author: SANDSTROM, Justice.

text:
    2003 ND 27
    Tyronne PELTIER, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
    Nos. 20020232-20020235.
    Supreme Court of North Dakota.
    March 5, 2003.

      Scott R. Thompson, Thompson & Thompson, Devils Lake, N.D., for petitioner and appellant.
    Lonnie Olson, State’s Attorney, Devils Lake, N.D., for respondent and appellee.
   SANDSTROM, Justice.

[¶ 1] Tyrone Peltier appealed from an order denying his motion for post-conviction relief. We conclude Peltier did not receive an illegal sentence when the trial court imposed consecutive sentences upon revocation of probation after Peltier had originally pled guilty under a plea agreement calling for concurrent sentences. We affirm.

I

[¶ 2] On February 19, 1997, Peltier pled guilty to four class C felony charges arising in Ramsey County. The plea was the result of an oral plea agreement between Peltier and the State, which was disclosed in open court. After advising Peltier of the information required under N.D.R.Crim.P. 11, finding a factual basis for the plea, and determining the plea was voluntarily made, the trial court accepted the plea agreement and sentenced Peltier according to its terms. On a first charge of terrorizing, the trial court sentenced Peltier to serve four years in prison with one year suspended, followed by five years of supervised probation upon his release. On a charge of reckless endangerment, the trial court sentenced Peltier to serve five years in prison with three years suspended, followed by five years of supervised probation upon his release. On a second charge of terrorizing, the trial court sentenced Peltier to serve five years in prison with three years suspended, followed by five years of supervised probation upon his release. On a charge of felon in possession of a firearm, the trial court sentenced Peltier to serve five years in prison with three years suspended, followed by five years of supervised probation upon his release. Adhering to the terms of the plea agreement, the trial court further ordered the sentences on the reckless endangerment, felon in possession of a firearm, and second terrorizing charges to run concurrently with the sentence on the first terrorizing charge.

[¶ 3] After serving four years in prison, Peltier was placed on supervised probation to complete his sentence. On September 11, 2001, Peltier’s probation officer filed a petition to revoke his probation. At a hearing on November 29, 2001, Peltier admitted that he violated the terms of his probation, and the trial court revoked it. The trial court sentenced Peltier to serve the remaining three years in prison on the second terrorizing charge and to serve the remaining three years in prison on the reckless endangerment charge, the sentences to be served consecutively. The trial court sentenced Peltier to serve the remaining one year in prison on the first terrorizing charge and to serve the remaining three years in prison on the charge of felon in possession of a firearm, both sentences to be served concurrently with the sentence on the second terrorizing charge. Peltier was therefore sentenced to serve six years in prison.

[¶ 4] On February 21, 2002, Peltier filed an application for post-conviction relief, alleging the trial court violated state law when it imposed consecutive sentences upon revocation of his probation, because the original plea agreement required concurrent sentences. Peltier also claimed the trial judge was improperly biased against him at the probation revocation hearing. Following an evidentiary hearing, the trial court denied Peltier’s application for post-conviction relief. The court ruled, “[t]he record of sentencing reflects no restriction on the Court in giving consecutive sentences to the defendant.”

[¶ 5] The trial court had jurisdiction under N.D.C.C. §§ 27-05-06 and 29-32.1-03. Peltier’s appeal is timely under N.D.C.C. § 29-32.1-14 and N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. §§ 29-28-06 and 29-32.1-14.

II

[¶ 6] A trial court’s findings of fact in post-conviction relief proceedings will not be disturbed unless they are clearly erroneous. Hill v. State, 2000 ND 143, ¶ 17, 615 N.W.2d 135. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by any evidence, or if, although there is some evidence to support it, a reviewing court is left with a definite and firm conviction that a mistake has been made. DeCoteau v. State, 2000 ND 44, ¶ 10, 608 N.W.2d 240. Questions of law are fully reviewable on appeal of a post-conviction proceeding. Falcon v. State, 1997 ND 200, ¶ 9, 570 N.W.2d 719.

A

[¶ 7] Peltier argues the trial court violated state law when it imposed consecutive sentences upon revocation of his probation, because the original plea agreement with the State called for concurrent sentences. A sentence that does not comply with a promise of a plea agreement is illegal, entitling a defendant to post-conviction relief. DeCoteau v. State, 504 N.W.2d 552, 556 (N.D.1993).

[¶ 8] Peltier relies on N.D.C.C. § 12.1-32-07(6), which provides in part:

If the defendant violates a condition of probation at any time before the expiration or termination of the period, the court may continue the defendant on the existing probation, with or without modifying or enlarging the conditions, or may revoke the probation and impose any other sentence that was available under section 12.1-82-02 [relating to sentencing alternatives] or 12.1-82-09 [relating to dangerous special offenders] at the time of initial sentencing or deferment.

(Emphasis added). Peltier argues the trial court was bound by the parties’ plea agreement, which required that the sentences run concurrently, and the court could not impose consecutive sentences on revocation of probation because consecutive sentences were not an available alternative under the plea agreement at the time of the initial sentencing.

[¶ 9] Peltier’s argument rests upon the assumption that he entered into a binding plea agreement with the State. The State argues the agreement was for a nonbinding recommendation of sentence. A variety of binding and nonbinding plea agreements can result from plea negotiations. See State v. Farrell, 2000 ND 26, ¶ 16, 606 N.W.2d 524. In State v. Klein, 1997 ND 25, ¶ 17, 560 N.W.2d 198, overruled on other grounds, Froistad v. State, 2002 ND 52, 116, 641 N.W.2d 86, this Court explained:

N.D.R.Crim.P. 11(d) governs plea agreements. We have recognized N.D.R.Crim.P. 11(d)(1) is like F.R.Crim.P. 11(e)(1). DeCoteau v. State, 504 N.W.2d 552, 558 n. 2 (N.D. 1993). Under F.R.Crim.P. 11(e)(1), there are three kinds of plea agreements. “[U]pon the entering of a plea of guilty ... the attorney for the government will do any of the following: (A) move for dismissal of other charges; or (B) make a recommendation, or agree not to oppose the defendant’s request, for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court; or (C) agree that a specific sentence is the appropriate disposition of the case.” F.R.Crim.P. 11(e)(1); DeCo-teau.

[¶ 10] A nonbinding recommendation of sentence and a binding plea agreement under N.D.R.Crim.P. 11(d) are significantly different. See State v. Thompson, 504 N.W.2d 315, 319 (N.D.1993). If the parties agree to a nonbinding recommendation of sentence, the State fulfills its obligation when it makes the specified nonbinding recommendation, and the trial court may impose a harsher sentence than the one recommended without allowing the defendant to withdraw the guilty plea. Id. When presented with a binding plea agreement, the court is limited to three options: the court may accept the agreement, reject the agreement, or defer its decision until receipt of a presentence report. See Klein, 1997 ND 25, ¶ 18, 560 N.W.2d 198; N.D.R.Crim.P. 11(d)(2). If the court accepts a binding plea agreement, the court may not impose a sentence less favorable than the sentence provided for in the plea agreement. See N.D.R.Crim.P. 11(d)(3). If the court rejects a binding plea agreement, the court must inform the defendant it is not bound by the agreement, must allow the defendant to withdraw the plea, and must inform the defendant that if the defendant persists in pleading guilty, the court may impose a sentence less favorable than the one provided for in the plea agreement. See N.D.R.Crim.P. 11(d)(4).

[¶ 11] At the initial sentencing hearing, the trial court advised Peltier of the maximum sentences on each charge before it was informed of the plea agreement. Pel-tier’s trial attorney disclosed the terms of the agreement to the trial court. On the first charge of terrorizing, Peltier’s attorney described the agreement as “[f]or the plea of guilty, then the State would recommend a five-year jail sentence to serve four years.” On the other three charges, Peltier’s attorney said Peltier “would receive” the various sentences in exchange for the pleas. The trial court asked Pel-tier to plead to the charges and whether the pleas had been entered “pursuant to the plea agreement.” The trial court was informed that the State had agreed to send a letter to the United States Attorney recommending that federal charges not be brought against Peltier, and the court ordered that a copy of the letter be filed with the clerk of court. The trial court said it would “adhere to the plea agreement as it has been outlined,” and sentenced Peltier according to the terms disclosed in open court.

[¶ 12] Although the precise nature of the agreement is unclear from the record, the part of the agreement providing that the State would “recommend” five years with one year suspended strongly suggests that this was not a binding plea agreement, but was a nonbinding recommendation of sentence. See State v. Sisson, 1997 ND 158, ¶3 n. 1, 567 N.W.2d 839. Nevertheless, for purposes of this appeal we will treat the parties’ agreement as a binding plea agreement that the trial court accepted.

[¶ 13] This Court has long held that the current provisions of N.D.C.C. § 12.1-32-07(6) allow a trial court to impose a harsher sentence upon revocation of probation. See, e.g., State v. Vavrosky, 442 N.W.2d 433, 437 (N.D.1989); State v. Miller, 418 N.W.2d 614, 616 (N.D.1988). This Court has also consistently held that re-sentencing a defendant after revocation of probation to a sentence greater than that originally imposed does not violate the double jeopardy or due process clauses. See Davis v. State, 2001 ND 85, ¶ 11, 625 N.W.2d 855; State v. Jones, 418 N.W.2d 782, 786 (N.D.1988). We have reasoned that N.D.C.C. § 12.1-32-07(6) gives a defendant notice that violation of the conditions of probation could result in imposition of a harsher sentence and therefore a defendant has no legitimate expectation in the finality of the originally imposed sentence. See State v. Lindgren, 483 N.W.2d 777, 779 (N.D.1992); State v. Gefroh, 458 N.W.2d 479, 483 (N.D.1990). We have not previously been confronted with an argument that a binding plea agreement continues to control resentencing upon revocation of probation.

[¶ 14] Peltier relies on a Pennsylvania Superior Court decision, Commonwealth v. Anderson, 434 Pa.Super. 309, 643 A.2d 109 (1994), to support his argument that the trial court was limited to imposing concurrent sentences upon revocation of his probation. In Anderson, the defendant pled guilty to two counts of burglary and was sentenced to a period of incarceration followed by five years of probation. Two months later, the defendant entered into a negotiated binding plea agreement and pled guilty to one count of theft and one count of receiving stolen property. The trial court accepted the guilty plea and the agreement and sentenced the defendant to five years of probation, which under the terms of the plea agreement would run concurrently with the defendant’s sentence for the burglary convictions. The defendant subsequently violated the terms of her probation. The trial court revoked her probation and imposed a sentence of two to five years incarceration on the burglary convictions and two to four years incarceration on the theft convictions. The trial court ordered the sentences to be served consecutively, which substantially increased the defendant’s term of imprisonment.

[¶ 15] The Anderson court concluded the trial court had imposed an invalid sentence upon revocation of the defendant’s probation, because by sentencing the defendant to serve her sentences consecutively, the court abrogated the binding plea agreement. Although Pennsylvania has a statute similar to N.D.C.C. § 12.1-32-07(6), stating upon revocation of probation the trial court possesses the same sentencing alternatives that were available at the time of the initial sentencing, see 42 Pa. Cons.Stat. § 9771(b), the court reasoned “the trial court’s sentencing alternatives at the time of initial sentencing were circumscribed by the plea agreement,” and the “imposition of consecutive sentences upon probation revocation was in direct abrogation of the plea agreement and enlarged the sentencing options that had been available to the court at the time of the original sentencing.” Anderson, 643 A.2d at 114 (footnote omitted).

[¶ 16] We disagree with the Anderson court’s analysis and conclusion. The policy in North Dakota is that a sentence which includes probation is not final, but is designed to provide a flexible alternative that allows the trial court to monitor the defendant’s conduct while on probation and to alter the defendant’s sentence if the initial sentence of probation is not effective. See Davis, 2001 ND 85, ¶11, 625 N.W.2d 855; Jones, 418 N.W.2d at 784. We are not persuaded to change our view about the lack of finality in a sentence including probation merely because the sentence is the result of a binding plea agreement.

[¶ 17] Moreover, we are unpersuaded by the Anderson court’s unwarranted extension of a defendant’s benefits arising from a binding plea agreement. We agree with the analysis of the court in United States v. Chen, 837 F.Supp. 1225, 1226 (S.D.Fla.1993), aff'd, 25 F.3d 1061 (11th Cir.1994). In Chen, paragraph three of the parties’ binding plea agreement provided that the court could impose a maximum sentence of five years probation on one of the counts, and the court accepted the agreement and imposed a sentence of five years probation. Upon revocation of the defendant’s probation, the court sentenced the defendant to ten years in prison. The defendant argued the court was empowered to sentence him only under the terms of the original binding plea agreement. The court concluded, however, that the government and the defendant fully performed and concluded their agreement at the original sentencing proceeding:

In this case, there is no evidence to suggest that, at the time of the bargain, either of the parties reasonably contemplated, or expected, that paragraph three of the agreement would forever limit a sentencing Court regardless of the Defendant’s conduct while on probation. “Probation would be a useless implement in the criminal justice process if it could not be revoked,” and it would be an inconsistent, and counter-intuitive interpretation of the plea agreement to rule that the prosecution had agreed to a bargain that defeats the very purpose of the sentence that they sought to obtain. United States v. Gerace, 997 F.2d 1293,1295 (9th Cir.1993).
On the contrary, a fair reading of the agreement, viewed “against the background of negotiations,” insists that the plea agreement expired once the conditions of the agreement were fulfilled at the original sentencing. Consequently, this Court finds that paragraph three of the agreement is not binding upon this Court at these proceedings, and the Defendant, having enjoyed the benefits of his original plea agreement, cannot now ask to revive parts of that old agreement, or attempt to change his plea at this late date.

Chen, 837 F.Supp. at 1227. See also Short v. State, 135 Idaho 40, 13 P.3d 1253, 1255 (App.2000) (the defendant received benefit of his plea bargain by being given the opportunity to avoid incarceration if he could successfully complete probation, and once he violated probation, court was not bound by agreement but could sentence defendant to incarceration within statutory maximum); People v. Bray, 186 Ill.App.3d 394, 134 Ill.Dec. 333, 542 N.E.2d 512, 514-15 (1989) (rejecting the argument that three-year maximum sentence in plea agreement was still binding on the court for any further sentence imposed for revocation of probation).

[¶ 18] We conclude Peltier and the State satisfied the conditions of their binding plea agreement at the original sentencing hearing when the trial court sentenced Peltier according to the terms of the agreement. Consequently, the trial court was no longer bound by the terms of the plea agreement, and was free to impose consecutive sentences resulting in a harsher sentence. See State v. Ulmer, 1999 ND 245, ¶ 4, 603 N.W.2d 865 (it is within the trial court’s sound discretion whether a sentence should run concurrently with or consecutively to another sentence, unless there is a statute to the contrary).

[¶ 19] Peltier argues the trial court was required to inform him that the plea agreement would not govern if he violated probation. Peltier testified at the post-conviction hearing that he believed he could be given consecutive sentences only if he violated probation by committing a felony. He later testified this understanding did not arise from anything said at the initial sentencing hearing, but from information he received from “somebody” after he had been initially sentenced. A defendant’s subjective beliefs and expectations about the effect of a plea agreement, when unsupported by any promises from the State or any indications from the court, are insufficient to invalidate the agreement. See State v. Hamann, 262 N.W.2d 495, 500 (N.D.1978). In any event, N.D.C.C. § 12.1-32-07(6) gave Peltier “actual notice” that a violation of probation could result in the imposition of a sentence more severe than his originally imposed sentence. Davis, 2001 ND 85, ¶ 13, 625 N.W.2d 855; see also Lindgren, 483 N.W.2d at 779; Jones, 418 N.W.2d at 784.

[¶ 20] We conclude the trial court was not bound by the terms of the plea agreement when it sentenced Peltier upon the revocation of his probation. The consecutive sentences imposed on Peltier are within the parameters of the sentences that were available at the time of the initial sentencing under N.D.C.C. § 12.1-32-07(6). Consequently, we conclude Peltier’s sentence is not illegal.

B

[¶ 21] Peltier argues the trial court was biased and prejudiced against him. However, the trial court’s comments in this case “were but a lecture, not uncommon or inappropriate at a sentencing or probation hearing, and did not indicate prejudice or bias” against Peltier. State v. Saavedra, 406 N.W.2d 667, 673 (N.D.1987).

Ill

[¶ 22] The order is affirmed.

[¶ 23] GERALD W. VANDE WALLE, C.J., WILLIAM F. HODNY, S.J., WILLIAM A. NEUMANN, and CAROL RONNING KAPSNER, JJ., concur.

[¶ 24] The Honorable WILLIAM F. HODNY, Surrogate Judge, sitting in place of MARING, J., disqualified.

      . In cases where the nature of a plea agreement is ambiguous, a trial court should clarify the matter on the record. See generally Davis v. State, 2001 ND 85, 11 13 n. 2, 625 N.W.2d 855 (encouraging trial courts to provide an appropriate warning in any suspended sentence that, upon violating probation, a defendant can receive any sentence that was initially available).


source: Caselaw Access Project

author: KAPSNER, Justice. SANDSTROM, Justice,

license: Public Domain

text:
    2003 ND 30
    STATE of North Dakota, Plaintiff and Appellee, v. Jeffrey Dean ANDERSON, Defendant and Appellant.
    No. 20020229.
    Supreme Court of North Dakota.
    March 5, 2003.

      Brian D. Grosinger, Assistant State’s Attorney, Mandan, ND, for plaintiff and appellee.
    Kent M. Morrow, Severin, Ringsak & Morrow, Bismarck, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Jeffrey Dean Anderson appealed from a criminal judgment entered following a jury verdict finding him guilty of seven counts of gross sexual imposition. We conclude the trial court did not err in admitting letters Anderson wrote to his daughter, the victim, when the letters contained evidence of an ongoing course of conduct that Anderson engaged in with his daughter which was the same conduct he was charged with in the complaint. We affirm the judgment of the trial court.

I.

[¶ 2] The State charged Anderson with seven counts of gross sexual imposition, in violation of N.D.C.C. § 12.1-20-03, for engaging in sexual acts with his daughter and compelling her to submit by force. Count 1 alleged Anderson forced his daughter to engage in sexual intercourse in April of 1999. Counts 2 through 4 alleged Anderson forced his daughter to engage in sexual intercourse during the time period between April and September of 1999. Counts 5 and 6 alleged Anderson forced his daughter to engage in sexual intercourse in September of 1999. Count 7 alleged Anderson forced his daughter to engage in sexual intercourse on or about December 7,1999.

[¶ 3] Anderson moved in limine to prevent the State “from introducing any evidence of or mentioning the existence of certain letters allegedly mailed by” Anderson to his daughter during the year 2000. Anderson mailed his daughter a card with a handwritten note along with a separate letter enclosed in the envelope in July of 2000 and eight other letters in August and September of 2000. Anderson asserted in his motion the letters should be excluded as evidence of the offenses he was charged with under (1) N.D.R.Ev. 401, the evidence is not relevant; (2) N.D.R.Ev. 403, the probative value of the evidence is substantially outweighed by the danger of unfair prejudice; and (3) N.D.R.Ev. 404(b), the evidence constitutes inadmissible character evidence. The State resisted the motion. The trial court denied Anderson’s motion in limine, finding the letters to be relevant; not unfairly prejudicial; and not character evidence.

[¶ 4] A jury found Anderson guilty on all seven counts. Anderson challenges the conviction, arguing the trial court erred by denying his motion in limine to exclude letters he wrote to his daughter in the year 2000.

II.

[¶ 5] Anderson argues the trial court abused its discretion by admitting into evidence letters he wrote to his daughter in 2000 because the letters are not relevant to the issue of whether Anderson committed the offenses alleged to have occurred in 1999. Further, Anderson argues, even if the letters were relevant, admitting them into evidence unfairly prejudiced him. Anderson also contends the letters constitute inadmissible character evidence under N.D.R.Ev. 404(b).

[¶ 6] “One of the touchstones for an effective appeal on any proper issue is that the matter was appropriately raised in the trial court so it could intelligently rule on it.” State v. Osier, 1999 ND 28, ¶ 14, 590 N.W.2d 205. Under N.D.R.Ev.l03(a)(l), “[ejrror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and ... a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context[.]”

[¶ 7] In this case, Anderson filed a motion in limine to exclude letters Anderson wrote to his daughter in 2000. The trial court denied Anderson’s motion. At trial, when the State offered two of the letters into evidence, Anderson’s counsel stated he had “[n]o objection.” By failing to properly object at trial, Anderson failed to preserve this issue for review. See State v. Bell, 2002 ND 130, ¶12, 649 N.W.2d 243; State v. Freed, 1999 ND 185, ¶¶ 13-14, 599 N.W.2d 858. A motion in limine seeking an evidentiary ruling must be decided without the benefit of evaluating the evidence in the context of trial. A renewed objection at the time the evidence is offered focuses The court on the objection in the trial context at which time both the relevance and the potential for prejudice will be more discernible. A failure to object at trial “acts as a waiver of the claim of error.” State v. Glass, 2000 ND 212, ¶ 10, 620 N.W.2d 146 (quoting City of Fargo v. Erickson, 1999 ND 145, ¶ 22, 598 N.W.2d 787 (Sandstrom, J., concurring specially)).

[¶ 8] Even though Anderson waived his right to seek review of this issue, N.D.R.Crim.P. 52(b) allows this Court to notice obvious errors not raised at the trial court. We exercise our power to consider obvious error “cautiously and only in exceptional situations where the defendant has suffered serious injustice.” State v. Smuda, 419 N.W.2d 166,168 (N.D.1988). Our standard of review when a defendant fails to preserve an issue for appeal requires a showing of obvious error which affects substantial rights of the defendant. Glass, 2000 ND 212, ¶4, 620 N.W.2d 146; N.D.R.Crim.P. 52(b). To establish obvious error, a defendant has the burden to show “(1) error, (2) that is plain, and (3) affects substantial rights.” State v. Olander, 1998 ND 50, ¶14, 575 N.W.2d 658 (citing United States v. Olano, 507 U.S. 725, 732-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). “In analyzing obvious error, our decisions require examination of the entire record and the probable effect of the alleged error in light of all the evidence.” Olander, at ¶ 12.

[¶ 9] Rule 402, N.D.R.Ev., provides: “[a]ll relevant evidence is admissible, except as otherwise provided by the constitutions of the United States or the state of North Dakota, by any applicable Act of Congress, by statutes of North Dakota, by these rules, or by other rules adopted by the supreme court of North Dakota.” Relevant evidence is evidence which may reasonably and actually tend to prove or disprove any material fact in issue. Osier, at ¶ 5, 590 N.W.2d 205.

[¶ 10] The complaint against Anderson alleges an ongoing course of conduct. The victim testified she told law enforcement officers Anderson forced her to have sexual intercourse on 186 occasions; however, the State was only able to ascertain enough details to charge Anderson with the offense seven times. We have recognized that in cases where multiple offenses are alleged to have occurred on a continuing basis it may be difficult to identify specific incidents or dates of all or any of the incidents. See State v. Vance, 537 N.W.2d 545, 551 (N.D.1995). In such cases, we have concluded the complainant “must describe the number of acts with sufficient evidence to support each of the counts in the information to assure that the offenses indeed occurred.” Id. at 550. Anderson was charged with seven counts of forcing his daughter to engage in sexual intercourse. Anderson’s daughter testified to the details of each of the seven counts, referring to the particular location and approximate time period for each offense alleged to have occurred.

[¶ 11] The letters admitted at trial were written after Anderson committed the offenses he was charged with in the complaint; nevertheless, the letters indicate sexual acts have occurred in the past between Anderson and his daughter. Anderson also refers to sexual acts directed at his daughter which he desires to engage in after he gets out of prison. Anderson wrote in the card to his daughter, in part:

Yes Sweetie you are a good hard little worker. Remember, I know that because you worked with Daddy. You worked very hot in all ways. If you no [sic] what I mean! Believe me you well, more than satisfied me. Believe me darling. I really do miss it_ Can’t wait til this is all OVER! We will have a lot of CELEBRATING! Can’t wait too [sic] peel them off! FOR HOT! Can’t wait too [sic] take a good lick! Very Tastee [sic]!

Admitted at trial was also a separate letter enclosed with the card. In -this letter, Anderson explicitly details his interest in sexual gratification with his daughter. The contents of the letter indicate Anderson has intimate knowledge of his daughter’s body as well as a desire to resume a sexual relationship with her once he is out of prison. Anderson refers to his daughter as “Hot STUFF!” and tells her she is “So Irrestible [sic][.]”

[¶ 12] A reasonable reading of the card and letter is that Anderson has had prior sexual contact with his daughter. The card and letter therefore relate to the determination of the central fact of whether Anderson has committed gross sexual imposition. They are relevant evidence under the definition of Rule 401, N.D.R.Ev.

[¶ 13] Generally, character evidence to prove a person acted in conformity with the evidence is excluded. N.D.R.Ev. 404. N.D.R.Ev. Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. However, it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

[¶ 14] “The long-standing common law rule on prior-act evidence is that it is inadmissible when it is evidence of ‘a wholly separate and independent crime’ and is used to show a propensity to commit such acts.” State v. Christensen, 1997 ND 57, ¶ 8, 561 N.W.2d 631 (quoting 2 Charles Alan Wright, Federal Practice and Procedure § 410 (1982)). Therefore, Rule 404(b), N.D.R.Ev., “only excludes evidence of other acts and crimes committed by the defendant when they are independent of the charged crime, and do not fit into the rule’s exceptions.” Christensen, at ¶ 8. Rule 404(b) was not intended “to exclude evidence of activity in furtherance of the same criminal activity.” Christensen, at ¶ 8.

[¶ 15] Parts of the letters Anderson wrote to his daughter indicate his sexual plans with his daughter when he gets out of prison; these are acts which have not yet occurred and are not prior acts within the scope of Rule 404(b), N.D.R.Ev. Anderson not only indicates in the letters his sexual plans with his daughter when he gets out of prison, but he also infers that sexual acts with his daughter have occurred in the past. The letters admitted at trial contain evidence related to the seven counts of forcing his daughter to engage in sexual intercourse in which Anderson was charged; therefore, the letters are not the type of evidence Rule 404(b), N.D.R.Ev., contemplated excluding. We conclude the letter and card project a continuation of the activities which have occurred in the past and which are part of the ongoing course of conduct Anderson is charged with in this case. The letter and card are relevant to the offenses Anderson was charged with in this case and they do not constitute inadmissible character evidence under Rule 404(b), N.D.R.Ev.

[¶ 16] Even relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” N.D.R.Ev. 403. We analyzed unfair prejudice under Rule 403, N.D.R.Ev., in State v. Zimmerman, 524 N.W.2d 111, 116 (N.D.1994) (citations omitted), and stated: “[prejudice is unfair if it is the result of something other than the relevance of the evidence. Stated otherwise, any prejudice due to the probative force of evidence is not unfair prejudice.” Rule 403, NJD.R.Ev., “is directed to unfairly prejudicial evidence, not simply prejudicial evidence.” Zimmerman, at 116. The trial court determined the probative value of the letters is not outweighed by the danger of unfair prejudice or confusion of the issues. This Court has recognized “no verdict could be obtained without prejudicial evidence. After all, ‘the admission of evidence is generally calculated to benefit one side to the prejudice of the other.’ ” Id. (quoting Bell v. City of Milwaukee, 746 F.2d 1205, 1277 (7th Cir.1984)). We conclude any prejudice in this case was the result of the probative force of the evidence. Thus, the letters Anderson wrote to his daughter were admissible as probative evidence of Anderson’s involvement in the offenses being prosecuted and the letters were not unfairly prejudicial to him.

III.

[¶ 17] Based on our review of the record, the letters were relevant; Anderson was not unfairly prejudiced; and the letters do not constitute inadmissible character evidence. We conclude the trial court did not err in admitting, as evidence of the offenses charged, the letters Anderson wrote to his daughter. Because Anderson has failed to establish error, the first part under our framework for analyzing obvious error, we affirm the judgment of the trial court.

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

SANDSTROM, Justice,

concurring in the result.

[¶ 19] Because the majority identifies the victim of these sex crimes with unnecessary specificity, I concur in the result. I cannot join in an opinion that I believe unnecessarily sacrifices the victim’s privacy-

[¶ 20] DALE V. SANDSTROM.

      . The card with a handwritten note and the separate letter which was enclosed inside the same envelope were the only letters offered at trial.


text:
    2003 ND 33
    SUPERPUMPER, INC., Plaintiff and Appellee, v. NERLAND OIL, INC., Defendant and Appellant, West Fargo Truck Stop, Inc., Appellant.
    No. 20020214.
    Supreme Court of North Dakota.
    March 5, 2003.

      Brent M. Olson (argued) and Herbert L. Meschke (on brief), Pringle & Herigstad, P.C., Minot, ND, for plaintiff and appellee.
    Jay D. Carlson, Fargo, ND, for appellants.
   SANDSTROM, Justice.

[¶ 1] Nerland Oil, Inc., and its affiliate, West Fargo Truck Stop, Inc., appeal a district court judgment confirming their arbitration award, arguing the district court erred by allowing an irrational and arbitrary award. We affirm.

I

[¶ 2] In 1995, Superpumper, Inc., which owns and operates convenience stores in various locations, purchased the Dakota Fuel Stop in Jamestown, North Dakota, from Nerland Oil for $1,829,332. Superpumper’s “offer to purchase” included “real property, buildings, equipment and products supply” and was “subject to a supply and freight agreement to be executed by [Superpumper] in a form acceptable to [Nerland Oil].” Superpumper and Ner-land Oil allocated $1,000,000 of the purchase price to real property, $250,000 to equipment, and $579,332 to a “freight agreement” and an “exclusive requirements supply and freight agreement” between Superpumper and a Nerland Oil affiliate, West Fargo Truck Stop. Under the “exclusive requirements supply and freight agreement,” Superpumper agreed to use West Fargo Truck Stop as the exclusive supplier and hauler of petroleum products to the Dakota Fuel Stop. Under the “freight agreement,” Superpumper agreed to have West Fargo Truck Stop haul petroleum products to a Superpumper station in Belfield, North Dakota. For purposes of the purchase agreement, the Belfield freight agreement was assigned a value of $206,904, and the Dakota Fuel Stop exclusive requirements supply and freight agreement was assigned a value of $372,428.

[¶ 3] As part of the purchase, Super-pumper executed a $350,000 promissory note, secured by a second mortgage on the real property, in favor of Nerland Oil. The offer to purchase, the promissory note, and the second mortgage did not include an arbitration clause. Both the Belfield freight agreement and the Dakota Fuel Stop exclusive requirements supply and freight agreement contained similar clauses requiring binding arbitration of any disputes under those agreements.

[¶ 4] A dispute arose between Super-pumper and Nerland Oil regarding the processing of credit card receivables for Dakota Fuel Stop. Superpumper sued Nerland Oil, seeking quiet title to the Dakota Fuel Stop real property, or specific performance to satisfy and release Super-pumper’s promissory note and second mortgage to Nerland Oil. Superpumper also sought payment for credit card receivables Nerland Oil had failed to remit to Superpumper. Nerland Oil answered, identifying itself and West Fargo Truck Stop as defendants and third-party plaintiffs. The answer alleged Superpumper’s complaint failed to join all necessary parties, including West Fargo Truck Stop, and included a counterclaim alleging Su-perpumper breached the Belfield freight agreement and the Dakota Fuel Stop exclusive requirements supply and freight agreement. Nerland Oil and West Fargo Truck Stop sought to compel arbitration of both supply and freight agreements and to stay Superpumper’s claims pending arbitration. Nerland Oil and West Fargo Truck Stop moved for joinder of West Fargo Truck Stop as a defendant.

[¶ 5] The district court denied the motion to join West Fargo Truck Stop as a defendant and stayed Superpumper’s claims pending arbitration of both supply and freight agreements. Superpumper moved for reconsideration. Nerland Oil and West Fargo Truck Stop resisted Su-perpumper’s motion for reconsideration and sought arbitration of the entire dispute “arising out of the breach of the purchase agreement.” The court denied Superpumper’s motion for reconsideration and concluded the agreements between Superpumper, Nerland Oil, and West Fargo Truck Stop were “so intertwined that it only makes sense to place the entire dispute in arbitration.” The court ordered arbitration of the entire dispute.

[¶ 6] In Superpumper, Inc. v. Nerland Oil, Inc., 1998 ND 144, ¶ 1, 582 N.W.2d 647, we dismissed Superpumper’s appeal from the order compelling arbitration. We concluded the order was not appeal-able under either the Uniform Arbitration Act, N.D.C.C. ch. 32-29.2, or the Federal Arbitration Act, 9 U.S.C. §§ 1-16. Super-pumper, at ¶ 1.

[¶ 7] In August 1999, a three-member arbitration panel decided Nerland Oil owed Superpumper $348,856.26 for credit card receivables, and that debt was subject to a $10,933.92 setoff against $359,790.18 due on Superpumper’s promissory note to Nerland Oil. In a two-to-one decision, the arbitration panel decided Superpumper and Nerland Oil had orally modified the Belfield freight agreement and, as modified, the agreement had been “suspended” since October 26, 1996. The majority of the panel decided there was no breach of the Belfield freight agreement.

[¶ 8] In October 1999, Superpumper moved for confirmation of the arbitration decision. On November 7, 1999, Nerland Oil filed a voluntary petition for bankruptcy under chapter 7 of the United States Bankruptcy Code. Nerland Oil resisted confirmation of the arbitration decision because of its bankruptcy petition, and West Fargo Truck Stop moved to vacate the arbitration decision and to remand to the panel for rehearing on the Belfield freight agreement. The district court confirmed the arbitration decision as to West Fargo Truck Stop, but concluded it did not have jurisdiction over Nerland Oil because of its pending bankruptcy petition. West Fargo Truck Stop appealed.

[¶ 9] In Superpumper, Inc. v. Nerland Oil, Inc., 2000 ND 220, ¶ 1, 620 N.W.2d 159, we reversed and remanded, holding the arbitration proceedings were stayed pending the bankruptcy proceeding. On October 17, 2001, the bankruptcy court modified the automatic stay so the district court could reconsider the issue of confirmation of the August 1999 arbitration award. On June 18, 2002, the district court affirmed the arbitration award against Nerland Oil and West Fargo Truck Stop. On August 14, 2002, Nerland Oil and West Fargo Truck Stop appealed, arguing the district court erred in affirming the arbitration decision, because the arbitration panel failed to decide the only issue in dispute, which was the issue of breach regarding the Belfield freight agreement.

[¶ 10] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. §§ 27-05-06 and 32-29.2-17. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. §§ 28-27-01 and 32-29.2-17.

II

[¶ 11] West Fargo Truck Stop argues the arbitration panel’s decision that the Belfield freight agreement had been suspended instead of breached was completely irrational and effectively drafted a new and arbitrary agreement between the parties.

[¶ 12] To find whether this Court can overturn an arbitration award, we must look to N.D.C.C. § 32-29.2-12(1), which states:

On application of a party, the court shall vacate an award if:
a. The award was procured by corruption, fraud, or other undue means;
b. There was evident partiality by an arbitrator appointed as a neutral, corruption in any of the arbitrators, or misconduct prejudicing the rights of any party;
c. The arbitrators exceeded their powers;
d. The arbitrators refused to postpone the hearing after sufficient cause was shown to postpone it or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to section 32-29.2-05, as to prejudice substantially the rights of a party; or
e. There was no arbitration agreement and the issue was not adversely determined in proceedings under section 32-29.2-02 and the party did not participate in the arbitration hearing without raising the objection.
The fact that the relief was such that it could not or would not be granted by a court of law or equity is not grounds for vacating or refusing to confirm the award.

[¶ 13] In O & K Glass Co. v. Innes Construction Co., Inc., this Court stated:

Under N.D.C.C. § 32-29.2-12(l)(c), an arbitration award may be vacated if the “arbitrators exceeded their powers”; however, we will vacate an arbitration award under this subsection only if it is “completely irrational.” Carlson v. Farmers Ins. Group of Companies— Farmers Ins. Exchange, 492 N.W.2d 579, 581 (N.D.1992). “[A] decision is completely irrational if it is either mistaken on its face or so mistaken as to result in real injustice or constructive fraud.” Byron’s Constr. Co. v. N.D. Dep’t of Tramp., 463 N.W.2d 660, 662 (N.D.1990) (citing Nelson Paving Co., Inc. v. Hjelle, 207 N.W.2d 225 (N.D. 1973)). An arbitrator’s mere mistake as to fact or law is not a sufficient ground for overturning an arbitration award. Carlson, at 582. As to the public policy underlying this strict standard of review, we have stated:
the effect of applying the clearly irrational standard of review is to give to the arbitrators every benefit of every doubt. It affords them the widest latitude to exercise their authority and arrive at their decision without the customary restraints of traditional judicial review. It is but a reflection of the strong public policy favoring the arbitration process.
Scherbenske Excavating, Inc. v. N.D. State Highway Dep’t, 365 N.W.2d 485, 489 (N.D.1985).

0 & K Glass Co. v. Innes Constr. Co., Inc., 2000 ND 56, ¶ 7, 608 N.W.2d 236.

[¶ 14] Even if an arbitrator’s decision is based on mistakes of law or fact, it is not a sufficient ground to overturn an award. Id. at ¶ 11. The lack of finality in an arbitrator’s decision is no longer a statutory reason to vacate an arbitration award. In Byron’s Constr. Co. v. North Dakota State Highway Dep’t, this Court noted:

When Scherbenske, supra, and Nelson, supra, were decided, Section 32-29-08(4), N.D.C.C., provided that an arbitration award could be vacated upon the grounds “that the arbitrators exceeded their powers, or that they so imperfectly executed them, that a mutual, final, and definite award on the subject matter submitted was not made.” That provision was amended in 1987 [S.L.1987, ch. 408, § 12.] to provide for the vacating of an arbitration award when “the arbitrators exceeded their powers” but deleting the remainder of the above quoted statutory language. The applicability of the irrational basis standard enunciated in Scherbenske, supra, and Nelson, supra, is unaffected by the statutory amendment, because the deleted language in the statute was not material to the litigation in those cases.

448 N.W.2d 630, 632 n. 2 (N.D.1989).

[¶ 15] West Fargo Truck Stop argues the arbitration panel exceeded its authority in granting a remedy that did not address the disputed issue of whether there was a breach of contract on the Belfield freight agreement. It claims the arbitration award required West Fargo Truck Stop to immediately perform an ongoing freight contract obligation after its trucks had been liquidated and it was no longer in a position to be able to perform under the agreement. Nerland argues that if this arbitration decision is upheld, Nerland will be expected to perform under the agreement, and because such performance will be impossible, Superpumper will hale them into court, and Nerland will be found to be in breach. Nerland argues the arbitrators should have rendered a decision on the issue of breach so the district court will not have to decide the same issue in the future.

[¶ 16] The arbitrators rendered a decision on the disputed issue presented. The arbitration award addressed the issue of whether Superpumper breached the contract, stating “the termination of the Exclusive Requirements Supply and Freight Agreement ... by Superpumper was justified and the contract was not breached by Superpumper.” The arbitrators’ decision specifically addressed the issue of breach, which indicates that the arbitrators did not wholly overlook the issue. We will not overturn an arbitration award simply because the arbitrators did not state which party breached the agreement. We conclude it is not irrational for an arbitration award to render a decision that may lack finality on a disputed issue even if that issue might be brought again at a later date. Byron’s Constr. Go., 448 N.W.2d at 682 n. 2.

[¶ 17] On appeal we were not provided a transcript of the arbitration hearing. This Court has explained, “[without a transcript, we would not be able to conduct a meaningful review of the ... [factual] finding[s].” Interest of C.J.C., 2000 ND 27, ¶ 6, 606 N.W.2d 117. Sabot v. Fargo Women’s Health Org., Inc., explains:

The appellant assumes the consequences and the risk for the failure to file a complete transcript. If the record on appeal does not allow for a meaningful and intelligent review of alleged error, we will decline review of the issue.

500 N.W.2d 889, 892 (N.D.1993) (quoting Lithun v. DuPaul, 447 N.W.2d 297, 300 (N.D.1989) (citations omitted)).

[¶ 18] Because West Fargo Truck Stop did not provide a transcript of the arbitration healing, we must review this issue under the limited record presented. Id. The record before us is sufficient to conclude the arbitration panel did not exceed its authority and the arbitration award is not clearly irrational.

III

[¶ 19] We affirm the district court’s judgment confirming the arbitration award.

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


author: NEUMANN, Justice.

text:
    2003 ND 29
    Justin NEIDVIECKY, Plaintiff and Appellant, v. Tina (Blawat) NEIDVIECKY, Defendant and Appellee.
    No. 20020176.
    Supreme Court of North Dakota.
    March 5, 2003.

      Sharon W. Martens, Hodny Currie Lawyers, Grafton, N.D., for plaintiff and appellant.
    Lawrence D. DuBois, Fleming & Du-Bois, Cavalier, N.D., for defendant and appellee.
   NEUMANN, Justice.

[¶ 1] Justin Neidvieeky appealed from a divorce judgment awarding custody of the parties’ minor child to Tina Neidvieeky and allocating the marital debt between the parties. We affirm the award of custody but we reverse the allocation of marital debt and remand for the trial court to reconsider that issue.

[¶ 2] Justin and Tina Neidvieeky were married November 20, 1998. Their daughter, Cassidy, was born in 1999. After Cas-sidy’s birth, Tina remained at home to care for her, but Tina is currently employed outside the home with Friendship, Inc., working with mentally handicapped individuals. During the marriage Justin worked at various jobs as an electrician, which required the parties to travel and live in several states. Although Justin has received training as an electrician, he needs to complete two tests before he can operate his own electrician business. He is currently employed by the Home Shop as a salesperson.

[¶ 3] While the family was living in Albuquerque, New Mexico they returned to North Dakota for the Christmas holiday. During that time Tina took Cassidy to visit Tina’s parents in Drayton and while there she informed Justin she was not returning to New Mexico. The parties separated after 25 months of marriage. On September 14, 2001 Justin filed a complaint seeking a divorce and custody of their child. Tina counterclaimed, also seeking a divorce and custody of Cassidy. After a bench trial, the court granted the parties a divorce on the grounds of irreconcilable differences, awarded custody of Cassidy to Tina with liberal visitation for Justin, and allocated the marital debt between the parties. Justin appealed, challenging the custody award and the debt allocation.

I

[¶ 4] Justin asserts the trial court erred in awarding Tina custody of Cassidy. In making an initial custody award, a trial court must determine the best interests and welfare of the child, considering the factors listed in N.D.C.C. § 14-09-06.2(1), which provides in part:

1. For the purpose of custody, the best interests and welfare of the child is determined by the court’s consideration and evaluation of all factors affecting the best interests and welfare of the child. These factors include all of the following when applicable:
a. The love, affection, and other emotional ties existing between the parents and child.
b. The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child.
c. The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.
d. The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.
e. The permanence, as a family unit, of the existing or proposed custodial home.
f. The moral fitness of the parents.
g. The mental and physical health of the parents.
h. The home, school, and community record of the child.
i. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
j. Evidence of domestic violence....
k. The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child’s best interests ....
l. The making of false allegations not made in good faith, by one parent against the other, of harm to a child as defined in section 50-25.1-02.
m. Any other factors considered by the court to be relevant to a particular child custody dispute.

A separate finding is not required for each factor, but the court’s findings should be stated with sufficient specificity to enable a reviewing court to understand the factual basis for the trial court’s decision. Dufner v. Dufner, 2002 ND 47, ¶ 17, 640 N.W.2d 694. We exercise a limited review of a child custody award in divorce cases, and the trial court’s custody determination is a finding of fact that will not be set aside on appeal unless it is clearly erroneous. Stoppler v. Stoppler, 2001 ND 148, ¶ 7, 633 N.W.2d 142. A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if no evidence exists to support it, or if the reviewing court, on the entire evidence, is left with a definite and firm conviction a mistake has been made. Kjelland v. Kjelland, 2000 ND 86, ¶ 8, 609 N.W.2d 100.

[¶ 5] A review of the trial court’s findings on the custody issue reveals the court conscientiously considered the factors under N.D.C.C. § 14-09-06.2(1). The court found that both Justin and Tina have a strong love for Cassidy and both have the capacity and disposition to provide her with material needs and to give her love, affection, guidance, and to continue her education. The court found the factor of continuity weighed in favor of Tina being the custodial parent, because Cassidy has been in Tina’s primary care all of her life with the exception of temporary visitation periods with Justin and his family. Although the primary caretaker of a child does not enjoy a paramount or presumptive status for receiving custody, it is a relevant factor to be considered by the trial court. DesLauriers v. DesLauriers, 2002 ND 66, ¶ 8, 642 N.W.2d 892.

[¶ 6] Justin contends the trial court did not sufficiently weigh Tina’s infidelity in deciding the custody issue. In deciding custody, it is appropriate for the trial court to consider the circumstances of a parties’ marital infidelity and weigh it according to its effect upon the child. See Gregg v. Gregg, 1998 ND 204, ¶ 10, 586 N.W.2d 312. The trial court found Tina had a single sexual encounter with another man during the marriage and, after the couple separated, Tina commenced living with a man. However, the court also found there was no evidence that Tina’s infidelities affected her ability to parent her daughter.

[¶ 7] Relative to the custody issue, the trial court found that Justin has a negative view of Tina and does not seem to be able to look at their situation in an open and objective manner. The court found Tina, as the custodial parent, is more likely to facilitate a continuing relationship between Cassidy and her father:

[W]e have two people who are good people who perhaps married too young, had a child right away and did not hold up well under the pressure and as a result did not treat each other very well. These combined choices and actions led to the end of this marriage.
I conclude that this factor [N.D.C.C. § 14 — 09—06.2(1) (b) ] weighs slightly in Tina’s favor because she demonstrates a more positive attitude towards Justin. She described him as a good father and seems able to separate the fact he may have treated her badly at times from his ability to parent their child. Tina therefore is better able to provide guidance and an environment free from criticism and negativity about Cassidy’s father, Justin.

This is a valid consideration by the trial court. Visitation between a child and a noncustodial parent is presumed to be in the best interests of the child. See Hurt v. Hurt, 2001 ND 13, ¶ 14, 621 N.W.2d 326.

[¶ 8] We conclude the trial court gave appropriate consideration to all of the relevant factors in deciding the custody issue. A trial court has a difficult choice to make in deciding custody between two fit parents, and this Court will not retry the case or substitute its judgment for the trial court’s, if that Court’s determination is supported by the record evidence. McDowell v. McDowell, 2001 ND 176, ¶23, 636 N.W.2d 139. Considering the evidence in a light most favorable to the trial court’s findings of fact, which are presumed correct, we conclude the trial court’s custody decision is not clearly erroneous.

II

[¶ 9] Justin asserts the trial court erred in allocating the marital debt between the parties. The parties owned a small amount of personal property which they divided between themselves by stipulation, and they submitted their debt for the court to allocate between them. The trial court found the parties had total outstanding debt of $17,078. The court allocated $12,940 of the debt to Justin and $4,138 of the debt to Tina. Of the total amount of outstanding debt, the court found $2,940 was owed to Justin’s parents, Albert and Linda Neidviecky. Justin contends the court erred in not including as marital debt the sum of $14,800 owed to Justin’s parents. Justin also contends the trial court did not equitably allocate the debt between the parties.

[¶ 10] When a divorce is granted, the trial court “shall make an equitable distribution of the property and debts of the parties.” N.D.C.C. § 14-05-24(1). All of the parties’ assets, regardless of the source, must be considered to ensure an equitable distribution of the marital property. Heinz v. Heinz, 2001 ND 147, ¶ 5, 632 N.W.2d 443. We have consistently held that property acquired before marriage must be included in the marital estate. Grinaker v. Grinaker, 553 N.W.2d 204, 208 (N.D.1996). In order to divide the net marital estate between the parties, the trial court must also allocate the debt. DesLauriers, 2002 ND 66, ¶ 21, 642 N.W.2d 892. Only after all assets and debts are included in the marital estate can a trial court apply the Ruff-Fiseher guidelines and consider the source of the property in making an equitable distribution. See Barth v. Barth, 1999 ND 91, ¶ 8, 593 N.W.2d 359; see also Fischer v. Fischer, 139 N.W.2d 845, 847 (N.D.1966) and Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107, 108 (1952).

[¶ 11] The trial court determined the total marital debt was $17,078. In allocating the debt between the parties the trial court properly considered their circumstances and other relevant factors:

Division of debt must be equitable or fair. Justin has a monthly income of $1215.00[J Tina has a current gross monthly income of $603.00. Justin has been trained as an electrician. If he writes and passes two tests he will be in a position to open his own business as an electrician. Tina does not have the same earning ability as Justin. The $10000.00 debt to SBA is a debt to repair a Four plex apartment that Justin owned. He had made plans to purchase this prior to the marriage.
Considering those factors as well as the factor of debts of the marriage paid by Justin during the one year separation the Court divides the marital debt.

There is no apparent error in this part of the debt allocation process by the court. However, in finding the total marital debt was $17,078 the trial court only considered $4,700 as marital debt out of a total claimed loan of $14,800 from Justin’s parents. In refusing to include as marital debt a substantial portion of this claimed loan, the trial court explained:

Justin claimed a total loan of $14800.00 however based on Exhibit # 6 a total of $4700 was borrowed during the marriage and payments of $1760 were made during the marriage. The balance is $2940.00[.] All other loan amounts were prior to the marriage or after the parties separated.

[Emphasis added.] The trial court did not make a finding that any part of this claimed loan was in fact a gift, or otherwise not a valid debt. The trial court’s statement demonstrates it would not consider as part of the marital debt any loan amounts incurred prior to the marriage or after the parties separated. We conclude this is an erroneous view of the law. Prior to dividing the marital estate, the trial court must determine the net marital worth by considering all property and debt accumulated by the parties. See Barth, 1999 ND 91, ¶ 8, 593 N.W.2d 359. In making an equitable distribution, justice requires use of the elementary accounting equation of assets minus liabilities to determine the net worth of the marital property. Emter v. Emter, 1999 ND 102, ¶ 6, 595 N.W.2d 16. Once all property and debts of the parties are included, a trial court may consider which of the parties has incurred particular debts, and the purposes for which those debts were incurred, in determining an equitable allocation of the responsibility for repayment. DesLauriers, 2002 ND 66, ¶21, 642 N.W.2d 892.

[¶ 12] In Anderson v. Anderson, 368 N.W.2d 566, 569 (N.D.1985), we held the trial court’s division of property was induced by an erroneous view of the law and, therefore, was clearly erroneous, because the trial court did not include farmland and mineral interests inherited by the husband as part of the marital estate. Similarly, in Gaulrapp v. Gaulrapp, 510 N.W.2d 620, 622 (N.D.1994), this Court held the trial court committed clear error when it treated gifted property received by the divorcing parties as separate property and excluded the value of the gifts from the marital estate. In both Gaul-rapp and Anderson this Court held the parties were entitled to a division of their property under a correct application of the law by the trial court, and we reversed and remanded those cases to the trial court for reconsideration of the property division issue.

[¶ 13] We cannot be sure the trial court would have reached the same result in allocating the debt had it correctly included all legitimate debt as part of the marital estate prior to allocating the debt between the parties. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law. Marschner n Marschner, 2002 ND 67, ¶ 4, 642 N.W.2d 857. Because the trial court did not apply the proper law in determining the marital estate, we cannot conclude the court’s allocation of the debt is affirmable. We, therefore, reverse and remand for reconsideration of the debt allocation.

[¶ 14] The district court judgment is affirmed in part, reversed in part, and remanded.

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

I concur in the result.

DALE V. SANDSTROM.


author: VANDE WALLE, Chief Justice.

text:
    2003 ND 31
    Stephen SIMPSON, Sheri Simpson, husband and wife, Plaintiffs and Appellants and Justin Simpson, Amanda Simpson, and Jeffrey Simpson, all minors, Plaintiffs v. CHICAGO PNEUMATIC TOOL COMPANY, Defendant and Appellee and Residual Materials, Inc. and Todd A. Clausnitzer, Defendants.
    No. 20020171.
    Supreme Court of North Dakota.
    March 5, 2003.
    Rehearing Denied March 26, 2003.

      Robert V. Bolinske (argued), Bismarck, N.D. and Charles T. Edin (appeared), Charles T. Edin, P.C. Law Office, Bismarck, N.D., for plaintiffs and appellants.
    Thomas H. Fegan (argued), Johnson & Bell, Ltd., Chicago, IL and Jerome C. Kettleson (appeared), Pearce & Durick, Bismarck, N.D., for defendant and appel-lee.
   VANDE WALLE, Chief Justice.

[¶ 1] Stephen and Sheri Simpson appealed from a judgment dismissing their products liability action against Chicago Pneumatic Tool Company and from an order denying their motion for a new trial. Simpsons argue the trial court abused its discretion in denying their motion for a new trial and their post-judgment motion to compel the production of all the original surveillance videotape taken by Thomas Twist in July 1997 and September 1999. We hold the trial court did not abuse its discretion in denying Simpsons’ motions, and we affirm the judgment and order.

I

[¶ 2] In 1996, Simpsons sued Chicago Pneumatic, Residual Materials, Inc., and Todd Clausnitzer. Simpsons alleged Chicago Pneumatic negligently manufactured pneumatic air tools that were used by Stephen Simpson while he worked at Residual Materials in 1991, and the pneumatic air tools were defective and unreasonably dangerous for the user. Simpsons alleged Stephen Simpson’s use of the pneumatic air tools caused him serious injuries, including “atypical reflex sympathetic dystrophy, in conjunction with occupational Raynaud’s phenomena.” Simpsons separately alleged Clausnitzer rear-ended a vehicle driven by Stephen Simpson in 1995, causing aggravation of injuries related to atypical reflex sympathetic dystrophy and occupational Raynaud’s phenomena. In 1997, the trial court dismissed Simpsons’ claim against Residual Materials under the exclusive remedy provisions of the workers compensation law. See N.D.C.C. §§ 65-01-08, 65-04-28, and 65-05-06. In 1998, Simpsons settled their claims against Clausnitzer. In April 2000, a jury found Chicago Pneumatic was not negligent, the pneumatic air tools were not defective and unreasonably dangerous, and the pneumatic air tools did not cause Simpsons’ injuries.

[¶ 3] In response to Chicago Pneumatic’s request for costs, Simpsons questioned whether Chicago Pneumatic had provided them with all of the original surveillance videotape taken by investigator Thomas Twist in July 1997 and in September 1999. During pretrial discovery, Simpsons had asked Chicago Pneumatic if there were “any photographs, video recordings, or moving pictures related to this case” and to “produce any and all of the aforementioned photographs, video recordings, or moving pictures.” Chicago Pneumatic answered that it had taken surveillance “[vjideo of Stephen Simpson at Lake [Sa-kakawea] and in Ray[, North Dakota] on July 3-4, 1997 and September 3-4, 1999,” and “[a]ll of the photographs and video recording or moving pictures have been disclosed.” At trial, a videotape recorded on July 3-4, 1997 and on September 3-4, 1999 was introduced into evidence.

[¶ 4] After trial, Simpsons’ “suspicions” that Chicago Pneumatic had not provided them with all the original surveillance videotape taken by Twist “were aroused.” Simpsons moved for a new trial, claiming Chicago Pneumatic had failed to provide them with all the original surveillance videotape. In conjunction with their motion for new trial, Simpsons moved to depose Twist. The trial court granted Simpsons’ request to depose Twist, and he testified in his deposition that some videotaping on July 2-4, 1997, and on September 3-4, 1999, had not been provided to Simpsons. According to Twist, the videotape provided to Simpsons during discovery and introduced at trial did not include all the videotaping he did on July 2-3, 1997 and on September 3, 1999, but Stephen Simpson was not on any of the videotape that had not been provided to Simpsons. Simpsons moved to compel production of all the original videotapes taken by Twist. Simpsons claimed the videotape that had been produced in response to their discovery request and introduced at trial was not a true, accurate and complete representation of all the videotape taken during Twist’s surveillance of Stephen Simpson.

[¶ 5] The trial court denied Simpsons’ motion to compel production of the original surveillance videotape, concluding no surveillance videotape of Stephen Simpson had been concealed or withheld. The court also ruled even if there were additional surveillance videotape of Stephen Simpson, that videotape would not have affected the outcome of the case because it concerned the extent of Simpsons’ damages and the jury found no liability on the part of Chicago Pneumatic. The court denied Simpsons’ motion for a new trial.

II

[¶ 6] Chicago Pneumatic has moved to dismiss Simpsons’ appeal, claiming it is moot. Chicago Pneumatic argues Simpsons’ appeal is moot because the issues raised by them on appeal relate only to damages and the jury found against them on liability. Chicago Pneumatic argues any alleged error relating to damages is harmless.

[¶ 7] We will dismiss an appeal if the issues become moot and no actual controversy is left to be decided. Ashley Educ. Ass’n v. Ashley Pub. Sch. Dist., 556 N.W.2d 666, 668 (N.D.1996). Mootness is a threshold issue we decide before reaching the merits of an appeal. Bland v. Commission on Med. Competency, 557 N.W.2d 379, 381 (N.D.1996). An appeal is moot when an appellate court is unable to render effective relief due to the lapse of time, or the occurrence of an event before the appellate court renders its decision. Id. See N.D.R.App.P. 42(c) (“When an issue before the court may have become moot due to a change in circumstance, the parties shall advise the court in writing about the change in circumstance and explain why appeal of the issue should or should not be dismissed”).

[¶ 8] Chicago Pneumatic’s mootness argument does not raise issues stemming from the lapse of time, or the occurrence of an event after the trial court’s decision and before this Court’s consideration of this appeal. See DeCoteau v. Nodak Mut. Ins. Co., 2001 ND 182, ¶ 17, 636 N.W.2d 432 (holding satisfaction of judgment rendered appeal moot); In Interest of E.T., 2000 ND 174, ¶¶ 4, 6, 9, 617 N.W.2d 470 (holding patient’s subsequent release from hospital and termination of involuntary feeding rendered appeal of involuntary medication order moot); Ashley, 556 N.W.2d at 667-68 (holding conclusion of contract negotiations and issuance of teacher contracts rendered appeal moot). Rather, Chicago Pneumatic essentially asserts Simpsons’ videotape issue is harmless because the jury decided against them on liability. Simpsons respond the videotape issue is not harmless and their appeal is not moot, because the videotape was Chicago Pneumatic’s primary piece of evidence at trial and was inextricably tied to the jury’s verdict on liability. We have said a decision by the trier of fact on one issue may render some issues raised on appeal moot. See Praus ex rel. Praus v. Mack, 2001 ND 80, ¶23, 626 N.W.2d 239; Brown v. Brown, 1999 ND 199, ¶ 24, 600 N.W.2d 869; Jerry Harmon Motors, Inc. v. First Nat’l Bank and Trust Co., 472 N.W.2d 748, 755 (N.D.1991); State v. Brown, 337 N.W.2d 138, 153 (N.D.1983). Here, the parties’ arguments about damages and liability are sufficiently intertwined to preclude potential mootness. We conclude Simpsons’ appeal is not moot, and we deny Chicago Pneumatic’s motion to dismiss.

Ill

[¶ 9] Simpsons argue Chicago Pneumatic’s flagrant violation of the rules of discovery require the production of all of Twist’s original surveillance videotape and a new trial.

[¶ 10] A trial court’s discovery decision will not be reversed on appeal absent an abuse of discretion. Bertsch v. Duemeland, 2002 ND 32, ¶ 33, 639 N.W.2d 455. We also review a trial court’s denial of a motion for a new trial under the abuse-of-discretion standard. Schaefer v. Souris River Telecomms., 2000 ND 187, ¶ 14, 618 N.W.2d 175. An abuse of discretion by a trial court is never assumed and must be affirmatively established. US Bank Nat’l Ass’n v. Arnold, 2001 ND 130, ¶ 23, 631 N.W.2d 150. A trial court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably, when its decision is not the product of a rational mental process leading to a reasoned determination, or when it misapplies or misinterprets the law. Schaefer, at ¶ 14.

[¶ 11] Here, in denying Simpsons’ motion to compel production of the original surveillance videotape and their motion for a new trial, the trial court said:

I think the easy thing to do for me here would be simply to say I’m granting the motion, give them all the tapes, but I’ve read everything and I’ve re-read basically the entire file before this hearing, and I’m just — I don’t believe that if tapes exist — well first of all, I want to say that, again we might be getting into a semantic argument, but it’s my opinion that [Chicago Pneumatic] complied with the Court’s order as the Court wrote the order, and maybe I should have been less specific in the order and just should have said give them all the video tapes and let them decide. But the order did say relevant or related, I don’t know the exact wording, but having to do with Stephen Simpson, and I think a logic common sense reading of that is that if tapes showed Mr. Simpson that they should be turned over, and reading Mr. Twist’s deposition, I don’t believe that there’s any evidence that — tapes that showed Mr. Simpson exists that have been concealed or withheld from [Simpsons]. If there are such tapes, I’m not convinced that there’s any evidence that whatever they were showing Mr. Simpson doing, would result in a new trial. As [counsel for Chicago Pneumatic] pointed out, there would have to be some significant material, new evidence or change in the evidence in order for the Court to grant a new trial. And, you know, it would be against speculation to try and read the jury’s mind as to what they felt was significant or not significant, but the simple fact is is that we didn’t even get to the issue of damages which would be in essence how serious Mr. Simpson’s claimed injuries are. We didn’t even get to that point. The jury decided that there hadn’t been anything that happened to Mr. Simpson that was the fault of [Chicago Pneumatic], So based on the deposition, or the, ya, the deposition taken of Mr. Twist, and what tapes exist, I first of all think that [Chicago Pneumatic has] been in compliance with the Court’s order regarding what they were suppose to turn over to [Simpsons]. And secondly I think that there isn’t anything that establishes that grounds for a new trial would be able to be produced or raised even, and I’m starting to get repetitive, but even if those tapes showed something more, so. I believe [Simpsons’] motion to compel is denied.
I guess that leaves pending still the motion for a new trial, and my understanding, and somebody can correct me if I’m wrong, but my understanding was that the, and I made a note of this, on February 2nd, 2001, [Simpsons] had indicated that they were not pursuing any issues except the video tape issue. So based on my ruling, it would appear to me that there isn’t anything else upon which [Simpsons] could base their request for a new trial. So, I mean, if you want to address that, I certainly would be happy to hear any arguments, but unless I hear something else, I’m going to deny the motion for a new trial as well.

[¶ 12] The trial court’s decision was the product of a rational mental process leading to a reasoned decision and was not based on a misapplication of the law. The court found Chicago Pneumatic had not failed to disclose any videotape that showed Stephen Simpson. Simpsons were not precluded from fully examining Twist during his deposition, and Twist testified during his deposition that although he took additional surveillance videotape that had not been provided to Simpsons, Stephen Simpson was not on any of that videotape.

[¶ 13] During discovery and the post-trial proceedings, Chicago Pneumatic initially claimed all the videotape had been provided to Simpsons, but Chicago Pneumatic’s counsel eventually explained to the trial court that all the videotape had not been provided to Simpsons because they had “never asked for all unedited, unabridged video tapes ever taken. [They] said related to this case. And straight from your order, surveillance of Stephen Simpson.” Chicago Pneumatic’s discovery responses and post-trial statements about the surveillance videotape are less than candid and are not consistent with the underlying purposes of discovery to clarify issues, eliminate surprises, and achieve truth. See 6 James Wm. Moore, et al., Moore’s Federal Practice ¶ 26.02 (3rd ed.2002). We do not condone Chicago Pneumatic’s responses and conduct. On this record and in this post-trial posture, however, we are not persuaded the trial court acted arbitrarily, unconscionably, or unreasonably in denying Simpsons’ motion to compel production of all the original surveillance videotape and in denying Simpsons’ motion for a new trial. The court therefore did not abuse its discretion.

TV

[¶ 14] We affirm the judgment and order.

[¶ 15] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.


author: KAPSNER, Justice.

text:
    2003 ND 36
    STATE of North Dakota, Plaintiff and Appellee, v. Joseph Paul JAHNER, Defendant and Appellant.
    No. 20020143.
    Supreme Court of North Dakota.
    March 5, 2003.

      Ladd R. Erickson, Assistant State’s Attorney, Mandan, ND, for plaintiff and ap-pellee.
    Chad R. McCabe, Vinje Law Firm, Bismarck, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Joseph Paul Jahner (“Jahner”) appeals from a criminal judgment entered upon a jury verdict finding him guilty of negligent homicide, reckless endangerment, and driving while under the influence of intoxicating liquor. We conclude Jahner waived his right to object to the trial court’s procedure in responding to the jury’s request, during deliberations, for a transcript of Jahner’s testimony; the trial court did not err in refusing to instruct the jury on the definition of proof beyond a reasonable doubt; and the jury verdict is not legally inconsistent. We affirm.

I

[¶ 2] On December 22, 2000, David Smith, Jr. (“Smith”) was killed in a vehicle crash and four other people, including Jah-ner, were injured. The State alleges Jah-ner was driving the vehicle at the time of the accident. Jahner contends he was seated in the front passenger’s seat of the vehicle. Jahner concedes he was under the influence of alcohol at the time of the accident. Jahner was charged with manslaughter, in violation of N.D.C.C. § 12.1-16-02, for recklessly causing the death of Smith; reckless endangerment, in violation of N.D.C.C. § 12.1-17-03, for recklessly endangering the lives of the other three passengers and the public; and driving under the influence of intoxicating liquor, in violation of N.D.C.C. § 39-08-01.

[¶ 3] Prior to trial, the State requested the jury be instructed with the pattern jury instruction on proof beyond a reasonable doubt. The trial court decided the definition of proof beyond a reasonable doubt would not be given unless 'the jury asked a question about it during deliberations. On March 12 and 13, 2002, trial was held. While the jury was deliberating, the jurors requested the transcript of Jahner’s testimony. In reply to an inquiry from the court the jury indicated they were “in disagreement about Mr. Jahner’s memory and the period of time that the memory loss included.” The trial court and counsel for both parties agreed to respond to the jury’s request with a note instructing the jury to rely on their recollection of the testimony to resolve the disagreement. On March 13, 2002, a jury found Jahner not guilty of manslaughter; guilty of the lesser-included offense of negligent homicide; guilty of reckless endangerment; and guilty of driving while under the influence of intoxicating liquor.

[¶4] Jahner appealed from the judgment arguing the trial court erred by failing to provide a full transcript of Jahner’s testimony after the jury requested it and by refusing to include the definition of proof beyond a reasonable doubt in the jury instructions. Jahner also argues the conviction for reckless endangerment should be reversed because the jury returned an inconsistent verdict.

II

[¶ 5] Jahner argues the trial court erred under N.D.C.C. § 29-22-05, by failing to provide to the jury the transcript of Jahner’s testimony after the jurors requested it during deliberations.

[¶6] Section 29-22-05, N.D.C.C., provides:

After the jurors have retired for deliberation, if they desire to be informed on a point of law arising in the case, or to have any testimony about which they are in doubt or disagreement read to them, they, upon their request, must be conducted into the courtroom by the officer who has them in custody. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the state’s attorney and the defendant or his counsel, or after they have been called.

After a case has been submitted to the jury, N.D.C.C. § 29-22-05 “unequivocally directs the testimony [requested by the jury] be given at the jury’s request.” State v. Hartsoch, 329 N.W.2d 367, 372 (N.D.1983). However, to save time and avoid confusion, a trial court may request the jury to specify the testimony it desires to rehear. State v. Christensen, 1997 ND 57, ¶ 11, 561 N.W.2d 631.

[¶ 7] In this case, the jury sent a note to the court requesting “Transcript of Joseph Jahner testimony.” The court convened in the courtroom outside the presence of the jury. The court discussed N.D.C.C. § 29-22-05 and stated:

I’m open to suggestions but my intention would be to inform the jurors that if they have a specific question or disagreement about a portion of the testimony, that we can have that read back to them-or I don’t know, Lisa, how you do it, if you play it for them or what you would do but in any event-and otherwise, the entire repeat of his whole testimony wouldn’t-any problem with that [?]

Defense counsel responded his “preference would be perhaps to put a question to them. Do you have a specific disagreement?” and “maybe even ask -with regard to what or something like that so we can get some feeling back from them.” The court and the State agreed with defense counsel’s approach and sent the following question to the jury: “Do you have a doubt or disagreement over a specific part of Mr. Jahner’s testimony. If so, what doubt or disagreement do you have?” The jury responded “[w]e are in disagreement about Mr. Jahner’s memory and the period of time that the memory loss included.” After some discussion, the court and counsel for both parties agreed the response to the jury would be: “You are to rely on your recollection of the testimony to resolve the disagreement.” Defense counsel stated this response was “acceptable to the defense.”

[¶ 8] N.D.C.C. § 29-22-05 confers a statutory right upon a defendant to have the jury brought into the courtroom and to have the information requested by the jury given to it. See State v. Ash, 526 N.W.2d 473, 484 (N.D.1995) (Neumann, J„ concurring specially) (noting a defendant’s right under N.D.C.C. § 29-22-05 to have all responses to jury questions be given to the jurors in the courtroom is a statutory right). Statutory rights may be waived by the party entitled to the benefit unless a waiver would be against public policy or the statute declares or implies there cannot be a waiver. Brunsoman v. Scarlett, 465 N.W.2d 162, 167 (N.D.1991).

[¶ 9] Litigants seeking “to take advantage of irregularities occurring during the course of a trial, either on the part of the court, the jury, the adverse parties, or anyone acting for or on their behalf, ... must do so at the time the irregularities occur, in order that the court may take appropriate action, if possible, to remedy any prejudice.” Leake v. Hagerb, 175 N.W.2d 675, 690 (N.D.1970). As a general rule, “[o]ne who fails to raise an appropriate objection at the trial court level waives [the] right and cannot raise the issue for the first time on appeal.” State v. Palmer, 2002 ND 5, ¶ 8, 638 N.W.2d 18. “[T]he doctrine of waiver is applicable to all rights and privileges to which a person is legally entitled, whether secured by contract, conferred by statute, or guaranteed by the constitution, provided such rights and privileges rest in the individual who has waived them and are intended for his benefit.” Gajewski v. Bratcher, 221 N.W.2d 614, 628 (N.D.1974).

[¶ 10] Jahner’s attorney had the opportunity but failed to object to the trial court’s procedure in responding to the jury’s request. While N.D.C.C. § 29-22-05 directs that the trial court should have provided Jahner’s testimony to the jury at its request, Jahner’s attorney did not object and approved the court’s response to the jury’s request. We conclude Jahner waived his right to claim error for the trial court’s procedure in responding to the jury’s request.

Ill

[¶ 11] Jahner argues the trial court committed reversible error by denying the State’s request, upon which Jahner relied, to instruct the jury on the definition of reasonable doubt. Alternatively, Jahner argues the trial court committed obvious error by failing to include the definition of proof beyond a reasonable doubt in the jury instructions.

[¶ 12] N.D.R.Crim.P. 30 describes the procedure for requesting and objecting to jury instructions. Under N.D.R.Crim.P. 30(c), counsel must designate the jury instructions that are objectionable and only those instructions so designated are deemed excepted by counsel. State v. Olander, 1998 ND 50, ¶9, 575 N.W.2d 658. “ ‘An attorney’s failure to object at trial to instructions, when given the opportunity, operates as a waiver of the right to complain on appeal of instructions that either were or were not given.’ ” Id. at ¶ 10 (quoting State v. Johnson, 379 N.W.2d 291, 292 (N.D.1986)). Because Jahner’s attorney did not object at trial to the court’s refusal to instruct the jury on the definition of proof beyond a reasonable doubt when he was given the opportunity, we conclude Jahner waived his right to complain on appeal about the jury instructions. Thus, our inquiry is limited to determining if the alleged error constitutes obvious error affecting the substantial rights of the defendant. State v. Murphy, 527 N.W.2d 254, 255 (N.D.1995).

[¶ 13] “Jury instructions must correctly and adequately inform the jury of the applicable law and must not mislead or confuse the jury.” Olander, 1998 ND 50, ¶ 18, 575 N.W.2d 658. We review jury instructions as a whole and consider whether they correctly advise the jury on the law. Id. The United States Supreme Court has stated “[t]he beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course.” Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994). “[S]o long as the court instructs the jury on the necessity that the defendant’s guilt be proved beyond a reasonable doubt, the Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof.” Id. (citations omitted).

[¶ 14] “This [C]ourt has long recognized the difficulty in defining reasonable doubt and has neither required nor prohibited” a definition on reasonable doubt. State v. Schneider, 550 N.W.2d 405, 408 (N.D.1996). We have concluded, however, reversible error results if a court gives a jury instruction on reasonable doubt and the language in the instruction is contrary to the law. State v. Azure, 525 N.W.2d 654, 659 (N.D.1994).

[¶ 15] In this case, the jury was instructed the burden of proof rests on the State, and the State satisfies its burden only if the evidence proves to the jury’s satisfaction the essential elements of each offense charged beyond a reasonable doubt. We conclude the trial court’s instructions, as a whole, correctly and adequately advised the jury of the law. The trial court was not required to and did not err when it refused to instruct the jury on the definition of proof beyond a reasonable doubt.

rv

[¶ 16] Jahner argues the conviction for reckless endangerment should be reversed and the count dismissed from the indictment because the jury verdict is repugnant. Jahner asserts that since the jury acquitted him on the charge of manslaughter, it rejected the notion he was reckless; therefore, the verdict finding him guilty of reckless endangerment is inconsistent and repugnant.

[¶ 17] Jahner argues the jury verdict in this case is repugnant. Some courts have attempted to distinguish “inconsistency” from “repugnancy” in verdicts containing multiple counts. See Steven T. Wax, Inconsistent and Repugnant Verdicts in Criminal Trials, 24 N.Y.L.Sch. L.Rev. 713, 716 (1979). However, this Court’s standard for reconciling a jury verdict is whether the verdict is legally inconsistent. See State v. Swanson, 225 N.W.2d 283, 285 (N.D.1974). Therefore, we will examine Jahner’s argument under our standard of legal inconsistency.

[¶ 18] In this case, Jahner was charged in Count 1 with manslaughter for “[r]eck-lessly causing the death of another human being, namely David Smith, Jr., by operating a motor vehicle while under the influence of intoxicating liquor, with a blood alcohol level well in excess of the legal limit, and with extreme speed in a reduced speed zone.” The jury was also instructed on the lesser-included offense of negligent homicide for the crime of manslaughter. Jahner was charged in Count 2 with reckless endangerment for “recklessly endangering] the lives of the three (3) other passengers and the public by operating a motor vehicle while under the influence of intoxicating liquor, with a blood alcohol level well in excess of the legal limit, and with extreme speed in a reduced speed zone.” The jury acquitted Jahner of manslaughter, found him guilty of the lesser-included offense of negligent homicide, and guilty of reckless endangerment.

[¶ 19] “[S]trict standards of logical consistency need not be applied to jury verdicts in criminal cases.” Swanson, at 285. “Reconciliation of a verdict, therefore, includes an examination of both the law of the case and the evidence in order to determine whether the verdict is logical and probable and thus consistent, or whether it is perverse and clearly contrary to the evidence.” Barta v. Hinds, 1998 ND 104, ¶ 6, 578 N.W.2d 553 (internal quotations omitted). Under N.D.C.C. § 12.1-16-02, the required culpability for the offense of manslaughter is recklessly; recklessly is also the culpability required for the offense of reckless endangerment under N.D.C.C. § 12.1-17-03. State v. Hanson, 256 N.W.2d 364, 367 (N.D.1977). In this case, the apparent inconsistency to be reconciled is whether it is legally inconsistent for the jury to acquit Jahner of manslaughter and find Jahner guilty of reckless endangerment because both offenses require the same level of culpability. In State v. Moran, 474 N.W.2d 77, 78 (N.D.1991), we addressed inconsistency in a jury verdict which acquitted the defendant on the charge of aggravated assault but convicted the defendant of unlawful possession of a firearm. The defendant, in Moran, “argue[d] that.because the jury, by its verdict of acquittal on the aggravated assault charge, must have determined that he used the gun in self defense, the jury should also have acquitted him of unlawful possession of a firearm on the basis of self defense.” Id. This Court concluded there was substantial evidence showing the defendant knowingly possessed the gun prior to the altercation; therefore, there is no inconsistency in the verdicts. Id.

[¶20] Applying the analysis in Moran, we examine each charge separately and analyze if the evidence supports the conviction to determine if the jury returned an inconsistent verdict. In this case, Jahner was charged with manslaughter for the death of Smith and reckless endangerment for endangering the public and the lives of the three other passengers in the vehicle. The level of culpability for an offense is analyzed at the time a person engaged in the conduct which constituted an offense. See N.D.C.C. §§ 12.1-02-01 and 12.1-02-02(1). In this case, the evidence permits the jury to find the culpability level related to the death of one passenger different from the culpability level determined for the period prior to the death when the passengers asked Jahner to slow down. One of the passengers in the car testified that prior to the accident the passengers were hollering at Jahner, who was driving the vehicle, to slow down but he would not listen.

[¶ 21] “The tasks of weighing the evidence and judging the credibility of witnesses belong to the jury.” State v. Purdy, 491 N.W.2d 402, 410 (N.D.1992). We will not second-guess why the jury acquitted Jahner of manslaughter. See Purdy, at 410 (stating “this [CJourt must assume that the jury believed the evidence which supports the verdict and disbelieved any contrary evidence.”'); see also Dunn v. United States, 284 U.S. 390, 393-94, 52 S.Ct. 189, 76 L.Ed. 356 (1932) (concluding jury verdicts will not be upset by speculation). Even if a jury fails to convict a defendant on a charge having a similar element to a charge on which the defendant is convicted, there is no legal’ inconsistency if there is substantial evidence to support the charge on which he is convicted. Thus, we conclude, as we did in Moran, there is no inconsistency in a verdict in which there is substantial evidence establishing the defendant committed reckless endangerment, even though the jury found the defendant not guilty of manslaughter which also has the element of recklessness. Because the evidence supports the jury’s finding that Jahner recklessly endangered the lives of the passengers prior to the death of Smith, we conclude the verdict is supported by the evidence and it is not legally inconsistent.

V

[¶22] We conclude Jahner waived his right to object to the trial court’s procedure in responding to the jury’s request for testimony; the trial court did not err when it refused to instruct the jury on the definition of proof beyond a reasonable doubt; and the jury verdict is not legally inconsistent. The judgment of the trial court is affirmed.

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