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    STATE of Iowa, Appellee, v. Keith Brainerd CAREY, Sr., Appellant.
    No. 03-1953.
    Supreme Court of Iowa.
    Feb. 10, 2006.

      Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kim Griffith, Assistant County Attorney, for appellee.
   LARSON, Justice.

Keith Carey, Sr. was convicted by a jury of willful injury causing serious injury, Iowa Code § 708.4 (2001), and going armed with intent, Iowa Code § 708.8. Carey appealed, and the court of appeals affirmed. On further review, we also affirm.

I. Facts and Prior Proceedings.

The record, when viewed favorably to the verdict, revealed that the defendant and Anthony VonMoore, the victim, were neighbors. About 9:30 p.m. on May 14, 2003, VonMoore, who was heavily intoxicated (later testing .273), decided to visit Carey at Carey’s house. After a short visit, VonMoore started to go home. On his way out of Carey’s house, VonMoore mentioned that Carey owed VonMoore’s employer $50. Carey became enraged, grabbed a long-bladed knife, and pursued VonMoore out the door, saying that he was going to “get” him. VonMoore turned around and saw Carey swinging the blade. VonMoore suffered five cuts, including one over his left eye and another that severed a tendon and an artery in his thumb.

Several witnesses claimed they saw Carey standing on his front porch, waving a knife (or, according to some testimony, two knives). Natalie, one of the defendant’s daughters, realized that VonMoore was seriously injured and called 911. This enraged Carey even further. While Natalie was on the phone, Carey pushed her down while holding a knife. Police and medical personnel arrived, tended to VonMoore, and arrested Carey.

Carey, who claims self-defense, had a different account of the events. According to Carey, VonMoore came to Carey’s house at 9 p.m. and lured Carey outside where he hit Carey on the back of his head while his back was turned. Carey said VonMoore hit him repeatedly and threatened to injure Carey’s daughter and granddaughter if Carey did not give him money. According to Carey, the beating at the hands of VonMoore was serious, testifying that “he hit me many times” and “my head was scrambled up pretty bad. There was nothing I could do.” The results, Carey claimed, were a bloody nose, sore jaw, sore ribs, and a missing tooth filling.

Carey’s account of the incident continued: after VonMoore let him go, Carey went to his bathroom to clean up his wounds. While in the bathroom, Carey heard someone enter his house through the front door. He glanced toward the door and saw VonMoore going up the stairs. Carey lunged toward VonMoore, tackling him on the stairs. A skirmish ensued, during which, according to Carey, VonM-oore drew a utility knife. Carey took the knife away from VonMoore and used it against VonMoore in self-defense. All of this, according to Carey, took place in the foyer of his house, directly below his daughter Natalie’s bedroom.

On appeal, the defendant argues (1) the district court failed to give an instruction on provocation and (2) his trial counsel was ineffective for failing to object to several instances of prosecutorial misconduct.

II. Jury Instructions.

Carey’s theory at trial was self-defense; however, at the end of the trial, he also sought to include a jury instruction on provocation. The district court sustained the State’s objection to the instruction because it was not supported by the evidence.

Issues regarding jury instructions are generally reviewed for correction of errors at law. State v. Breitbach, 488 N.W.2d 444, 449 (Iowa 1992).

In this case, Jury Instruction No. 19 read in part:

A person is justified in using reasonable force if he reasonably believes the force is necessary to defend himself from any imminent use of unlawful force. If the State has proved any one of the following elements, the defendant was not justified:
1. The defendant started or continued the incident which resulted in injury.

The defendant claims that the court erred by failing to include the following instruction:

If the defendant provoked the use of force, but [the victim] used force greatly disproportionate to the provocation and it was so great that the defendant reasonably believed he was in imminent danger of death or injury, he is not considered to have provoked the incident and his acts would be justified.

He claims the facts of the case supported this instruction because, under his version of the events, he initiated the second scuffle between himself and VonMoore when VonMoore entered his house. He claims that the jury could have concluded that he “started” the second incident, since the first attack had ended. Thus, he argues this instruction was necessary because VonMoore used force “greatly disproportionate to the provocation” when he drew his utility knife.

We agree with the court of appeals’ resolution of this issue. It stated:

If we accept the defendant’s version of the altercation, he did not provoke the attack, but rather was attacked first by VonMoore. If we accept VonMoore’s version, he made some comments about money, was attacked by the defendant, and only tried to defend himself against a knife attack. Neither version supports an instruction [that] the defendant provoked an attack by VonMoore or that VonMoore responded with “greatly disproportionate” force.

A jury could not have believed Carey’s version of the events and also found that he provoked an attack by VonMoore. The court did not err in refusing to instruct on provocation.

III. The Ineffective-Assistance-of-Counsel Claim.

Carey contends that the assistant county attorney committed misconduct on several occasions throughout the trial and during closing arguments. .Because his trial counsel did not object to any of these alleged improprieties, he challenges them through an ineffective-assistance-of-counsel claim.

State v. Graves, 668 N.W.2d 860 (Iowa 2003), established a framework for evaluating claims of prosecutor misconduct. .In that case, involving manufacturing and possession of marijuana, the state was required to prove that Graves had constructive possession by exercising control over marijuana found in different areas of a house owned by one of his friends. At trial, the state called only one witness, Officer Jason Steil, who had arrested and interrogated Graves. Id. at 866. The case rested in large part on the state’s ability to prove that Graves lived at that house, which in turn rested on Officer Steil’s testimony. In that testimony, Officer Steil recounted much of his conversation with Graves, during which he claimed Graves admitted to living at the house. Id.

After the prosecution rested, Graves testified on his own behalf. He claimed he did not live at the house; rather, he simply stored some of his belongings there and had little or no access to the rooms where the marijuana was found. Further, he claimed that Officer Steil apparently misunderstood much of what Graves said during their conversation. Id. at 867.

Realizing that the case would turn on witness-credibility issues, the prosecutor mounted what this court described as “a full attack” on Graves’ credibility. Id. at 879. Graves was convicted and, on his appeal, he made a claim identical to the one in this case: his trial counsel was ineffective for failing to object to several instances of prosecutorial misconduct. This court agreed and reversed and remanded for a new trial. Id. at 884. Graves established rules to be applied in analyzing misconduct claims, and we apply them here.

Carey’s claims of misconduct can be grouped into four categories: (1) asking a “was he lying” question; (2) distorting, on cross-examination, the defendant’s direct-examination testimony; (3) making statements during closing argument that were unsupported by the record; and (4) stating that the defendant’s version of events was untruthful.

A. The “was he lying” question. In Graves, we held that it is misconduct, under any circumstances, for a prosecutor to ask a witness to comment on the veracity of another witness, Graves, 668 N.W.2d at 873, because such questions (1) tend to invade the province of the jury to determine witness credibility; (2) have no probative value and tend to be argumentative; (3) may mislead the jury, as they imply that the jury must find that a state’s witness is lying in order to convict the defendant; (4) are solely designed to make the defendant look bad regardless of the answer given; and (5) are inconsistent with the prosecutor’s duties of seeking justice and insuring a fair trial. Id. at 871-73.

In Carey’s case, the State called Dr. Rajendra Singh to testify. Dr. Singh stated that he fully examined Carey when the police brought him to the hospital, and during that examination, he did not see any signs of injury nor did Carey complain of any injuries. Later, following the defendant’s direct testimony in which he described the attack in which VonMoore allegedly injured him severely, the prosecutor asked Carey the following questions:

Q. And you didn’t make any complaint to the doctor about any of this; did you? A. I fail to differ, ma'am. Yes, I did.
Q. You didn’t tell them about all of this stuff you told us; have you? A. I told that man enough to get me some Tylenol.
Q. Well according to the doctor he said that you did not complain to any injuries, you just asked for Tylenol. That’s what he said. A. According to the doctor, as I recall, he said that he, you know, touched me, examined me, which never happened.
Q. So you’re saying the doctor lied; is that what you’re telling us? A. I’m saying that the doctor operated off of a set of notes that he happened to have with him.
Q. Can you give us any reason — I mean does the doctor have some prior relationship with you? A. I’ve never seen that gentleman before in my life.
Q. So there would be no reason that you know of for the doctor to come in and make something up. A. I never said that somebody fabricated anything, ma'am.

(Emphasis added.) In Graves this court adopted a “bright-line rule that bars such inquiries without exception.” Graves, 668 N.W.2d at 873. While Graves was filed shortly after this case was tried, the principles underlying that case existed at the time of Carey’s trial, based on the authorities set out in Graves. We conclude the prosecutor’s question was misconduct. Unlike in Graves, however, in which the credibility of the defendant and the sole prosecution witness was the key to the issue of guilt, the question in the present case as to whether Carey was truthful about his medical examination was only collaterally relevant to the key issue, i.e., whether he had inflicted injury upon another person. The prosecutor’s improper question, however, is relevant in assessing prejudice, which we discuss later.

B. Prosecutor’s misstatement of the defendant’s testimony. The defendant contends that, during his cross-examination by the prosecutor, the prosecutor elicited improper bad-acts evidence. On direct examination, Carey had testified:

Q. Were you upset with [Natalie, the defendant’s daughter,] calling 911 about this incident? A. Yeah, I was.
Q. Why? A. Why — why would she call the police on me? I mean I’m the one that got beaten up. I’m the one that got threatened. I’m the one that he threatened to kill.
Q. Then what happened? A. It’s all a blur — I mean — It’s—Natalie says I knocked her down. I don’t remember knocking her down. I just don’t. I don’t see why I would knock her down. Hell, she’s my daughter.

On the prosecutor’s cross-examination of Carey, she treated Carey’s statement on direct examination that, “I don’t see why I would knock her down,” as if Carey had denied ever hurting her. In response the prosecutor got Carey to admit that, in 2000, he had assaulted his daughter by choking her.

Carey contends that the prosecutor misquoted his direct examination in which he had not mentioned the event that occurred in 2000. The result, he claims, was to introduce prior bad-acts evidence. The State counters that Carey opened the door for this question about his earlier choking of his daughter by denying that he would hurt her. Ordinarily, bad-acts evidence may not be used except in limited circumstances. See Iowa Rs. of Evid. 5.403, 5.404(6). That is so because a defendant should be tried for what he allegedly did, not for who he is. The State argues that Carey’s direct testimony opened the door for the prosecution to inquire into the earlier event in which he choked his daughter. See United States v. Segal, 852 F.2d 1152 (9th Cir.1988).

While evidence of prior crimes is generally inadmissible under Fed.R.Evid. 404(b) and 403, the “invited error” doctrine entitles the government to pursue inquiry into a matter, if evidence thereon was first introduced by defendant.

Id. at 1155 (citations omitted).

Even if we assume, as Carey argues, that the prosecutor miseharacterized his testimony and therefore was guilty of misconduct, we do not believe it was sufficiently prejudicial to require a new trial for the reasons we discuss later.

C. Prosecutor’s statements in closing argument. Carey next contends that several statements made by the prosecutor in her closing argument were unsupported by the evidence and were solely intended to inflame the passions of the jury.

We start with the principle that, “[i]n closing arguments, counsel is allowed some latitude. Counsel may draw conclusions and argue permissible inferences which reasonably flow from the evidence presented.” State v. Thornton, 498 N.W.2d 670, 676 (Iowa 1993) (citations omitted); accord Graves, 668 N.W.2d at 874; State v. Phillips, 226 N.W.2d 16, 19 (Iowa 1975). “ ‘However, counsel has no right to create evidence or to misstate the facts.’ ” State v. Greene, 592 N.W.2d 24, 32 (Iowa 1999) (quoting Thornton, 498 N.W.2d at 676) (emphasis omitted). Carey highlights three statements in the prosecutor’s closing argument that he contends were unsupported by the evidence.

1. Carey believes that the prosecutor improperly insinuated, in her final argument, that Carey’s daughter, Natalie, was an eyewitness to the events. He contends that, “[i]n fact, Natalie specifically testified that she was at home during the altercation but did not see or hear anything.” Carey is mistaken in his factual predicate for this claim. The call Natalie made to 911 was submitted as evidence, and on that tape, Natalie told the operator that Carey had a weapon and that he was threatening people with it. According to the tape, Natalie yelled at Carey and told him that the police were coming and that he was going to jail. Therefore, contrary to Carey’s claim, the prosecutor’s statement that Natalie believed Carey was the assailant is clearly supported by the record.

2. The defendant challenges the prosecutor’s statement in her closing argument that Carey’s 2000 assault on Natalie was “an attack that included a knife.” The defendant only admitted choking his daughter; he never mentioned using a knife in the 2000 assault. Potentially, this could be damaging because the alleged incident involved a knife, which was the weapon used in the present ease.

Two considerations bear on the resolution of this question. First, it appears that the prosecutor probably confused, in good faith, the 2000 assault of his daughter (that did not involve a knife) with the 2003 one that occurred while Natalie was on the telephone with the 911 operator. In the latter incident, Carey did have a knife that he was wielding while pushing Natalie to the floor. See Wycoff v. State, 382 N.W.2d 462, 467-68 (Iowa 1986) (holding erroneous comment made in good faith was not misconduct).

The second consideration is that the mistaken 2000 “knife” incident was only alluded to in final argument; it was not presented as evidence. Under the court’s instruction, arguments of counsel were not to be considered as evidence. Even if we assume the mistaken knife reference was not made in good faith, we consider it only as bearing on the ultimate issue of prejudice.

3. The third example of alleged misconduct involves a statement made by the prosecutor in her rebuttal:

Now if the defendant got the knife from Mr. VonMoore as he said, no one is that good in trying to get a knife from another person that’s trying to attack you and not getting an injury. When [the defendant] got the knife, as he said, from Mr. VonMoore, if you notice he didn’t sustain one cut, bruise, nothing. That’s probably the only person in history that’s been successful in not sustaining an injury in defending themselves.

The defendant argues that the prosecutor’s assertion that no one, including the defendant, could successfully defend against a knife attack without sustaining an injury, is unsupported by the record. That may be so, but it is strongly suggested by common sense, and we believe it was based on “the reasonable inferences and conclusions to be drawn from the evidence.” Graves, 668 N.W.2d at 874. We find no misconduct on this ground because it strains the imagination that the defendant could have disarmed his “assailant,” a former boxer, and not sustain even a slight injury.

D. Alleged inflammatory statements. The prosecutor made three statements in her closing argument that, according to Carey, were intended to inflame the passions of the jury. The first occurred while the prosecutor was describing Carey’s initial reaction to the police officers who arrived at the scene. The officers testified that, when they tried to question him, he just “freaked out.” The prosecutor described the scene:

[Wjithout warning [the defendant] became violent and aggressive, threatening Officer Zubak that he would get him or something to that effect. Sounds really familiar doesn’t it? At that point in time, though, [he] just didn’t have a knife to get Zubak with as he had Mr. VonMoore.

(Emphasis added.)

The second incident occurred when the prosecutor pointed out inconsistencies between Carey’s testimony and that of other witnesses. Specifically, she noted that Carey testified that his daughter, Liz, had approached him on the day of the attack and said she had an ongoing conflict with VonMoore. However, Liz testified that she and VonMoore had no disputes that day. The prosecutor stated: “Liz said there was no problem when she testified. None. [The defendant] shoidd have sent some letters to her.” (Emphasis added.) As the defendant notes, this reference to letters apparently went back to testimony by his other daughter, Natalie, in which she stated that Carey sent her a “vulgar” letter from jail. The prosecutor suggested that this letter may have influenced Natalie’s testimony due to its threatening nature. The “letters” reference suggested that the defendant perhaps should have sent threatening letters to his other daughter, Liz, to influence her testimony, since it was damaging to the defendant.

The third example occurred when the prosecutor repeated a portion of Carey’s testimony, noted that it conflicted with nearly every other witness’s account, and then asked the jury, “What games are [sic] the defendant playing with you?”

These three comments, while sarcastic and snide, were based on a legitimate assessment of the evidence and especially of the defendant’s credibility and did not constitute misconduct, given the considerable latitude accorded to lawyers in final arguments.

E. Prosecutor’s assertion during closing argument that defendant was lying while other witnesses tvere truthful. The defendant points to instances in the prosecutor’s closing argument where she, impliedly and expressly, suggested that the defendant lied while giving his account of the attack and improperly vouched for certain witnesses for the State. In his brief, he highlights the following: The prosecutor characterized the defendant’s testimony about his relationship with the victim as “not true.” She also noted a conflict in the evidence between the defendant and the victim concerning whether the victim was wearing a black coat so as to be able to conceal a knife. She characterized the defendant’s testimony in that regard as “absolutely not true.” She also stated in her argument that “a person that’s telling the truth doesn’t need to skirt around the issue,” an obvious reference to the defendant’s evasive and feigned confusion on almost all key cross-examination questions. This experience obviously prompted this statement by the prosecutor that is now challenged as misconduct:

[T]he truth always remains constant. The lies that the defendant told you are the constantly changing ones that change with the ebb and flow as to how things are going at the time.

At another point the prosecutor argued “[the victim] is telling the truth. You know he is. Because he doesn’t have any motive in here to try to get this defendant convicted of any crime.... [H]e’s here because he’s subpoenaed.”

The prosecutor also said, “You know [the victim] is not lying,” and stated that the defendant’s version was “baloney,” apparently basing this assessment on the fact that other witnesses bolstered the victim’s testimony and virtually all other evidence contradicted the defendant’s testimony. The prosecutor noted the lack of supporting evidence for the defendant’s version of the event and then asked, “[W]hy on earth would you believe anything the defendant says?”

The issue is how far a prosecutor may go in suggesting that the defendant gave untruthful testimony. On one hand, “Iowa follows the rule that it is improper for a prosecutor to call the defendant a liar, to state the defendant is lying, or to make similar disparaging comments.” Graves, 668 N.W.2d at 876. However, “[notwithstanding this prohibition, a prosecutor is still free ‘to craft an argument that includes reasonable inferences based on the evidence and ... when a case turns on which of two conflicting stories is true, [to argue that] certain testimony is not believable.’ ” Id. (quoting State v. Davis, 275 Kan. 107, 61 P.3d 701, 710-11 (2003)).

“The key point is that counsel is precluded from using argument to vouch personally as to a defendant’s guilt or a witness’s credibility. This is true whether the personal belief is purportedly based on knowledge of facts not possessed by the jury, counsel’s experience in similar cases, or any ground other than the weight of the evidence in the trial. A defendant is entitled to have the case decided solely on the evidence.”

Id. at 874 (quoting State v. Williams, 334 N.W.2d 742, 744 (Iowa 1983)) (emphasis added).

The obvious threat addressed by Graves and other of our cases is the possibility that a jury might convict the defendant for reasons other than those found in the evidence. Thus, misconduct does not reside in the fact that the prosecution attempts to tarnish defendant’s credibility or boost that of the State’s witnesses; such tactics are not only proper, but part of the prosecutor’s duty. See State v. Comes, 245 Iowa 485, 491, 62 N.W.2d 753, 757 (1954) (“It is of course the duty of a prosecuting officer to present the state’s cause zealously and effectively within proper bounds.”). Instead, misconduct occurs when the prosecutor seeks this end through unnecessary and overinflammatory means that go outside the record or threaten to improperly incite the passions of the jury.

In determining whether the prosecutor’s statements to the jury employed such means, and therefore constituted misconduct, the court should consider three factors:

(1) Could one legitimately infer from the evidence that the defendant lied? (2) Were the prosecutor’s statements that the defendant lied conveyed to the jury as the prosecutor’s personal opinion of the defendant’s credibility, or was such argument related to specific evidence that tended to show the defendant had been untruthful? and (3) Was the argument made in a professional manner, or did it unfairly disparage the defendant and tend to cause the jury to decide the case based on emotion rather than upon a dispassionate review of the evidence?

Graves, 668 N.W.2d at 874-75.

In considering the first factor, a jury could reasonably conclude from the evidence that the defendant had lied, as his version of events differed substantially from that of every other witness. The prosecutor’s comments were unquestionably based on legitimate inferences that Carey had been untruthful.

Under the second factor, the comments about Carey’s truthfulness were not presented as merely the prosecutor’s personal opinion. This is much more apparent when the challenged statements are presented in context. For example, the prosecutor noted that the defendant “talked around the questions,” that the defendant’s story had changed, that he told his daughter Liz that he did not remember what happened, and “now he comes up with this ridiculous story.” The prosecutor stated that “a person that’s telling the truth doesn’t need to skirt around the issue,” and, in contrasting the testimony by the victim, attributed credibility to the victim’s statements “because the truth ... remains constant. The lies that the defendant told you are the constantly changing ones that change with the ebb and flow as to how things are going at the time.” The prosecutor then pointed out that the defendant was contradicted by other evidence, including the testimony of Carey’s own daughters.

Contrary to the defendant’s assertion, the prosecutor did not state that it was her personal opinion that the defendant lied, nor did she personally vouch for the victim’s credibility. Instead, she highlighted for the jury the evidence in the record that showed the inconsistent and evasive nature of the defendant’s testimony. She compared his testimony with that of the victim’s, whose story was unchanging. This argument was proper under the first and second Graves factors.

Under the third factor, the court must consider under Graves whether the comments were made to disparage the defendant and to inflame the passions of the jury. The prosecutor’s comments, when read in context, do not rise (or sink) to that level. While more professional language could, and should, have been used to convey the same message, we should not forget that prosecutors are entitled to some latitude in crafting a closing argument. Graves, 668 N.W.2d at 874; Phillips, 226 N.W.2d at 19. Jurors, we believe, are sophisticated enough not to be inflamed or prejudiced by what would reasonably be categorized as simply being snide or sarcastic comments.

The Supreme Court has enunciated the following rule of thumb for assessing allegations of prosecutorial misconduct:

[The county attorney] may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 683, 79 L.Ed. 1314, 1321 (1935). In Berger the Court held it was a “foul” blow for the prosecutor to claim personal knowledge about what a witness knew and to state it was unfair that he could not ask certain questions, while the defendant’s counsel could twist questions. Id. In Viereck v. United States, 318 U.S. 236, 247-48, 63 S.Ct. 561, 566-67, 87 L.Ed. 734, 741 (1943), a case tried in wartime, the defendant was likened to the wartime enemy; this comment was held to be misconduct. In Graves we held that the prosecutor’s misconduct was prejudicial because disparaging the defendant’s testimony was the centerpiece of the prosecution. Graves, 668 N.W.2d at 883; see also State v. Vickroy, 205 N.W.2d 748, 750-51 (Iowa 1973) (holding prosecutor’s urging of jurors to place themselves in position of drunk-driving victim held to be prejudicial misconduct).

In contrast, in State v. Williams, 334 N.W.2d 742 (Iowa 1983), the prosecutor argued that the defendant took the victim to a secluded area “in my opinion, in an attempt to avoid detection.” The prosecutor also said that, “I also think it is clear that she was subjected to sexual abuse,” and that “it seems to me that the money didn’t exist.” In referring to part of the defendant’s testimony, the prosecutor said “I find that hard to believe” and “I find that story just a little bit hard to believe. I find it stretches my imagination.” Williams, 334 N.W.2d at 744. We said:

The key point is that counsel is precluded from using argument to vouch personally as to a defendant’s guilt or a witness’s credibility. This is true whether the personal belief is purportedly based on knowledge of facts not possessed by the jury, counsel’s experience in similar cases, or any other ground than the weight of the evidence in the trial. A defendant is entitled to have the case decided solely on the evidence.

Id. (citing DR 7-106(c)).

We declined in Williams to find misconduct because,

[vjiewed in context, all of the prosecutor’s challenged remarks were obviously based on his view of the evidence. He did not in any statement insinuate that his opinion was based on non-record facts nor can it fairly be said that he personally vouched against the credibility of defendant’s testimony.

Id. at 745.

While this court has held that referring to a defendant as a liar is misconduct, such comments do not always result in prejudice. It is not so much the fact that the prosecutor suggests the defendant is untruthful that creates the misconduct. Graves, 668 N.W.2d at 876 (stating that a prosecutor is free to argue, based on reasonable inferences drawn from the evidence, that certain testimony is unbelievable). Instead, it is the use of the word “liar” itself, as this court found it to be “inflammatory” and “improper.” Id. (“Iowa has joined those jurisdictions holding it improper to call the defendant a liar.”).

In this case, the prosecutor often suggested that the defendant had been less than truthful regarding his version of events. However, only once did the prosecutor use the disparaging term “lies” to describe the defendant’s testimony.

This case must be distinguished from Graves on this issue. In Graves, the court stated the “most disturbing” aspect of the prosecutor’s comments was his suggestion that the defendant had called the arresting officer a liar. 668 N.W.2d at 880. In that case, the prosecutor stated: “If you believe [the arresting officer], there is no question that he [Graves] is guilty as charged.” This, we held, is more than just an inflammatory statement; it is a misstatement of the law. “[E]ven if the jury believes the government witnesses have told the truth, it might still conclude guilt has not been proved beyond a reasonable doubt.” Id.

In this case, the prosecutor never suggested that Carey referred to other witnesses as liars. Further, she did not distort the State’s burden of proof. Instead, she primarily discredited Carey’s testimony by comparing it to the testimony of other witnesses and other evidence in the record.

IV. The Prejudice Issue.

In a case based on alleged ineffectiveness of trial counsel, a defendant must establish more than a breach of duty on the part of his counsel. Even if we assume in Carey’s case that his attorney failed to challenge the prosecutor’s acts of misconduct, that alone is insufficient to set aside the judgment. The Supreme Court has said that

[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.... [Therefore], any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.

Strickland v. Washington, 466 U.S. 668, 691-92, 104 S.Ct. 2052, 2066-67, 80 L.Ed.2d 674, 696 (1984).

The test for prejudice “finds its roots” in a test for materiality of government-withheld evidence. Therefore, to prevail on an ineffective-assistance-of-counsel claim,

[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698; accord Graves, 668 N.W.2d at 877; Nguyen v. State, 707 N.W.2d 317, 324 (Iowa 2005).

Carey only raises two instances arising during the evidence portion of the trial: the “was he lying” question and the prodding of the defendant to admit he had previously choked his daughter by misstating the defendant’s direct-examination answers. These isolated incidents, which we have discussed previously, did not establish pervasiveness. The remainder of Carey’s allegations of misconduct arose out of the prosecutor’s final argument, an area in which we have traditionally “cut a little slack” to prosecuting attorneys. See Greene, 592 N.W.2d at 32. While the prosecutor’s observations about credibility were sarcastic and probably ill-considered, they were based on a legitimate view of the evidence. As to the impact on the central issue, i.e., whether Carey attacked VonMoore in self-defense, we believe they were minimal.

The most important factor under the test for prejudice is the strength of the State’s case. See Greene, 592 N.W.2d at 32 (concluding that the prosecutor’s misconduct did not prejudice the defendant for many reasons, but perhaps the most compelling reason was that the state’s case against the defendant was strong); Anderson, 448 N.W.2d at 34 (noting that the state’s strong case was “significant” in concluding that the prosecutor’s misconduct did not prejudice the defendant); see also United States v. Wilson, 149 F.3d 1298, 1302 (11th Cir.1998) (stating that one of the most important factors in determining prejudice is the strength of the prosecution’s case). Clearly, the stronger the case against the defendant, the less likely the jury is to look beyond the record. United States v. Modica, 663 F.2d 1173, 1182 (2d Cir.1981) (per curiam) (recognizing that the existence of prejudice often turns on the strength of the government’s case: “if proof of guilt is strong, then the prejudicial effect of the comments tends to be deemed insubstantial; if proof of guilt is weak, then improper statements are more likely to result in reversal”).

Unlike Graves, the State’s case against Carey was strong. See Graves, 668 N.W.2d at 877 (“The State’s case in the absence of [Officer] Steil’s testimony concerning Graves’ admissions was weak.”). Carey conceded the underlying elements of each crime. The only material dispute was whether his actions were justified. Carey contends that he was justified because VonMoore had assaulted him earlier that evening, punching and kicking him in the head and chest, multiple times, “scrambling” his head “pretty bad,” and causing a bloody nose and other injuries.

This version of events cannot be reconciled with any of the other witnesses’ testimony. For example, Carey’s contention that he was punched and kicked several times is completely unsupported in the record. The victim was so drunk he could hardly stand up, according to witnesses present at the time of the incident. It is highly unlikely he would be able to inflict the injuries that Carey now attributes to him. The officers who first arrived at the scene testified that Carey appeared to be uninjured. The doctor who treated Carey observed no injuries to his head or body. The doctor testified that the defendant did not complain of any injuries, and he displayed no outward signs of having been in a fight. While the defendant asserted that the doctor did not examine him thoroughly, the doctor said he performed a full examination. In addition, the officer who accompanied Carey to the hospital testified that he witnessed the examination, and he thought the doctor was very thorough, going so far as to require Carey to remove his shirt for examination. These eyewitness accounts are supported by photographs taken of the defendant shortly after the incident occurred.

Given the evidence previously set out in the statement of facts and the severe inconsistencies in Carey’s testimony, the State’s case against Carey was overwhelming. The defendant, in fact, admitted every material element of the crimes with which he was charged; the State only bore the burden of proving that the defendant was not justified in his actions. We believe the record shows that the State met that burden.

In this case, the prosecutor clearly committed several acts of questionable conduct, and we admonish her to be more professional and constrained in future cases. Nevertheless, any alleged misconduct did not cause prejudice to the defendant sufficient to require a new trial. Most of the instances were not severe and did not relate to significant aspects of the trial. Most importantly, the State’s evidence was extremely strong. Given these circumstances, it is not “reasonably probable” that, “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

Because we find the defendant has failed to establish prejudice, we reject his ineffective-assistance claim and affirm his conviction.

DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.


source: Caselaw Access Project

author: LARSON, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. John Michael BOLSINGER, Appellant.
    No. 03-0823.
    Supreme Court of Iowa.
    Feb. 10, 2006.

      Murray W. Bell of Murray W. Bell, PC, Davenport, for appellant.
    Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, William E. Davis, County Attorney, and Julie Walton, Assistant County Attorney, for appellee.
   LARSON, Justice.

John Michael Bolsinger appealed his convictions of third-degree sexual abuse under Iowa Code section 709.4(1) (2001), sexual exploitation by a counselor under Iowa Code section 709.15(2), and sexual misconduct with juvenile offenders under Iowa Code section 709.16(2). Bolsinger was sentenced to a combination of concurrent and consecutive sentences totaling a term not exceeding thirty-seven years. The court of appeals affirmed, and we granted further review. We vacate the decision of the court of appeals, reverse his conviction for sexual abuse, affirm the remainder of the convictions, and remand.

I.Facts and Prior Proceedings.

Bolsinger was the program supervisor of a highly structured state facility for delinquent boys, the Wittenmyer Youth Center, in August 2001 when the Iowa Department of Human Services (DHS) conducted an investigation into allegations of sexual abuse by Bolsinger. The investigation revealed, through interviews with past and present youth at the camp, that Bolsinger would take boys into a private room and touch their genitals, saying he was checking for bruises, scratches, hernias, and testicular cancer. The testimony of the boys revealed that Bolsinger asked permission to touch them in this way and that he did not appear to them to be gaining any sexual gratification from the touching. The boys testified that they were not aware that they were being touched in a sexual manner, and they would not have consented if they had known the true reason for the touching. However, they also testified that, given the nature of the structured program, it was almost impossible for them to make choices of their own or to refuse the request of an instructor.

Following the DHS investigation, Davenport police officers obtained a search warrant for Bolsinger’s home and seized a number of items, including the defendant’s home computer. The computer’s hard drive contained, among other things, numerous stories involving unidentified males engaging in sex acts with each other. Prior to trial, Bolsinger filed a motion to suppress evidence seized from his home, which was denied by the court.

II. Issues.

Bolsinger’s appeal raises three issues: (1) the court’s interpretation of Iowa Code section 709.4(1) (third-degree sexual abuse), (2) its denial of his motion to suppress, and (3) its refusal to direct verdicts in his favor on all counts on the basis his acts were not “sex acts” under the Code. Bolsinger raises other issues, which we do not expressly discuss because their resolution is subsumed in other holdings in this case.

III. Interpretation of Iowa Code Section 709.4(1) (Third-Degree Sexual Abuse).

Under Iowa Code section 709.4,

[a] person commits sexual abuse in the third degree when the person performs a sex act under any of the following circumstances:

1. The act is done by force or against the will of the other person, whether or not the other person is the person’s spouse or is cohabiting with the person.

In applying the “force or against the will” language of section 709.4, the court submitted Instruction No. 21:

Concerning [the third-degree sexual abuse counts] the State must prove that the defendant committed a sex act “by force or against the will” of the alleged victim in that Instruction. In order to do so, however, the State does not have to prove that the alleged victim physically resisted the defendant’s acts. The force used by the defendant does not have to be physical. An act may be done “by force and against the will” of another if the other’s consent or acquiescence is procured by:
1. threats of violence; or
2. deception, which may include deception concerning the nature of the act or deception concerning the defendant’s right to exercise authority over the other under the circumstances.
You may consider all of the circumstances surrounding the defendant’s act in deciding whether the act was done by force or against the will of the alleged victim.

(Emphasis added.)

The court stated that its authority for giving this instruction was found in Iowa Code section 709.5, which provides:

Under the provisions of this chapter it shall not be necessary to establish physical resistance by a person in order to establish that an act of sexual abuse was committed by force or against the will of the person. However, the circumstances surrounding the commission of the act may be considered in determining whether or not the act was done by force or against the will of the other.

(Emphasis added.) The court also relied on the case of State v. Vander Esch, 662 N.W.2d 689 (Iowa Ct.App.2002). In Van-der Esch the defendant, an owner of a pizza restaurant, employed teenage boys. He informed two of these employees that he was doing a scientific research project and asked them to provide him semen samples for this purpose. He promised to pay $50 for the samples should their sperm count be high enough. Vander Esch was present during the procedure and took possession of the semen samples. Vander Esch, 662 N.W.2d at 691. Vander Esch was not authorized by any scientific body to collect semen samples, and the victims indicated that they would not have consented to these acts had they known that no scientific research existed. Id. Vander Esch was charged with four counts of third-degree sexual abuse under Iowa Code section 709.4(1). He argued that the definition of sexual abuse, as set out in Iowa Code section 709.1(1), set forth the only means recognized in Iowa to negate consent and that neither fraud nor deceit did so. Id. at 691.

Our examination of the issue must begin with Iowa Code section 709.1(1), which defines sexual abuse and provides that certain circumstances will vitiate a victim’s consent:

Any sex act between persons is sexual abuse by either of the persons when the act is performed with the other person in any of the following circumstances:
1. The act is done by force or against the will of the other. If the consent or acquiescence of the other is procured by threats of violence toward any person or if the act is done while the other is under the influence of a drug inducing sleep or is otherwise in a state of unconsciousness, the act is done against the will of the other.

In Vander Esch the district court ruled that, in view of the fact that Iowa Code section 709.5 permits the consideration of all surrounding circumstances, section 709.1(1) is not exclusive and fraud and deception may vitiate consent. The court of appeals upheld that decision, classifying the fraud in question as fraud in fact, as opposed to fraud in the inducement (concepts we later discuss), and therefore, the act was done “by force or against the will” of the boys.

Bolsinger argues that the acts which occurred were hand-to-genital contact, which was expressly agreed to by the boys. He argues that his unexpressed purpose, apparently sexual gratification, was collateral to the act itself and, therefore, constituted fraud only in the inducement. As such, the fraud does not vitiate consent, according to him. Bolsinger also argues that Vander Esch, relied on by the court of appeals (which divided four to four on the question) and the district court in the present case, was incorrectly decided and should be overruled. Bolsinger argues that Vander Esch erroneously characterized the consent to semen sampling as being produced by fraud in fact, and therefore, any consent was vitiated.

If an act is done that is different from the act the defendant said he would perform, this is fraud in fact. If the act is done as the defendant stated it would be, but it is for some collateral or ulterior purpose, this is fraud in the inducement. Fraud in fact vitiates consent; fraud in the inducement does not. See Rollin M. Perkins & Ronald N. Boyce, Criminal Law ch. 9, § 3, at 1079 (3d ed.1982) [hereinafter Perkins & Boyce]. In other words,

if deception causes a misunderstanding as to the fact itself (fraud in the factum) there is no legally-recognized consent because what happened is not that for which consent was given; whereas consent induced by fraud is as effective as other consent, so far as direct and immediate legal consequences are concerned, if the deception relates not to the thing done but merely to some collateral matter (fraud in the inducement).

Id.; accord Wayne R. LaFave, Substantive Criminal Law § 6.5(a), at 506 (2d ed.2003) (stating that “fraud in the factum involves a form of deception which results in a misunderstanding by the victim as to the very fact of the defendant’s conduct”).

Cases illustrating fraud in fact have often involved victims undergoing medical examination or treatment. In many cases, the victims consented to an examination, only to find that the doctor engaged in sex acts. See, e.g., People v. Ogunmola, 193 Cal.App.3d 274, 238 Cal.Rptr. 300, 304 (1987) (patient who consented to gynecological examination was in fact subjected to a sex act; consent held to be vitiated); McNair v. State, 108 Nev. 53, 825 P.2d 571, 575 (1992) (sex acts under pretense of performing medical examination held to be against the will of the victim). See generally regarding fraud in fact in “doctor”

cases, Jay M. Zitter, Annotation: “Conviction of Rape or Related Sexual Offenses on Basis of Intercourse Accomplished Under the Pretext of, or in the Course of, Medical Treatment,” 65 A.L.R.4th 1064 (1988); 75 C.J.S. Rape § 22, at 334 (2002). One treatise discusses fraud in these cases:

In some of these cases the doctor has not hesitated to make it clear that he intended to have sexual intercourse with the patient, his fraud being in the deceitful suggestion that this was necessary to cure some malady, which was fraud in the inducement, since the patient knew exactly what was to be done and was deceived only in regard to a collateral matter — the reason why it was to be done. And here as usual the direct and immediate consequence of consent obtained by fraud in the inducement is the same as consent given in the absence of fraud, and since the patient consented to the intercourse it was not rape so long as she was over the statutory age.

Perkins & Boyce, ch. 9, at 1079-80.

Bolsinger argues that each of these young men was told what the touching would consist of and that they were then touched in the exact manner they expected. Thus, he argues, any fraud was fraud in the inducement, not fraud in fact.

In Bolsinger’s ease, if the boys had consented to acts such as massaging their legs and instead Bolsinger had touched their genital area, this would clearly be fraud in fact; they would have consented to one act but subjected to a different one. That is not the case, however. We conclude that the consents given here were based on fraud in the inducement, not on fraud in fact, as the victims were touched in exactly the manner represented to them. The consents, therefore, were not vitiated.

In reaching this conclusion, we do so based on the authorities discussed above and not on Bolsinger’s alternative argument that Iowa’s sex abuse law in effect provides no way to vitiate consent based on fraud. This argument, based on the doctrine of inclusio unius est exdusio al-ternos, is that the Code sets out a limited list of circumstances under which consent may be vitiated. These include the victim’s age (Iowa Code section 709.4(2)(6) and (e)), a mental defect or incapacity (Iowa Code section 709.4(2)(a) and (4)), a physical incapacity (Iowa Code section 709.4(4)), and the influence of controlled substances (Iowa Code section 709.4(3)). Contrary to Bolsinger’s argument, we believe that these are not the only circumstances in which consent can be vitiated and that fraud in fact should be held to vitiate consent in sexual abuse cases just as it does in any other criminal case. We rejected a similar indusio unius est exdusio alternos argument in State v. Ramsey, 444 N.W.2d 493 (Iowa 1989), which involved a statute prohibiting the removal of a person without their consent. We held that deception by the defendant vitiated the victim’s consent.

[The defendant] contends that because the word “deception” is not used in section 710.1, it cannot form the basis upon which his conviction rests. Ramsey is confusing means with ends, however. Ramsey’s intent, as expressed by his girlfriend and logically inferred from subsequent events, was to remove an innocent person to a remote location, shoot him, and steal his car. Whether the removal was accomplished by force or artful deception, the end result remains the same.

Id. at 494. Ramsey involved fraud in fact; the victim agreed to give the defendant a ride, not to be shot in the back of the head. Id. at 493-94.

Our conclusion that the boys’ consent in this case was based on fraud in the inducement and not fraud in fact calls into question the court of appeals case of Vander Esch. In fact, in the four-to-four decision by the court of appeals in Bolsinger’s appeal, four members of that court urge us to overrule Vander Esch. We now hold that Vander Esch is no longer controlling because the facts on which that case was based clearly show fraud in the inducement, not fraud in fact.

IV. Remaining Issues.

Bolsinger raises several additional issues, which, if resolved in his favor, would result in a reversal of all convictions— sexual exploitation by a counselor and sexual misconduct with a juvenile offender, as well as third-degree sexual abuse. He claims (1) the fruits of the search of his home should have been suppressed; and (2)in any event, his actions were not “sex acts” under the Code.

A. The search warrant. Bolsinger contends the search of his home was illegal because the search warrant was invalid, and in any event, the officers executing it did so improperly. We review rulings on motions to suppress based on alleged Fourth Amendment violations de novo. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001).

Bolsinger contends the search warrant lacked probable cause, was based on false statements in the application, and was overbroad. We have considered the record and the defendant’s arguments on the legality of the search warrant and on the execution of it and conclude the warrant was based on probable cause, was not based on false statements, and was not overbroad. Further, we conclude the officers properly executed the warrant. We reject Bolsinger’s motion-to-suppress issue.

B. Were these “sex acts” under the applicable statutes? The defendant contends that the district court erred in denying his motion for directed verdict as to all charges because “sex acts,” under the Code, were not proved. We have already determined that Bolsinger’s conviction of third-degree sexual abuse cannot stand. The remaining charges, sexual abuse by a counselor or therapist and sexual misconduct with offenders, both require proof of sex acts. Bolsinger argues that none of the young men testified there was anything sexual going on and that the evidence was insufficient to establish the existence of sex acts. The jury was instructed, based on Iowa Code section 702.17, that a “sex act” is

[a]ny sexual contact between the fingers or hand of one person and the genitals or anus of another person. ‘Genitals’ include the scrotum and penis. You may consider the type of contact and the circumstances surrounding it in, deciding whether the contact was sexual in nature.

We believe there was substantial evidence to support the jury’s finding that sex acts had been committed. Direct evidence is not required.

The sexual nature of the contact can be determined from the type of contact and the circumstances surrounding it....
... Other relevant circumstances include but are not limited to the relationship between the defendant and the victim; whether anyone else was present; the length of the contact; the purposefulness of the contact; whether there was a legitimate, nonsexual purpose for the contact; where and when the contact took place; and the conduct of the defendant and victim before and after the contact.

State v. Pearson, 514 N.W.2d 452, 455 (Iowa 1994). The evidence shows that Bol-singer was acting outside the scope of his duties, his actions took place in private, and he did not document these procedures, contrary to the policy at Wittenmyer. Bolsinger had no medical training other than information he had received in school on testicular cancer and self-examination and was in a position of power over the victims. Considered in light of this evidence a rational finder of fact could conclude that Bolsinger committed sex acts under the guise of performing medical examinations. The trial court did not err in overruling his motions for judgment of acquittal on the charges of sexual abuse by a counselor or sexual misconduct with offenders.

We reverse the convictions for third-degree sexual abuse and affirm the remaining convictions. We remand for re-sentencing without regard to the third-degree sexual abuse convictions under Iowa Code section 709.4(1).

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


author: /s/ Helen M. Meyer Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Richard Lee SWANSON, a Minnesota Attorney, Registration No. 173423.
    No. A05-2501.
    Supreme Court of Minnesota.
    Feb. 14, 2006.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Richard Lee Swanson committed professional misconduct warranting public discipline, namely, failure to timely file an appeal and failure to cooperate with the Director’s investigation, in violation of Minn. R. Prof. Conduct 1.1, 1.3, and 8.1(b) and Rule 25, Rules on Lawyers Professional Responsibility (RLPR).

Respondent admits his conduct has violated the Rules of Professional Conduct, waives his rights under Rule 14, RLPR, and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is a public reprimand and two years of supervised probation, subject to the following conditions:

(a) Respondent shall maintain total abstinence from alcohol and other mood-altering chemicals, except that respondent may use prescription drugs in accordance with the directions of a prescribing physician who is fully advised of respondent’s chemical dependency before issuing the prescription.
(b) Respondent shall continue to attend weekly meetings of Alcoholics Anonymous or other out-patient alcohol treatment program acceptable to the Director. Respondent shall, by the tenth day of each month, and without a specific reminder or request, submit to the Director an attendance verification, on a form provided by the. Director, which indicates the name, address and telephone number of the person personally verifying respondent’s attendance.
(c) Respondent shall successfully complete a course on civil appellate procedure and shall provide the Director with verification of his successful completion.
(d) Respondent shall be supervised by a licensed Minnesota attorney, appointed by the Director to monitor compliance with the terms of this probation. Within two weeks of the date of this order, respondent shall provide to the Director the names of four attorneys who have agreed to be nominated as respondent’s supervisor. If, after diligent effort, respondent is unable to locate a supervisor acceptable to the Director, the Director shall appoint a supervisor. Until a supervisor has signed a consent to supervise, respondent shall, on the first day of each month, provide the Director with an inventory of active client files described in paragraph (e) below. Respondent shall make active client files available to the Director upon request. (e) Respondent shall cooperate fully with the supervisor in his or her efforts to monitor compliance with this probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall submit to the supervisor an inventory of all active client files by the first day of each month during probation. For each active client file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
(f) Respondent shall cooperate fully with the Director’s office in its efforts to monitor compliance with this probation and shall promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct that may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
(g) Respondent shall abide by the Minnesota Rules of Professional Conduct.
(h) Respondent shall pay $900 in costs pursuant to Rule 24, RLPR.

The court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent Richard Lee Swanson is publicly reprimanded and placed on supervised probation for a period of two years, subject to the conditions set forth above.

BY THE COURT:

/s/ Helen M. Meyer Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Donald J. FRALEY, a Minnesota Attorney, Registration No. 31392.
    No. A05-2539.
    Supreme Court of Minnesota.
    Feb. 14, 2006.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Donald J. Fraley committed professional misconduct warranting public discipline, namely, incompetent representation of a client, charging unreasonable fees, conflict of interest, failure to adequately supervise a suspended attorney working for him, improperly sharing fees with a suspended lawyer, and failure to maintain accurate books and records, in violation of Minn. R. Prof. Conduct (MRPC) 1.1, 1.5(a), 8.4(a), 1.7(a) and (b), 5.3, 5.4(a), 5.7, 8.4(c) and (d), and 1.15(a) and (h).

Respondent has agreed to allow the allegations of the disciplinary petition to be deemed admitted, has waived his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is suspension for 90 days pursuant to Rule 15, RLPR, followed by two years of supervised probation. Respondent acknowledges this court may impose any discipline it deems appropriate, and has agreed to repay to the conservator of his client the sum of $934, or provide the Director’s office with satisfactory proof the money is not owed.

This court has independently reviewed the file. We conclude that the conduct deemed admitted, coupled with respondent’s disciplinary history and the fact that the misconduct involves a vulnerable adult, requires that respondent be suspended indefinitely. Therefore, we find the appropriate discipline is indefinite suspension with no right to apply for reinstatement for a minimum of 90 days.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent is suspended indefinitely for a minimum of 90 days and that he shall pay $900 in costs pursuant to Rule 24(a), RLPR. Respondent shall pay to the conservator of his client the sum of $934, or shall provide the Director’s office with satisfactory proof the money is not owed. Should respondent apply for reinstatement to active practice, respondent shall comply with the reinstatement hearing provisions of Rule 18, RLPR. Upon reinstatement, respondent shall be subject to two years of supervised probation under the following conditions:

a. Respondent shall limit his practice to 15 clients at any given time.
b. Respondent shall cooperate fully with the Director’s office in its efforts to monitor compliance with his probation, and shall promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct that may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of his probation.
c. Respondent shall abide by the Minnesota Rules of Professional Conduct.
d. Respondent shall be supervised by a licensed Minnesota attorney, appointed by the Director to monitor compliance with the terms of his probation. Respondent shall provide to the Director the names of four attorneys who have agreed to be nominated as respondent’s supervisor. If, after diligent effort, respondent is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Until a supervisor has signed a consent to supervise, respondent shall, on the first day of each month, provide the Director with an inventory of active client files. Respondent will make active client files available to the Director upon request.
e. Respondent will cooperate fully with the supervisor in his or her efforts to monitor compliance with his probation. Respondent will contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent will submit to the supervisor, by the first day of each month during probation, an inventory of all active client files. With respect to each active client file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent’s supervisor will file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
f. Respondent will maintain law office and trust account books and records in compliance with Rule 1.15, MRPC, and LPRB Opinion No. 9. These books and records shall include the following: client subsidiary ledger, checkbook register, monthly trial balances, monthly trust account reconciliation, bank statements, canceled checks, duplicate deposit slips and bank reports of interest, service charges and interest payments to the Lawyer Trust Account Board. Such books and records shall be made available to the Director initially and thereafter shall be made available to the Director at such intervals as the Director deems necessary to determine respondent’s compliance.

BY THE COURT:

/s/ Helen M. Meyer Associate Justice

GILDEA, J., took no part in the consideration or decision of this case.


author: GORDON W. SHUMAKER, Judge.

text:
    Anne Elizabeth DAILEY, petitioner, Respondent, v. Tony Christopher CHERMAK, Appellant.
    No. A05-1244.
    Court of Appeals of Minnesota.
    Feb. 21, 2006.

      M. Sue Wilson, Amy Yanik Meisel, James T. Williamson, M. Sue Wilson Law Offices, P.A., Minneapolis, MN, for respondent.
    Michael L. Perlman, Karin Gjerset, Perlman Law Office, Minnetonka, MN, for appellant.
    Considered and decided by HUDSON, Presiding Judge; LANSING, Judge; and GORDON W. SHUMAKER, Judge.
   OPINION

GORDON W. SHUMAKER, Judge.

On appeal from the district court’s order granting respondent Anne Elizabeth Dai-ley permission to remove the residence of the parties’ minor child from Minnesota to South Dakota, appellant Tony Christopher Chermak argues that the district court (1) abused its discretion because the removal order contradicts a statement in the findings of fact that physical custody is contingent upon Dailey remaining in the Twin Cities metropolitan area, and (2) abused its discretion when it denied Chermak an evi-dentiary hearing on the motion for permission to change the child’s residence.

Although the district court did abuse its discretion by erroneously concluding as a matter of law that conditional custody provisions limiting the minor child’s geographic residence are unenforceable, it correctly granted Dailey’s motion for removal on the ground that the dissolution conclusions of law, which became the judgment and decree, are binding, and that the best interests of the child did not depend on Dailey remaining in Minnesota. And because Chermak did not satisfy the requirements for an evidentiary hearing, the district court did not abuse its discretion in denying such hearing. Therefore, we affirm.

FACTS

A judgment and decree dissolving the marriage of appellant Tony Christopher Chermak and respondent Anne Elizabeth Dailey was entered on May 20, 2004, after a contested trial. A principal issue in the trial was that of the custody of the parties’ minor daughter, born June 4, 2002.

In its conclusions of law, which became the judgment and decree, the dissolution court awarded to the parties the joint legal custody of their daughter and to Dailey sole physical custody. Neither party appealed or otherwise challenged the custody awards in posttrial proceedings.

On May 2, 2005, Dailey moved for permission to change the residence of the parties’ daughter from Minnesota to Mitchell, South Dakota. In opposition to the motion, Chermak cited, among other grounds, a provision in the amended findings of fact in the dissolution judgment stating: “The Court’s ruling on physical custody is conditional upon petitioner remaining in the Twin Cities metropolitan area.”

In its amended order granting Dailey’s change-of-residence motion, the district court addressed the alleged “conditional custody” statement by ruling (1) that it did not appear that the dissolution court’s “analysis of the statutory custody factors relies upon [Dailey] residing in a particular location ... (2) that the conclusions of law rather than the findings of fact are binding; and (3) that the custody condition is unenforceable as contrary to Minnesota law.

The district court further determined that Chermak was not entitled to an evi-dentiary hearing on the motion because he failed to show the legal prerequisites to such a hearing, namely, prima facie evidence of the physical or emotional endangerment of the child or that the purpose of the residence change is to interfere with Chermak’s parenting time.

From the district court’s amended order denying an evidentiary hearing and permitting the change of the child’s residence, Chermak appeals.

ISSUES

1. Did the district court abuse its discretion by concluding that the conditional custody provision in the dissolution court’s amended findings of fact was not legally enforceable when it conditioned Dailey’s award of sole physical custody of the parties’ minor child upon Dailey’s residence in the Twin Cities metro area?

2. Did the district court abuse its discretion when it granted Dailey’s motion to relocate the parties’ minor child to Mitchell, South Dakota, and denied Chermak’s request for an evidentiary hearing on the removal issue?

ANALYSIS

I.

Standard of Review

On appeal, this court reviews decisions respecting the custody modification and change of residence of minor children for an abuse of discretion. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996); Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn.1985). A district court abuses its discretion when it makes unsupported findings of fact or improperly applies the law. Wopata v. Wopata, 498 N.W.2d 478, 481 (Minn.App.1993). Findings of fact must be sustained unless they are clearly erroneous. Pikula, 374 N.W.2d at 710. A finding is clearly erroneous if the reviewing court is “left with the definite and firm conviction that a mistake has been made.” LaChapelle v. Mitten, 607 N.W.2d 151, 160 (Minn.App.2000) (quotation omitted), review denied (Minn. May 16, 2000). The appellate court “views the record in the light most favorable to the trial court’s findings.” Id. We apply the abuse-of-discretion standard of review to each of the three bases upon which the district court rejected Chermak’s conditional custody argument and to the court’s denial of an evidentiary hearing and its grant of permission to change the child’s residence.

Conditional Custody

1. The Imdieke Basis

The district court ruled that the conditional custody provision in the dissolution court’s amended findings of fact is legally unenforceable, citing a pronouncement in the Imdieke case as authority: “To base custody or care on a parent’s remaining in a certain area is a restrictive condition contrary to Minnesota Law.” Imdieke v. Imdieke, 411 N.W.2d 241, 244 (Minn.App.1987), review denied (Minn. Oct. 30,1987).

The Imdieke court relied on Auge v. Auge, 834 N.W.2d 393 (Minn.1983), to support the proposition that conditional custody respecting a minor child’s residence is contrary to Minnesota law. However, Auge did not involve an issue of conditional custody, and there is no statement in the Auge opinion that custody conditioned on maintaining a particular residence for a child is contrary to Minnesota law. Id.

Nor did Imdieke itself involve conditional custody or any dispositive issue regarding the residence of the parties’ minor children. The issue there was whether it was appropriate for the district court to award split custody of the parties’ four children. The court of appeals held that it was not arid directed that the custody of all children be awarded to their mother.

The appellate court also commented on the district court’s concern that the mother’s living arrangements were uncertain. The appellate court noted that the mother had been forced to move from the homestead in Melrose because it was to be sold to pay the father’s debts; that her substitute housing in Melrose had been declared substandard by the health department; and that she had to reside temporarily with her mother in Anoka while she sought employment because there were no jobs available in Melrose. There was no claim that the move from Melrose to Anoka implicated any change-of-residence laws or procedures, and there was no analysis by the appellate court as to whether the move impaired the best interests of the children, which is the paramount concern in all custody and custody-related decisions. La-Chapelle, 607 N.W.2d at 158. Thus, the pronouncement in Imdieke regarding conditional custody was dictum and without basis in the law.

As determined in LaChapelle, there can be circumstances in which child custody may properly be made conditional on maintaining a particular geographical residence for the child. Id. But any such condition must demonstrably serve the child’s best interests. Id. at 163.

Besides the unique facts of LaChapelle, it is conceivable that a custody award might be properly conditioned on maintaining a certain residence because of the availability in that location of special health or educational services that the child particularly needs and that are not readily or inexpensively obtainable elsewhere. Thus, we hold that there is no absolute prohibition under Minnesota law against awarding child custody on the condition of maintaining a specific geographic residence for the child, as long as that residence is shown clearly and genuinely to serve the child’s best interests.

In relying on the contrary proposition here, the district court misapplied the law and thereby abused its discretion.

2. Prevailing Conclusions of Law

Another reason the district court gave for rejecting Chermak’s conditional custody argument was that no such condition was stated in the dissolution court’s conclusions of law, which became the judgment and decree, and that conclusions of law prevail over findings of fact. The court relied on an unpublished opinion of the court of appeals in support of this reason. However, unpublished opinions have no precedential effect. Minn.Stat. § 480A.08, subd. 8 (2004).

Other than the unpublished case on which the district court relied, there does not appear to be any Minnesota authority that has addressed this precise issue. There is caselaw authority that the mislabeling of a finding of fact as a conclusion of law, or vice versa, is not determinative of the true nature of the item. Graphic Arts Educ. Found., Inc. v. State, 240 Minn. 143, 145-46, 59 N.W.2d 841, 844 (1953); 2 David F. Herr & Roger S. Haydock, Minnesota Practice § 52.5 (2004). But the concern here is not mislabeling; rather, it is the inclusion in the findings of fact a statement about conditional custody that is at odds with the conclusions of law that provide for unconditional physical custody.

Despite the absence of precedent to resolve the issue, we are persuaded that the district court was correct in ruling that conclusions of law (which become the judgment in the case) prevail over an inconsistent statement in the findings of fact.

Upon the dissolution court’s order for judgment, the district court administrator entered judgment with the following statement: “I certify that the above Conclusions of Law constitute the Judgment and Decree of the court.” Through these conclusions of law, the dissolution court awarded to Dailey the sole physical custody of the parties’ minor child without any residence condition or restriction, but subject to parenting-time rights in Chermak.

The parties to this litigation, any other interested persons, and the courts ought to be able to rely on a final judgment, which incorporates conclusions of law, as binding without having to look back at the findings of fact to determine whether they are consistent with the judgment. There will, of course, sometimes be conflicts between findings and conclusions, or inconsistencies, or omissions. But the law provides corrective procedures in the form of post-trial motions and appeals to resolve problems arising from such irregularities. Neither party in this case made a posttrial motion or took an appeal for the purpose of resolving the apparent conflict between the dissolution court’s statement in one of the findings of fact about conditional custody and the award to Dailey in the conclusions of law of unconditional sole physical custody of the child.

The times for posttrial motions and appeal from the original judgment and decree have expired, and the judgment is considered final. See Dieseth v. Calder Mfg. Co., 275 Minn. 365, 370-71, 147 N.W.2d 100, 103 (1966) (stating “[e]ven though the decision of the trial court in the first order may have been wrong, if it is an appealable order it is still final after the time for appeal has expired.”). Furthermore, there can be no collateral challenge to the judgment. See Nussbaumer v. Fetrow, 556 N.W.2d 595, 599 (Minn.App.1996) (stating Minnesota does not permit collateral attack of facially valid judgments, and judgments alleged to be merely erroneous or founded on nonjurisdictional defects are “not subject to attack”), review denied (Minn. Feb. 26,1997).

Thus, when a conflict between a statement in a finding of fact and a conclusion of law that has become part of a judgment remains after the expiration of all opportunities for corrective action, the view more in accord with the finality principle and with the prohibition against collateral attack, and the view most likely to promote a clear resolution of the conflict, is that the judgment is binding and prevails over an inconsistent statement in an underlying finding of fact. And we so hold. Accordingly, the district court did not abuse its discretion in rejecting Chermak’s conditional custody argument on this ground.

3. Best Interests Consideration

A final reason the district court rejected the conditional-custody contention is that it found that the dissolution court had failed to provide any analysis of the statutory custody factors to show how custody could properly be conditioned on residency. We agree, and we find this to be the most compelling reason for our rejection of the conditional-custody argument as well.

All custody and custody-related rulings must clearly and genuinely consider and give effect to the best interests of the child. In re Custody of N.M.O., 399 N.W.2d 700, 703 (Minn.App.1987) (citing Wallin v. Wallin, 290 Minn. 261, 264, 187 N.W.2d 627, 630 (1971)). In making a custody or custody-related decision, the court must find that the facts support that decision, and the court’s conclusions of law must be based on adequate factual findings. Evens v. Evens, 376 N.W.2d 749, 750 (Minn.App.1985) (citing Rosenfeld v. Rosenfeld, 311 Minn. 76, 83, 249 N.W.2d 168, 171-72 (1976)). Even if findings and conclusions are mislabeled or perhaps suffer from some other irregularity, “[t]he important consideration in cases of improper designation is not to permit a conclusion of law, in the absence of a finding of fact, to support the ultimate decision.” Graphic Arts, 59 N.W.2d at 844.

The dissolution court’s statement that “[t]he Court’s ruling on physical custody is conditional upon [Dailey] remaining in the Twin Cities metropolitan area” is the final sentence in a section of findings of fact dealing with the recommendations of a neutral custody evaluator. Although the evaluator recommends, and the court agrees, that Chermak be awarded “a liberal parenting time schedule,” there is no finding by the court that a restriction on the child’s residency would serve her best interests. Nor does the evaluator recommend such a restriction.

The dissolution court’s statement about conditional custody is not in itself a factual finding because it contains no facts and implies no particular facts. Nor is there any reference to, let alone an analysis of, a restriction on residency as serving the child’s best interests in any of the other findings of fact or conclusions of law in the amended judgment and decree.

Chermak argues that the conditional custody provision was inserted because he expressed a fear during the trial that Dailey “might seek to move out of state and would try to squeeze him out of the child’s life,” and he points to the precise and liberal parenting-time allowances as supporting the residency restriction. But the maintenance of a particular parenting-time pattern is not a proper basis for a residency restriction, at least in absence of findings that the maintenance of such a pattern serves the child’s best interests. Auge, 334 N.W.2d at 398. The requisite findings do not exist here.

Thus, we hold that there was no factual finding in the dissolution proceeding to show that conditional custody or a restriction on the child’s residency would be in the child’s best interests, and that deficiency renders the conditional-custody statement a nullity. The district court did not err in reaching this conclusion.

Our holding also answers Chermak’s argument that the conditional-custody statement was omitted from the conclusions of law through clerical error. Absent findings that the residency restriction would serve the child’s best interests, the statement in question could not properly have become a conclusion of law.

II.

Chermak also contends that the district court erred by denying to him an eviden-tiary hearing on Dailey’s motion for permission to change the child’s residence to South Dakota.

A parent who has been awarded sole physical custody of a minor child and who proposes to change the child’s residence to another state is presumed to be acting in the child’s best interests in the change of residence. Knott v. Knott, 418 N.W.2d 505, 508 (Minn.App.1988). However, the presumption is rebuttable, and the noncustodial parent may overcome the presumption by showing that the removal of the child’s residence is not in the child’s best interests because it would endanger the health and welfare of the child or would be done with the intention of interfering with the noncustodial parent’s parenting-time rights. Silbaugh, 548 N.W.2d at 641; Sefkow v. Seflcow, 427 N.W.2d 203, 214 (Minn.1988).

Unless the noncustodial parent can make a prima facie showing that the removal of residence is not in the child’s best interests, the custodial parent’s motion may be granted without a full evidentiary hearing. Id. (citing Auge, 334 N.W.2d at 396). A prima facie case is shown if there is sufficient evidence to support a particular finding if contrary evidence is disregarded. Geiger v. Geiger, 470 N.W.2d 704, 708 (Minn.App.1991). Mere allegations unsupported by facts and credible evidence are insufficient to establish a prima facie case. Axford. v. Axford, 402 N.W.2d 143, 145 (Minn.App.1987). Thus, Chermak’s burden in the district court was to make a prima facie showing that the change of the child’s residence from Minnesota to South Dakota is not in the child’s best interests because it will endanger her health and welfare or is intended to interfere with his parenting-time rights. The district court held that Cher-mak failed to establish the requisite prima facie case necessary to entitle him to a full evidentiary hearing.

ín his affidavit in opposition to Dailey’s motion, Chermak alleges that Dai-ley has from the outset of the dissolution sought to restrict his parenting time. And he details the close and positive relationships the child has developed with Cher-mak’s family and friends in Minnesota and the various Minnesota activities, such as dance and educational classes, in which the child has been involved.

As to the possibility of endangerment of the child’s health and welfare, Chermak contends that the child gets more bumps and bruises when she is in Dailey’s care than she does while visiting with him. He does not allege that Dailey is abusing the child but only that Dailey’s level of attention toward the child is less than adequate. He also contends that long trips from and back to South Dakota will be exhausting for the child, and that, because the child will be in contact with Dailey’s family members, who drink alcohol excessively, the environment for the child would impair her emotional health.

The district court found that there are legitimate economic reasons for Dailey’s move, that no pattern of intentional restriction of Chermak’s parenting time has been shown, and that no evidence of endangerment has been presented. Substantial credible evidence supports the district court’s determinations. The allegation about the child’s bruises is nebulous and suggests merely that the child is physically active. The allegation about Dailey’s family’s alcohol use is just an allegation and, even if true, there is no showing of how the child might be affected.

It is true that the establishment of visitation times has sometimes been contentious and has needed adjustment. But this is not atypical of divorced parents who vie with each other for more time with their children. The evidence here does not support an inference that Dailey is intentionally attempting to reduce or restrict Chermak’s parenting time. And, recognizing that long-distance visitation can be problematic, the district court adjusted the parenting-time schedule and equitably distributed the costs of transportation of the child. Furthermore, in order to ameliorate the problems of long-distance visitation as much as possible, the district court has provided for the intervention of a parenting consultant.

The district court did not abuse its discretion in denying an evidentiary hearing as to Dailey’s motion to change the minor child’s residence.

DECISION

Although the district court erred in its ruling that courts are prohibited by law from making child custody conditional on the maintenance of a particular geographical residence, the district court correctly determined that the judgment awarding unconditional custody controls and that there was no finding of fact in the dissolution judgment showing that a residence restriction would serve the child’s best interests. Furthermore, the district court did not err in denying an evidentiary hearing where appellant failed to establish the prerequisites for such a hearing.

Affirmed.


author: VANDE WALLE, Chief Justice.

text:
    2006 ND 14
    STATE of North Dakota, Plaintiff and Appellee v. Jesse Lynn SMITH, Defendant and Appellant.
    No. 20050264.
    Supreme Court of North Dakota.
    Jan. 31, 2006.

      Kathleen K. Trosen, State’s Attorney, Fessenden, ND, for plaintiff and appellee.
    Thomas J. Glass, Bismarck, ND, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Jesse Smith appealed from an order denying his motion to refund fines and administrative fees incurred in relation to criminal convictions against Smith. We affirm.

I

[¶ 2] We briefly reiterate the facts and procedure set forth in State v. Smith, 2005 ND 21, 691 N.W.2d 203 (“Smith I”), followed by the facts leading to this appeal. On May 25, 2002, at about 12:30 a.m., Fessenden Police Chief Allen Kluth was approached by two local citizens regarding a suspicious vehicle parked behind a bulk fuel truck in the Cenex lot. Chief Kluth testified the citizens told him a green station wagon left the Cenex lot quickly, spinning out on the gravel, as they approached the vehicle. They told Chief Kluth they followed the vehicle to obtain its license plate number, but they were unable to get the full number because the station wagon was traveling at a high rate of speed. Chief Kluth then contacted a Harvey Police Officer, Marc Balfour, and told him to be on the lookout for a green station wagon traveling west on Highway 52. Officer Balfour testified he spotted a green station wagon and radioed Chief Kluth to tell him he saw a vehicle that matched the description. Chief Kluth told him to stop the vehicle. Officer Balfour testified he did not observe any traffic violations at the time he pulled the vehicle over.

[IT 3] After he approached the vehicle, Officer Balfour saw an open case of beer in the back seat and detected a strong odor of alcohol coming from the vehicle. He then asked Smith to accompany him back to the police car. Officer Balfour told Smith of the suspicious activity in the Ce-nex parking lot, and Smith explained he and his friends had to go to the bathroom but the store was locked so they went outside near the bulk fuel truck. Officer Balfour testified he then asked Smith for his consent to search the vehicle. Smith replied, “Yeah, go ahead.”

[¶ 4] When Patrolman Skogen arrived, Officer Balfour turned the investigation over to him and told him Smith had given him consent to search the vehicle. Officer Balfour then went back to Smith’s vehicle and asked the passenger, Travis Cunningham, to come back to his police car. He examined Cunningham’s driver’s license, which showed he was only 20 years old. He then placed Cunningham in the back seat of the patrol car and began to search Smith’s vehicle. Officer Balfour testified that when he walked up to the vehicle, he noticed two spilled cans of beer on the passenger-side floor. He then found a backpack in the back seat of the car, and, upon opening it, found eight rolled baggies of marijuana.

[¶ 5] The State charged Smith with four counts: possession of drug paraphernalia, Wells County case number 02-K-087; possession of a controlled substance, Wells county case number 02-K-088; possession of a controlled substance with intent to deliver, Wells County case number 02-K-089; and delivery of alcoholic beverages to a person under twenty-one years of age, Wells County case number 03-K-090. On September 18, 2002, the district court consolidated all four counts. On October 10, 2002, Smith moved to suppress all items seized by law enforcement officers and all of the statements he made during the arrest. Smith’s motion included only Wells County case number 02-K-089 in its motion heading. The district court held a hearing on February 5, 2003 on the motion to suppress and issued a memorandum and order denying the motion to suppress on October 30, 2003. The transcript of the February 5 hearing included all four Wells County case numbers, while the memorandum contained only the Wells County case number 02-K-089.

[¶ 6] A jury found Smith guilty of all charges on March 31, 2004, except for possession of a controlled substance with intent to deliver, Wells County case no. 02-K-089.

[¶7] In Smith I, this Court reversed and remanded the case to the district court for further proceedings regarding the criminal judgments for possession of drug paraphernalia and possession of a controlled substance. Smith’s motion, made prior to trial, to suppress all evidence and statements made the day of his arrest, included only case number 02-K-089. Id. at ¶ 10. The motion omitted case numbers 02-K-087, 02-K-088, and 02-K-090 (the case number for the charge of delivery of alcoholic beverages to a person under twenty-one years of age which is the subject of this appeal). Id. The district court’s memorandum and order denying the motion to suppress also included only case number 02-K-089. Id. This Court held the omission of the criminal case numbers on the district court’s memorandum and order denying the motion was a clerical error and Smith properly preserved his right to appeal. Id. However, in Smith I, this Court considered only case numbers 02-K-087 and 02-K-088. Id. This Court did not discuss case number 02-K-090. Id. This Court specifically stated, “Smith is appealing two criminal judgments: possession of drug paraphernalia, Wells County number 02-K-087; and possession of a controlled substance, Wells County number 02-K-088.” Id.

[¶ 8] On remand, the district court, finding that the law enforcement stop of Smith’s vehicle was unlawful, dismissed all charges except the charge for delivery of alcoholic beverages to a person under twenty-one years of age, case number 02-K-090. The district court found that because the opinion in Smith I did not specifically mention case number 02-K-090 as an omission based on a clerical error and stated only case numbers 02-K-087 and 02-K-088 were being appealed, Smith did not properly appeal 02-K-090. Therefore, the district court concluded the conviction on that charge was final and never appealed and the court did not dismiss it.

[¶ 9] After the opinion in Smith I was issued, Smith filed the motion to refund fines and administrative fees which is the subject of this appeal.

II

[¶ 10] Rule 3(c)(2), N.D.R.App.P., governs the content of a notice of appeal and provides in part that the notice of appeal must “(2) designate the judgment, order, or part thereof being appealed.” This Court has acknowledged the liberal federal standard under the substantially similar federal rule. See State v. Clark, 1997 ND 199, ¶ 5, 570 N.W.2d 195 (quoting from explanatory note to N.D.R.App.P. 1 in effect at that time and stating “ ‘[I]t is contemplated that the federal practice and authority will apply to those rules which have substantially the same form as their federal counterpart’”). “Courts construe Rule 3, F.R.App.P., liberally in favor of appellants.” Id. “ ‘[Wjhile we have not directly stated that notices of appeal are to be liberally construed in favor of their sufficiency, many other courts have’ and we have ‘allowed appeals under similar reasoning.’ ” See id. (quoting Biesterfeld v. Asbestos Corp. of America, 467 N.W.2d 730, 735 (N.D.1991) (emphasis in original)).

[¶ 11] The Eighth Circuit has stated the contents of a notice of appeal are not to be strictly construed and review is generally permitted, provided “the intent of the appeal is obvious and the adverse party shows no prejudice.” In re Nat'l Warranty Ins. Risk Retention Group, 384 F.3d 959, 964 (8th Cir.2004). The United States Supreme Court has stated the purpose of requiring a litigant to specifically indicate his intent to seek appellate review by filing a notice of appeal is to ensure that the filing provides sufficient notice to other parties and the courts. Smith v. Barry, 502 U.S. 244, 248, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992). “Thus, the notice afforded by a document, not the litigant’s motivation in filing it, determines the document’s sufficiency as a notice of appeal.” Id.

[¶ 12] This Court’s opinion in Smith I did not consider case number 02-K-090 to be appealed at that time. This Court clearly left case number 02-K-090 out of its opinion and decided all the issues presented but did not discuss the charge of delivery of alcoholic beverages to a person under twenty-one years of age. The two case numbers considered in Smith I were drug-related violations whereas case number 02-K-090 was an alcohol-related violation. Smith allowed the case to proceed through appeal, oral argument, and a written opinion by this Court without ever attempting to correct the notice of appeal. After the Smith I opinion was issued, Smith did not file a petition for rehearing asking the Court to consider case number 02-K-090. The State relied on the fact that case number 02-K-090 was not addressed in Smith I and believed the conviction in case number 02-K-090 was no longer appealable. It would be prejudicial to the State for this Court to now construe the notice of appeal as sufficient to have appealed case number 02-K-090 when this Court obviously did not consider it as part of Smith’s appeal. Insofar as Smith’s argument may now be construed as an attempt to appeal the conviction in case number 02-K-090, the appeal is too late and is not before this Court.

[¶ 13] Smith’s motion for a refund of fines and administrative fees paid related to his three criminal convictions, two of which were dismissed after Smith I. Generally, when a district court grants or denies a motion for relief from a judgment, the Supreme Court reviews the district court’s decision under an abuse of discretion standard. See Citibank v. Reikowski, 2005 ND 133, ¶ 6, 699 N.W.2d 851 (reviewing the trial court’s denial of a motion for relief from a default judgment to determine whether the court abused its discretion); Johnson v. Nodak Mutual Ins. Co., 2005 ND 112, ¶ 18, 699 N.W.2d 45 (reviewing a trial court’s denial of a motion for a new trial and for relief from a judgment under the abuse of discretion standard); see also N.D. Human Rights Coal. v. Bertsch, 2005 ND 98, ¶ 11, 697 N.W.2d 1 (stating a court’s ruling on a motion to reconsider is subject to review under the abuse of discretion standard). “A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when it misinterprets or misapplies the law.” Citibank, 2005 ND 133, ¶ 6, 699 N.W.2d 851.

[¶ 14] The district court found the fines and administrative fees paid by Smith to be appropriate in light of his conviction in case number 02-K-090. The district court did not act in an arbitrary, unreasonable, or unconscionable manner when it found the fines and fees appropriate and denied Smith’s motion for a refund. Therefore, the district court did not abuse its discretion when it denied Smith’s motion.

Ill

[¶ 15] Affirmed.

[¶ 16] CAROL RONNING KAPSNER, DALE V. SANDSTROM, MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ., concur.