record will so reflect [the witnesses’ identification of the defendant]” constituted testimony as a witness by the trial court. 574 N.W.2d at 136. In affirming the conviction, the Nebraska Supreme Court found no merit in the defendant’s assignment of error.

[¶ 24.] In the instant case, the State requested that the in-court identifications of Condon, by Comparan and Reta, be reflected in the record. The trial court’s statement “It’s noted” on those two occasions cannot be construed to be testimony as to an opinion on the evidence, statements as to the credibility of State’s witnesses or judicial establishment of an otherwise contested fact elemental to the crime of grand theft. Rather, we conclude that the trial court merely established for the record facts that occurred at trial — the in-eourt identifications of Condon by Com-paran and Reta — that could not otherwise be observed on review by this Court. See Rybolt, 650 P.2d at 1263-64. Therefore, we conclude that the trial court committed no error in regard to this issue.

[¶ 25.] 2. Whether the trial court erred when it allowed the State to question Comparan as to Condon’s nationality and his ability to differentiate between persons of American Indian and Mexican descent.

[¶ 26.] During the State’s case-in-chief, Comparan was asked, over defense counsel’s objection, if he had an opinion as to the nationality of Condon. He was also asked whether he could differentiate American Indians from Mexicans. Condon asserts that the questions were irrelevant and prejudicial injections of race into the proceedings and were designed to elicit Comparan’s subjective perception of the character of American Indians as a whole in violation of the Fourteenth Amendment to the United States Constitution. In support of this assertion, Condon cites Brown v. Board of Ed., 347 U.S. 483, 495, 74 S.Ct. 686, 692, 98 L.Ed. 873 (1954) (holding that racial segregation in public education is a violation of the equal protection of the laws guaranteed by the Fourteenth Amendment). In the alternative, Condon contends that as an evidentiary matter, the line of questioning lacked adequate foundation.

Constitutional Challenge

[¶ 27.] We must determine whether the questioning evoked racially prejudicial remarks that circumvented Condon’s right to due process. Condon’s challenge arises out of the following exchange:

[STATE’S ATTORNEY]: Do you know what nationality the Defendant, whom you identified is?
[COMPARAN]: Yes.
[STATE’S ATTORNEY]: What nationality is this Defendant?
[DEFENSE COUNSEL]: Objection. Foundation, Your Honor, and relevance.
[TRIAL COURT]: Overruled.
[STATE’S ATTORNEY]: What nationality is this Defendant?
[COMPARAN]: American. She’s an American Indian.
[STATE’S ATTORNEY]: Are'you able to tell a Mexican person from an American Indian person?
[COMPARAN]: Yes.
[STATE’S ATTORNEY]: What nationality was the lady that bought the meat?
[DEFENSE COUNSEL]: Objection, Your Honor. Foundation and relevance at this point.
[TRIAL COURT]: Overruled.
[STATE’S ATTORNEY]: What nationality was the third lady?
[COMPARAN]: She was also an American Indian.

[¶ 28.] Neither the testimony in this excerpt nor Comparan’s testimony in toto reveal any racially disparaging remarks or racial prejudice or bias that could in any way have prejudiced the jury foreclosing Condon’s right to due process. Moreover, by citing Brown, Condon fails in attempting to establish that this exchange violated the Fourteenth Amendment. Brown struck down segregation in public schools and has nothing to do with courtroom identification. 347 U.S. 483, 495, 74 S.Ct. 686, 692, 98 L.Ed. 873. Consequently, we find Condon’s constitutional challenge to be without merit.

Evidentiary Challenge

[¶ 29.] In addressing Condon’s claim that a sufficient foundation was not established prior to eliciting lay testimony from Comparan as to the ethnic-group line of questioning, we consider our version of FRE 701, SDCL 19-15-1. This statute provides:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are:
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.

SDCL 19-15-1. The focus is based on the perception of the witness to an event, not the education or experience the witness possesses prior to the event. We also note that relevant evidence is generally admissible. SDCL 19-12-2 (FRE 402). Relevant evidence is defined as that “[tending] to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” SDCL 19-12-1 (FRE 401). However, relevant evidence may be excluded by the trial court if its “probative value is substantially outweighed by the danger of unfair prejudice.” SDCL 19-12-3 (FRE 403).

[¶ 30.] The rules of evidence are liberally interpreted with the intent of relaxing traditional barriers to opinion testimony. State v. Guthrie, 2001 SD 61, ¶ 36, 627 N.W.2d 401, 416 (citations omitted). A lay witness may give an opinion if he has personal knowledge of the matter. State v. Andrews, 2001 SD 31, ¶ 17, 623 N.W.2d 78, 83. Lay testimony requires no foundation. Id. (citing Atkins v. Stratmeyer, 1999 SD 131, ¶ 17, 600 N.W.2d 891, 897 (citations omitted)); Gerlach v. Ethan Coop Lumber Ass’n, 478 N.W.2d 828, 831-32 (S.D.1991) (citing State v. No Heart, 353 N.W.2d 43, 48 (S.D.1984); United States Fire Ins. Co. v. Dace, 305 N.W.2d 50, 56 (S.D.1981)).

[¶ 31.] We have reviewed trial courts’ discretionary admission of lay testimony in a broad range of contexts. This Court has recognized that one’s general health is a proper subject of lay testimony by anyone who is familiar with the person to whom it relates. Koenig v. Weber, 84 S.D. 558, 174 N.W.2d 218, 224 (1970) (citation omitted); Moberg v. Scott, 42 S.D. 372, 175 N.W. 559, 561 (1919). Nevertheless, we have stated that a lay witness will not be allowed to testify as to the nature of a particular disease or ailment underlying the general physical condition. Gartner v. Mohan, 41 S.D. 406, 170 N.W. 640, 641 (1919) (citation omitted). Similarly to testimony regarding one’s general health, lay testimony as to an individual’s general sanity as perceived is admissible. Sheam v. Anderson, 74 S.D. 41, 48 N.W.2d 821, 824 (1951) (citing Jones on Evidence, 4th Ed., Sec. 364). However, lay opinion as to whether irrational persons in general can know right from wrong is beyond the scope of perception and thus inadmissible. State v. Leehman, 2 S.D. 171, 49 N.W. 3, 6 (1891).

[¶ 32.] In a case involving the malicious poisoning of a horse, this Court held that a lay witness could testify to the poisoning where he administered some of the deceased animal’s stomach contents to a hen and observed that it too died shortly after ingestion. State v. Isaacson, 8 S.D. 69, 65 N.W. 430, 431 (1895). Conversely, we held it improper for a lay witness to testify that the animals he sold were infected with a disease where he was not so informed by his own perceptions, but rather came by the knowledge through inadmissible hearsay reports of blood tests taken from the animals. Olson v. Aldren, 84 S.D. 292, 297, 170 N.W.2d 891, 894 (1969).

[¶ 33.] We have also held that a police officer without medical expertise could give lay testimony that a victim’s injuries were caused by a knife rather than a fist because the distinction between the two types of wounds is within the realm of the average person’s experience. No Heart, 353 N.W.2d at 48. This Court has also concluded that expert training is not required to testify as to whether a person is under the influence of alcohol because such opinions and inferences are based on witness perception. State v. Hall, 353 N.W.2d 37, 43 (S.D.1984); see also State v. Dale, 66 S.D. 418, 284 N.W. 770, 771 (1939) (citations omitted); Palmer v. Schurz, 22 S.D. 283, 117 N.W. 150, 153 (1908) (citations omitted) (recognizing no error in lay witness testimony as to observations about the degree of intoxication). Similarly, this Court has held that lay witnesses familiar with alcohol may testify to whether a liquid is intoxicating based on their perception of taste and smell. State v. Turner, 53 S.D. 523, 221 N.W. 251, 252 (1928) (citing State v. Work, 47 S.D. 649, 201 N.W. 553 (1924); Territory v. Pratt, 6 Dak 483, 43 N.W. 711 (1889)) (additional citations omitted). Moreover, this Court has held that lay witnesses with experience driving and observing vehicular speed are competent to testify to speed. Vermillion v. Williams, 84 S.D. 589, 174 N.W.2d 331, 333 (1970) (citing Morton v. Holscher, 60 S.D. 50, 243 N.W. 89 (1932); State v. Nuzum, 58 S.D. 6, 234 N.W. 665 (1931)). Nonetheless, we have held such testimony to be inadmissible where the lay witness pulled out in front of an oncoming car and essentially did not see the other car until impact. Pearson v. Adams, 279 N.W.2d 674, 677 (S.D.1979); see also Williams, 84 S.D. at 593, 174 N.W.2d at 333 (stating that the lay witness must have had an opportunity to observe the vehicle before testifying to its speed) (citations omitted).

[¶ 34.] In the instant case, Comparan was 37 years old at the time of trial and was born and raised in Mexico City. Thus, he has a lifetime of experience with Mexicans and people of Hispanic descent. He testified that he came to the United States in 1984, and had lived in Sioux Falls for about 10 years. Based upon that, he claimed he was also familiar with American Indians. His identifications of Con-don during the theft at La Mexicana and again in court were by way of his own perception. That Comparan in court was able to testify to the appearance of an American Indian and was able to distinguish American Indians from persons of Mexican or Hispanic descent was relevant to the State’s obligation to establish the identity of the perpetrator. On the day of the theft Comparan described the suspect to Millette as an American Indian. The fact that Comparan also gave this description to Reta led to the identification of a suspect that culminated in Condon’s arrest and indictment. That Comparan was able to identify Condon in court as an American Indian, consistent with the descriptions he gave out of court to Millette and Reta, made more likely the fact that Condon was the person who emerged from La Mexica-na with jewelry in hand. Consequently, we find no evidentiary ground for error by the trial court in regard to this issue.

[¶ 35.] 3. Whether the trial court abused its discretion at the motions hearing by refusing Condon’s proffer of a handwritten statement as an exception to the statutory hearsay rule.

[¶ 36.] On July 24, 2006, at hearing for the motion for new trial, Condon offered Jandreau’s handwritten statement, as substantive evidence in lieu of Jan-dreau’s testimony. The statement, which alleged that Rodriquez was responsible for the jewelry theft, was not sworn. It was prepared by Jandreau while she and Con-don were incarcerated at the Minnehaha County Jail during the period when Con-don was awaiting sentencing. Condon testified and argument was presented for the purpose of establishing a foundation for the admission of the statement as an exception to the statutory hearsay rule. However, the trial court refused to admit the statement making oral findings that it did not possess “circumstantial guarantees of trustworthiness” equivalent to those exceptions to the hearsay rule set out in statute.

[¶ 37.] Hearsay is generally inadmissible. SDCL 19-16-4. However, numerous exceptions to the general rule are found under SDCL Chapter 19-16. Beyond those specific exceptions, hearsay may still be admissible as provided under the residual hearsay rule, SDCL 19-16-35 (FRE 804(b)(6)), when the party who made the statement (the “declarant”) is not available to testify. We have construed there to be five criteria that the proponent must meet, once it has been established that the de-clarant is unavailable, before hearsay evidence can be admitted under this rule:

(1) there must be circumstantial guarantees of trustworthiness;
(2) the hearsay must provide evidence of a material fact;
(3) the hearsay must be more probative than any other available evidence;
(4) the general purposes of the hearsay rules and the interests of justice must be served by admission of the hearsay; and,
(5) the adverse party must have notice.

R.S.S., 474 N.W.2d at 749. In addition, whether the hearsay is trustworthy is determined by assessing five factors:

(1) The written or oral nature of the statement.
(2) The character of the statement.
(3) The declarant’s relationship to the witness offering the statement.
(4) The declarant’s motivation in making the statement.
(5) The circumstances under which the declarant made the statement.

State v. Luna, 378 N.W.2d 229, 238 (S.D.1985).

[¶ 38.] In this case, Jandreau was unavailable to testify. Condon gave notice to the State of her intent to use Jandreau’s statement. The State concedes that the statement contained evidence of a material fact, since it addressed the identity of the party who committed the crime. The State also concedes that in lieu of Jan-dreau’s testimony, it was more probative than any other available evidence on this point. However, the trustworthiness of the statement was challenged.

[¶ 39.] Condon argues that the veracity of Jandreau’s statement is born out by corroborating testimony given by Yana-cheak and her claim that the statement led to the State’s discovery and use at the motions hearing of Rodriquez’s photo, description and testimony. This argument does not relate to any of the Luna trustworthiness factors and is an unconvincing basis upon which to declare the statement’s trustworthiness. We see no connection between the trustworthiness of Jandreau’s statement and Yanacheak’s alleged mistaking of Condon for Rodriquez or her claim that Rodriquez’s roommate’s mother, Cameron, was suspicious about a piece of jewelry. Nor are we convinced of the statement’s trustworthiness by the fact that the State, upon learning that Condon had filed a motion for a new trial based on a claim of mistaken identity with Rodriquez, sought to discover who Rodriquez was, what she looked like and what she had to say about the matter.

[¶ 40.] We are compelled by the fact that Condon could not base the authenticity of Jandreau’s unsworn, written statement on anything other than her assertion that the signature on the statement matched Jandreau’s signature on an application for a court-appointed attorney. Providing the signature on the statement is Jandreau’s, there is no evidence Jan-dreau wrote the text other than Condon’s testimony to that effect. While Condon argues there is no evidence of a relationship between Jandreau and her or of a motivation by Jandreau that would cause her to concoct a false statement, no evidence is not necessarily evidence of absence. Finally, the materialization of a written statement emanating from the Minnehaha County Jail a year and half after Condon’s conviction on grand theft charges is at best a suspicious circumstance on its face. Without more, we conclude there is evidentiary support for the trial court’s oral finding that circumstantial guarantees of trustworthiness were lacking and therefore find no abuse of discretion in its refusal to admit Jandreau’s statement.

[¶ 41.] 4. Whether the trial court abused its discretion by denying Con-don’s motion for a new trial pursuant to SDCL 15-6-59(a)(4).

[¶ 42.] SDCL 15-6-59(a)(4) is a provision whereby the trial court may grant a motion for new trial where evidence, material to the movant, is newly discovered and could not with reasonable diligence have been discovered and produced at trial. Condon’s motion for a new trial was based on her claim of new evidence of mistaken identity with Rodriquez brought to her attention by fellow inmates at the Minnehaha County Jail when she was awaiting sentencing. She submits that her facial characteristics are nearly identical to Rodriquez’s and that the photo on her booking sheet when juxtaposed with Rodriquez’s bears out her contention. Condon also asserts that the description of the person Comparan observed leaving La Mexicana with jewelry in hand, which he told to Millette, was of an American Indian woman, 5'2" to 5'3" in height and weighing approximately 200 lbs. This, Condon argues is further evidence that Rodriquez was the responsible party since Rodriquez, according to her booking sheet and testimony, is 5'4" tall and weighs about 225 lbs., Condon then argues that this fact coupled with her height and weight of 5'7" and 180 lbs., clearly points to Rodriquez as the person matching the description of the thief. Condon also argues that beyond her description, the identity of Rodriquez as the true thief was corroborated by the testimony and statements of fellow inmates conveyed to her in the county jail.

[¶ 43.] A defendant seeking a new trial based on newly discovered evidence pursuant to SDCL 15 — 6—59(a)(4) must show:

(1) that the evidence was undiscovered by the movant at the time of trial;
(2) that the evidence is material and not merely cumulative or impeaching;
(3) that it would probably result in acquittal; and,
(4) that no lack of diligence caused the movant to discover the evidence sooner.

State v. Gehm, 1999 SD 82, ¶ 13, 600 N.W.2d 535, 540. A motion for a new trial based on new evidence requests “extraordinary relief.” Id. ¶ 15. Therefore, it “should be granted only in exceptional circumstances and then only if the requirements are strictly met.” Id. This is not such an occasion.

[¶ 44.] While the new evidence proffered by Condon is material in that it relates to the identity of the La Mexicana jewel thief, was undiscovered at the time of trial and arguably undiscoverable any earlier than when Condon brought it to light, Condon must also show that it would probably result in acquittal. In denying Condon’s motion, the trial court concluded that it would not.

[¶45.] In its November 27, 2006 findings of fact, the trial court found the photographs of Condon and Rodriquez similar, but not identical. The trial court also found that the photographs of the two women were far more similar than were their actual appearances, observed by the court at the motions hearing. In addition the trial court noted that none of Condon’s fellow inmates, who conveyed the new evidence to her, ever came forward to law enforcement with the information. Most determinative was the trial court’s finding that the circumstances surrounding the discovery of the new evidence were “highly suspicious and lacking credibility.” Moreover, it found Condon’s fellow inmates and the new evidence itself to be likewise highly suspicious and lacking in credibility. In comparison the trial court reflected on the trial testimony of Comparan and Reta, finding it to be “very impressive, strong and credible.”

[¶ 46.] Since there is evidentiary support for the trial court’s findings underlying its decision to deny Condon’s motion for a new trial, we find no abuse of discretion with regard to this issue.

[¶ 47.] Affirmed.

[¶ 48.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . After the jury verdict Condon pleaded guilty to a habitual criminal information filed by the Minnehaha County State's Attorney.

      . At Condon’s trial, Comparan testified that at that time he also observed a third woman standing outside in the vicinity of La Mexica-na.

      . At Condon's trial, Comparan described the handful of jewelry as “a bunch” of “bracelets and necklaces and stuff like that.”

      . Lores was unable to identify the woman who stole the jewelry because she was with the first woman in the rear of the store and did not observe the theft.

      . Reta reported that approximately seven 14-carat gold bracelets and one 14-carat gold Geneva brand watch had been taken with a total value of $3,460.

      . At Condon's trial, Heitkamp described a photo lineup as a law enforcement tool in which a photo of a known suspect is included with filler photos of other similar appearing persons. The lineup is then presented to witnesses or victims for possible identification of the suspect. Heitkamp went on to explain that his procedure in presenting a photo lineup is to "tell the individuals to look at the photo lineup and that they are not obligated to pick anyone out of the photo lineup and ... ask them to be 100-percent certain before they identify anyone out of a photo lineup.”

      . In June 2006, both Condon and Rodriquez were incarcerated at the county jail. Their respective booking sheets revealed that both were American Indians with black hair and brown eyes. Condon was described as being 5'7" and weighing 180 lbs. Rodriquez was described as being 5 ’4" and weighing 225 lbs.

      . SDCL 19-10-2 provides:
      A judicially noticed fact must be one not subject to reasonable dispute in that it is either:
      (1) Generally known within the territorial jurisdiction of the trial court; or
      (2) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

      . SDCL 19-14-5 provides:
      The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

      . Underlying this holding was the Nebraska Supreme Court’s observation that the defendant never claimed the in-court identifications were of someone else or incorrect in any way. We note that this circumstance from Privat is consistent with the instant case in that Condon did not allege another person was responsible for the jewelry theft until almost 17 months after the trial.

      . In reviewing the Nebraska Supreme Court's opinion in Privat, we consider its recitation of the trial court’s discussion with the prosecuting attorney to be illustrative of the purpose for creating a record of a witness's in-court identification. The following exchange took place during side-bar:
      [TRIAL COURT:] Let me touch on something different. Mr. Kelly, what good does it do to have a witness, when you ask them to see that person in the courtroom for them to respond: Yes, I do. He's wearing a gray jacket and white shirt, sitting over there. What good does that do? What relevance does that have to do with anything?
      [PROSECUTING ATTORNEY]: Well, Judge, in my career I’ve had five or six different court judges tell me five or six different ways that I'm to identify the defendant. I've had several judges specifically tell me that I’m not to comment on the record or to ask that the record will reflect the defendant as being identified. And, so, for that-I do not ask that question....
      [TRIAL COURT]: Well, be that as it may. When she says he's sitting over there, how do I know that he isn’t sitting back in the spectator gallery as a spectator? That doesn’t help the appellate court at all. You don’t even have her-have him sitting at counsel table, your counsel table, theirs, or anywhere else. It doesn’t mean anything.
      That’s completely aside from whether you ask the Court to-to have the record reflect that she’s identified the defendant. If you ask me to have the record reflect that, I will do that. But completely aside from that, her response is he’s sitting over there in a gray jacket. Doesn't mean anything.

      [PROSECUTING ATTORNEY]: I understand. And I'll ask the question. But, I think it does have meaning on the trial level, because the triers of fact are there to make the observations. Whether or not it gets to the appellate level, I suppose I leave up to the defense attorneys.
      [TRIAL COURT]: Well, but it may have some relevance here.
      [PROSECUTING ATTORNEY]: Yes, sir.
      [TRIAL COURT]: You have to keep in mind the record.

        Id. at 32-33 (emphasis added).

      . According to the United States Department of Agriculture, year 2003 demographic estimates for Sioux Falls, South Dakota indicate that 3,366 American Indians were living in the city. http://www.ams.usda.gov/ statesummaries/SD/MSA/MSA.pdi/SiouxFalls. pdf (last visited September 6, 2007).

      . SDCL 19-16-35 provides:
      A statement not specifically covered by any of §§ 19-16-30 to 19-16-34, inclusive, but having equivalent circumstantial guarantees of trustworthiness, is not excluded by § 19-16-4 if the declarant is unavailable as a witness and if the court determines that:
      (1) The statement is offered as evidence of a material fact;
      (2) The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and
      (3) The general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
      However, a statement may not be admitted under this section unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

      . Rodriquez's photo and description were obtained from a June 29, 2006 Minnehaha County Sheriff’s Department booking sheet. Condon alleges that her own photo and Rodriquez’s are nearly indistinguishable.

      . Rodriquez's testimony at the motions hearing indicates that her weight, recorded on the June 29, 2006 booking sheet, was consistent with her weight in June 2004, when the jewelry theft occurred.

      . We note that Comparan testified at trial that the woman he observed emerging from La Mexicana with jewelry in hand that he later identified as Condon "looked like she was tall" and "a little obese." Supra ¶ 3. Whether being 5'7" and weighing 180 lbs., like Condon, is to be tall and a little obese, is a relative question. Condon has asserted that she should be eliminated as a suspect because Rodriquez, who is 5'4'' and weighs 225 lbs., is closer to the description of the jewel thief given by Millette at the motions hearing, 5'2" to 5'3" and 200 lbs., than Condon who is 5'7" weighing 180 lbs. However, from our review of the record, it would appear that the height and weight discrepancy may simply be attributable to a mistake or confusion by Millette. Millette’s testimony as to the physical description came from the supplementary investigation report that he completed following interviews with Lores, Comparan and Reta and refers to the woman that first came in looking for fajita meat. The report provides in pertinent part:
      LORES, ANDRIANA, she was working the counter by herself in the store.
      ... She advised at approximately 1535 hours she was working the front counter when an Indian female walked into the store and went back to the end of the store which is the cold meats department. Lores followed the female back to the area and was discussing items at this time.
      The female she described to me had dark hair, dark eyes, short, 5'2" to 5'3", 200 lbs., short dark hair.

      (Emphasis added).
      In Millette’s report, the account of Compar-an's interview offers no description of the thief other than to say she was an Indian female. The only other height and weight description in the report is the 5'10" 180 lbs. description of Condon that Millette obtained from law enforcement’s master name list when he searched that database for her after receiving her name as a possible suspect from Reta.

      . Although Jandreau did not testify and her handwritten statement alleging Rodriquez to be the jewelry thief was not admitted into evidence, defense counsel offered argument as to why it should be admitted under the residual hearsay exception. Similarly, the trial court was aware of another hearsay writing allegedly conveying an account of a third Minnehaha County Jail inmate, Sophie Lovell. In this writing it was alleged that Rodriquez had offered jewelry to Lovell. Lovell was subpoenaed to testify at the motions hearing, but never appeared. On September 12, 2006, the trial court refused to admit this writing.


source: Caselaw Access Project

author: WIGGINS, Justice.

license: Public Domain

text:
    Kenneth W. TURNER, Appellant v. IOWA STATE BANK & TRUST COMPANY OF FAIRFIELD, Iowa, and Earl Wallace Dick, Appellees.
    No. 06-0490.
    Supreme Court of Iowa.
    Dec. 14, 2007.
    Michelle L. Heller of Nepple Law, PLC, Muscatine, for appellant.
    Myron L. Gookin of Foss, Kuiken, Goo-kin, Cochran, P.C., Fairfield, for appellees.
   WIGGINS, Justice.

In this appeal we must decide whether the district court erred when it sustained a motion to dismiss. Our court of appeals reversed the district court’s ruling, and on further review we agree the district court improperly sustained the motion to dismiss. Accordingly, we affirm the decision of the court of appeals, reverse the judgment of the district court, and remand the case for further proceedings consistent with this decision.

I. Prior Proceedings.

On October 24, 2005, Kenneth W. Turner brought an action in the Adair County District Court against co-trustees Iowa State Bank & Trust Company of Fairfield, Iowa and Earl Wallace Dick. Turner’s petition contained one count and alleged various wrongdoings regarding the co-trustees’ work on his father’s trust, the Gene L. Turner Residuary Trust. Attached to Turner’s petition were various documents in support of his claims. These documents included the will of Gene Turner, which created the trust. The other documents consisted of correspondence between attorneys and a pleading from an action between Turner and his mother, Mary Christine Turner, Gene Turner’s wife.

The co-trustees responded to Turner’s petition by filing a combined motion for change of venue and motion to dismiss. The motion to dismiss alleged Turner’s present action was “barred by adjudication, consent, or other limitation” based on his failure' to raise the claims as of May 6, 2004, which was the deadline for filing objections to the final report of the trust. Alternatively, the co-trustees claimed the action was barred because Turner’s action was filed more than one year after the date he received the final report and accounting in the trust matter. The co-trustees relied on Iowa Code section 633A.4504 (2005) to support their motion to dismiss. In their motion the co-trustees alleged facts in addition to those contained in the petition. They also attached documents in support of their motion.

Turner filed a resistance to the motion, arguing the one-year statute of limitations in section 633A.4504 did not apply to his claim because his claims were independent from those raised in the trust matter. He argued the two-year statute of limitations found in section 614.1(2), which applies to personal injuries or injuries to the reputation, is applicable to some of his claims while the five-year statute of limitations for breach-of-written-contract claims in section 614.1(4) is applicable to others. He also argued res judicata, issue preclusion, or claim preclusion were not applicable to his new claims because they were independent from his claims in probate.

The district court granted the co-trustees’ motion to dismiss. Turner appealed. In their reply brief, the co-trustees requested an award of attorney fees. A divided court of appeals reversed the district court’s ruling sustaining the motion to dismiss, denied the co-trustees’ claim for attorney fees, and remanded the case with directions for the district court to address the co-trustees’ motion for change of venue. The co-trustees petitioned for further review, which we granted.

II. Motions to Dismiss Generally.

A court can grant a motion to dismiss if the plaintiff fails to state a claim upon which any relief may be granted. Iowa R. Civ. P. 1.421(1) (f). On appeal we review a district court’s ruling on a motion to dismiss for correction of errors at law. See Iowa R.App. P. 6.4; see also Mlynarik v. Bergantzel, 675 N.W.2d 584, 586 (Iowa 2004). A court cannot consider factual allegations contained in the motion or the documents attached to the motion. Berger v. Gen. United Group, Inc., 268 N.W.2d 680, 634 (Iowa 1978). The court must ignore these facts, except those of which the court may take judicial notice. Winneshiek Mut. Ins. Ass’n v. Roach, 257 Iowa 354, 365, 132 N.W.2d 436, 443 (1965). In determining whether to grant the motion to dismiss, a court views the well-pled facts of the petition.in the light most favorable to the plaintiff, resolving any doubts in the plaintiffs favor. Rees v. City of Shenandoah, 682 N.W.2d 77, 79 (Iowa 2004). The purpose of the motion is to test the legal sufficiency of the petition. Berger, 268 N.W.2d at 634.

We have previously discussed the pitfalls a party encounters when a person files a motion to dismiss. Cutler v. Klass, Whicher, & Mishne, 473 N.W.2d 178, 181 (Iowa 1991). There we stated:

We recognize the temptation is strong for a defendant to strike a vulnerable petition at the earliest opportunity. Experience has however taught us that vast judicial resources could be saved with the exercise of more professional patience. Under [our rule governing motions to dismiss] dismissals of many of the weakest cases must be reversed on appeal. Two appeals often result where one would have sufficed had the defense moved by way of summary judgment, or even by way of defense at trial. From a defendant’s standpoint, moreover, it is far from unknown for the flimsiest of cases to gain strength when its dismissal is reversed on appeal.

Id. In other words, a court will rarely dismiss a petition for a failure to state a claim upon which any relief may be granted. Id.; see also Am. Nat’l Bank v. Sivers, 387 N.W.2d 138, 140 (Iowa 1986) (stating “it is a rare case which will not survive a [motion to dismiss]”).

III. Factual Basis of Turner’s Claims.

Considering the well-pled facts of the petition in the light most favorable to Turner and disregarding the factual allegations contained in the motion to dismiss and its attachments, we find the facts as follows.

Gene Turner died on October 2, 2000. He was married to Mary Christine Turner and had two children, Duane and Kenneth. Duane predeceased his father but left two children, Douglas Turner and Stacy Turner-Richards. In Gene Turner’s will he created a trust for the benefit of his wife with his sons or their issue named as residuary beneficiaries. When the court closed the estate, Kenneth and Douglas were named co-trustees. Kenneth and Douglas had several disagreements so the court appointed Iowa State Bank and Dick as successor co-trustees in April of 2003. Sometime thereafter, the family members entered into a family settlement agreement ending the trust and disbursing the assets. The terms of the agreement are not included in Turner’s petition.

On October 12, 2004, the court entered an order enforcing the settlement agreement. On October 22 the court entered an order closing the trust and discharging the trustees. At the same time Turner filed this action, he appealed the order closing the trust and discharging the trustees. In an unpublished opinion, the court of appeals affirmed the order. In re Trust of Turner, No. 04-1835, 715 N.W.2d 768, 2006 WL 468611, at *5 (Iowa Ct.App. March 1, 2006).

Turner’s petition contains three claims. The first claim is for damages against the co-trustees for their failure to pay Turner’s legal fees arising from his successful defense of a criminal trespass charge. Turner was charged with trespassing on the trust property at a time he and Douglas were co-trustees. At the criminal trial the court found Turner not guilty. Turner claims the final report of the trust as filed by the successor co-trustees should have contained a provision indemnifying him for the legal fees he incurred in defense of the criminal action.

The second claim against the co-trustees is for their interference with the family settlement agreement. In this claim Turner alleges the family members entered into an agreement settling the disputes concerning the trust. The agreement called for closing the trust and disbursing the assets of the trust. Turner claims the co-trustees interfered with the family settlement agreement by their actions in distributing the trust assets.

The third claim is for damages arising out of the co-trustees’ breach of an agreement not to interfere with any lawsuits brought between beneficiaries of the trust. Turner claims the co-trustees breached this agreement by conspiring with his mother to file an action to have Turner declared incompetent.

IV. Co-trustees’ Motion to Dismiss.

To support their motion to dismiss, the co-trustees rely solely on the Iowa Code section that provides:

Unless previously barred by adjudication, consent, or other limitation, a claim against a trustee for breach of trust is barred as to a beneficiary who has received a final account or other report adequately disclosing the existence of the claim, unless a proceeding to assert the claim is commenced within one year after the earlier of the receipt of the accounting or report of the termination of the trust relationship between the trustee and beneficiary.

Iowa Code § 633A.4504(1). The co-trustees make two arguments under this section. First, they argue the trust proceedings in the probate court barred Turner’s claims in this action based on the theory of res judicata, issue preclusion, or claim preclusion. Second, they argue the one-year statute of limitations contained in section 633A.4504(1) bars Turner’s claims. The co-trustees make no claim that should the court consider the uncontroverted allegations as true, Turner’s petition fails to state a claim recognized by Iowa law.

A. Res Judicata, Issue Preclusion, or Claim Preclusion. To decide this issue it is necessary for the court to have before it the appropriate court records from the prior case upon which the co-trustees claim the theory of res judicata, issue preclusion, or claim preclusion bars the present claims. In a motion to dismiss based on the plaintiffs failure to state a claim upon which any relief may be granted, the court can only consider the well-pled facts, not the factual allegations contained in the motion or the documents attached to the motion. Berger, 268 N.W.2d at 634. Turner’s petition contains none of the necessary allegations or documents to support the co-trustees’ position that Turner’s claims are barred by the theory of res judicata, issue preclusion, or claim preclusion. Even if we were to take judicial notice of the probate action where the court of appeals affirmed the closing of the trust and the discharging of the trustees, we cannot say with any certainty the issues raised in the probate action are identical to those raised in Turner’s petition in the present case. Accordingly, at this stage of the proceedings we cannot determine if the theory of res judicata, issue preclusion, or claim preclusion bars Turner’s claims. See Johnson v. Ward, 265 N.W.2d 746, 749 (Iowa 1978) (holding res judicata can be raised by a motion to dismiss if the nature of the prior adjudication appears on the face of the petition or arises from taking judicial notice of the petitions in pending cases, from which it is indisputable that they present identical causes of action against the defendant); see also Smith v. Smith, 513 N.W.2d 728, 731 (Iowa 1994) (holding a defense of res judicata cannot be raised by a motion to dismiss); Bickford v. Am. Interinsurance Exch., 224 N.W.2d 450, 454 (Iowa 1974) (same). These defenses are better suited to be raised through a motion for summary judgment, where the necessary supporting documentation can be submitted for consideration by the court in ruling on the motion.

B. Statute of Limitations. A defendant may raise the statute of limitations by a motion to dismiss if it is obvious from the uncontroverted facts contained in the petition that the applicable statute of limitations bars the plaintiffs claim for relief. State ex rel. Krupke v. Witkowski, 256 N.W.2d 216, 218 (Iowa 1977). The co-trustees argue Turner’s claims are barred by the one-year limitation period found in section 633A.4504(1). The limitations provision of this section bars a beneficiary’s claim against a trustee for a breach of trust by a beneficiary

who has received a final account or other report adequately disclosing the existence of the claim, unless a proceeding to assert the claim is commenced within one year after the earlier of the receipt of the accounting or report of the termination of the trust relationship between the trustee and beneficiary.

Iowa Code § 633A.4504(1).

In order to sustain the co-trustees’ motion to dismiss, the uncontroverted allegations of Turner’s petition must establish: (1) he is a beneficiary of the trust; (2) the claim against the co-trustees is for a breach of trust; (3) Turner received a final account or other report adequately disclosing the existence of the claim; and (4) he failed to commence his action within one year after the earlier of the receipt of the accounting or report of the termination of the trust relationship between the trustees and beneficiary.

The uncontroverted allegations of Turner’s petition establish the first element. He is a beneficiary of his father’s residuary trust. However, we cannot conclude under this record whether the second element is established — that Turner’s claims against the co-trustees are for a breach of trust.

A trustee breaches his duty of trust when he violates a duty owed to the beneficiary. Iowa Code § 633A.4501. The Iowa Trust Code contains numerous duties a trustee must perform. These include the duty to administer the trust in accordance with the terms of the trust and the trust code, id. § 633A.4201; the duties of loyalty, impartiality, and confidentiality, id. § 633A.4202; the duty to inform and account, id. § 633A.4213; and the duty to manage the assets of the trust prudently, id. § 633A.4302. The Iowa Trust Code contains the remedies a beneficiary may seek for a breach of trust. Id. §§ 633A.4502-03.

Turner’s first claim is for the co-trustees’ failure to pay Turner’s legal fees arising from his successful defense of the criminal trespass charge. Although Turner is a beneficiary of the trust, viewing the allegations of the petition in the light most favorable to him, Turner is alleging he is entitled to reimbursement for these fees as a creditor of the trust. Therefore, we cannot say the uncontroverted facts of the petition establish this claim as one for breach of trust.

Turner’s second and third claims involve the co-trustees’ interference with the family settlement agreement and a lawsuit between him and his mother. The co-trustees’ motion to dismiss did not challenge whether such actions are maintainable under Iowa law, rather they argue these actions are nothing more than breach-of-trust claims that are barred by the statute of limitations contained in section 633A.4504.

In these claims, Turner alleges the co-trustees did not breach a duty owed to him as a beneficiary, but that the co-trustees tortiously interfered with the family settlement agreement and the lawsuit with his mother. If we assume for the purposes of this opinion Turner’s claims of tortious interference are actionable under Iowa law, these are not breach-of-trust claims. Rather these are independent claims outside the purview of the trust code. See Huffey v. Lea, 491 N.W.2d 518, 520 (1992) (reaffirming that Iowa recognizes an independent action outside the probate code for tortious interference with a bequest). Therefore, these claims may not be subject to the one-year limitation contained in section 633A.4504(1). See Frohwein v. Haesemeyer, 264 N.W.2d 792, 793-95 (1978) (holding the tort of intentional interference with a bequest is an independent claim and not subject to the limitations period of the probate code).

V. Attorney Fees.

The co-trustees argue Turner should be required to reimburse them for their attorney fees because Turner’s actions are baseless. Our rules of civil procedure contain a provision for sanctions, including the reasonable expenses and attorney fees incurred by a party, when another party files a frivolous pleading. Iowa R. Civ. P. 1.413(1). The rule allows a court to impose sanctions upon its own initiative or upon the motion of a party. Id. The court did not consider the imposition of sanctions on its own initiative. The co-trustees did not move for sanctions in the district court. Therefore, we will not consider the imposition of sanctions for the first time on appeal. Fennelly v. A-1 Mach. & Tool Co., 728 N.W.2d 181, 187-88 (Iowa 2007).

YI. Motion for Change of Venue.

The district court was not required to rule on the co-trustees’ motion for change of venue because it sustained the motion to dismiss. On remand the court should consider the motion for change of venue before proceeding further with the case.

VII. Disposition.

The order of the district court sustaining the co-trustees’ motion to dismiss is reversed, and this matter is remanded for further proceedings consistent with this opinion.

DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.

      . In 2005, the legislature directed the code editor to transfer the Iowa Trust Code to chapter 633A.2005. Iowa Acts ch. 38, § 54. Accordingly, all references to the Iowa Trust Code are to chapter 633A.


author: KAPSNER, Justice.

text:
    2007 ND 192
    STATE of North Dakota, Plaintiff and Appellee, v. Brian Shawn HURT, Defendant and Appellant.
    No. 20070081.
    Supreme Court of North Dakota.
    Dec. 13, 2007.

      Reid A. Brady (argued), Assistant State’s Attorney, Fargo, ND, for plaintiff and appellee.
    Jesse N. Lange (argued), Aaland Law Office, Fargo, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Brian Hurt appeals from a criminal judgment following his conditional guilty pleas for one class C felony and one class A misdemeanor count of possessing drug paraphernalia, arguing the district court erred in denying his motion to suppress evidence. Hurt argues the probation search of his apartment, under the terms of his roommate’s probation conditions, violated his Fourth Amendment rights under the United States Constitution. We hold the prohibition against unreasonable searches and seizures was not violated when probation officers searched the common areas of his apartment. We affirm the criminal judgment.

I

[¶ 2] On April 21, 2006, Rosally Mor-tenson went to visit the apartment of her boyfriend, Brian Hurt. Just outside Hurt’s secured apartment building, Mortenson met three women, who asked if Mortenson could let them inside. Mortenson let the women into the building. The women then followed Mortenson to the apartment door of Hurt and his roommate, Jessica Bickler, who was on probation. The women, who were probation officers assigned to Bick-ler, waited at the door while Mortenson knocked. Bickler answered the door and the probation officers entered the apartment under paragraph 16 in Bidder’s probation conditions, which provided that Bickler must

[sjubmit the Defendant’s person, place of residence and vehicle, or any other property to which the Defendant has access, wherever they may be found, to search and seizure, with or without a search warrant, at any time of day or night by: 1) any parole or probation officer; or, 2) any law enforcement officer at the direction of a parole or probation officer; or, 3) any law enforcement officer with a reasonable suspicion of criminal conduct.

Because of this condition of probation, the probation officers did not ask for or receive consent to enter the apartment nor did they announce their arrival as they entered the apartment. Hurt and other individuals in the living room of the apartment did not see the probation officers come in.

[¶ 3] After entering the apartment, the officers walked through the kitchen and living room. When the officers reached the living room, they saw drug paraphernalia on the coffee table. The officers told the individuals in the living room if they were nonresidents, they could leave the apartment. Hurt admitted he was a resident and stayed. A police officer, who was called to the scene after the initial entry, placed Hurt under arrest for possession of drug paraphernalia. Hurt was searched incident to arrest, and the officer found a glass pipe with what appeared to be drug residue in the pocket of his sweatshirt.

[¶ 4] Hurt was charged with two counts of possession of drug paraphernalia. Hurt moved to suppress the evidence obtained during the probation search, arguing the evidence violated his Fourth Amendment rights because there was no warrant or warrant exception specific to him; the probation search and all evidence gathered as a result, Hurt argued, should be admissible only against his probationer roommate, Bidder. At a hearing on the motion, the district court judge denied the motion to suppress. Hurt entered conditional guilty pleas to the two counts of possession of drug paraphernalia and now appeals. On appeal, he argues the probation search of his apartment violated his Fourth Amendment rights under the United States Constitution and requests this Court overturn his convictions, permitting him to withdraw his conditional guilty pleas.

II

[¶ 5] When this Court reviews a district court’s decision to grant or deny a motion to suppress, the district court’s findings of fact are given deference, and conflicts in testimony are resolved in favor of affirmance. State v. Albaugh, 2007 ND 86, ¶ 8, 732 N.W.2d 712 (citing State v. Goebel, 2007 ND 4, ¶ 11, 725 N.W.2d 578). Questions of law are fully renewable on appeal. Id. (citing Goebel, at ¶ 11). In this case, there are no disputed facts; the review involves a question of law.

[¶ 6] The Fourth Amendment to the United States Constitution, enforceable against the States by the Fourteenth Amendment, State v. Ressler, 2005 ND 140, ¶ 10, 701 N.W.2d 915 (citation omitted), protects “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. Generally, in order for law enforcement to enter and search a person’s home while complying with the constitutional constraints of the Fourth Amendment, the search must be accompanied by a warrant. See Illinois v. Rodriguez, 497 U.S. 177, 184-86, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); see also Albaugh, at ¶ 10. If, however, the entry and search fall within a recognized exception to the warrant rule, the search may be constitutionally permissible. See Rodriguez, 497 U.S. at 184-86, 110 S.Ct. 2793 (holding a co-occupant’s consent was a valid exception to the warrant requirement as to his fellow occupants, even when the fellow occupant was not physically present and thus could not object to the search); see also Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (holding no warrant necessary when defendant consents to search).

[¶ 7] The exception to the warrant requirement applicable to this case occurs when a search is conducted in “situations in which voluntary consent has been obtained, either from the individual whose property is searched, [], or from a third party who possesses common authority over the premises [ ].” Rodriguez, at 181, 110 S.Ct. 2793 (internal citations omitted). The United States Supreme Court has recognized the validity of searches in which a co-occupant, who shares common authority over the property, consents to a search of the home when the defendant was absent from the premises. Georgia v. Randolph, 547 U.S. 103, 109, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006) (citing United States v. Matlock, 415 U.S. 164, 170, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (holding a co-occupant’s consent to search common areas of a home in the absence of the other occupant was constitutional, and evidence gathered during the search could be used against the absent, nonconsenting occupant)). The United States Supreme Court has also recognized the validity of searches in which the fellow occupant, vested with common authority, gives consent, and the defendant is present, but unaware consent had been given and unaware law enforcement was entering the home to conduct a search. See Rodriguez, 497 U.S. at 180, 186, 189, 110 S.Ct. 2793 (search and seizure held constitutional when police reasonably, but erroneously, believed a woman was a co-occupant with her boyfriend, the defendant, and the woman allowed police to enter the house to search while her boyfriend was asleep in the home). With regard to the rationale underlying the reasonableness of the common-area, co-occupant-consent exception to the warrant requirement, the United States Supreme Court explained:

The authority which justified the third-party consent does not rest upon the law of property, with its attendant historical and legal refinement, but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

Randolph, at 110, 126 S.Ct. 1515 (quoting Matlock, 415 U.S. at 171, n. 7, 94 S.Ct. 988).

[¶ 8] Hurt contends the United States Supreme Court’s recent decision in Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), applies to the instant case. Hurt urges this Court to interpret Randolph’s holding to require law enforcement to seek and receive consent of, or at least offer an opportunity to refuse consent to, all occupants in a home before conducting a search. If such opportunity to assert Fourth Amendment rights is not provided, Hurt argues, the evidence should not be admissible against the nonconsenting co-occupants. Hurt argues the Randolph decision requires law enforcement to receive something more than the consent of only one co-occupant, when other co-occupants are not physically present at the door, before the police may validly enter the home to search for and ultimately use evidence found against all occupants. Hurt misreads Randolph and the underlying cases that define its narrow holding.

[¶ 9] In Randolph, a wife called police, alleging she and her spouse, Scott Randolph, had engaged in a domestic dispute, her husband had taken their son after the dispute, and her husband was a cocaine user. 547 U.S. at 107, 126 S.Ct. 1515. Shortly after the police arrived in response to the wife’s complaint, Randolph returned to the home. Id. When the officers spoke with Randolph, he denied the allegations made by his wife and made similar accusations about her in turn. Id. The police again spoke with the wife, who renewed her complaints and stated there was evidence of Randolph’s drug use inside their home. Id. One of the officers asked Randolph for consent to search his home. Id. Randolph “unequivocally refused” to give permission to search. Id. The officer then turned to the wife and requested her consent. Id. The wife agreed to the search. Id. The officers searched the home, found evidence of Randolph’s drug use, and ultimately he was indicted for possession of cocaine. Id. Randolph moved to suppress the evidence gathered during the search; the trial court denied the motion, finding his wife had common authority over the home and could, therefore, consent to the search even though Randolph refused permission for the search. Id. at 107-08, 126 S.Ct. 1515. The United States Supreme Court held the search unconstitutional because Randolph’s refusal prevailed over his wife’s subsequent consent, despite the common authority they shared in the home. Id. at 108,126 S.Ct. 1515.

[¶ 10] Hurt argues Randolph applies in his case and makes the search unconstitutional because Hurt did not have the opportunity to object, but he, like Randolph, surely would have objected if the officers had given him the opportunity. Hurt argues the officers gained entry into the home in a manner that “could arguably be considered a subterfuge” and the manner of entry that “did not give anyone a chance to protest.”

[¶ 11] Contrary to Hurt’s assertion, Randolph does not require law enforcement to provide co-occupants any opportunity to assert their Fourth Amendment rights at the door. Rather, Randolph merely provides “a physically present co-occupant’s stated refusal to permit entry prevails [over the consent of his fellow occupant], rendering the warrant-less search unreasonable and invalid as to him.” Randolph, 547 U.S. at 106, 126 S.Ct. 1515. The Court explained the co-occupant who is not present at the door and does not flatly refuse the search at the time his fellow occupant provides consent “loses out” on his opportunity to exclude evidence gathered in a common area co-occupant consent search. Id. at 121, 126 S.Ct. 1515. The Court stated:

So long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection, there is practical value in the simple clarity of complementary rules, one recognizing the co-tenant’s permission when there is no fellow occupant on hand, the other according dispositive weight to the fellow occupant’s contrary indication when he expresses it. For the very reason that Rodriguez held it would be unjustifiably impractical to require the police to take affirmative steps to confirm the actual authority of a consenting individual whose authority was apparent, we think it would needlessly limit the capacity of the police to respond to ostensibly legitimate opportunities in the field if we were to hold that reasonableness required the police to take affirmative steps to find a potentially objecting co-tenant before acting on the permission they had already received. There is no ready reason to believe that efforts to invite a refusal would make a difference in many cases, whereas every co-tenant consent case would turn into a test about the adequacy of the police’s efforts to consult with a potential objector.

Randolph, at 121-22,126 S.Ct. 1515.

[¶ 12] To explain the “complementary rules” regarding co-occupant consent, the Court cites and discusses two significant cases, United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), and Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990), which narrow and shape the scope of the Randolph decision. Randolph, 547 U.S. at 109-112, 120-21, 126 S.Ct. 1515.

[¶ 13] In Matlock, the defendant objected to the admission of evidence obtained during a search of his home. 415 U.S. at 166, 94 S.Ct. 988. Matlock’s home was searched after he was arrested in his yard and subsequently placed in a squad car. Id. at 167-68, 94 S.Ct. 988. After he was placed in the car, the police officers went to the door of his home and asked a co-tenant for permission to enter and search the home. Id. at 167, 94 S.Ct. 988. The co-tenant agreed. Id.

[¶ 14] Because Matlock was sitting in the police car when consent to search was requested and received from his fellow occupant, Matlock, like Hurt in this case, was not invited or able to take part in any colloquy at the door. The Court held the evidence gathered during the consent search was valid against Matlock and provided: “the consent of one who possesses common authority over premises or effects is valid against the absent, nonconsenting person with whom that authority is shared.” Matlock, at 170, 94 S.Ct. 988. The Randolph Court did not overrule the holding in Matlock. Randolph, at 121, 126 S.Ct. 1515 (providing the Matlock holding is not “undercut” by the Court’s decision in Randolph, and there is a “fíne line” to be drawn between the objector who “is in fact at the door” and refuses consent and a “potential objector, nearby but not invited to take part in the threshold colloquy”). Randolph clarified the extent to which a co-occupant’s consent affects the admissibility of evidence against a physically present co-tenant who objects to the search at the door. Randolph, at 120, 126 S.Ct. 1515 (“We therefore hold that a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to police by another resident.”).

[¶ 15] Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2798, 111 L.Ed.2d 148 (1990), was also noted and discussed by the Randolph Court because Rodriguez, like Matlock, established the facts under which the Randolph rule would not apply. In Rodriguez, police were called to the residence of Dorothy Jackson and were met by Jackson and her daughter, Gail Fischer, who showed signs of a severe beating. 497 U.S. at 179, 110 S.Ct. 2793. Fischer told the police Edward Rodriguez had assaulted her. Id. She also told the police Rodriguez was asleep at his apartment, and she consented to travel with the police to the apartment so the officers could conduct a search, telling police she was Rodriguez’s girlfriend and had a key to and stayed at the apartment. Id.

[¶ 16] The police traveled to the apartment with Fischer, who unlocked the door and gave the officers permission to search. Id. at 180, 110 S.Ct. 2793. The police did not attempt to secure either an arrest or search warrant before entering Rodriguez’s apartment. Id. After the police entered, they went to the living room and saw in plain view drug paraphernalia and white powder in containers, which they believed to be cocaine. Id. The police continued to search and went to the bedroom of the home, where they found Rodriguez asleep and saw more containers with white powder. Id. Rodriguez was arrested, and the officers seized the paraphernalia and cocaine. Id. Rodriguez was charged with possession of a controlled substance with intent to deliver. Id. Before trial, he moved to suppress the evidence derived from the consent search permitted by his girlfriend, Fischer, arguing she did not have the actual authority to consent to the search because she had moved out of the home weeks earlier. Id. The district court granted the motion to suppress and the Appellate Court of Illinois affirmed after the State appealed. Id. The Illinois Supreme Court denied leave to appeal, and the United States Supreme Court granted certiorari. Id. at 180-81, 110 S.Ct. 2793. The United States Supreme Court reversed, holding the search was not unconstitutional if the officers reasonably, but erroneously, believed Fischer was, at the time of the search, a co-occupant with Rodriguez and would, therefore, have had authority to consent to a search of the common areas of the home. Id. at 186,110 S.Ct. 2793.

[¶ 17] Hurt, like Rodriguez, was in the apartment when officers entered. Hurt, like Rodriguez, was unaware of the officers’ presence until the officers had seen, in plain view, drug paraphernalia, and shortly thereafter placed him under arrest. Hurt, like Rodriguez, was not at the door to refuse consent when the police arrived, and therefore, under Randolph, both Rodriguez and Hurt “lose out” on their chance to assert their refusals:

[I]f a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out.

Randolph, 547 U.S. at 121, 126 S.Ct. 1515 (refusing to “undercut” the holdings in Matlock and Rodriguez, by drawing a “fine line” between the nonconsenting, uninvited potential objectors in those cases, and the express refusal of consent by a physically present co-occupant in Randolph).

[¶ 18] Hurt, unlike Randolph,-was not at the door and did not object or deny consent to search. Therefore, the rule in Randolph would not require the suppression of evidence against him, because his roommate “consented” to the search under paragraph 16 of her probation conditions in Hurt’s absence. See State v. Krous, 2004 ND 136, ¶¶ 2, 19, 681 N.W.2d 822 (finding that a probation clause stating the probationer must “submit to search of her ... place of residence by any probation officer at any time ... with or without a search warrant” amounted to the probationer’s consent to warrantless searches without request for consent by the probation officers). Thus, evidence obtained in this warrantless consent search would fall under Rodriguez and Matlock, rather than Randolph.

[¶ 19] We find no authority that would create an exception for third-party co-occupant consent derived from probation clauses. See State v. Yule, 905 So.2d 251, 264 (Fla.App.2d 2005) (Canady, J., concurring) (“The fact that a probationer shares a residence with another does not nullify the authority of probation and law enforcement officers to conduct a properly justified warrantless search of the probationer’s shared residence. A person choosing to live in the same home with another who is subject as a probationer to warrantless searches has a corresponding diminished expectation of privacy.”); People v. Pleasant, 123 Cal.App.4th 194, 19 Cal.Rptr.3d 796, 798 (2004) (“Persons who live with probationers cannot reasonably expect privacy in areas of a residence that they share with probationers.... Since [co-occupant] gave a search waiver as a condition of probation, law enforcement authorities could, without a warrant or probable cause, search areas used exclusively by [the probationer], areas within ‘common authority’ [] of the probationer and fellow occupants and areas which she ‘normally had access.’ ”); United States v. Crew, 345 F.Supp.2d 1264, 1266 (D.Utah 2004) (“When the parolee, as a cohabitant of premises, gives consent to enter and to search, that consent is valid as to his personal space and all common space.”); State v. West, 185 Wis.2d 68, 517 N.W.2d 482, 491 (1994) (stating that a “parole search may extend to all parts of the premises to which the probationer or parolee has common authority, just as if it were a consent search”); State v. Johnson, 748 P.2d 1069, 1073 (Utah 1987), abrogated on other grounds by State v. Doporto, 935 P.2d 484 (Utah 1997) (“A warrantless search of a parolee may result in an invasion of privacy, at least to some extent, for those living with the parolee.”). Those who voluntarily choose to live with probationers, like any other voluntary co-occupant living arrangement, assume the risk they will have diminished their Fourth Amendment rights. See, e.g., Randolph, 547 U.S. at 110, 126 S.Ct. 1515 (quoting Matlock, 415 at 171, n. 7, 94 S.Ct. 988) (“[T]hird-party consent ... rests [ ] on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.”); Yule, 905 So.2d at 264 (Canady, J., concurring) (“A person choosing to live in the same home with another who is subject as a probationer to warrantless searches has a corresponding diminished expectation of privacy”).

[IT 20] Hurt voluntarily chose to live with Bickler. We see no reason to treat Bidder’s consent, albeit in the form of a probation term, differently from the verbal consent that could be given by any other co-occupant. The co-occupant consent-to-search exception to the warrant requirement applies in this case, and as such, the district court properly found the search of the common areas of Hurt’s apartment was not unconstitutional.

[¶ 21] We affirm the criminal judgment.

[¶ 22] 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 201
    Lindsay Guy BARTCH, Plaintiff and Appellant v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Defendant and Appellee.
    No. 20070160.
    Supreme Court of North Dakota.
    Dec. 17, 2007.

      Timothy Q. Purdon, Vogel Law Firm, Bismarck, ND, for plaintiff and appellant.
    Andrew Moraghan, Assistant Attorney General, Office of Attorney General, Bismarck, ND, for defendant and appellee.
   CROTHERS, Justice.

[¶ 1] Lindsay Bartch appeals the district court’s judgment affirming a North Dakota Department of Transportation (“Department”) decision revoking Bartch’s driving privileges for three years for driving under the influence of alcohol. We conclude the stop of Bartch’s vehicle was permissible because he displayed an expired registration tab on his license plate in violation of N.D.C.C. § 39-04-11. We affirm.

I

[¶ 2] Deputy Kirk Hagel stopped Bartch’s vehicle on December 1, 2006, for improper display of registration tabs on Bartch’s license plates. The current registration tab was affixed to the upper-left corner of the license plate rather than the upper-right corner, designated as the proper area by the Department. An expired registration tab was affixed to the upper-right corner of the license plate. Subsequent to the stop, Bartch failed a horizontal gaze nystagmus test and performed a preliminary breath test resulting in a reading of 0.142 percent. Bartch was arrested for driving under the influence and received a warning for improper display of vehicle registration. He refused to submit to a blood draw.

[¶ 3] A driver’s license revocation hearing was held before the Department on December 18, 2006. The primary issue was whether Bartch’s registration tab violation was sufficient to provide reasonable and articulable suspicion for the traffic stop. Section 39-04-11, N.D.C.C., requires the tab be affixed to the area “designated by the department for the tab.” Bartch argued this portion of N.D.C.C. § 39-04-11 is ambiguous and claimed the Legislature improperly delegated authority to the Department to create a crime. The Department rejected Bartch’s argument and suspended his driving privileges for three years.

[¶ 4] Bartch appealed the decision to the district court. The district court found the Legislature properly delegated its power to the Department because the function of vehicle registration pertains to the execution of law rather than to the creation of law. It also determined N.D.C.C. § 39-04-11 is not unconstitutionally vague because vehicle owners are provided with instructions accompanying new license plates explaining proper placement of the tabs.

[¶ 5] Bartch appeals the Department’s decision arguing a violation of N.D.C.C. § 39-04-11 does not serve as reasonable and articulable suspicion to stop a vehicle because the statute improperly delegates Legislative power to the Department and because it is unconstitutionally vague.

II

[¶6] Bartch’s appeal rests solely on the constitutionality of N.D.C.C. § 39-04-11. “[Administrative agency decisions on questions of law are fully renewable by this Court.” Blueshield v. Job Serv. N.D., 392 N.W.2d 70, 73 (N.D.1986). For the reasons below, we do not reach Bartch’s constitutional arguments.

[¶ 7] Law enforcement officers may legally stop a moving vehicle for investigation if the officers have reasonable and articulable suspicion the driver has violated or is violating the law. City of Fargo v. Ovind, 1998 ND 69, ¶ 8, 575 N.W.2d 901. Even a minor traffic violation can provide the requisite basis to stop a vehicle. State v. Loh, 2000 ND 188, ¶ 7, 618 N.W.2d 477. A driver violates N.D.C.C. § 39-04-11 by failing to cover or remove “all number plates, markers, or evidence of registration or licensing except for the current year” and by failing to display an “annual registration tab or sticker for the current registration year ... in the area designated by the department for the tab or sticker, in those years for which tabs or stickers are issued in lieu of number plates.” A violation of N.D.C.C. § 39-04-11 is a nonmoving violation with a penalty of “a fee of any amount not to exceed twenty dollars.” N.D.C.C. §§ 39-06.1-06(1), 39-06.1-08.

[¶ 8] Bartch does not deny violation of N.D.C.C. § 39-04-11; he contends, however, the portion of the statute requiring placement of the current registration tab “in the area designated by the department” is unconstitutional and, as such, may not be used to establish the basis to conduct a traffic stop. See Hoff v. Berg, 1999 ND 115, ¶ 19, 595 N.W.2d 285 (quoting State v. Clark, 367 N.W.2d 168, 169 (N.D.1985)) (“[UJnconstitutional legislation is void and is to be treated as if it never were enacted.”). Bartch attacks the constitutionality of N.D.C.C. § 39-04-11 by arguing it improperly delegates Legislative authority to the Department and it is unconstitutionally vague.

[¶ 9] We decline to consider Bartch’s constitutional arguments. Under N.D.C.C. § 39-04-11, failing to remove “all number plates, markers, or evidence of registration or licensing except for the current year” is a violation. The record shows Bartch displayed an expired registration sticker on his license plates. Bartch does not deny violating this portion of the statute. Nor does he argue that it is unconstitutional. This violation alone is sufficient to establish the requisite basis for Deputy Hagel’s stop. “[A] person to whom a statute may constitutionally be applied cannot challenge that statute on the grounds that it may conceivably be applied unconstitutionally to others.” State v. Unterseher, 255 N.W.2d 882, 886 (N.D.1977). This Court historically refuses to make “unnecessary pronouneement[s] on constitutional issues” and “premature interpretations of statutes in areas where their constitutional application might be cloudy.” State v. Anderson, 427 N.W.2d 316, 319 n. 1 (N.D.1988) (quoting United States v. Raines, 362 U.S. 17, 22, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960)).

Ill

[¶ 10] Bartch violated N.D.C.C. § 39-04-11 by displaying an expired registration sticker, providing a lawful basis to stop Bartch’s vehicle. We affirm the district court’s judgment affirming the Department’s decision.

[¶ 11] GERALD W. VANDE WALLE, C.J., WILLIAM A. HERAUF, D.J., MARY MUEHLEN MARING, and DALE V. SANDSTROM, JJ., concur.

[¶ 12] The Honorable WILLIAM A. HERAUF, D. J., sitting in place of KAPSNER, J., disqualified.