author: G. BARRY ANDERSON, Judge. HUDSON, Judge

text:
    STATE of Minnesota, Appellant, v. Jerrett Lee ANDERSON, Respondent.
    No. C9-02-1043.
    Court of Appeals of Minnesota.
    Dec. 24, 2002.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuehar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, Minneapolis, MN, for appellant.
    Barry V. Voss, Minneapolis, MN, for respondent.
    Considered and decided by HUDSON, Presiding Judge, PETERSON, Judge, and G. BARRY ANDERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Appellant State of Minnesota asserts that the district court clearly erred by dismissing a felony murder charge and concluding that neither felon in possession nor possession of a stolen firearm can serve as predicate offenses to felony murder. Because the district court erroneously failed to consider the manner in which respondent committed the other crimes and, because respondent’s possession of a loaded shotgun posed a special danger to human life when pointed at the victim’s head from a few feet away, we reverse.

FACTS

On February 26, 2002, respondent, Jer-retfc Lee Anderson, brought a loaded, stockless, pump-action 12-gauge shotgun to the house of Blake Rogers. Respondent told Rogers and a third party that he had stolen the gun. Respondent passed the gun to Rogers and the third party. They remarked that it was loaded and they returned the gun to respondent. While Blake Rogers knelt to load compact discs into his stereo system, respondent pointed the shotgun at Rogers’s head. The gun discharged, killing Blake Rogers. The third party and respondent ran from the house after Rogers fell over from the shotgun blast.

Prior to the killing, respondent had been convicted of riot in the second degree, a felony and a “crime of violence” pursuant to Minn.Stat. § 624.712, subd. 5 (2000). Thus, under Minn.Stat. § 624.713, subd. 1(b) (2000), it was a felony for respondent to possess the shotgun. The state charged respondent with unintentional murder in the second degree, Minn.Stat. § 609.19, subd. 2(1) (felony murder), and murder in the third degree, Minn.Stat. § 609.195(a) (2000) (depraved-mind murder). The district court found that probable cause existed for murder in the third degree but dismissed the murder in the second degree charge, ruling that felon in possession and possession of a stolen firearm are not legal predicates for felony murder. The state appealed the dismissal under Minn. R.Crim. P. 28.04, subd. 1(1).

ISSUE

Did the district court err in ruling that the offenses of felon in possession of a firearm and possession of a stolen firearm are not proper predicate offenses to sustain a second-degree felony murder charge?

ANALYSIS

The State of Minnesota claims the district court erred in dismissing the felony-murder charge against respondent on the basis that felon in possession and possession of a stolen firearm are not inherently dangerous offenses. The state claims that viewing respondent’s actions in totality demonstrates that the commission of the underlying felonies was inherently dangerous to human life and therefore these crimes are sufficient predicate offenses for felony murder.

The state appealed directly from the district court’s pretrial dismissal for lack of probable cause. The state may appeal as of right to this court “in any case, from any pretrial order of the trial court, including probable cause dismissal orders based on questions of law.” Minn. R.Crim. P. 28.04, subd. 1(1). To prevail, the state must clearly show that the district court “erred in its judgment and * * * the error will have a critical impact on the outcome of the trial.” State v. Hanson, 583 N.W.2d 4, 5 (Minn.App.1998) (quotation omitted), review denied (Minn. Oct. 29, 1998). Critical impact exists where the district court dismisses a complaint for lack of probable cause. Id. at 6. Respondent has conceded that the district court’s dismissal of count one for lack of probable cause will have a critical impact on the outcome of trial.

The issue of first impression before this court is whether the felony murder rule permits felon in possession or possession of a stolen firearm to be used as predicate offenses to felony murder. Because this issue is a question of law, ap-pealable under Minn. R.Crim. P. 28.04, subd. 1(1), this court must review it de novo. See State v. Linville, 598 N.W.2d 1, 2 (Minn.App.1999) (reviewing statutory interpretation underlying dismissal for lack of probable cause); State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996) (holding that whether a statute has been properly construed is a question of law subject to de novo review).

The Minnesota felony murder statute provides:

Whoever does * * * the following is guilty of unintentional murder in the second degree and may be sentenced to imprisonment for not more than 40 years:
(1) causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shootingf.]

Minn.Stat. § 609.19, subd. 2(1) (2000). Under its plain language, this statute applies to all felonies except criminal sexual conduct in the first degree, criminal sexual conduct in the second degree with force or violence, or a drive-by shooting. Id.

The felony murder rule was constructed to allow “one whose conduct brought about an unintended death in the commission or attempted commission of a felony [to be found] guilty of murder” by imputing malice when there was no obvious evidence of intent to kill. State v. Branson, 487 N.W.2d 880, 881 (Minn.1992) (quoting 2 W. LaFave & Scott, Jr., Substantive Criminal Law § 7.5, at 206 (1986)) (“LaFave & Scott”). The common law felonies included in this rule were homicide, rape, arson, mayhem, robbery, burglary, larceny, prison breach, and rescue of a felon. State v. Aarsvold, 376 N.W.2d 518, 521 (Minn.App.1985). While some states still follow the common law rules, most states have attempted to limit the felony murder doctrine in various ways. LaFave & Scott, § 7.5, at 206.

In Minnesota, prior to 1981, felony murder was limited by statute to felonies “upon or affecting the person whose death was caused.” Minn.Stat. Ann. § 609.195(2) advisory comm. cmt. (West 1987). This wording limited the application of the statute: “[Djeath resulting from the commission of a purely property crime would not fall within the clause.” Id. The supreme court stated that the justification for this restriction was to “isolate for special treatment those felonies that involve some special danger to human life.” State v. Nunn, 297 N.W.2d 752, 754 (Minn.1980).

In 1981, the legislature amended section 609.195 to apply to any felony except “criminal sexual conduct in the first or second degree with force or violence.” 1981 Minn. Laws ch. 227, §§ 10 & 11 (codified at Minn.Stat. § 609.19, subd. 2(2) (1982)). Thus, any felony not otherwise proscribed could serve as a predicate felony if it involved special danger to human life. Branson, 487 N.W.2d at 884.

States have construed the requirement that predicate felonies be a special danger to human life in two different ways. La-Fave & Scott, § 7.5(b), at 209. Under one approach, courts view the elements of the predicate felony in the abstract to determine whether the offense is inherently dangerous. Id. This approach does not weigh the facts of the particular case in deciding whether the predicate felony poses a special danger (the “elements” test). Id. The second approach examines the facts of the particular case, including the circumstances in which the felony was committed, to determine whether there was a foreseeable danger to human life (the “totality of the circumstances” test). Id. The Minnesota Supreme Court has adopted the totality of the circumstances approach. Nunn, 297 N.W.2d at 754.

The state argues that the district court incorrectly applied the totality of the circumstances test by failing to consider the actions surrounding respondent’s commission of the underlying possession felonies. The state contends that whether felon in possession or possession of a stolen firearm are inherently dangerous in the abstract is irrelevant under the totality of the circumstances test. Respondent’s pointing a stockless, loaded shotgun at the victim’s head from a few feet away was clearly inherently dangerous.

The potential predicate offenses here, felon in possession and possession of a stolen firearm, are status offenses, or mala 'prohibitum, which courts have less frequently relied upon as predicate offenses to felony murder. Although the common law felonies (all mala in se) traditionally provided the basis for a felony murder conviction, Minnesota courts have also used mala prohibitum felonies as predicate offenses. See, e.g., State v. Cole, 542 N.W.2d 43 (Minn.1996) (shoplifting); State v. Back, 341 N.W.2d 273 (Minn.1983) (damage to property); State v. Forsman, 260 N.W.2d 160 (Minn.1977) (sale of narcotics); Smith v. State, 596 N.W.2d 661 (Minn.App.1999) (sale of narcotics). Only after examining the particular circumstances of each case did the court find that an inherent danger to human life existed.

In contrast, this court has also held that the sale of cocaine, another malum prohi- bitum crime, was not a proper predicate offense. Aarsvold, 376 N.W.2d 518 (“[T]he sale of cocaine alone does not justify the assumption that the purchaser is incurring a substantial and unjustified risk of death * * *.”)• Id. at 522. The district court found that Aarsvold was comparable to the present facts because both involved potentially dangerous situations — here, a felon in possession of a firearm — in Aarsvold, the sale of cocaine. This analysis, however, overlooks that Aarsvold held that the sale of cocaine alone did not carry with it an unjustified risk of death. Id. By looking at the circumstances of the sale, the court found that nothing was inherently more dangerous about the sale than any other cocaine purchase. Id. Thus, because dealers often sell cocaine without causing death, the court held that the drug transaction was not an inherently dangerous felony capable of supporting a felony murder charge. Id.

In contrast, here, the danger in possessing a firearm and pointing it at the head of another is dramatically more significant than the danger associated with a common drug sale. Although the certainty of death is still not automatically linked to such actions, the risk of an intentional or accidental discharge killing a person is much higher.

We find the Cole analysis more useful and applicable. 542 N.W.2d 43. Cole clearly used a totality-of-the-cireumstances analysis in applying the felony murder doctrine to felony-theft and second-degree assault. Under Cole, there was an inherent danger to human life where the defendant entered a department store, armed with a loaded gun, to return stolen goods. The defendant shot and killed a police officer to avoid arrest for the felony theft charge. Id. at 47. The supreme court found that there were two predicate offenses: (1) the property crime of theft and (2) second-degree assault because the circumstances indicated a high degree of risk to human life. Id. at 52.

The Aarsvold and Cole courts viewed the underlying felonies according to their relative likelihood of producing an unexpected homicide and should be compared on that basis. In Cole, the likelihood of a homicide from the defendant’s use of a loaded, concealed, gun to commit theft was foreseeable, while there was far less likelihood that the drug use in Aarsvold would lead to death. Similarly, here, respondent’s possession of a loaded, stockless shotgun pointed at the victim’s head involved a substantial risk of death. The respondent’s unsafe possession of a loaded, dangerous weapon eventually killed someone. We recognize respondent did not commit the murder to further any of the underlying felonies. Nevertheless, we hold that pointing a loaded shotgun, potentially difficult to control because of the absence of a rifle stock, at another human being from close quarters is certainly reckless behavior. Indeed, the district court held as much by finding probable cause for a depraved mind murder charge. Because respondent acted in an inherently dangerous manner during his ongoing criminal possession of the firearm, the district court erred by dismissing the felony murder charge.

The felony murder count here is consistent with the broad legislative definition of felony-murder and within the parameters of Cole and similar Minnesota Supreme Court decisions. The holdings of other jurisdictions regarding this issue also support our conclusion that respondent’s firearm possession here was inherently dangerous. Respondent not only knew the victim was present, he pointed a loaded, stockless shotgun at the victim from only a few feet away. Viewing all the circumstances of respondent’s commission of the underlying felonies leads inescapably to the conclusion that appellant’s behavior was inherently dangerous to human life.

DECISION

Under an analysis based on the totality of the circumstances, respondent’s possession of a firearm was inherently dangerous to human life. Accordingly, we reverse the district court and hold that, where a loaded, stockless firearm is pointed at another and is discharged, resulting in death, felon in possession or possession of a stolen firearm may serve as predicate offenses to felony murder.

Reversed.

HUDSON, Judge

(dissenting).

I respectfully dissent. The majority’s holding, that a felony-murder charge may be predicated on a “status” offense, is a dangerous and unwarranted extension of the felony-murder doctrine that ignores the doctrine’s historical roots, and does so in the absence of explicit legislative directive. As the majority notes, the felony-murder rule developed to allow “one whose conduct brought about an unintended death in the commission or attempted commission of a felony [to be found] guilty of murder” by imputing malice when no intent to kill was evident. State v. Branson, 487 N.W.2d 880, 881 (Minn.1992) (quoting 2 Wayne LaFave et al., Substantive Criminal Law, § 7.5, at 206-07 (1986)). The rationale for the rule is that certain felonious conduct carries with it an especially increased risk that people may be killed as a result, and that when a killing occurs as a result of this conduct, fairness allows punishing the person responsible for murder as opposed to just manslaughter. State v. Nunn, 297 N.W.2d 752, 754 (Minn.1980). Traditional predicate felonies under the rule include homicide, mayhem, rape, arson, robbery, burglary, larceny, prison breach, and rescue of a felon. JoAnne Adlerstein, Felony-Murder in the New Criminal Codes, 4 Am. J.Crim. L. 249 (1975-76). Because of the harshness of the felony-murder rule, most states have attempted to limit the felony-murder rule in various ways. See 2 LaFave, supra at 208.

Despite these limitations, felony murder remains an anomaly in the law of homicide. Except for involuntary manslaughter, which carries a significantly lighter sanction, felony murder is the only form of homicide not requiring proof of a specific mental element. See Note, Felony-Murder: A Tort Law Reconceptualization, 99 Harv. L.Rev.1918, 1919 (1986) cited in Branson, 487 N.W.2d at 882. Because malice may be imputed from crimes qualitatively different from and far less severe than murder, the most serious sanctions known to law may be imposed for what in fact may have been an accidental death. Id. For this reason, the rule has been severely criticized for its mechanical operation, penological purposes, and its intrinsic unfairness. Id. (citations omitted). In sum, the felony-murder doctrine expresses a highly artificial concept that deserves no extension beyond its required application. 2 LaFave, supra at 233.

The current felony-murder statute technically applies to any felony except “criminal sexual conduct in the first or second degree with force or violence.” Minn. Stat. § 609.19, subd. 2(1) (2002) (emphasis added). But the Minnesota Supreme Court has, like courts in many jurisdictions, judicially limited the application of the felony-murder rule by requiring that the predicate felony involve a special danger to human life. See, e.g., State v. Nunn, 297 N.W.2d 752, 754 (Minn.1980) (felony-murder rule applied to burglary in which assault was committed on resident of dwelling); State v. Forsman, 260 N.W.2d 160, 164 (Minn.1977) (felony-murder rule applied to distributing heroin by direct injection into the body of another). The supreme court has construed the requirement that predicate felonies involve a special danger to human life by examining whether, on the facts of the particular case, including the circumstances in which the felony was committed, there was a foreseeable danger to human life. Nunn, 297 N.W.2d at 753.

The majority concludes that, based on the totality of the circumstances, respondent’s possession of a firearm was inherently dangerous to human life. But the majority opinion is flawed in two critical respects. First, there is nothing inherently dangerous about the offenses of felon in possession and possession of a stolen firearm. These are “status” offenses that, as committed, do not create a special danger to human life. As the district court properly noted, each of these offenses is ma-lum prohibitum — a crime because it is prohibited by statute — rather than malum in se — an inherently immoral act. See, e.g., Minn.Stat. § 609.165, subd. 19 (2002) (providing that felons convicted of “crime of violence” precluded from shipping, transporting, possessing or receiving firearm). In contrast, traditional predicate felonies such as rape, armed robbery, and arson, are malum in se — offenses with direct and immediate potential to be inherently dangerous to human life. The majority, however, treats the underlying status offense as tantamount to the actual conduct that resulted in the victim’s death; .that is, it equates unlawful possession of a firearm with the act of placing that firearm inches from another’s head. Indeed, the result reached by the majority could not be accomplished unless these two distinct concepts are blurred.

Relying on Nunn, the state and the majority effectively foreclose consideration of the elements of the predicate felony itself. But Nunn did not hold that the elements of the predicate felony are irrelevant. Rather, Nunn held that the court must consider both the elements of the predicate felony in the abstract and the circumstances under which the felony was committed to determine whether the felony-murder rule should be applied. Nunn, 297 N.W.2d at 754; see also State v. Cole, 542 N.W.2d 43, 53 (Minn.1996) (noting that “when determining if the underlying felony involves a special danger to life, we not only consider the elements of the underlying felony in the abstract, but also the facts of the particular case and the circumstances under which the felony was committed” (emphasis added)). Furthermore, examining only the facts and circumstances of the particular case, as the majority does, would eviscerate the Nunn “special danger to human life” test, because in every felony in which a death occurs, the predicate offense would necessarily have been committed in a particularly dangerous manner. Rather, I would hold that, under the totality-of-the-circumstances test enunciated in Nunn, part of the consideration must necessarily be an examination of the elements of the predicate felony itself. As the district court correctly stated in this case,

While felon in possession of a firearm creates a dangerous situation, there is a material distinction between the level of imminency and probability of the special danger to human life in that situation than in a situation involving the traditional felony predicates. The predicate felony in this case does not require an act of violence in carrying out the crime. Nor can it be persuasively argued that death would be the natural and probable consequence of the defendant’s conduct in carrying out the predicate offense.

The second critical flaw in the majority’s opinion is that it fails to acknowledge that the discharge of the gun, the act causing Rogers’ death, was not committed in furtherance of the underlying felony of unlawful possession. Felony-murder jurisprudence has long held that

[t]he collateral crime and the homicide must be integrated and related in a causal way * * *. The death must be caused by the felonious act. The death need not be in furtherance of the felony, but the act that caused the death should be in furtherance of the felony. (Emphasis added.)

Griffin v. Commonwealth of Virginia, 33 Va.App. 413, 533 S.E.2d 653, 659 (2000) (quotation omitted).

Here, the majority focuses on the fact that the possession of the firearm had a direct connection with the homicide. But the application of the felony-murder doctrine has traditionally been premised on proving a causal relationship between the predicate offense and the victim’s death. Thus, in the “typical” armed robbery felony-murder, a defendant is held responsible for any accidental shooting of a victim that occurs in the course of the defendant’s attempt to commit the armed robbe'ry. This is a critical limitation on the application of the felony-murder rule, yet the majority gives it short shrift.

In support of its ruling, the majority notes that, although the common-law felonies (all malum in se) traditionally provided the basis for a felony-murder conviction, Minnesota courts have also used malum prohibitum felonies as predicate offenses. See, e.g., State v. Cole, 542 N.W.2d 43 (Minn.1996) (felony theft); State v. Back, 341 N.W.2d 273 (Minn.1983) (property offense). The majority notes that only after examining the particular circumstances of each case, did the court find that an inherent danger to human life existed. But the majority fails to recognize that the fatalities in Cole and Back resulted directly from the predicate felonies. In Cole, for example, there was inherent danger to human life when the defendant entered a department store, armed with a loaded gun, to return stolen goods. Cole, 542 N.W.2d at 46-47. The defendant eventually shot and killed a police officer to avoid arrest for the felony theft charge. Id. The court properly considered all of these circumstances. It is equally significant, however, that even though felony theft is not one of the traditional malum in se predicate felonies, the murder was committed in connection with the underlying act of theft. Application of the felony-murder rule was therefore proper. In contrast, here, respondent’s use of the gun in accidentally killing the victim did not further his commission of the crime of felon in possession; it cannot be ignored that he initially committed the predicate felony of possession before he ever came in contact with the victim. In addition, Cole purposely shot the police officer to evade arrest; here respondent accidentally shot the victim. Thus, one critical piece of the totality-of-the-circumstances test is absent here: the nexus between the homicide and the predicate felony itself.

Causation has always been an integral part of the felony-murder doctrine, yet the extension articulated by the majority today eliminates the proximate cause requirement and allows the state virtually unlimited discretion to invoke the felony-murder rule. This is particularly troubling here, where the third-degree murder charge (depraved heart) more accurately reflects respondent’s conduct. Unquestionably, pointing a loaded shotgun at someone’s head from a few feet away is inherently dangerous. But these very facts support and explain the prosecutor’s decision to charge respondent with murder in the third degree, in violation of Minn.Stat. § 609.195(a) (2000) — a decision the trial court affirmed when it found probable cause for the third-degree murder charge. Thus, the only apparent reason for the state to charge felony-murder was to ratchet up the permissible sentence.

As former Justice Rosalie Wahl aptly noted in Branson, the issue presented here “is not whether the defendant can escape criminal liability, but rather, with what crimes the defendant may be properly charged under the circumstances of this case.” Branson, 487 N.W.2d at 885. Like most murders, this was a heinous, senseless crime, and respondent should be held responsible for his conduct. Indeed, if the trial court order were affirmed, respondent would still face a third-degree murder charge, which I believe more precisely matches his unlawful conduct. What I object to is the unwarranted judicial intrusion upon what has heretofore been well-settled law, especially when our criminal code adequately encompasses the conduct at issue here. See Branson, 487 N.W.2d at 885-86. Therefore, I would affirm the trial court’s pretrial order dismissing the unintentional murder in the second-degree (felony-murder) charge on the grounds that the “status” offenses of unlawful possession of a firearm and possession of a stolen firearm cannot serve as predicate offenses to felony-murder.

      . Most courts that have adopted the elements test have concluded that felon in possession of a firearm is not an inherently dangerous felony. See, e.g., People v. Satchell, 6 Cal.3d 28, 98 Cal.Rptr. 33, 489 P.2d 1361 (1971) (holding that under the elements test, possession of a firearm was passive and not a felony inherently dangerous to human life), overruled, on other grounds hy People v. Flood, 18 Cal.4th 470, 76 Cal.Rptr.2d 180, 957 P.2d 869 (1998); State v. Underwood, 228 Kan. 294, 615 P.2d 153 (1980) (stating that unlawful possession of a firearm, when viewed in the abstract, is not a felony inherently dangerous to human life and would not sustain conviction for murder in the first degree under felony murder rule).

      . Metts v. State, 270 Ga. 481, 511 S.E.2d 508 (1999) held that, under the totality of the circumstances, felon in possession was an inherently dangerous offense. Id. The defendant in that case pointed a loaded, cocked gun in the direction of a window, on the other side of which he knew there was a human being. Id. at 510. After the gun discharged and killed the victim on the other side of the window, the defendant admitted that he had shot the victim but asserted that the gun fired accidentally. Id. In light of these circumstances, the court held that the defendant's possession of the firearm was "dangerous and life-threatening, and had ‘an undeniable connection to the homicide ***.’" Id. (quotations omitted). Cf. Ford v. State, 262 Ga. 602, 423 S.E.2d 255 (1992). In Ford, the defendant discharged a pistol while trying to unload it and killed a victim in the apartment below. Id. at 602, 423 S.E.2d 255. The court held that the circumstances supported the conclusion that the defendant did not intend an assault, or any other criminal conduct, and thus his actions were not inherently dangerous to human life. Id. at 603, 423 S.E.2d 255.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2002 ND 197
    In the Matter of DISCIPLINARY ACTION AGAINST Elizabeth Jane SUNDBY, a Member of the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner, v. Elizabeth Jane Sundby, Respondent.
    No. 20020340.
    Supreme Court of North Dakota.
    Dec. 11, 2002.
   INTERIM SUSPENSION ORDERED

PER CURIAM.

[¶ 1] On December 10, 2002, an Application for the Interim Suspension of Elizabeth Jane Sundby, a member of the Bar of North Dakota, and supporting Affidavit with attached exhibits was filed under N.D.R. Lawyer Discipl. 3.4 by Loralyn K. Hegland, Assistant Disciplinary Counsel for the Disciplinary Board of the Supreme Court. Disciplinary Counsel’s Affidavit indicates that formal proceedings are pending against Sundby regarding allegations of violations of N.D.R. Prof. Conduct 1.4, Communication, 1.5, Fees, 1.15(b), Safekeeping Property, 8.1, Bar Admission and Disciplinary Matters, and Sundby has not filed an answer.

[¶ 2] Assistant Disciplinary Counsel’s Affidavit fimther indicates that three additional disciplinary complaints have been filed against Sundby from which it appears that Sundby has neglected her clients since August 2002. Sundby has not responded to two of these complaints.

[¶ 3] Assistant Disciplinary Counsel asserts that the information provided is sufficient evidence to demonstrate Sundby has abandoned her law practice, and her conduct presents a substantial threat of irreparable harm to the public. Assistant Disciplinary Counsel requests the immediate suspension of Elizabeth Jane Sundby’s certificate of admission to the Bar, and the appointment of a trustee under N.D.R. Lawyer Discipl. 6.4 to protect the interests of Sundby’s clients. The Court considered the matter, and

[¶4] ORDERED, under N.D.R. Lawyer Discipl. 3.4(B) Elizabeth Jane Sund-by’s certificate of admission to the Bar of the State of North Dakota is SUSPENDED effective immediately and until further order of this Court, pending disposition of the proceedings predicated upon the conduct giving rise to the Application. This Order is subject to the provisions of N.D.R. Lawyer Discipl. 3.4 which provides that upon request by counsel or the lawyer after entry of an interim suspension order, the court shall within 10 days provide an opportunity for the lawyer to demonstrate that the order should not remain in force.

[IT 5] IT IS FURTHER ORDERED, that Assistant Disciplinary Counsel promptly apply to the district court for a professional trustee as provided in N.D.R. Lawyer Discipl. 6.4.

[¶ 6] IT IS FURTHER ORDERED, that Elizabeth Jane Sundby comply with N.D.R. Lawyer Discipl. 6.3.

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


author: VANDE WALLE, Chief Justice. KAPSNER, Justice,

text:
    2002 ND 203
    STATE of North Dakota, Plaintiff and Appellee, v. Jocelyn BOYD, Defendant and Appellant.
    No. 20020136.
    Supreme Court of North Dakota.
    Dec. 20, 2002.

      Cynthia M. Feland, Assistant State’s Attorney, Bismarck, ND, for plaintiff and appellee.
    Kent M. Morrow, Bismarck, ND, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Jocelyn Boyd appealed a trial court order denying her motion to suppress evidence and the criminal judgment convicting her of possession of marijuana with intent to deliver, possession of a controlled substance with intent to deliver, and possession of drug paraphernalia. We affirm.

I

[¶ 2] On June 21, 2001, Burleigh County Deputy Sheriff Sharlene Schuh was driving east when she observed a vehicle with Texas license plates. She asked dispatch to run a vehicle license plate check, which was her routine practice when encountering out-of-state license plates. She observed three people in the vehicle, and the individual in the back seat appeared to be a woman. When the vehicle turned south, Deputy Schuh did not follow. When she received the report from dispatch, it contained a National Crime Information Center (“NCIC”) request to perform a welfare check on the owner of the vehicle, as a “possibly missing and/or endangered” female. Deputy Schuh then requested assistance and located the vehicle turning into a shopping mall parking lot.

[¶ 3] Deputy Schuh “pulled in behind” the vehicle as its three occupants, Benjamin Alvarez, Jocelyn Boyd, and Christopher Defender, exited. Deputy Schuh identified herself, showed her badge, and told Alvarez, Boyd, and Defender to move to the front of the vehicle and place their hands on the hood. They did not comply with Deputy Schuh’s requests until another officer arrived. Further investigation revealed Boyd owned the vehicle. During a pat-down search, police found drugs on Alvarez and also learned there were outstanding arrest warrants against him. Police impounded Boyd’s vehicle after a drug dog showed a positive “hit” for drugs. Boyd later consented to a vehicle search, and police discovered drugs in the vehicle. Boyd moved to suppress the evidence found in the search of the vehicle. The trial court denied her motion, and Boyd entered a conditional guilty plea.

[¶ 4] On appeal, Boyd argues the trial court erred in denying her motion to suppress evidence. She asserts the fact the vehicle had out-of-state license plates did not provide the deputy with a reasonable suspicion of unlawful activity. Therefore, Deputy Schuh illegally stopped the vehicle, and all evidence obtained from the illegal stop should be suppressed. Furthermore, Boyd argues the trial court erred in finding Deputy Schuh’s stop of the vehicle was justified by the community caretaking exception of the Fourth Amendment.

II

[¶ 5] In State v. Sabinash, 1998 ND 32, ¶ 8, 574 N.W.2d 827 (citations omitted), we outlined our standard of review for suppression motions:

The trial court’s disposition of a motion to suppress will not be reversed if, after conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the trial court’s findings, and the decision is not contrary to the manifest weight of the evidence. That standard of review recognizes the importance of the trial court’s opportunity to observe the witnesses and assess their credibility, and we “accord great deference to its decision in suppression matters.”

III

[¶ 6] Courts have identified several permissible types of law enforcement-citizen encounters, including: “(1) arrests, which must be supported by probable cause; (2) ‘Terry’ stops, seizures which must be supported by a reasonable and articulable suspicion of criminal activity; and (3) community caretaking encounters, which do not constitute Fourth Amendment seizures.” State v. Halfmann, 518 N.W.2d 729, 730 (N.D.1994); see also Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The trial court considered the encounter in this case the third type, finding Deputy Schuh performed a community caretaking function of law enforcement.

A

[¶ 7] Law enforcement officers often serve as community caretakers. Lapp v. N.D. Dep’t of Transp., 2001 ND 140, ¶ 14, 632 N.W.2d 419 (citing State v. DeCoteau, 1999 ND 77, ¶ 19, 592 N.W.2d 579). The United States Supreme Court described community caretaking functions as those “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Community caretaking allows law enforcement-citizen contact, including stops, without an officer’s reasonable suspicion of criminal conduct. State v. Glaesman, 545 N.W.2d 178, 181 (N.D.1996). For Fourth Amendment purposes, a seizure does not occur when an officer approaches a parked vehicle if the officer questions the occupant in a conversational manner and does not issue orders to the person or demand a response. State v. Langseth, 492 N.W.2d 298, 300 (N.D.1992) (citing Wibben v. N.D. State Highway Comm’r, 413 N.W.2d 329, 334-35 (N.D. 1987) (VandeWalle, J., concurring)). However, even a casual encounter can become a seizure if a reasonable person would view the officer’s actions — if done by another private citizen — as threatening or offensive. Id. (citing Wibben, at 335). This may occur through an order, a threat, or a weapon display. Id. An officer’s initial community caretaking encounter also may cause the officer to develop a reasonable and articulable suspicion of unlawful conduct. Lapp, at ¶ 14.

[¶ 8] Our previous cases provide examples of law enforcement officers performing community caretaking functions. See Lapp v. Dep’t of Transp., 2001 ND 140, ¶¶ 14-15, 682 N.W.2d 419 (holding an officer’s encounter with an individual justified by the officer’s community caretaking role when the individual was slumped over the steering wheel of a vehicle with its engine running); City of Fargo v. Sivertson, 1997 ND 204, ¶ 10, 571 N.W.2d 137 (determining an officer’s initial approach of a driver who failed to proceed around the scene of an accident with the rest of traffic was a caretaking encounter); City of Grand Forks v. Zejdlik, 551 N.W.2d 772, 773-75 (N.D.1996) (holding an officer was acting as a community caretaker when he initially approached an individual slumped over the steering wheel of an idling vehicle); State v. Franklin, 524 N.W.2d 603, 605 (N.D.1994) (determining officers’ approach of individuals parked at night in motel parking lot and slumped down in their seats was more of a caretaking encounter than a search or seizure); State v. Halfmann, 518 N.W.2d 729, 730-31 (N.D.1994) (holding an officer acted in a caretaking capacity when he approached a driver after she drove to the shoulder of a gravel road and stopped her vehicle).

[¶ 9] A review of our case law also reveals situations where law enforcement officers did not act as community caretakers. See State v. Keilen, 2002 ND 133, ¶ 19, 649 N.W.2d 224 (holding the community caretaking exception did not apply to an apartment search when officers arrived and did not see a disturbance or anyone in need of assistance); City of Jamestown v. Jerome, 2002 ND 34, ¶ 8, 639 N.W.2d 478 (determining an officer did not act as a community caretaker because his purpose in talking with the defendant was to investigate a possible legal violation); State v. DeCoteau, 1999 ND 77, ¶ 21, 592 N.W.2d 579 (holding officers had no community caretaking role to fill when they arrived at a home, saw no disturbance, and were told by the homeowner she did not need or request their assistance); State v. Hawley, 540 N.W.2d 390, 392 (N.D.1995) (declining to address community caretaking because the officer had a reasonable and articula-ble suspicion of a parking violation); State v. Brown, 509 N.W.2d 69, 71-72 (N.D.1993) (holding an officer’s vehicular stop was made to determine if driver was intoxicated, not for the community caretaking purpose of rendering assistance); State v. Sarhegyi, 492 N.W.2d 284, 285-86 (N.D.1992) (determining an officer’s stop of a lone vehicle parked in a farm implement dealer’s lot, which attempted to leave when he approached, was not community care-taking); State v. Langseth, 492 N.W.2d 298, 301 (N.D.1992) (concluding the community caretaking exception did not apply when an officer pursued the defendant while flashing the patrol car’s warning lights).

[¶ 10] The present case further illustrates the inapplicability of the community caretaker exception. In this case, Deputy Schuh “pulled in behind” Boyd and her companions, blocking their vehicle’s rear exit. Deputy Schuh did not converse with them in a casual manner; she ordered them to go to the front of their vehicle and put their hands on the hood. By issuing orders and demanding compliance, Deputy Schuh removed herself from the scope of acceptable actions for officers acting as community caretakers. See State v. Langseth, 492 N.W.2d 298, 300 (N.D.1992); Wibben v. N.D. State Highway Comm’r, 413 N.W.2d 329, 334-35 (N.D.1987) (VandeWalle, J., concurring). Therefore, we conclude the trial court erred in finding Deputy Schuh acted in a community caretaker role.

B

[¶ 11] Although Deputy Schuh’s actions do not amount to community caretaking, because we apply an objective standard to the actions of the officer we next examine whether her actions were supported by reasonable and articu-lable suspicion of criminal activity. See State v. Hawley, 540 N.W.2d 390, 392-93 (N.D.1995) (“[T]he reasonable-and-articu-lable-suspicion standard is objective, and it does not hinge upon the subjective beliefs of the arresting officer.”). If so, her actions fall within another law enforcement-citizen encounter. See State v. Halfmann, 518 N.W.2d 729, 730 (N.D.1994) (identifying three tiers of law enforcement-citizen contact). We conclude, viewing the circumstances as a whole, Deputy Schuh had sufficient information to form a reasonable and articulable suspicion of criminal activity-

[¶ 12] We begin our reasonable and articulable suspicion analysis with the premise an individual does not have a privacy right in his or her license plate. See United States v. Sparks, 37 Fed. Appx. 826, 829 (8th Cir.2002) (citing United States v. Walraven, 892 F.2d 972, 974 (10th Cir.1989)); cf. State v. Rodriguez, 454 N.W.2d 726, 728-30 (N.D.1990) (concluding officers’ request for a registration check and subsequent reliance on the resulting NCIC report justified an investigatory stop of a vehicle); Geiger v. Backes, 444 N.W.2d 692, 693-94 (N.D.1989) (upholding a stop when a vehicle registration check showed the owner’s license was suspended, and the vehicle was being driven slowly in an area where numerous thefts had occurred). In Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974), the United States Supreme Court stated:

One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view.

Because an officer’s check of a license plate does not implicate an individual’s Fourth Amendment rights, Deputy Schuh did not need a reasonable suspicion of criminal activity to initially check Boyd’s license plate.

[¶ 13] In the context of law enforcement-citizen contacts, a “Terry” stop, or investigative stop, temporarily restrains an individual’s freedom, which results in a Fourth Amendment seizure. State v. Glaesman, 545 N.W.2d 178, 182 (N.D.1996) (citing State v. Halfmann, 518 N.W.2d 729, 730 (N.D.1994)). Within the meaning of the Fourth Amendment, a seizure occurs whenever an officer stops an individual and restrains his freedom. Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “An investigative stop must be ‘justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.’ This protects the citizen’s Fourth Amendment right to be free of unreasonable searches and seizures.” Glaesman, at 182 (citations omitted).

[¶ 14] In State v. Sarhegyi, 492 N.W.2d 284, 286 (N.D.1992), we explained:

Terry requires a dual inquiry into the reasonableness of an investigatory stop. The reviewing court must (1) determine whether the facts warranted the intrusion of the individual’s Fourth Amendment rights, and if so, (2) determine whether the scope of the intrusion was reasonably related to the circumstances which justified the interference in the first place.

To justify the intrusion on an individual’s Fourth Amendment rights, an officer must have an articulable and reasonable suspicion that a law has been or is being violated. State v. Lykken, 406 N.W.2d 664, 666 (N.D.1987). We use an objective standard: would a reasonable person in the officer’s position be justified by some objective evidence in believing the defendant was, or was about to be, engaged in unlawful activity? State v. Indvik, 382 N.W.2d 623, 627 (N.D.1986) (citing U.S. v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)).

[¶ 15] To determine whether an officer has a reasonable and articulable suspicion, we examine the information known to the officer at the time of the stop. State v. Robertsdahl, 512 N.W.2d 427, 428 (N.D.1994) (citing State v. Miller, 510 N.W.2d 638 (N.D.1994)). The reasonable-and-articulable-suspicion standard requires the officer justify the stop “with more than just a vague ‘hunch’ or other non-objective facts; and ... the articula-ble facts must produce, by reasonable inference, a reasonable suspicion of unlawful conduct.” Bryl v. Backes, 477 N.W.2d 809, 811 n. 2 (N.D.1991) (quoting State v. VandeHoven, 388 N.W.2d 857, 858 n. 1 (N.D. 1986)). In determining reasonableness, we recognize an investigating officer may draw inferences and make deductions which would elude a layperson. City of Fargo v. Ovind, 1998 ND 69, ¶ 9, 575 N.W.2d 901 (citing State v. Kenner, 1997 ND 1, ¶ 8, 559 N.W.2d 538).

[¶ 16] An officer can use information received from other persons along with his or her personal observations to form the factual basis needed for a legal investigatory stop. City of Minot v. Nelson, 462 N.W.2d 460, 462 (N.D.1990) (citing State v. Lykken, 406 N.W.2d 664, 666 (N.D.1987)); see also Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). We consider the collective information of law enforcement personnel, known by or transmitted to the stopping officer, to determine whether a stop is reasonable under the Fourth Amendment. State v. Nelson, 488 N.W.2d 600, 602 (N.D.1992) (citing State v. Rodriguez, 454 N.W.2d 726, 729 (N.D.1990)). This Court has upheld investigatory stops of vehicles when the stopping officer received a tip from other officers or informants and the officer corroborated the tip with personal observations. State v. Kenner, 1997 ND 1, ¶ 12, 559 N.W.2d 538.

[¶ 17] In this case, after Deputy Schuh asked dispatch to check the out-of-state vehicle’s license plate, she received the NCIC report asking her to perform a welfare check “on a female who owned the car whom [sic] is possibly missing and/or endangered.” From her earlier observations, Deputy Schuh saw three occupants in the vehicle and determined the occupant in the back seat was a woman. Deputy Schuh did not know whether the woman she saw or another woman, possibly in the vehicle’s trunk, was in danger. In Geiger v. Backes, 444 N.W.2d 692, 693 (N.D.1989), we noted law enforcement officers do not have to analyze the individual factors of a case in a vacuum. They also are not required

to point to a single factor which, standing alone, signals a potential violation of the law. Rather, officers are to assess the situation as it unfolds and, based upon inferences and deductions drawn from their experience and training, make the determination whether all of the circumstances viewed together create a reasonable suspicion of potential criminal activity.

Id. Thus, relying on the NCIC report and her own observations, Deputy Schuh formed a reasonable and articulable suspicion that a crime had been or was about to be committed.

[¶ 18] Furthermore, we conclude Deputy Schuh acted reasonably under the circumstances, after she formed a reasonable and articulable suspicion of unlawful conduct. In analyzing the reasonableness of an investigative stop, we consider “whether the state’s interest in investigating the officer’s reasonable suspicion outweighs the person’s Fourth Amendment interests.” See Wibben v. N.D. State Highway Comm’r, 413 N.W.2d 329, 332 (N.D.1987) (citing United States v. Hensley, 469 U.S. 221, 228-29, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985)) (recognizing the important state interest of protecting the public from drunk drivers “outweigh[s] the individual’s interest to be free of a stop and detention that is no more extensive than permissible in the investigation of imminent or ongoing crimes”). This Court must weigh the public interest involved against the individual’s right to be free from arbitrary intrusions by law enforcement officers. State v. Mertz, 362 N.W.2d 410, 412 (N.D.1985) (citing United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)).

[¶ 19] Deputy Schuh, the lone officer on the scene, asked Boyd and her two companions to move to the front of the vehicle and place their hands on the hood. Deputy Schuh acted reasonably, given the uncertain nature of the situation and the potential dangers involved. When we balance the state interest of investigating the report of a “possibly missing and/or endangered” female against Boyd’s Fourth Amendment rights, we conclude investigating whether an individual had been harmed or was in danger outweighed the intrusion on Boyd’s privacy rights.

IV

[¶ 20] Because the circumstances presented here, viewed as a whole, gave rise to a reasonable and articulable suspicion of a potential violation of the law, we affirm the order denying the suppression and the judgment of conviction.

[¶ 21] DALE V. SANDSTROM, WILLIAM A. NEUMANN, and MARY MUEHLEN MARING, JJ„ concur.

KAPSNER, Justice,

concurring.

[¶ 22] I concur with the majority opinion which concludes the NCIC report and Deputy Schuh’s personal observations created a reasonable and articulable suspicion to justify an investigatory stop. Under the line of cases permitting pat-down searches of individuals for officer safety and the right to search a vehicle incident to the driver’s arrest, I am compelled to concur in the result. I write separately to note the NCIC database which, in part, justified the investigatory stop in this case is limited to include certain persons who are reported missing under specified circumstances. The investigation concerning the NCIC missing person report is to be only as intrusive as necessary to accomplish its purpose. Otherwise we risk the possibility that any NCIC missing person report could be used as a pretext to investigate and search for evidence of other crimes.

[¶ 23] The NCIC database is authorized by 28 U.S.C. § 534. This section directs the Attorney General or officials appointed by the Attorney General to “acquire, collect, classify, and preserve any information which would assist in the location of any missing person ... and provide confirmation as to any entry for such a person to the parent, legal guardian, or next of kin of that person[.]”

[¶ 24] Not every person reported as missing is to be included in the NCIC database. The NCIC has set forth specific criteria for each category of individuals covered in the database, which must be met before an individual is listed in the database. The criteria, relevant to this case, for listing a person in the database as “missing” require a person to be missing under circumstances indicating “the disappearance was not voluntary” or the “person’s physical safety may be in danger.” Privacy Act of 1974; Modified System of Records, 60 Fed.Reg. 19774, 19775 (April 20,1995).

[¶ 25] Deputy Schuh was entitled to rely on the NCIC report indicating Boyd may be “possibly missing and/or endangered.” See State v. Grimes, 982 P.2d 1037, 1039-40 (Mont.1999) (concluding the NCIC report indicating the registered owner of the vehicle was “missing, and possibly endangered” could serve as the basis for a particularized suspicion to stop the vehicle). The scope of the investigatory stop, however, is limited to a standard of reasonableness which “balances the nature and quality of the intrusion on personal security against the importance of the governmental interests alleged to justify the intrusion.” United States v. Hensley, 469 U.S. 221, 228, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985).

[¶ 26] Under the specific circumstances of this case, I concur with the majority opinion that under an objective standard Deputy Schuh acted reasonably in detaining the occupants of the car to ascertain whether there was a “missing and/or endangered” female. Subsequent events justified the further searches conducted by the officers.

[¶ 27] Carol Ronning Kapsner


author: KAPSNER, Justice.

text:
    2002 ND 205
    James GAWRYLUK, Plaintiff and Appellee, v. A.M. POYNTER; unknown heirs of A.M. Poynter; Mineral Opportunities Inc.; Bayou Production Company, Inc.; Catherine M. Viola; William H. Plagemen, Jr., Trustee of the Catherine M. Viola Trust dated August 2, 1991; Bejie A. Vinson; Glen S. Cade; Jerry Belmonte; Betty B. Maranto; Beth J. Crafton; Paul H. Crafton; Alex H. Keller; any other heirs or devisees of G.A. Crafton, aka Grover A. Crafton; all other persons unknown claiming an estate or interest in or lien or encumbrance upon the property described in the Complaint, Defendants, William H. PLAGEMEN, Jr., Trustee of the Catherine M. Viola Trust, Defendant and Appellant.
    No. 20020121.
    Supreme Court of North Dakota.
    Dec. 20, 2002.

      John W. Morrison, Fleck, Mather & Strutz, Bismarck, N.D., for defendant and appellant.
    Michael J. Maus, Hardy, Maus & Nord-sven, P.C., Dickinson, N.D., for plaintiff and appellee.
   KAPSNER, Justice.

[¶ 1] William H. Plagemen, Jr., the trustee of the Catherine M. Viola Trust (“Viola Trust”), appealed from a judgment quieting title to twenty-five mineral acres in a tract of land in Billings County to James Gawryluk. We hold an August 17, 1951, mineral deed from A.M. Poynter, the Viola Trust’s predecessor in interest, to G.A. Crafton, Gawryluk’s predecessor in interest, entitled Gawryluk to quiet title to the twenty-five mineral acres. We affirm.

I

[¶2] In 1930, the State, through a mortgage foreclosure, acquired the surface and all the minerals under a tract of land in Billings County. In 1946, the State quitclaimed its interest in the land to Ralph Barnhart. Although the State’s quitclaim deed did not include a mineral reservation, the parties agree the State reserved a fifty per cent interest in the minerals under that land by operation of law and Barnhart received a fifty per cent interest in the minerals. See N.D.C.C. § 38-09-01 (providing deed from State after February 20, 1941, which does not contain reservation of fifty per cent of minerals underlying transferred land must be construed to include such reservation). In an August 3, 1951, mineral deed, Ralph and Florence Barnhart conveyed to Poyn-ter “an undivided Four/Fifth 4/5th interest in and to all of the oil, gas and other minerals in and under” the land. The parties agree that conveyance resulted in the Barnharts conveying their entire fifty per cent mineral interest in the land to Poynter.

[¶3] In an August 17, 1951, mineral deed that “warranted] said title” to Craf-ton, Poynter conveyed to Crafton “an undivided Four-Fifth’s (4/5ths) interest in and to all of the oil, gas and other minerals in and under” the tract of land in Billings County. On September 12, 1953, Poynter executed a mineral deed, which was recorded on September 17, 1953, and stated

(The purpose of this deed is to correct the erroneous description of the amount of minerals conveyed by the Grantor to G.A. Crafton, Grantee, in that mineral deed dated August 17th, 1951, ... Said mineral deed incorrectly described the amount of minerals conveyed as follows: Four-Fifths (4/5ths) under the above described lands. When in fact, the minerals intended to be conveyed were 192 mineral acres, and only 192 mineral acres under the above described lands.) 192/480ths mineral interest.

[¶ 4] On October 1, 1953, Poynter executed a “Correction Mineral Deed,” which was recorded on October 5, 1953, and stated

(The purpose of this Deed is to correct the erroneous description of the amount of minerals conveyed by the Grantor to G.A. Crafton, grantee, in that mineral deed dated August 17th, 1951, ... Said Mineral Deed incorrectly described the amount of the minerals conveyed as fol: Four-Fifths (4/5ths) under the above described lands. When in fact, the minerals intended to be conveyed were Four-Fifths (4/5ths.) of Fifty Per Cent (50%) and only 4/5ths.) of 50% in and under the above described lands. This Deed is also to clarify the Deed to same grantee dated Sept. 12th 1953.

[¶5] The issue in this appeal involves competing claims to twenty-five mineral acres under the land in Billings County, which in turn depends on the quantity of mineral interests conveyed by Poynter to Crafton in the August 17, 1951, mineral deed. Gawryluk, the successor in interest to Crafton, claims Poynter conveyed all of his mineral interests in the 1951 mineral deed, and his subsequent conveyances to the predecessors in interest of the Viola Trust were ineffective to convey any mineral interests. Gawryluk thus claims ownership of the disputed twenty-five mineral acres. The Viola Trust, the successor in interest to Poynter, claims Poynter intended to convey only four-fifths of his one-half mineral interest to Crafton, and that intent was established by the correction deeds, subsequent conveyances to third parties by both Poynter and Crafton, and the 1959 probate of Crafton’s estate, which resulted in the distribution of an undivided 56/480 mineral interest to Crafton’s wife and corresponded to Crafton receiving a four-fifth of one-half interest in the land minus Craf-ton’s conveyances to other third parties. The Viola Trust thus claims Poynter’s subsequent conveyances to the predecessors in interest of the Viola Trust established its claim to the disputed twenty-five mineral acres.

[¶ 6] Gawryluk brought this quiet title action to establish ownership to the disputed twenty-five mineral acres. The trial court initially denied Gawryluk’s motion for summary judgment, concluding “the documents [were] ambiguous and that the parties [were] therefore entitled to offer parol evidence.” After a bench trial at which the parties stipulated to the facts, the court decided that, in construing the August 17, 1951, mineral deed, it was not appropriate to consider the two 1953 correction deeds, because Crafton did not join Poynter in the execution of those two deeds, and Poynter did not directly deliver those deeds to Crafton for acceptance. The court said Poynter’s recording of the 1953 correction deeds may have created a rebuttable presumption of delivery to and acceptance of the deeds by Crafton, but the court declined to apply that presumption because it concluded neither of the two correction deeds were beneficial to Crafton. The court decided, without the 1953 correction deeds, the August 17, 1951, deed was unambiguous. The court concluded Poynter conveyed all of his mineral interests to Crafton in the 1951 deed, and Poynter had no mineral interests to convey to the Viola Trust’s predecessors in interest after the 1951 conveyance to Crafton. The court thus quieted title in the disputed twenty-five mineral acres to Gawryluk.

II

[¶ 7] The Viola Trust argues the trial court erred in concluding the August 17, 1951, mineral deed conveyed all of Poynter’s mineral interests to Crafton. The Viola Trust argues the 1951 deed contained a latent ambiguity and parol evidence establishes Poynter only intended to convey four-fifths of his one-half mineral interest in the land. Gawryluk responds the 1951 mineral deed unambiguously conveyed all of Poynter’s mineral interests to Crafton, and in this quiet title action, extrinsic evidence was not admissible to alter that unambiguous language. Gawryluk argues even if extrinsic evidence is considered in construing the deed, that evidence only shows Poynter’s attempt to change the conveyance after he discovered the State owned fifty per cent of the minerals in the land.

[¶ 8] We have said the primary purpose in construing a deed is to ascertain and effectuate the grantor’s intent. Mueller v. Stangeland, 340 N.W.2d 450, 452 (N.D.1983) (citing Malloy v. Boettcher, 334 N.W.2d 8, 9 (N.D.1983)). However, deeds that convey mineral interests are subject to the general rules governing contract interpretation, Minex Resources, Inc. v. Morland, 467 N.W.2d 691, 696 (N.D. 1991), Miller v. Schwartz, 354 N.W.2d 685, 688 (N.D.1984), Mueller, at 452, and we construe contracts to give effect to the parties’ mutual intentions. Mueller, at 452. Because we construe mineral deeds to give effect to the parties’ mutual intentions, we decline the Viola Trust’s suggestion to limit our inquiry in this case to the intent of the grantor, Poynter.

[¶ 9] When the language of a deed is plain and unambiguous and the parties’ intentions can be ascertained from the writing alone, extrinsic evidence is inadmissible to alter, vary, explain, or change the deed. See Minex, 467 N.W.2d at 696. If a contract is ambiguous, extrinsic evidence may be considered to clarify the parties’ intentions. Minex, at 696. A contract is ambiguous when rational arguments can be made for different interpretations. Minex, at 696; Mueller, at 453. Whether a contract is ambiguous is a question of law for the court to decide. Minex, at 696. On appeal, we independently review a contract to determine if it is ambiguous. Id.

[¶ 10] In Harney v. Wirtz, 30 N.D. 292, 304-07, 152 N.W. 803, 807-09 (1915), this Court explained the historical and technical definitions of latent and pat-' ent ambiguities in the context of considering whether or not a contract was a chattel mortgage or a real estate mortgage. See In re Johnson’s Estate, 214 N.W.2d 112, 115 (N.D.1973) (citing Harney for “historical and technical meanings” of latent and patent ambiguities and concluding test for determining whether document is ambiguous is whether good arguments can be made for contrary interpretations). In Harney, 30 N.D. at 304-05, 152 N.W. at 807-08, this Court said a latent ambiguity may, in limited circumstances, be explained by extrinsic evidence. This Court defined a latent ambiguity as an ambiguity arising when a writing appears unambiguous on its face, but some collateral matter makes the meaning uncertain. Id. See Thompson v. Thompson, 391 N.W.2d 608, 610 (N.D.1986) (concluding contract for deed contained latent ambiguity about right to receive proceeds from disposal of salt water in well on land, which could be explained by extrinsic evidence). In Harney, 30 N.D. at 306, 152 N.W. at 808, this Court held language in an instrument unambiguously created a chattel mortgage, not a real estate mortgage, and extrinsic evidence was not admissible to convert the chattel mortgage to a real estate mortgage:

The ambiguity arising in this case — if there is one — is an inherent uncertainty appearing on the face of the instrument, and arises from the defective, obscure, or insensible language used. It seems clear that no ambiguity exists which can be explained by parol. The only doubt existing in this case, if any, is as to the intention of the parties. This is not such an ambiguity as can be explained by parol. When the intention of the parties is clearly expressed, and a doubt exists, not as to the intention, but as to the object to which the intention applies, it is a latent ambiguity. The evidence offered by plaintiff was not to explain an ambiguity, but merely to add something to the contract. The purpose of the evidence was to convert a chattel mortgage into a real estate mortgage. This is not explaining an ambiguity, but varying the terms of a written contract, and creating a new contract by parol entirely different and variant from the written contract.

Under Harney, parol evidence may be used to explain a latent ambiguity, but may not be used to create a new or a different contract. See In re Kahoutek’s Estate, 39 N.D. 215, 222-23, 166 N.W. 816, 818 (1918) (stating terms of will that conveys property which testator does not own are clear and definite and fact testator does not own property does not render will indefinite or permit a court to make a new will for testator).

[¶ 11] Here, on its face, Poynter’s August 17, 1951, deed to Crafton clearly and unambiguously conveyed an “undivided Pour-Fifth’s (4/5ths) interest in and to all of the oil, gas and other minerals in and under” the land in Billings County. Under that deed, Poynter conveyed more mineral interests to Crafton than Poynter actually owned. We reject the Viola Trust’s claim that, in this action to determine title, Poynter’s overconveyance of mineral interests to Crafton was a latent ambiguity which permitted the introduction of extrinsic evidence. Rather, in cases involving an overconveyance of minerals, courts have commonly applied the rule of construction from Duhig v. Peavy-Moore Lumber Co., 135 Tex. 503, 144 S.W.2d 878 (1940).

[¶ 12] In Duhig, 144 S.W.2d at 878-79, a third party owned an outstanding one-half mineral interest in certain land, and the grantor owned the surface and the remaining one-half mineral interest. The grantor conveyed the surface to the grantee by warranty deed but reserved one-half of all the minerals under the land. Id. The grantor and grantee both claimed the one-half mineral interest that was not owned by the third party. Id. at 879. The Texas Supreme Court concluded the grantee owned the surface and a one-half mineral interest, the third party owned the outstanding one-half mineral interest, and the grantor owned nothing. Id. at 880. In reaching that conclusion, the court employed a two-step analysis under principles of estoppel. Id. The court observed the grant clause gave the grantee all of the surface and a one-half mineral interest but the reservation clause reserved a one-half mineral interest in the grantor. Id. Because the grantor purported to retain a one-half mineral interest and the other one-half mineral interest was owned by a third party, the grantor breached the clause warranting title to a one-half mineral interest. Id. By analogy to the doctrine of estoppel by deed against assertion of an after-acquired title, the court held the grantor was estopped to assert the reservation of a one-half mineral interest. Id.

[¶ 13] In 1 William & Meyers Oil and Gas Law, § 311, p. 580.39 (2001) the authors explain the Duhig rule:

The Duhig rule says that where a grant- or conveys land in such a manner as to include 100% of the minerals, and then reserves to himself 50% of the minerals, the reservation is not operative where the grantor owns only 50% of the minerals. The deed is construed as undertaking the transfer of 50% of the minerals to the grantee. Both this grant and the reservation cannot be given effect, so the grantor loses because the risk of title loss is on him.

The effect of Duhig is that a grantor cannot grant and reserve the same mineral interest, and if a grantor does not own a large enough mineral interest to satisfy both the grant and the reservation, the grant must be satisfied first because the obligation incurred by the grant is superi- or to the reservation. The interpretation of deeds within the framework of the Du-hig rationale provides certain and definite guidelines in the interpretation of property conveyances and in title examinations. See 1 Williams & Meyers, at § 313, p. 616-616.1.

[¶ 14] This Court’s application of Duhig has been based on estoppel by warranty, a subset of estoppel by deed, which precludes a warrantor of title from questioning the title warranted. Miller v. Kloeckner, 1999 N.D. 190, ¶ 13, 600 N.W.2d 881 (citing Mau v. Schwan, 460 N.W.2d 131, 134 (N.D.1990)). See also Acoma Oil Corp. v. Wilson, 471 N.W.2d 476, 479-80 (N.D.1991); Sibert v. Kubas, 357 N.W.2d 495, 497 (N.D.1984). In Miller, at ¶ 16-18 we recognized the rationale from Duhig may apply to a deed with no warranty provisions, and the key question is not what the grantor purported to retain for himself, but what the grantor purported to give the grantee. See 1 Williams & Meyers, at § 311, p. 580.34.

[¶ 15] We conclude the Duhig rationale applies to Poynter’s overconveyance of minerals to Crafton, and in this action to determine title, principles regarding certainty and the Duhig rationale preclude the admission of extrinsic evidence. We reject the Viola Trust’s claim that Poyn-ter’s 1951 deed to Crafton is ambiguous. Under the Duhig rationale, we conclude the 1951 deed is not ambiguous and extrinsic evidence was not admissible to change the meaning of the clear and unambiguous language in that deed.

Ill

[¶ 16] The Trust alternatively argues the trial court erred in deciding the 1953 correction deeds did not vest Poynter with one-fifth of a one-half mineral interest in the land. The Trust argues the two 1953 correction deeds modified the 1951 mineral deed, and the correction deeds were delivered to and accepted by Crafton. The Trust argues Poynter’s recording of the 1953 correction deeds raised a presumption of delivery to and acceptance of the deeds by Crafton. The Trust argues even if that presumption is not applicable, Crafton’s failure to renounce the correction deeds and his estate’s affirmation of the correction deeds during probate constitutes acceptance and ratification of the correction deeds.

[¶ 17] In CUNA Mortgage v. Aafedt, 459 N.W.2d 801, 804 (N.D.1990), we cited Dinius v. Dinius, 448 N.W.2d 210, 216 (N.D.1989), for the principle that the recording of a deed may create a rebuttable presumption of delivery to and acceptance by the grantee. In CUNA at 804, we recognized that presumption only arises when the deed is beneficial to the grantee and not when the deed is a burden on the grantee. The Viola Trust claims the two correction deeds were not burdensome to Crafton. The Viola Trust argues correction deeds that express the parties’ true intent do not diminish the grantee’s rights, and instead allow for the proper construction of the original deed.

[¶ 18] Neither CUNA nor Dinius involved situations where the Duhig rationale applied, and a grantor purported to unilaterally correct a Duhig result after an initial overconveyance. Here, because both correction deeds purported to reduce Crafton’s mineral interests under the plain language of the August 17, 1951, mineral deed and the Duhig rationale, we reject the Viola Trust’s claim the correction deeds were beneficial to Crafton. The trial court did not err in concluding the recording presumption was not applicable to the 1953 deeds.

[¶ 19] In CUNA, 459 N.W.2d at 804, we also stated the failure to renounce a deed with knowledge of its existence may be sufficient to show a grantee accepted the deed. However, in CUNA at 804, we concluded a grantee’s four-week delay in making a formal objection to a recorded quitclaim deed was insufficient to raise a factual dispute about laches or estoppel.

[¶ 20] We are not persuaded the record from the subsequent probate of Crafton’s estate in 1959 establishes Crafton knew of or accepted the 1953 correction deeds. The Duhig rationale provides certainty for real property conveyances and that certainty would be seriously undermined if subsequent probate proceedings negated a Duhig result. This is not a reformation action. See Mau, 460 N.W.2d at 134-36; Sibert, 357 N.W.2d at 499. The effect of the Viola Trust’s argument would be to convert this quiet title action to a reformation action, and we decline that invitation.

[¶ 21] We conclude Gawryluk was entitled to quiet title to the twenty-five mineral acres under the 1951 deed, and we therefore affirm the judgment.

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

      . We have recognized the Duhig rationale does not preclude the introduction of extrinsic evidence relevant to a reformation claim. Sibert, 357 N.W.2d at 499; Mau, 460 N.W.2d at 134-36.


author: NEUMANN, Justice. SANDSTROM, Justice,

text:
    2002 ND 206
    Danni Jane SWEENEY, n/k/a Danni Jane Lynch, Plaintiff, Appellant and Cross-Appellee, v. David James SWEENEY, Defendant, Appellee and Cross-Appellant.
    No. 20010129.
    Supreme Court of North Dakota.
    Dec. 20, 2002.

      Charles L. Neff, Neff, Eiken & Neff, P.C., Williston, ND, for defendant and cross-appellant.
    Irvin B. Nodland, Irvin B. Nodland, P.C., Bismarck, ND, for plaintiff and cross-appellee.
   NEUMANN, Justice.

[¶ 1] David Sweeney cross-appealed from an amended divorce judgment, alleging the trial court erred in denying his motion to change custody of the parties’ minor child, in denying his request for costs and attorney’s fees, and in refusing to suspend his child support obligation. We affirm the trial court’s denial of the motion to change custody and refusal to suspend child support, but we reverse and remand on the issue of costs and attorney’s fees.

I

[¶ 2] Danni and David Sweeney were married in Minnesota in 1989 and had one child, Charlie. During the marriage Danni and Charlie lived for extended periods with Danni’s family in North Dakota. In 1990, Danni filed for divorce in Minnesota and moved permanently with Charlie to North Dakota. The original Minnesota divorce decree entered in 1991 granted custody of Charlie to Danni and specified visitation for David.

[¶ 3] Because of difficulties in exercising visitation under the original decree, the parties participated in mediation and David moved the Minnesota court to enforce his visitation rights'. On September 14, 1994, the Minnesota court entered a second amended judgment which contained a detailed visitation schedule and specific protocols for telephone contact between David and Charlie. The second amended judgment was filed as a foreign judgment in this state to allow enforcement in Williston, where Danni and Charlie were living. After negotiations between the parties, some visitations did occur between 1994 and 1996. Danni filed a motion in North Dakota in May 1995 seeking restrictions on Charlie’s travel for visitations with David, who had moved to Utah.

[¶ 4] After an October 1996 visit in Utah, Charlie told David in a telephone call that he never wanted to see him again. Charlie has never given a reason for his reluctance to visit David. The parties subsequently filed numerous motions, David seeking to enforce his visitation rights under the second amended judgment and Danni seeking extensive restrictions on visitation.

[¶ 5] In 1997 a guardian ad litem was appointed for Charlie to facilitate and supervise visitation; and to advise whether unsupervised visits were appropriate. After meeting with Charlie and supervising a few visits, the guardian ad litem moved to withdraw, citing interference and noncooperation by Danni .and her family and friends.

[¶ 6] In March 1998, David filed a motion for a change of custody or, in the alternative, to strictly enforce his visitation rights. David also moved for costs and attorney’s fees under N.D.C.C. § 14-09-24 for Danni’s continued obstruction of visitation. Danni responded by seeking a continuance and alleging for the first time in these proceedings that David had physically and sexually abused her during the marriage. In response to these allegations, and subsequent allegations by Danni that David may have abused Charlie, the court appointed a psychologist to make recommendations on custody and visitation after evaluating David, Danni, and Charlie. Dan-ni was uncooperative with the court-appointed psychologist, and she eventually moved to terminate his appointment and to prevent further psychological evaluations of Charlie. Because of these conflicts, the court ordered the psychologist to prepare his report based upon the information he had collected to that point.

[¶ 7] The court held evidentiary hearings in September 1998 and August 2000. Danni sought restrictions on David’s visitation with Charlie. David sought a change of custody, sought costs and attorney’s fees based upon Danni’s willful and persistent interference with visitation and her unsubstantiated allegations of abuse, and sought suspension of his child support obligation to recoup his costs and attorney’s fees.

[¶ 8] The trial court issued its findings of fact, conclusions of law, and order for judgment on March 28, 2001. The court found that Danni had “engaged in a continued course of conduct which minimized, limited, and obstructed David’s relationship with Charlie,” including “failing to allow David reasonable access to the child; failure to follow the visitation orders of the Minnesota court; and failing to implement visitation orders of this Court.” The court further found there was no credible evidence that David had committed abuse of Danni or Charlie. The court determined that Danni should retain custody, but the court specifically noted this was Danni’s “final opportunity” to recognize and facilitate David’s visitation rights. The court further stated that, if Danni failed to comply with the ordered visitation, the court would, after a limited hearing, change custody. The court denied David’s motions for attorney’s fees and his motion to suspend child support to recoup his costs and attorney’s fees. The court did order Dan-ni to pay one-half of the bills of the guardian ad litem and court-appointed psychologist, and ordered her to pay approximately one-fourth of David’s travel expenses for attempting to enforce his visitation rights in North Dakota. An amended judgment was entered on April 4, 2001. Danni ap^ pealed and David cross-appealed.

II

[¶ 9] David argues the trial court’s decision denying his motion for a change of custody is clearly erroneous.

[¶ 10] In resolving a motion to change custody, the trial court must determine (1) whether there has been a significant change in circumstances since the original custody decree, and, if so, (2) whether a change of custody is necessary to serve the best interest of the child. N.D.C.C. § 14-09-06.6(6); BeauLac v. BeauLac, 2002 ND 126, ¶ 12, 649 N.W.2d 210; Kelly v. Kelly, 2002 ND 37, ¶ 15, 640 N.W.2d 38. The party seeking modification bears the burden of showing a change of custody is required. N.D.C.C. § 14-09-06.6(8); BeauLac, at ¶ 12; Selzler v. Selzler, 2001 ND 138, ¶21, 631 N.W.2d 564. A trial court’s decision whether to change custody is a finding of fact subject to the clearly erroneous standard of review on appeal. Hilgers v. Hilgers, 2002 ND 173, ¶ 22, 653 N.W.2d 79; Kelly, at ¶ 13. A finding of fact is clearly erroneous if there is no evidence to support it, if the finding is induced by an erroneous view of the law, or if the reviewing court is left with a definite and firm conviction a mistake has been made. Hilgers, at ¶ 22; Kelly, at ¶ 13. In close cases involving custody of children between two fit parents, it is especially appropriate to give due regard to the trial court’s opportunity to determine the credibility of the witnesses. BeauLac, at ¶ 12.

[¶ 11] When a request for a change of custody is predicated upon the custodial parent’s frustration of the noncustodial parent’s visitation rights, the court must act with restraint and caution. Anderson v. Resler, 2000 ND 183, ¶ 9, 618 N.W.2d 480. We have explained the delicate balance between the competing rights, privileges, and interests in such cases:

Visitation between a child and her noncustodial parent is presumed to be in the best interests of the child. Visitation is not only a privilege of the noncustodial parent, but also a right of the child. Only when visitation “is likely to endanger the child’s physical or emotional health,” may it be withheld.
Having recognized and acknowledged the importance of the noncustodial parent’s visitation privilege, we have also emphasized that frustration of visitation does not alone constitute a sufficient change in circumstances to warrant a change in custody. Before visitation problems justify changing custody, there must be a finding that the visitation problems had worked against the child’s best interests. In this case, while the district court found that [the mother’s] efforts to frustrate visitation, in effect, deprived [the child] of contact with loving family members, that deprivation is better remedied at first by resort to a more rigid visitation schedule, rather than a change of custody.

Anderson, at ¶ 9 (quoting Blotske v. Leidholm, 487 N.W.2d 607, 610 (N.D.1992)). We have also recognized that, although other methods should be used initially to remedy frustration of visitation, after exhausting other remedies a change in custody may be the only effective method to correct the damage caused by a particularly stubborn and defiant custodial parent. Anderson, at ¶ 10; Hendrickson v. Hendrickson, 2000 ND 1, ¶ 18, 608 N.W.2d 896; Hendrickson v. Hendrickson, 1999 ND 37, ¶ 13, 590 N.W.2d 220.

[¶ 12] We concluded in Anderson, 2000 ND 183, ¶ 11, 618 N.W.2d 480 (citations omitted):

In a change of custody proceeding, the best interests of the child must be measured against the backdrop of the stability of the child’s relationship with the custodial parent. The important factor in weighing stability is the stability of the child’s relationship with the custodial parent. However, notwithstanding a happy normal child with strong bonds of attachment to the custodial parent, egregious violations of specific court ordered visitation, evidence of an intransigent attitude against visitation rights and alienating behavior can weigh against the child’s best interests.

See also Lovin v. Lovin, 1997 ND 55, ¶ 17, 561 N.W.2d 612.

[¶ 13] In addressing custody and visitation, the trial court made the following findings of fact:

X.
The bulk of the expert testimony agrees that it is in the child’s best interest to reestablish a functional parent-child relationship between Charlie and his father.
From a complete review of the extensive record made in this action, the Court finds that it is in the paramount best interests of Charlie that the father-son relationship between Charlie and David be accomplished as soon as possible under circumstances where Charlie and David have a reasonable opportunity to reestablish their father-son relationship free from any interference from Danni.
The Court finds that for reasons involving time as well as the practical aspects of distance and expense, it is not reasonable to reintegrate visitation between Charlie and David over the course of many small visits as was recommended to this Court by one of Danni’s expert witnesses. Rather, this Court finds more merit in adopting the approach recommended by the Court’s appointed master and expert child psychologist, Dr. Stephan Podrygula, who has recommended that to reestablish visitation, it will probably be necessary to force Charlie into spending several weeks with David in Utah, away from any contact with Danni, to allow the father-son relationship to reestablish itself.
Dr. Podrygula expects some initial anxiety on the part of Charlie in reestablishing the relationship. However, just as has occurred on all previous visits Charlie has made to Utah, after several days, Charlie has quickly adapted to his new surroundings, and by all accounts, Charlie has enjoyed his visits in Utah. Dr. Stephan Podrygula further states that David’s new wife, Teri, who is herself a doctor of pediatric medicine, as well as Charlie meeting his two new half siblings would all add to help Charlie reestablish a good relationship with his father.
XI.
The Court has made several findings recounting how Danni has persistently interfered with the visitations of father and child since the child’s birth. It is not clear to the Court whether such actions are based upon an intentional plan of interference, or whether such activities relate to a degree of selfishness and/or overprotectiveness.
Further, the Court’s expert, Dr. Po-drygula, suggests that unless Danni could change her obstructive attitude and demonstrate the ability to require Charlie to attend visitation, it would be necessary for a change of custody to occur to allow David an opportunity to develop the relationship and be the person in control of Charlie.
Accordingly, although it appears that significant grounds exist for a change of custody, I decline changing custody at this time in order to allow Danni a final opportunity to fulfill her obligations under the law as a custodial parent which require her to recognize, facilitate, and enforce, rather than obstruct, the visitation rights held by David with the child.
In the event Danni is unable or unwilling to comply with the visitation hereinafter ordered, the Court, after a limited hearing on that issue, would have no option other than a change of custody to protect the best interests of the child, and the best interests would require such change.

[¶ 14] On this record, we are able to clearly understand the trial court’s factual determinations and can discern the rationale for the result reached by the court. The findings demonstrate the court was fully aware of the applicable legal standards, and recognized that the child’s best interest was the paramount consideration. By recognizing it was in Charlie’s best interest to reestablish a relationship with his father through extended visitation in Utah, and by forewarning that any further frustration of visitation would trigger a change of custody to protect the best interest of the child, the court impliedly found that it was in Charlie's best interest to remain in Danni’s custody for one “final opportunity.”

[¶ 15] David argues that the court’s decision to deny a change of custody was clearly erroneous. We recognize that, in cases such as this, the court is faced with a veritable Hobson’s choice. By all accounts Charlie is a healthy, happy, well-adjusted child who is doing well in school and extracurricular activities and has loving parents and extended family. While recognizing that Danni has in the past obstructed David’s attempts to establish a relationship with Charlie, the court was also understandably reluctant to disrupt the stability of Charlie’s relationship with his mother and his natural attachment to the place he has called home for most of his life. Under these difficult circumstances, the court decided it was in Charlie’s best interest to remain with his mother, but with extensive visitation with his father in Utah and with the warning that any future interference with visitation by Danni would result in a change of custody. We conclude that the trial court’s decision denying David’s motion to change custody was not clearly erroneous.

Ill

[¶ 16] David argues the trial court erred in denying his requests for costs and attorney’s fees under N.D.C.C. §§ 14-09-06.5 and 14-09-24. Those statutes provide:

14-09-06.5. Allegation of harm to child — -Effect. If the court finds that an allegation of harm to a child by one parent against the other is false and not made in good faith, the court shall order the parent making the false allegation to pay court costs and reasonable attorney’s fees incurred by the other parent in responding to the allegation.
14-09-24. Interference with visitation — Attorney’s fees — Enforcement remedies and tools. In any proceeding in which child visitation is properly in dispute between the parents of a child, the court shall award the noncustodial parent reasonable attorney’s fees and costs if the court determines there has been willful and persistent denial of visitation rights by the custodial parent with respect to the child. The court may use any remedy that is available to enforce a child support order and which is appropriate to enforce visitation.

[¶ 17] Both statutes provide that the court “shall” award reasonable attorney’s fees and costs if the requisite circumstances are present. Ordinarily, the word “shall” in a statute creates a mandatory duty. Lippert v. Grand Forks Pub. Sch. Dist., 512 N.W.2d 436, 439 (N.D.1994); In re C.J.A., 473 N.W.2d 439, 441 (N.D.1991); Timm v. Schoenwald, 400 N.W.2d 260, 263 (N.D.1987). The word “shall” is “generally imperative or mandatory ... excluding the idea of discretion, and ... operating to impose a duty.” Homer Township v. Zimney, 490 N.W.2d 256, 259 (N.D.1992) (quoting Black’s Law Dictionary 1375 (6th ed.1990)). Where necessary to effect the intent of the legislature, however, the -word “shall” will be interpreted as creating a duty that is merely directory. Lippert, at 439. If the duty prescribed in the statute is essential to its main objectives, the word “shall” is to be construed as creating a mandatory duty. In re C.J.A., at 441.

[¶ 18] We have reviewed the language and legislative histories of these statutes and find no indication the legislature intended the respective duties created to be merely directory rather than mandatory. We therefore interpret the word “shall” according to its ordinary meaning, creating a mandatory duty. Accordingly, under N.D.C.C. § 14-09-06.5, a trial court must award reasonable attorney’s fees and court costs if it finds that an allegation of harm to the child is false and was not made in good faith. Under N.D.C.C. § 14-09-24, a trial court must award reasonable attorney’s fees and costs if it finds there has been willful and persistent denial of visitation rights by the custodial parent.

[¶ 19] In this case, David cited both statutes and requested attorney’s fees and costs. The trial court, however, failed to make specific findings whether Danni’s allegations of harm to Charlie were made in good faith and whether Danni’s denial of David’s visitation rights was “willful and persistent.” On the issue of harm to Charlie, the court found there was no credible evidence to support Danni’s allegations and that David had never abused Charlie. The court failed to address whether Danni’s allegations were made in good faith. On the issue of interference with visitation rights, the court found that Danni had “persistently interfered” with visitation, but failed to make an express finding whether her interference was “willful.” The court equivocated on this issue, stating: “It is not clear to the Court whether such actions are based upon an intentional plan of interference, or whether such activities relate to a degree of selfishness and/or overprotectiveness.”

[¶ 20] This is not a situation where we can clearly understand the court’s factual determinations and discern through inference or deduction the rationale for the trial court’s result. See Hendrickson v. Hendrickson, 2000 ND 1, ¶ 19, 603 N.W.2d 896; Holtz v. Holtz, 1999 ND 105, ¶ 18, 595 N.W.2d 1; Reinecke v. Griffeth, 533 N.W.2d 695, 698 (N.D.1995). It is unclear from the court’s decision whether it understood and applied the appropriate legal standards under N.D.C.C. §§ 14-09-06.5 and 14-09-24. In awarding partial costs, the court labeled it as an award of “sanctions” against Danni, noting that Danni’s obstruction of visitation had precipitated the need for this action to enforce visitation, and that Danni had made allegations of abuse and harm to herself and Charlie which contributed to the “increased expenses” and “protracted nature” of the litigation. The court therefore ordered Danni to pay one-half of the fees of the guardian ad litem and court-appointed psychologist, and approximately one-fourth of David’s travel expenses to attempt to enforce his visitation rights.

[¶21] If the triggering factors in the statutes are present, the court must award costs and reasonable attorney’s fees. The court failed to make findings on the triggering factors, but awarded partial costs as a sanction, taking into consideration Danni’s ability to pay. It is unclear from these findings and conclusions whether the court correctly applied the appropriate legal standards in determining whether to award costs and attorney’s fees under the statutes. Accordingly, we reverse the denial of attorney’s fees and the award of costs and remand for the trial court to make more explicit findings and to award reasonable attorney’s fees and costs in accordance with the statute if the triggering factors are present.

IV

[¶ 22] David argues the trial court erred in refusing to suspend his child support obligation as a means to recoup the attorney’s fees and costs he has expended in this action. David argues that, if Danni retains custody, the court should “suspend David’s child support as a means to start recouping the large sums of money now owed by Danni as a consequence of her behavior.” David’s argument is premised upon the faulty assumption that the child support payments belong to Danni and inure to her benefit. It is well settled that child support belongs to the child, and the custodial parent has only a representational right to collect support on behalf of the child. Toni v. Toni, 2001 ND 193, ¶ 11, 636 N.W.2d 396; Sullivan v. Quist, 506 N.W.2d 394, 397 (N.D.1993); Spilovoy v. Spilovoy, 488 N.W.2d 873, 877 (N.D.1992); Sprynczynatyk v. Celley, 486 N.W.2d 230, 232 (N.D.1992). It would be fundamentally unfair to allow an offset of child support, which belongs to and benefits the child, against amounts owed by the custodial parent for interfering with visitation.

[¶ 23] We addressed a similar situation in Hendrickson v. Hendrickson, 1999 ND 37, 590 N.W.2d 220. In Hendrickson, the trial court ordered that the child support payments be placed in a separate account for the children’s secondary education, as a sanction for the custodial parent’s interference with visitation. We reversed, noting that, under the child support guidelines, child support is to be paid to the custodial parent to use for the child’s current expenses. Id. at ¶ 9. We cautioned that “child support is presumed to benefit-the children not the custodial parent and should not be used as a wedge or a club to force compliance with the court’s orders.” Id. at ¶ 10.

[¶ 24] David argues that suspension of child support is authorized under N.D.C.C. § 14-09-24, which provides that, if the court orders payment of attorney’s fees and costs for a custodial parent’s willful and persistent denial of visitation rights, the court “may use any remedy that is available to enforce a child support order and which is appropriate to enforce visitation.” David argues that the statute authorizes the trial court to suspend his child support payments as an offset against the attorney’s fees and costs he has expended. Suspension of a child support obligation is neither a “remedy that is available to enforce a child support order” nor one which is “appropriate to enforce visitation.” The statute does not authorize suspension of a noncustodial parent’s child support obligation to recoup costs and attorney’s fees owed by a custodial parent for interfering with visitation.

[¶ 25] We conclude the trial court did not err in refusing to suspend David’s child support obligation.

V

[¶ 26] We affirm the trial court’s denial of the motion to change custody and refusal to suspend David’s child support obligation, but we reverse and remand for more explicit findings and reconsideration of attorney’s fees and costs under N.D.C.C. §§ 14-09-06.5 and 14-09-24.

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

SANDSTROM, Justice,

dissenting.

[¶ 28] Both custodial and noncustodial parents have a duty to support their minor' children. N.D.C.C. § 14-09-10. Both custodial and noncustodial parents have a right to contact with their children. N.D.C.C. § 14-05-22(2).

[¶ 29] The legislature has acted, seeking to ensure support by the noncustodial parent, see, e.g., N.D.C.C. §§ 14-09-08.1, 14-09-24, and courts have moved strongly to enforce this duty. See, e.g., Zarrett v. Zarrett, 1998 ND 49, ¶ 10, 574 N.W.2d 855. The legislature has acted, seeking to ensure the visitation rights of noncustodial parents, N.D.C.C. §§ 14-05-22(2), 14-09-06.6(6), 14-09-24, and courts must move strongly to vindicate those rights. Berg v. Berg, 2002 ND 69, 642 N.W.2d 899 (Sandstrom, J., concurring in the result).

[¶ 30] The right of noncustodial parents to visitation is not just a statutory right — it is a right of constitutional magnitude. Id. at ¶¶ 30-31. Unless restricted or forfeited by serious misconduct of the noncustodial parent, noncustodial-parent visitation rights must be enforced by court action if necessary.’ See id. at ¶ 32; N.D.C.C. § 14-09-06.6.

[¶ 31] When visitation rights are wrongfully obstructed, courts must move forcefully. The sad history of Hendrickson v. Hendrickson and similar cases reflects that strong, early, not late, court action is necessary. See, e.g., Hendrickson v. Hendrickson, 553 N.W.2d 215 (N.D.1996); Hendrickson v. Hendrickson, 1999 ND 37, 590 N.W.2d 220; Hendrickson v. Hendrickson, 2000 ND 1, 603 N.W.2d 896; Interest of C.H., 2001 ND 37, 622 N.W.2d 720.

[¶ 32] The legislature has provided for a change in custody when there is persistent and willful denial or interference with visitation. N.D.C.C. § 14-09-06.6(5)(b). The two-year wait after a prior custody order does not apply. N.D.C.C. § 14-09-06.6(5). The majority correctly states, at ¶ 10:

In resolving a motion to change custody, the trial court must determine (1) whether there has been a significant change in circumstances since the original custody decree, and, if so, (2) whether a change of custody is necessary to serve the best interest of the child. N.D.C.C. § 14-09-06.6(6); BeauLac v. BeauLac, 2002 ND 126, ¶ 12, 649 N.W.2d 210; Kelly v. Kelly, 2002 ND 37, ¶ 15, 640 N.W.2d 38. The party seeking modification bears the burden of showing a change of custody is required. N.D.C.C. § 14-09-06.6(8); BeauLac, at ¶ 12; Selzler v. Selzler, 2001 ND 138, ¶ 21, 631 N.W.2d 564. A trial court’s decision whether to change custody is a finding of fact subject to the clearly erroneous standard of review on appeal. Hilgers v. Hilgers, 2002 ND 173, ¶22, 653 N.W.2d 79; Kelly, at ¶ 13.

[¶ 33] Here, the trial court made no finding as to whether a change in custody is necessary to serve the best interest of the child. See N.D.C.C. § 14-09-06.6(6). The trial court found persistent interference by the mother with visitation and found the father a fit and proper parent. Indeed, contrary to the majority’s unsupported assertion, the trial court’s findings, if anything, seem to suggest that the best interest of the child would be served by a change in custody, but the court decided to give the custodial mother one more chance:

Accordingly, although it appears that significant grounds exist for a change of custody, I decline changing custody at this time in order to allow Danni a final opportunity to fulfill her obligations under the law as a custodial parent which require her to recognize, facilitate, and enforce, rather than obstruct, the visitation rights held by David with the child.

[¶ 34] I would reverse and remand for the trial court to make a specific finding whether “modification is necessary to serve the best interest of the child.” See N.D.C.C. § 14 — 09—06.6(6)(b).

[¶ 35] DALE V. SANDSTROM

      . Danni also appealed from the judgment, but subsequently withdrew her appeal.