author: SANDSTROM, Justice.

text:
    2005 ND 217
    Peter J. WRIGHT, Petitioner and Appellee, v. STATE of North Dakota, Respondent and Appellant.
    No. 20040304.
    Supreme Court of North Dakota.
    Dec. 20, 2005.
    Rehearing Denied Jan. 31, 2006.
    Mark Anthony Beauchene, Fargo, N.D., for petitioner and appellee.

      Mark Rainer Boening (argued), Assistant State’s Attorney, and Charles B. Neff, Jr. (appeared), third-year law student,- under the Rule on Limited Practice of Law by Law Students, Fargo, N.D., for respondent and appellant.
   SANDSTROM, Justice.

[¶ 1] The State of North Dakota appealed from an order granting Peter Wright’s application for post-conviction relief and ordering a new trial. We reverse and remand, concluding Wright failed to demonstrate he was prejudiced by the alleged ineffective assistance of his trial counsel.

I

[¶ 2] In January 2000, Wright was working at Dakota Boys Ranch, a coeducational residential facility for troubled youth in Fargo. On January 4, 2000, a thirteen-year-old female resident told staff members that Wright had engaged in sexual intercourse with her in her room at approximately 5:00 a.m. that morning. The victim was transported to a local hospital, and her panties were given to the police. Subsequent testing found semen on the inside front of the victim’s panties, and DNA testing established that Wright was the source of the semen. When Wright was interviewed by police, he denied having intercourse with the victim on January 4, but signed a written statement admitting that on January 3 she had fondled his penis until he ejaculated.

[¶ 3] Wright was charged with gross sexual imposition for the January 3 and 4, 2000, incidents. At trial, the victim testified Wright had engaged in sexual contact with her on several occasions, including the January 4 incident. The State presented Wright’s written statement admitting the January 3 incident and presented evidence showing Wright’s semen was found on the victim’s panties.

[¶ 4] Wright denied that he had engaged in any sexual acts with the victim. He testified that from approximately 4:45 a.m. to 6:00 a.m. he was on the telephone in the office at Dakota Boys Ranch speaking with Wendy Brownlee, a female friend from North Carolina. He stated that during this conversation he and Brownlee discussed sex, and he masturbated and ejaculated. He claimed he then wiped himself with a blue towel and placed the towel into a basket of dirty laundry, and the victim later that morning removed some of her dirty clothes from the basket before they were washed. Wright further testified he was being sarcastic when he admitted to police officers he had engaged in the January 3 incident with the victim and when he signed and initialed the written confession.

[¶ 5] Wright’s trial counsel did not call Brownlee as a witness. The jury returned a verdict of guilty and, on February 22, 2001, Wright was sentenced to serve ten years in the penitentiary. Wright did not appeal from the criminal judgment.

[¶ 6] In March 2003 Wright filed an application for post-conviction relief, alleging his trial counsel had rendered ineffective assistance when he failed to secure Brownlee’s presence and testimony at the criminal trial. Wright and his trial counsel testified at the post-conviction hearing, and Brownlee’s deposition and telephone records were admitted. The trial court determined that counsel’s failure to present Brownlee’s testimony at the criminal trial fell below an objective standard of reasonableness and that Wright was prejudiced by counsel’s conduct. The court ordered a new trial, and the State appealed.

II

[¶ 7] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. §§ 27-05-06 and 29-32.1-03. The appeal was timely under N.D.R.App.P. 4(d). Although no final judgment was entered in this proceeding, the State appealed from the memorandum opinion and order granting Wright’s application and ordering a new trial. This Court has held that an order in a post-conviction proceeding granting a new criminal trial is a final judgment that is appeal-able under N.D.C.C. § 29-32.1-14. Hill v. State, 2000 ND 143, ¶¶ 12-15, 615 N.W.2d 135. Accordingly, this Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 29-32.1-14.

Ill

[¶ 8] The State contends the district court erred in concluding Wright had established that trial counsel’s performance was deficient and that Wright was prejudiced by the deficient performance.

[¶ 9] Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure. Laib v. State, 2005 ND 187, ¶ 11, 705 N.W.2d 845; State v. Steen, 2004 ND 228, ¶ 8, 690 N.W.2d 239, cert. denied, — U.S. -, 126 S.Ct. 117, 163 L.Ed.2d 126 (2005). The issue of ineffective assistance of counsel is a mixed question of law and fact that is fully reviewable by this Court. Klose v. State, 2005 ND 192, ¶ 10, 705 N.W.2d 809; Steen, at ¶ 8. A trial court’s findings of fact in a post-conviction proceeding will not be disturbed on appeal unless they are clearly erroneous under N.D.R.Civ.P. 52(a). Klose, at ¶ 10; Laib, at ¶ 11.

[¶ 10] The Sixth Amendment of the United States Constitution and N.D. Const, art. I, § 12, guarantee a criminal defendant the right to effective assistance of counsel. E.g., Heckelsmiller v. State, 2004 ND 191, ¶ 3, 687 N.W.2d 454; Garcia v. State, 2004 ND 81, ¶ 5, 678 N.W.2d 568. In Laib, 2005 ND 187, ¶¶ 9-10, 705 N.W.2d 845 (citations omitted), we outlined the burdens placed upon a criminal defendant claiming ineffective assistance of counsel:

In accord with the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant claiming ineffective assistance of counsel bears the heavy burden of proving (1) counsel’s representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by counsel’s deficient performance. The defendant must first overcome the “strong presumption” that trial counsel’s representation fell within the wide range of reasonable professional assistance, and courts must consciously attempt to limit the distorting effect of hindsight. Heckelsmiller, at ¶ 3; Ernst v. State, 2004 ND 152, ¶ 9, 683 N.W.2d 891.
To meet the “prejudice” prong of the Strickland test the defendant carries the heavy burden of establishing a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. The defendant must prove not only that counsel’s assistance was ineffective, but must specify how and where trial counsel was incompetent and the probable different result. Unless counsel’s errors are so blatantly and obviously prejudicial that they would in all cases, regardless of the other evidence presented, create a reasonable probability of a different result, the prejudicial effect of counsel’s errors must be assessed within the context of the remaining evidence properly presented and the overall conduct of the trial.

[¶ 11] If it is easier to dispose of an ineffective assistance of counsel claim on the ground of lack of sufficient prejudice, that course should be followed. Laib, 2005 ND 187, ¶ 12, 705 N.W.2d 845; Heckelsmiller, 2004 ND 191, ¶4, 687 N.W.2d 454. Reviewing Wright’s allegations of ineffective assistance of counsel within the context of the remaining evidence and the overall conduct of the trial, we conclude Wright failed to meet his burden of establishing a reasonable probability that, but for counsel’s alleged errors, the result of his criminal trial would have been different.

[¶ 12] The trial court appears to have applied an erroneous legal standard in assessing the prejudice prong of the Strickland test. Citing State v. McLain, 403 N.W.2d 16 (N.D.1987), the court concluded that Wright had satisfied the prejudice prong “because the alibi witness was identified and her testimony would have aided the defense.” The court misapplied McLain. In McLain, this Court expressly recognized that a defendant alleging ineffective assistance of counsel must demonstrate a reasonable probability of a different result. Id. at 18. The Court therefore affirmed an order denying an application for post-conviction relief based upon counsel’s failure to locate additional witnesses when the defendant did not identify the uncalled witnesses nor explain how their testimony would have aided his case. Id. at 19. Obviously, if the defendant fails to identify the witnesses or specify how their testimony would have aided his case, he has failed to establish a reasonable probability of a different result. The converse, however, is not necessarily true. If the defendant identifies an uncalled witness and demonstrates the testimony would have aided his defense, that is merely the first part of the equation. The defendant must next establish that, viewed within the context of the other evidence and the overall conduct of the trial, there was a reasonable probability of a different result in the proceeding had the witness testified.

[¶ 13] The State presented substantial evidence of Wright’s guilt. The victim described the events of January 4, 2000, testifying that Wright entered her room at about 5:00 a.m., pulled her panties down to her knees, and placed his penis in her vagina. She testified she had put these panties on the previous evening and did not take them off until she gave them to a nurse at the hospital. Subsequent testing showed semen on the inside front of her panties, and the State’s expert witness testified that the location of the seminal fluid on the panties would be consistent with “post-coital drainage or from perhaps having semen on the external genitalia.” DNA testing established that Wright was the source of the semen on the victim’s panties.

[¶ 14] Wright claims he masturbated and wiped himself with a towel while discussing sex with Brownlee on the telephone, and then placed the towel in a laundry basket containing some of the victim’s dirty clothes. According to Wright, the victim shortly thereafter retrieved some dirty clothes from the laundry basket, and some of Wright’s semen on the towel must have gotten on the victim’s panties while in the basket together. In order to accept Wright’s explanation, the jury would have to believe that Wright masturbated and wiped himself with a towel without being seen or heard by a coworker sitting in an adjacent area; he then placed the towel in the basket of the victim’s dirty clothes, and semen from the towel only came into contact with the inside front of the victim’s panties; the victim a few minutes later decided to retrieve dirty clothes from the laundry basket and put on the panties containing Wright’s semen; and the victim coincidentally decided to make a false accusation of sexual contact against Wright on the same day.

[¶ 15] It is within this evidentiary context that we review Wright’s claim that Brownlee’s testimony would have established a reasonable probability of a different result at his trial. Although Brown-lee’s testimony would have corroborated generally Wright’s testimony that he had a telephone conversation with her in the early morning hours of January 4, 2000, Brownlee’s testimony contradicts Wright’s version of the facts in two significant aspects. First, Brownlee testified she had never had “phone sex” with Wright, and that, although Wright on occasion during their telephone calls would ask why they had not had sex when they dated during high school, she had never had a telephone conversation with Wright intentionally for the purpose of sexual gratification.

[¶ 16] More significantly, Brownlee’s testimony would have directly contradicted Wright’s alibi theory that he could not have had sex with the victim at or near 5:00 a.m. because he was on the phone with Brownlee from 4:45 a.m. to 6:00 a.m. Brownlee testified she called Wright at 4:45 a.m. Her phone records, which were produced by the telephone company under subpoena, show that Brownlee called Wright in Fargo at 4:45 a.m. North Carolina time, which would have been 3:45 a.m. Fargo time. The records show the duration of the call was 88 minutes. Thus, in contradiction to Wright’s testimony that he was on the phone with Brownlee from 4:45 a.m. to approximately 6:00 a.m., that he looked at the clock and noticed the time when he got off the phone, and that shortly thereafter the milkman buzzed to be let into the building at 6:00 a.m., Brownlee’s testimony and phone records establish conclusively that the telephone call from Brownlee lasted from 3:45 a.m. to 5:13 a.m. Fargo time. Rather than aid his defense and establish a reasonable probability of a different result, Brownlee’s testimony directly contradicts Wright’s theory of the timeline and his alibi that he could not have gone to the victim’s room at any time between 4:45 a.m. and 6:00 a.m.

[¶ 17] Furthermore, Brownlee’s testimony would only have been relevant to the January 4 incident. Wright was also charged with the January 3 incident, and his written, signed statement, in which he admitted that on January 3 the victim had fondled his penis and he had ejaculated, was admitted into evidence. Wright’s claim that he was being sarcastic when he orally admitted the incident to the officers, initialed the written confession in several places, and signed each page of the three-page confession defies logic. The State needed to prove only one of the two charged incidents to support Wright’s conviction of gross sexual imposition, and Wright’s signed, written statement admitting the January 3 incident was presented and admitted into evidence at trial.

[¶ 18] Viewing counsel’s failure to call Brownlee as a witness in light of the remaining evidence and the overall conduct of the trial, we conclude Wright failed to establish a reasonable probability that, but for the alleged errors of counsel, the result of his criminal trial would have been different. We reverse the district court’s order granting Wright’s application for post-conviction relief and ordering a new trial, and we remand for entry of judgment denying the application.

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

I concur in the result. DANIEL J. CROTHERS.


source: Caselaw Access Project

author: KAPSNER, Justice.

license: Public Domain

text:
    2005 ND 215
    Alfreda SMITH, nka Alfreda Conklin, Plaintiff and Appellee v. Richard HALL, Defendant and Appellant.
    No. 20050270.
    Supreme Court of North Dakota.
    Dec. 20, 2005.
    Rehearing Denied Jan. 31, 2006.

      Marnie Renell Soggie, Special Assistant State’s Attorney, Bismarck, N.D., for plaintiff and appellee.
    Vance Gillette, Minot, N.D., for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Richard Hall appeals from an order denying his motion to vacate the registration of a tribal court order requiring him to pay Alfreda Smith $250 per month in child support. We hold Hall’s failure to timely object to registration of the tribal court order in state court precludes him from contesting the registration. We affirm.

I.

[¶ 2] In 1991, a Standing Rock Sioux Tribal Court issued a default judgment and order, adjudicating Hall to be the father of Smith’s child and requiring Hall to pay Smith $250 per month in child support. The tribal court order indicated Hall was properly served, stating a copy of the summons and complaint was left at his residence with a person over the age of eighteen.

[¶ 3] In 1997, the Bismarck Regional Child Support Enforcement Unit registered the tribal court order for enforcement with the Burleigh County District Court. In March 1997, the district court sent Hall notice of registration of the tribal court order, by certified mail, and an amended notice of registration was sent to him by certified mail in April 1997. Both notices stated Hall had twenty days to petition the district court to vacate the registration or to request other relief. The amended notice also informed Hall that if he failed to contest the registration within twenty days, the order would be confirmed and he would be precluded from further contesting the order with respect to any matter that could have been raised at that time. Hall acknowledges receipt of notice of the proceeding to register the tribal court order. Hall did not request a hearing to contest the validity of the tribal court order, or to vacate the registration.

[¶ 4] In April 1997, the district court issued an order to show cause to Hall for failure to pay child support. Hall appeared at a June 1997, hearing and admitted that he had failed to make the ordered child support payments. Hall did not argue the tribal court order was void for lack of personal jurisdiction, and the state district court found Hall in contempt of court for failure to pay child support. The district court sentenced Hall to ninety days in jail with all jail time suspended on the condition that Hall pay a minimum of $100 per month for child support. Hall failed to pay any child support as required by the order and the record does not reflect any further contemporaneous proceedings to enforce his support obligation.

[¶ 5] Hall currently owes approximately $40,000 in child support arrears. In February 2005, Hall’s driver’s license was suspended, under N.D.C.C. § 50-09-08.6, for failure to pay child support. Hall received notice of the suspension, but failed to pay the amount due, negotiate a payment plan, or request a court hearing.

[¶ 6] In June 2005, Hall asked the district court to vacate the 1997 registration of the tribal court order and to award him attorney’s fees from the child support enforcement unit. Hall argued the tribal court lacked personal jurisdiction because he did not receive notice of the action in tribal court and was not personally served. Hall argued the tribal court order is void and the district court order registering the tribal court order should be vacated. The district court denied Hall’s motion to vacate, concluding he waived the right to challenge the registration when he failed to request a hearing at the time the tribal court order was registered.

II

[¶ 7] The issue in this case is whether Hall can challenge the tribal court order for lack of personal jurisdiction, or if he waived the right to challenge the validity of the tribal court order when he failed to object to the 1997 registration of that order. In the district court Hall moved to vacate the registration of the tribal court order under N,D.R.Civ.P. 60(b)(iv). This Court exercises plenary review of the district court’s denial of a motion to vacate under N.D.R.Civ.P. 60(b)(iv). Roe v. Doe, 2002 ND 136, ¶ 6, 649 N.W.2d 566.

A

[¶ 8] Hall argues N.D.R.Ct. 7.2 requires review of tribal court orders to determine whether the tribal court had personal jurisdiction and whether the order was obtained through a process that afforded fair notice and a fair hearing.

[¶ 9] Rule 7.2, N.D.R.Ct. sets out a procedure for recognition of tribal court orders and judgments. “Judicial orders and judgments of tribal courts within the state of North Dakota, unless objected to, are recognized and have the same effect and are subject to the same procedures, defenses, and proceedings as judgments of any court of record in this state.” N.D.R.Ct. 7.2(b). Under N.D.R.Ct. 7.2(b), if a party Objects to recognition of a judgment,- the recognizing court must be satisfied that the tribal court had personal and subject matter jurisdiction and the judgment was obtained through a process that afforded fair notice and a fair hearing. However, the “rule does not apply to orders or judgments which federal law requires that states grant full faith and credit recognition.” N.D.R.Ct. 7.2(d).

[¶ 10] The Full Faith and Credit for Child Support Orders Act (“FFCCSOA”) requires states give full faith and credit recognition to child support orders issued by other states and to enforce those orders according to their terms. 28 U.S.C. § 1738B(a) (2005). The definition of a “state” under FFCCSOA includes Indian country. 28 U.S.C. § 1738B(b) (2005). The Standing Rock Sioux Reservation is Indian country. See 18 U.S.C. § 1151 (2005). FFCCSOA requires North Dakota give full faith and credit recognition to a child support order issued by the Standing Rock Tribal Court, and we conclude N.D.R.Ct. 7.2 is not applicable to Hall’s claim.

B

[¶ 11] Hall claims the tribal court order is void for lack of personal jurisdiction. He argues a void order can be vacated at any time, and he cannot waive his right to challenge the void tribal court order, citing Eggl v. Fleetguard, 1998 ND 166, 583 N.W.2d 812, in support of his position.

[¶ 12] Chapter 14-12.2, N.D.C.C., the Uniform Interstate Family Support Act (“UIFSA”), sets out the procedural and jurisdictional rules a state must follow in recognizing a child support order from another state. Congress, in an effort to create uniformity in enforcement of child support orders, required all states to adopt UIFSA in its entirety by January 1, 1998, to remain eligible for federal funding for child support services. 42 U.S.C. § 666(f) (2005). FFCCSOA and UIFSA are very similar in terms of structure and intent. See, e.g., Gentzel v. Williams, 25 Kan.App.2d 552, 965 P.2d 855, 860 (1998). “For the most part [UIFSA and FFCCSOA] are complimentary or duplicative and not contradictory.” State ex rel. George v. Bray, 130 N.C.App. 552, 503 S.E.2d 686, 689 (1998). UIFSA and FFCCSOA work together to “facilitate the enforcement of child support orders among the states.” Harbison v. Johnston, 2001-NMCA-051, ¶ 24, 130 N.M. 595, 28 P.3d 1136.

[¶ 13] North Dakota adopted UIFSA in 1995. See 1995 N.D. Sess. Laws ch. 157. UIFSA requires North Dakota to recognize and enforce a registered child support order issued by another state, in the same manner as an order issued by a tribunal of this state. N.D.C.C. § 14-12.2-37. The definition of a state includes “Indian Tribes.” N.D.C.C. § 14-12.2-01(19)(a). A support order issued by another state is registered for enforcement when the order is filed in the registering tribunal of this state. N.D.C.C. § 14-12.2-37(1). There is a presumption that the registered order is valid. See, e.g., State of Washington v. Thompson, 339 Ark. 417, 6 S.W.3d 82, 87 (1999).

[¶ 14] Section 14-12.2-40, N.D.C.C. outlines the procedure a non-registering party must use to contest the validity of a registered order. “A non-registering party seeking to contest the validity ... of a registered order in this state shall request a hearing within twenty days after notice of registration.” N.D.C.C. § 14-12.2-40(1). If the party fails to contest the validity of the order within the time limit, the order is confirmed by operation of law. N.D.C.C. § 14-12.2-40(2). A contesting party may “seek to vacate the registration, to assert any defense to an allegation of noncompliance with the registered order, or to contest the remedies being sought or the amount of any alleged arrearages.” N.D.C.C. § 14-12.2-40(1). The contesting party has the burden of proving “[t]he issuing tribunal lacked personal jurisdiction over the contesting party.” N.D.C.C. § 14-12.2-41(1)(a). “Confirmation of a registered order ... precludes further contest of the order with respect to any matter that could have been asserted at the time of registration.” N.D.C.C. § 14-12.2-42.

[¶ 15] Interpretation and application of a statute is a question of law, fully reviewable on appeal. In re Estate of Gleeson, 2002 ND 211, ¶ 7, 655 N.W.2d 69. Our review leads us to the conclusion N.D.C.C. § 14-12.2-42 is clear and unambiguous when applied to the facts in this case.

[¶ 16] In 1997, Hall received notice of the registration of the tribal court order with the Burleigh County District Court. The notice informed Hall that he had twenty days to request a hearing to contest the registration and if he failed to object to the registration, he would be precluded from further contesting the order with respect to any matter that could be asserted at the time of registration. Hall had an opportunity to object to the registration of the tribal court order, and he failed to do so. Moreover, in 1997, Hall was also subjected to a district court contempt proceeding for failure to pay child support. During that proceeding, Hall did not claim the tribal court order was void for lack of personal jurisdiction. We conclude Hall is now precluded from contesting the 1997 registration of the tribal court order on grounds that the tribal court lacked personal jurisdiction.

[¶ 17] In interpreting a statute derived from a uniform act, the statute “must be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.” N.D.C.C. § 1-02-18. We construe uniform laws the same way as other jurisdictions “to provide consistency and uniformity in the law.” Matter of Estate of Krueger, 529 N.W.2d 151, 153 (N.D.1995). Our application of N.D.C.C. § 14-12.2-42 is consistent with application of similar laws in other jurisdictions.

[¶ 18] The Arkansas Supreme Court concluded that failure to request a hearing within UIFSA’s twenty-day time limit, precludes the nonregistering party from further challenging the validity of a foreign support order for lack of personal jurisdiction. Thompson, 6 S.W.3d at 86-88. Other courts have construed similar language of UIFSA and have held that failure to object to registration of a foreign order within the statutory time limit waives any defenses that could be asserted at the time of registration. See Office of Child Support Enforcement v. Neely, 73 Ark.App. 198, 41 S.W.3d 423, 429 (2001); Tepper v. Hoch, 140 N.C.App. 354, 536 S.E.2d 654, 657-658 (2000). But see Hawley v. Murphy, 1999 ME 127, ¶ 10, 736 A.2d 268.

[¶ 19] While in Fleetguard we acknowledged that a void judgment of this court can be set aside at any time based upon lack of jurisdiction, that case is not a child support case and does not discuss the full faith and credit obligations of the federal statute. Fleetguard, 1998 ND 166, ¶ 5, 583 N.W.2d 812. Further, the obligor in this case has not even made a prima facie showing that personal jurisdiction was lacking. The record contains a copy indicating delivery of certified mail signed by someone other than the obligor. The tribal code provides service can be made “by registered or certified mail, return receipt requested, to the defendant’s usual residence or principal place of business.” Standing Rock Sioux Tribe Code of Justice § 2-102(b) (1991).

Ill

[¶ 20] We affirm the district court’s order denying Hall’s motion to vacate the registration of the tribal court order.

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


author: PER CURIAM.

text:
    2005 ND 221
    In the Matter of the Petition to Change the RESIDENT CHAMBERS FOR DISTRICT JUDGESHIP NO. 7, NORTHWEST JUDICIAL DISTRICT, from Stanley, North Dakota, to Minot, North Dakota. In the Matter of the Judicial Vacancy in District Judgeship No. 7, with Chambers in Stanley, North Dakota, Northeast Judicial District.
    Nos. 20050304, 20050361.
    Supreme Court of North Dakota.
    Dec. 20, 2005.
   PER CURIAM.

[¶ 1] On September 7, 2005, a Petition for Transfer and Filling of Judgeship No. 7, from Stanley, North Dakota, to Minot, North Dakota, effective January 1, 2007, was filed by Dixie K. Knoebel, Trial Court Administrator for Administrative Unit 4. Proof of notice of the filing of the petition under N.D. Sup. Ct. Admin. R. 7.1 was filed October 14, 2005. Under N.D.C.C. § 27-05-08, this Court has the authority to determine the location of the chambers of the state’s district judges.

[¶ 2] On October 17, 2005, the Honorable Robert W. Holte, Judge of the District Court, officially notified the Chief Justice that he would not be seeking reelection to Judgeship No. 7, with chambers in Stanley, North Dakota, Northwest Judicial District, because he would be retiring when his current term expires on December 31, 2006. Judge Holte’s retirement will create a vacancy under N.D.C.C. § 27-05-02.1.

I. Judicial Vacancy

[¶ 3] The question of whether the office is necessary for effective judicial administration in the Northwest Judicial District must first be determined before addressing the petition to transfer the judgeship from Stanley to Minot. Under N.D.C.C. § 27-05-02.1, this Court is required to review vacancies that occur and determine, within 90 days of receiving notice of a vacancy, whether the office is necessary for effective judicial administration. This Court may, consistent with that determination, order the vacancy filled in its current location or order the vacant office transferred to any location in which a judge is necessary for effective judicial administration. N.D.C.C. § 27-05-02.1(5).

[¶ 4] Under N.D. Sup. Ct. Admin. R. 7.2, notice of a written consultation with the attorneys and judges of the Northwest Judicial District was posted October 24, 2005, on the website of the Supreme Court. Notice was also electronically provided to all presiding judges of the state. Written comments on the vacancy were permitted through November 28, 2005. For purposes of the consultation provided for under N.D.C.C. § 27-05-02.1, this procedure is sufficient for determining the disposition of the vacancy.

[¶ 5] Caseload and population information for the Northwest Judicial District, and other criteria identified in N.D. Sup. Ct. Admin. R. 7.2, § 4, were received in the petition to transfer the judgeship on September 7, 2005. Our weighted caseload study determines the amount of judicial resources needed to handle cases after weighting each type of case by the amount of time required to process an average case of that type. It also takes into account time not available for handling cases but which is required from a judge, such as travel time and time to handle administrative matters. The caseload study shows that the Northwest Judicial District is one of the districts experiencing a shortage of judicial FTEs (full-time equivalents).

Although other districts also have a shortage, we determine moving a judgeship from the Northwest Judicial District would leave that district with the most severe shortage in the state, making it extremely difficult to provide effective judicial services to residents in that district.

[¶ 6] Under the criteria of N.D. Sup. Ct. Admin. R. 7.2, § 4, the Court has considered all submissions received by the Court and its own administrative records. We determine that Judgeship No. 7 is necessary for effective judicial administration in the Northwest Judicial District.

II. Chamber Location

[¶ 7] Notice of a written comment period on the petition to transfer chambers was posted October 17, 2005, on the website of the Supreme Court. Notice was also published in the Mountrail County Promoter and the Minot Daily News. Written comments on the petition were permitted through November 28, 2005. Upon request for a hearing and after further notice, a hearing concerning the possible transfer of Judgeship No. 7 was held in the Ralph J. Erickstad Courtroom of the Supreme Court on December 15, 2005.

[¶ 8] Section 4 of N.D. Sup. Ct. Admin. R. 7.1, provides the criteria for consideration in designating resident district court judgeship chambers. Of the criteria identified in N.D. Sup. Ct. Admin. R. 7.1, § 4, factors a, b, i, j, k, and l, indicate the chambers of Judgeship No. 7 should be relocated. The remaining factors are either neutral or do not apply.

a. Annual district court combined civil, criminal and formal juvenile caseload for the most recent three-year period and any discernible caseload trends or patterns.

[¶ 9] As updated through October 30, 2005, the weighted caseload study shows a shortage of judge time in every county in the Northwest Judicial District except Mountrail County. While Mountrail County will show a shortage if the chamber is transferred, that shortage will be less than the current shortage in Ward County. The other factors such as travel time and the anticipated addition of a drug court in Ward County indicate that it is better use of judicial resources to have the judge chambered in Minot. The following charts summarize our weighted caseload results for the years 2002 through 2004 and compare the partial years of January through October in 2004 and 2005.

[¶ 10] If the weighted caseload statisties are examined on a county by county basis, it is apparent that the shortage of judicial FTEs is primarily in Ward County.

[¶ 11] The Northwest Judicial District as a whole is impacted by a substantial increase in misdemeanor, felony, and juvenile filings. Our weighted caseload studies show there has been an increase in misdemeanor and felony filings and in proceedings in juvenile court. Juvenile matters and felonies are assigned significant case weight because of the judicial hours required to adjudicate those cases.

Activities involving our criminal and juvenile justice systems are greater where the average age of the population is younger. See North Dakota Office of Attorney General, Bureau of Criminal Investigation, Crime in North Dakota, 2003: A Summary of Uniform Crime Report Data, available at http://www.ag.state. nd.us/Re-ports/BCI ReportslCrime03.pdf (last visited Dec. 20, 2005). As indicated in factor j, because of the median age of the county populations within the district, this demand will fall most heavily on Ward County-

b. Number and location of attorneys.

[¶ 12] The following distribution of attorneys in the district indicates the continued need for more judges chambered in Minot.

Burke 0

Divide 1

McKenzie 3

Mountrail 9

Ward_101

Williams 40

i. and k. Impact of any change of chamber on travel time for judges, court personnel, attorneys, and litigants. Impact on affected judicial system employees (juvenile, transcript preparation, and clerks of district court).

[¶ 13] The petition of the trial court administrator indicates that on average Judge Robert W. Holte spends three days out of every work week in Minot, which requires Judge Holte and his secretary/recorder to travel approximately 15,000 miles per year. While we were advised at hearing that litigants in Minot have not been inconvenienced by Judge Holte’s travel, that is true only because of the great personal sacrifice of Judge Holte and his staff who have had to extend their work days to be available during normal work hours in Minot. Travel also has a cost to the judicial budget. The judge’s and staffs expenses of travel to a non-chambered city, as well as the overtime incurred by staff during that travel, are paid by the state. Moving chambers to the location of the greatest judicial demand will most efficiently use both judicial and staff time.

j. Population distribution in the judicial district or de facto subdistrict.

[¶ 14] The State Data Center of North Dakota State University, which prepares population estimates by counties, shows that the current distribution of judicial work is unlikely to change through 2015. The population count for 2000 as well as the population projections for the counties in this judicial district are as follows:

See North Dakota State Data Center, Population Projections in North Dakota: 2005-2020, available at http://unmu.ndsu. nodak.edu/sdc/ publications/ population/18-9 release.pdf (last visited Dec. 20, 2005).

[¶ 15] Although Mountrail County is projected to have a slight increase from 2005 to 2010 and Ward County a slight decrease for that period, the distribution of population in the district will continue to concentrate in Ward and Williams counties.

[¶ 16] It is also significant that the median age of the population is lowest in Ward County as our weighted caseload study has shown significant increases in juvenile filings and criminal filings. The statistics compiled by the Attorney General show a consistent and significant drop in arrests after age 54. See Crime in North Dakota, 2003: A Summary of Uniform Crime Report Data, pg. 46, available at http://umm.ag. state.nd.us/ Reports/BCIRe-ports ICrime03.pdf (last visited Dec. 20, 2005).

Median Age in Years, 2000

Burke 47.5

Divide 49.0

McKenzie 39.5

Mountrail 39.6

Ward 32.4

Williams 39.8

See North Dakota State Data Center, Median Age in North Dakota: 1950 to 2000, available at http://umm.ndsu. no-dak.edu/sdc/ publications/ population/17-6.pdf (last visited Dec. 20, 2005).

1. Recommendation of the presiding judge of the judicial district, after consultation with the judges of the district court.

[¶ 17] Both presiding judge William W. McLees and his immediate predecessor as presiding judge, Robert W. Holte, support the relocation of chambers to Minot. Both judges understand and appreciate the significance of the concerns of rural North Dakota, having been chambered in rural locations. Both have also expressed their commitment to the continued provision of judicial services in all counties of the district through regularly-scheduled attendance in each county.

[¶ 18] At hearing, participants who spoke in favor of retaining the judgeship in Stanley addressed the impact of increased activity in the oil fields of western North Dakota and the importance of relationships among the state courts, the tribal court, and members of the Three Affiliated Tribes at Fort Berthold Indian Reservation. We acknowledge these valid and important concerns. The source cited in the written submission to the court (North Dakota Sales and Use Tax Statistical Report, Second Quarter 2005, Office of State Tax Commissioner, available at http:// www.nd.gov/ tax/salesanduse/pubs /reports/2005-2- stat-report.pdf) (last visited Dec. 20, 2005) indicates increased economic activity in each county of the district when compared with the prior year. To some extent, increased economic activity in the district is reflected in our recent weighted caseload studies and those studies support the relocation of the judgeship. We trust that all judges in the district will continue to recognize the importance of the continuing working relationships between state and tribal governments including our respective court systems.

[¶ 19] This petition was brought by the trial court administrator for Unit 4, and is supported by the presiding judge in consultation with district judges and the judicial referee of the Northwest Judicial District. While transfer of the chambers can be understandably difficult on the community and the area bar, the individuals who provide judicial services in the district understand the need to allocate the available judicial resources in the most effective and efficient manner. The assessment of the trial court administrator is supported by the information we have reviewed.

[¶ 20] IT IS HEREBY ORDERED, that Judgeship No. 7 of the Northwest Judicial District be filled by election, and that this office appear on the 2006 primary and general election ballots in North Dakota, and effective January 1, 2007, the chambers be transferred from Stanley to Minot, North Dakota.

[¶ 21] The transfer of the Stanley judgeship is ordered with the intent and confidence that the Honorable William L. McLees, Presiding Judge of the Northwest Judicial District, together with the other judges of the district and their successors, will continue to provide, through assignment, routine and effective judicial services to all counties in the judicial district.

22] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ., concur.


text:
    2005 SD 119
    The PEOPLE of the State of South Dakota In the Interests of R.L.G., Minor Child, and concerning D.G., Respondent Mother, and R.G., Respondent Father.
    No. 23681.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 7, 2005.
    Decided Dec. 7, 2005.

      Lawrence E. Long, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, South Dakota, Attorneys for appellee State of South Dakota.
    Tressa Zahrbock, Minnehaha County Public Defender, Sioux Falls, South Dakota, Attorneys for appellant R.L.G.
   PER CURIAM.

[¶ 1.] R.L.G. appeals his adjudication as a delinquent child for engaging in conduct that constituted the offense of simple assault under SDCL 22-18-1(4). We reverse.

FACTS

[¶ 2.] R.L.G.' was a fifteen-year-old male high school student in Sioux Falls, South Dakota. R.L.G. was six-foot-five inches tall and weighed over two-hundred pounds at the time of this incident.

[¶ 3.] On November 5, 2004, R.L.G. disrupted a presentation during biology class by crunching snack food and making noise with the wrapper. The female biology teacher, Michele Jensen, requested that he stop disrupting class. R.L.G. made a “smart aleck” comment to her and was sent to the principal’s office. After R.L.G. left the classroom, Jensen expressed her reasoning for his removal to the other students. R.L.G. subsequently became aware of Jensen’s remarks.

[¶4.] At the end of the school day R.L.G. returned to Jensen’s classroom. She was in the room alone and seated at her computer. R.L.G. “just stood in the doorway” approximately five feet away from Jensen and “scolded” her for talking about him behind his back to the other students. R.L.G. then turned, left the classroom and walked away. When asked how she felt, Jensen testified she “felt bad” and was “surprised that he would come back.” She also felt confronted and nervous. Nevertheless, Jensen followed R.L.G. in an attempt to resolve the situation. She followed him into the hallway to try and explain what had occurred that day and the “conversation” continued. She then instructed R.L.G. to go into another classroom so they could talk. R.L.G. complied but continued to “yell at her” concerning her talking about him in his absence. Although another teacher was present in this second classroom, Jensen .testified she felt intimidated by the way R.L.G. was standing and yelling. She also described R.L.G. as defiant. This second exchange lasted three or four minutes while R.L.G. stood approximately a foot away from Jensen.

[¶ 5.] The other teacher observed the verbal exchange and was ready to call the principal’s office. However, before she could do so Jensen and R.L.G. left the classroom together and continued the “discussion” until they arrived at the principal’s office. Jensen testified that at this point R.L.G. was “really angry,” but they tried to get him a chair so they “could all just calmly talk about what was going on.” Jensen was also visibly upset. A police officer assigned to the high school overheard the exchange and went to the principal’s office. At this time R.L.G. was seated and arguing with an assistant principal about his punishment. R.L.G. was angry with the assistant principal, and Jensen indicated she was afraid of the situation. However, R.L.G. never threatened Jensen or made physical contact with her and she testified she did not think he would. R.L.G. was later suspended from school for three to five days. He also returned to Jensen’s class and apologized to her.

[¶ 6.] A delinquency petition was filed alleging R.L.G. engaged in conduct constituting the offense of simple assault under SDCL 22 — 18—1(4) by “attempting by physical menace to put [] Jensen in fear of imminent serious bodily harm by verbal and aggressive behavior.” The trial court found that R.L.G. “committed the delinquency of simple assault by attempting through physical menace to put [] Jensen in fear of imminent serious bodily harm.” R.L.G. was adjudicated a delinquent child and committed to the care of the Department of Corrections.

ANALYSIS

STANDARD OF REVIEW

We review the juvenile court’s findings of fact under the clearly erroneous standard. Clear error is shown only when, after a review of all the evidence, we are left with a definite and firm conviction that a mistake has been made. The trial court’s findings of fact are presumed correct and we defer to those findings unless the evidence clearly preponderates against them. Conclusions of law, however, are reviewed de novo.

In reviewing the sufficiency of the evidence, we determine whether there is evidence in the record which, if believed by the fact finder, is sufficient to sustain a finding of guilt beyond a reasonable doubt. We will not reweigh or resolve conflicts in the evidence, nor will we pass on the credibility of witnesses. Therefore, we must accept that evidence, and the most favorable inferences to be fairly drawn therefrom, which will support the verdict.

In re S.J.N-K, 2002 SD 70, ¶¶7-8, 647 N.W.2d 707, 710 (internal citations omitted).

ISSUE

[¶ 7.] Whether the juvenile court erred in adjudicating R.L.G. a delinquent child.

[¶ 8.] R.L.G. was adjudicated a delinquent child for engaging in conduct that constituted simple assault within the meaning of SDCL 22-18-1(4). That statute provides that any person who “[attempts by physical menace to put another in fear of imminent serious bodily harm, with or without the actual ability to seriously harm the other person,” is guilty of simple assault. The elements of this offense required proof that (1) R.L.G. attempted by physical menace; (2) to put Jensen in fear of imminent serious bodily harm; (3) regardless of whether he had the actual ability to seriously harm.

[¶ 9.] “The gravamen of the offense is the attempt to put a person in fear of imminent serious bodily harm.” State v. LaCroix, 423 N.W.2d 169, 170 (S.D.1988)(interpreting similar language for attempted aggravated assault). An “attempt” is committed when a person does “any act toward the commission of the crime, but fails or is prevented or intercepted in the perpetration thereof.” State v. Schmiedt, 525 N.W.2d 253, 255 (S.D.1994). To constitute an attempt “the defendant’s acts [must] unequivocally demonstrate [] that a crime was about to be committed.” State v. St. John, 2004 SD 15, ¶ 10, 675 N.W.2d 426, 428. This requires “some overt act” toward commission of the assault. State v. Winckler, 260 N.W.2d 356, 361 (S.D.1977).

[¶ 10.] The attempt must also occur through “physical menace.” See SDCL 22-18-1(4). This Court has not addressed this element of the assault statutes. However, other courts addressing this issue have determined that “physical menace” necessarily requires more than words: there must be some physical act on the part of the defendant. See People v. Sylla, 7 Misc.3d 8, 792 N.Y.S.2d 764, 766 (2005); McDonald v. State, 784 So.2d 261, 267 (Miss.App.2001) (Southwick, J., concurring).

[¶ 11.] In this case, the State contends that an attempted physical menace occurred through R.L.G.’s raised voice, his physical size, and his proximity to the smaller teacher. However, the trial court’s only findings of fact on this issue were:

14. [R.L.G.] was one foot away from []Jensen, he stood bent towering over her and continued to yell at her. This went on for three or four minutes.
15. Jensen was intimidated by [R.L.G.].
16. Jensen was unsure whether [R.L.G.] would physically hurt her.

[¶ 12.] Moreover, the record indicates that R.L.G. never physically touched Jensen and never threatened (either verbally or by action) to physically harm her. Instead, the record reflects that after the initial encounter, Jensen followed R.L.G. to discuss the situation further. She then directed him from the hallway into another classroom. The offense allegedly occurred when R.L.G. stood approximately a foot away from Jensen as they stood in the doorway of that classroom while the other teacher sat at her desk. R.L.G.’s height and weight were apparently the most significant factors in the trial court’s conclusion that R.L.G. was intimidating the smaller teacher. However, in order to sustain a conviction under SDCL 22-18-1(4), R.L.G. must have attempted to use this advantage as a physical menace to place Jensen in fear of imminent serious bodily harm. And, those facts are not present in the trial court’s findings or in the record.

[¶ 13.] There is simply no evidence that the verbal altercation included threats of imminent serious bodily harm or an attempt to engage in such conduct. Instead, R.L.G. simply persisted in angrily shouting that Jensen not talk about him behind his back. There was no indication he took any step or overt act that could be perceived as an attempt to assault Jensen. On the contrary, Jensen testified that R.L.G. did not walk towards her. They just stood together in the doorway and the only time he moved was to leave and “not to hurt [her].” Furthermore, the record indicates that Jensen did not believe that R.L.G. would physically harm her. Jensen specifically testified that she did not think R.L.G. would hit her, he did not threaten her, and she was not afraid for her safety. When asked if R.L.G. could return to her class after this incident, she testified “I don’t think I feared for my safety” in taking him back. Although actual fear was not necessary, this testimony was clearly relevant in assessing whether an attempt to assault occurred through the tone of the encounter and the posture of the parties.

[¶ 14.] In sum, there is no question that R.L.G. engaged in an inappropriate verbal confrontation with his teacher and he was suspended from school as a result of those actions. However, his conduct did not constitute criminal simple assault because there was no record evidence of an attempt, by physical menace, to place Jensen in fear of serious imminent harm. Neither the evidence nor the trial court’s findings support a violation of SDCL 22-18-1(4) beyond a reasonable doubt.

[¶ 15.] Reversed.

[¶ 16.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.

      . A "delinquent child” is generally any child-ten years or older who violates a law for which there is a penalty of a criminal nature for an adult. SDCL 26-8C-2.

      . "Actual fear of imminent serious bodily harm is not an essential element of the offense.” LaCroix, 423 N.W.2d at 170 (citation omitted).

      . "Imminent” has been defined as "near at hand; mediate rather than immediate; close rather than touching; impending; on the point of happening; threatening; menacing; perilous.” State v. Archambeau, 322 N.W.2d 879, 880 (S.D.1982).

      . State concedes that "to put another in fear 'by physical menace,' the defendant must have committed a physical act.” Brief for State at 6, Interest of R.L.G., 2005 SD 119, 707 N.W.2d 258, 2005 WL 3315511.


author: GILBERTSON, Chief Justice. MEIERHENRY, Justice

text:
    2005 SD 121
    STATE of South Dakota, Plaintiff and Appellant, v. Charles Edwin HELLAND, Defendant and Appellee.
    No. 23705.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 3, 2005.
    Decided Dec. 7, 2005.

      David R. Nelson, Minnehaha County State’s Attorney, Hope Okerlund Matchan, Chief Deputy State’s Attorney, Minnehaha County, Sioux Falls, South Dakota, Lawrence E. Long, Attorney General, Sherri Sundem Wald, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellant.
    Michael J. Butler, Butler Law Office, P.C., Sioux Falls, South Dakota, Attorney for defendant and appellee.
   GILBERTSON, Chief Justice.

[¶ 1.] Charles Edwin Helland (Helland) filed a motion in circuit court to suppress evidence obtained in a search of his computer and office at his employer’s place of business. The circuit court judge suppressed the evidence, holding the affidavit was misleading because of the omission of material information. We reverse.

FACTS AND PROCEDURE

[¶ 2.] On June 11, 2004, Kevin Elsing, vice-president of Elbo Computing Resources and a computer technician by trade, was called to service Helland’s computer at his employer’s place of business. Elsing noticed Helland minimized the computer screen when Elsing entered the office. When Elsing began working on the computer, he was able to see that the screen Helland had minimized was a web page dealing with people’s first experience with incest. Elsing loaded antivirus and antispyware software on Helland’s computer and concluded the service call.

[IT 3.] Elsing’s next contact with Hel-land occurred on November 22, 2004, after receiving an email requesting service on Helland’s computer. The email stated Helland’s computer had lost access to the office network, was not printing properly and was not accessing Microsoft Word. Elsing arrived at Helland’s office the morning of November 23, 2004, and began his work by updating the previously installed antivirus and antispyware software and removing spyware from the system. Elsing removed several spyware files from the system to determine if these files were the cause of the software errors. Elsing then began a scan of the system using a web-based scan engine called house-call.trendmicro.com. The scan was taking a long time to complete, and to speed up the process Elsing decided to delete the contents of the “temporary internet files” folders on Helland’s computer. Elsing noticed that the deletion was taking a long time and the system did not seem to be deleting the temporary internet files as requested. Elsing then decided to look into the “temporary internet files” folders to see if files were being deleted.

[¶ 4.] Upon opening the “temporary internet files” folders, Elsing found dozens of suggestive and suspicious graphic file names such as “hot boys” and “teen boys.” Elsing opened some of these temporary internet files and found images of young nude males. Elsing noted that one image depicted two boys approximately eight to ten years of age, naked, sitting on the shore of a lake or stream, side by side, hands behind them, with their legs spread. Shocked and in disbelief about what he was seeing, Elsing began opening other files that contained similarly disturbing images. Fearing he was deleting the temporary internet files, Elsing stopped the deletion process and created a new folder called “older” and copied the index.dat file and a few of the temporary internet files into this newly created folder. Elsing left without finishing the service call, but planned to return later that afternoon.

[¶ 5.] Alarmed by what he saw, Elsing returned to Elbo Computing to discuss the details with his business partner. Elsing felt his discoveries might have triggered the provisions of SDCL 22-22-24.18, the mandatory reporter statute that requires computer repair technicians to report suspected violations of child pornography laws. Ultimately, Elsing decided that the mandatory reporter provisions in SDCL 22-22-24.18 required him to contact the police given his discovery of images of child pornography in the temporary internet files oh Helland’s computer.

[¶ 6.] Later that afternoon, Elsing contacted Marvin D. Thorstenson, a detective with the Minnehaha County Sheriffs Office assigned to the Internet Crimes Against Children Task Force. Elsing told Detective Thorstenson about the images of child pornography contained in the temporary internet files and the incest web page incident. Elsing also told Detective Thor-stenson that Helland had previously told Elsing that he was a Boy Scout Troop Leader and that he had an older fax machine at the Boy Scout Troop building that was great for printing off still images. Finally, Elsing told Detective Thorstenson that Helland had several floppy disks near the computer work station, a disk drive, and a compact disk burner attached to the computer that would allow files to be transferred from the computer to compact disks. Elsing then returned to Helland’s office and finished the service call by reloading printer drivers.

[¶ 7.] Detective Thorstenson applied for a search warrant based on this information. In his affidavit, Detective Thor-stenson provided a large amount of background information concerning how the internet is used to facilitate crimes against children. The affidavit included a section on collateral evidence that law enforcement officers expect to find during a search of the computer of an individual suspected of possession of child pornography, a section on how a computer serves as a repository of evidence in such cases, another section on the need to remove the computer from the scene in order to search it with sophisticated software programs, and finally a section on the need to seize programs and peripherals to assist in the evaluation of the data contained on the computer. In all, the background material comprised eleven paragraphs of the affidavit, almost three full pages of the five and one-half page document.

[¶ 8.] The remaining pages of the affidavit included a detailed account of the information provided to Detective Thor-stenson by Elsing, organized into seventeen enumerated paragraphs. In paragraph nine (9), Detective Thorstenson identified the files being worked on by Elsing as “temporary internet files.” The same descriptor was used in paragraphs ten (10), and twelve (12). However, in paragraphs eleven (11) and thirteen (13), Detective Thorstenson refers to “some files” and “these files” when discussing the images observed in the temporary internet files opened by Elsing.

[¶ 9.] Based on the affidavit, a search warrant was issued by a circuit court judge for evidence of the commission of the crime of possession and distribution of child pornography including contraband, the fruits of crime, or things otherwise criminally possessed, and things designed or intended for use in, or which were used as a means of, committing the offense of possession and distribution of child pornography. The scope of the search was limited to Helland’s office at his employer’s place of business for “[a]ll computer systems to include programs used to create the text or capture & modify images, all programs found near the computer system, data files, removable media such as data tape, magneto optical disks or similar storage, passwords and access codes written on pieces of paper near the computer.” The search revealed “a tremendous amount of child pornography” in two different desk drawers in Helland’s office. Based on the evidence seized, Helland was indicted on twenty counts of Possession of Child Pornography in violation of SDCL 22-22-24.2(3). None of the indictments were for the images originally found by Elsing in the temporary internet file folders.

[¶ 10.] Helland filed a motion to suppress the evidence and a hearing was held on the matter. The suppression court granted Helland’s motion, holding that the affidavit in support of the search warrant failed in two respects. First, the suppression court found that the affidavit failed to explain the nature of temporary internet files. Second, the court held that the affidavit failed to set forth the fact that the files observed by Elsing were all temporary internet files. The suppression court held that the affidavit should have specified that temporary internet files may not be user created, but rather may result from actions taken by the computer without the user’s knowledge. In addition, the suppression court held the affidavit should have stated that the evidence discovered by Elsing consisted exclusively of temporary internet files. The suppression court found Detective Thorstenson recklessly misled the issuing court by omitting the background material on temporary internet files and by failing to state that all files viewed by Elsing were temporary internet files. The suppression court held that once the affidavit was supplemented with the omitted material, there was insufficient probable cause for issuance of the search warrant. As a consequence, the suppression court ordered all evidence seized from Helland’s office suppressed.

[¶ 11.] The State appeals from the order suppressing the evidence obtained from Helland’s computer and desk drawer raising three issues:

1. Whether the suppression court erred when it held that the issuing court had insufficient probable cause to issue the search warrant.
2. Whether Detective Thorstenson recklessly made false or misleading statements in his affidavit, or recklessly withheld material information from the affidavit, so as to invalidate the search warrant.
3. Whether the good faith exception to the exclusionary rule applies when officers reasonably rely upon a search warrant that is later deemed invalid as a result of insufficient probable cause.

STANDARD OF REVIEW

[¶ 12.] Our standard of review for a challenge to the sufficiency of the evidence supporting a search warrant requires us to look “at the totality of the circumstances to decide if there was at least a ‘substantial basis’ for the issuing judge’s finding of probable cause.” State v. Schwartz, 2004 SD 123, ¶ 21, 689 N.W.2d 430, 436 (quoting State v. Jackson, 2000 SD 113, ¶ 8, 616 N.W.2d 412, 416 (citing Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983))). On review, our inquiry is limited to determining whether the information provided to the issuing court in the warrant application was sufficient for the judge to make a “ ‘common sense’ determination that there was a ‘fair probability’ that the evidence would be found on the person or at the place to be searched.” Jackson, 2000 SD 113, ¶ 8, 616 N.W.2d at 416. On review, we are limited to an examination of the facts as contained within the four corners of the affidavit. Id. ¶ 11, 616 N.W.2d at 416 (quoting State v. Lodermeier, 481 N.W.2d 614, 622 (S.D.1992) (quoting State v. Iverson, 364 N.W.2d 518, 522 (S.D.1985); State v. Smith, 281 N.W.2d 430, 433 (S.D.1979))). Furthermore, we review the issuing court’s probable cause determination independently of any conclusion reached by the judge in the suppression hearing. Jackson, 2000 SD 113, ¶ 8, 616 N.W.2d at 416 (citing United States v. Hibbard, 963 F.2d 1100, 1101 (8thCir.1992); United States v. Anderson, 933 F.2d 612, 614 (8thCir.1991)).

ANALYSIS AND DECISION

[¶ 13.] 1. Whether the suppression court erred when it held that the issuing court had insufficient probable cause to issue the search warrant.

[¶ 14.]The text of the Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

US Const. amend. IV. The Fourth Amendment’s prohibition against unreasonable searches “generally require searches of persons and places to be authorized by warrant and require such warrants to be based on probable cause to believe that the search will yield contraband or other evidence of a crime.” State v. Shearer, 1996 SD 52, ¶ 10, 548 N.W.2d 792, 795 (citing State v. Zachodni, 466 N.W.2d 624, 627 (S.D.1991)).

[¶ 15.] There is no “formulaic solution” for determining the amount of evidence required to form probable cause. Jackson, 2000 SD 113, ¶ 22, 616 N.W.2d at 420 (citing People v. Fino, 14 N.Y.2d 160, 250 N.Y.S.2d 47, 199 N.E.2d 151, 153 (1964)). Rather, “[p]robable cause lies somewhere between mere suspicion and the trial standard of beyond a reasonable doubt.” Heib v. Lehrkamp, 2005 SD 98, ¶ 21, 704 N.W.2d 875, 884 (citing Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225-26, 13 L.Ed.2d 142 (1964); and Charles H. Whitebread Christopher Slobogin, Criminal Procedure 3.03 (4th ed 2000)). It is a fluid concept that requires an “assessment of probabilities in particular contexts[,]” and must be evaluated by balancing “the government’s need to enforce the law with a citizen’s right to privacy[.]” Jackson, 2000 SD 113, ¶ 22, 616 N.W.2d at 420.

[¶ 16.] We have previously articulated the standard for determining the existence of probable cause sufficient to support the issuance of a search warrant:

There need not be a prima facie showing of legal evidence of a suspected act. The standard of probable cause for the issuance of a search warrant is a showing of probability of criminal activity. [State v. Gerber, 241 N.W.2d 720 (SD 1976); and State v. Haron, 88 S.D. 397, 220 N.W.2d 829 (S.D.1974) ]. In addition to the reasonable ground to believe that some violation of the law exists, probable cause for a search warrant necessarily implies that there is a violation in respect to some property located on some premises, or on some person, which can be identified expressly or by reasonable inference from the information given in the affidavit so as to be capable of being particularly described in the warrant. See State v. Hermandson, 84 S.D. 208, 169 N.W.2d 255 (1969).

State v. Kaseman, 273 N.W.2d 716, 723 (S.D.1978) (emphasis added). On review, this Court limits its inquiry to whether the information contained in the affidavit presented to the issuing court was sufficient for that judge to arrive at a “common sense” conclusion that there was a “fair probability” that a crime had been committed and that the evidence named in the affidavit would be found on the person or at the place to be searched. Jackson, 2000 SD 113, ¶ 8, 616 N.W.2d at 416.

[¶ 17.] When reviewing a challenge to the sufficiency of a search warrant, we will not consider evidence that was not before the issuing court at the time the warrant was issued. Id. ¶ 11 (citing Smith, 281 N.W.2d at 433 (citing Gerber, 90 S.D. 432, 241 N.W.2d 720)). Our examination is limited to the four corners of the affidavit. State v. Raveydts, 2004 SD 134, ¶ 9, 691 N.W.2d 290, 293. “Reviewing courts are not empowered to conduct an after-the-fact de novo probable cause determination; on the contrary, the issuing court’s legal basis for granting the warrant is examined with ‘great deference.’ ” Jackson, 2000 SD 113, ¶ 9, 616 N.W.2d at 416 (citing Gates, 462 U.S. at 236, 103 S.Ct. at 2331, 76 L.Ed.2d at 527). Furthermore, we will draw every reasonable inference possible in support of the issuing court’s determination of probable cause to support the warrant. State v. Habbena, 372 N.W.2d 450, 456 (S.D.1985) (citing State v. Wellner, 318 N.W.2d 324, 327 (S.D.1982)). This deferential standard “is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant.” Jackson, 2000 SD 113, ¶ 9, 616 N.W.2d at 416 (citing Massachusetts v. Upton, 466 U.S. 727, 733, 104 S.Ct. 2085, 2088, 80 L.Ed.2d 721, 727 (1984)).

[¶ 18.] In the instant case, the issuing court was presented with information indicating that Elsing had personally seen dozens of suspicious files with names such as “hot boys” and “teen boys” in the temporary internet file folders on Helland’s computer. The affidavit also indicated that Elsing had seen several photographic images of nude young males contained in files on the computer, and specifically described one in which two nude eight-or ten-year-old male children were sitting side by side with their legs spread, facing the camera. The affidavit clearly indicated that Elsing was looking at. temporary internet files contained in temporary internet file folders when he made the initial discovery of suspicious files names, although it does not state with specificity that each and every image of child pornography found by Elsing was located in a temporary internet file.

[¶ 19.] It is also clear from the affidavit that Elsing told Detective Thorstensen that Helland’s employer owned the computer in question. The affidavit also states that Elsing personally knew from his work at the employer’s place of business that this particular computer had been located in Helland’s office for the previous twelve months, and that it was connected to the internet. The affidavit also noted that Helland’s computer was attached to a printer, a CD burner and had a disk drive.

[¶ 20.] Helland argued at the suppression hearing that there was nothing in the affidavit for the issuing court to conclude that Helland had caused the images of child pornography to be stored on the temporary internet file folders, and was therefore not in knowing possession of child pornography in violation of SDCL 22-22-24.2(3). Helland argued that the images could have been sent through pop-up ads while he was accessing legal websites that did not contain child pornography. Under this theory, the images of child pornography contained in the pop-ups would have recorded themselves in the temporary internet files without any action on the part of Helland as the computer user.

[¶ 21.] At the hearing, the suppression court questioned Elsing as to the nature of temporary internet files and how such files are created on a computer. When Elsing failed to include in his explanation that pop-up ads could generate temporary internet files without any knowledge or action on the part of the user, the suppression court excused Elsing from the witness stand, stating that Elsing had no credibility with the court.

[¶ 22.] During the suppression hearing, Detective Thorstenson was also asked about his knowledge of temporary internet files and how such files may be generated by the computer user or by the actions of pop-up ads. Thorstenson conceded that the files could be created by both methods, and that he did not recall asking Elsing if he had seen user created files containing child pornography on Helland’s computer. Thorstenson also conceded that determining how the files came to be on the computer would be relevant in determining if Helland had committed the crime of knowing possession of child pornography.

[¶ 23.] In its findings of fact and conclusions of law, the suppression court included a lengthy explanation of temporary internet files and how such files can be created through active conduct on the part of a computer user as well as by pop-up ads. "The suppression court concluded as a matter of law that the affidavit should have included an explanation of temporary internet files, and should have stated in each reference to “files,” that the files in question were “temporary internet files,” because “any reasonable person would have known that an explanation of temporary internet files was necessary to thoroughly inform the issuing court.” The suppression court theorized that without the information concerning pop-up ads, the issuing court could not determine whether the child pornography images were placed on Helland’s computer by his own actions or by the computer’s own independent reactions to pop-up ads. Finally, the suppression court held that where the images were found on the computer and how the images came to be on the computer were issues determinative of whether probable cause existed to issue the search warrant.

[¶ 24.] We have never required an affidavit in support of a search warrant to state with particularity how contraband materials such as child pornography came to be at the location to be searched in order to support a finding of probable cause. That level of particularity does not apply to the search of a place where contraband or fruits or instrumentalities of a crime are believed to be located. See Zurcher v. Stanford Daily, 436 U.S. 547, 555, 98 S.Ct. 1970, 1976, 56 L.Ed.2d 525 (1978). The standard for a search warrant does not require such particularity with regard to who obtained the contraband, because “[s]earch warrants are not directed at persons; they authorize the search of ‘places’ and the seizure of ‘things,’ and as a constitutional matter they need not even name the person from whom the things will be seized.” Id. (citing United States v. Kahn, 415 U.S. 143, 155, n.15, 94 S.Ct. 977, 984, n.15, 39 L.Ed.2d 225, n.15 (1974)). Therefore, who placed the child pornography into the temporary internet files on Helland’s computer, and how they were placed there are issues immaterial to a finding of probable cause.

[¶ 25.] How the child pornography came to be on Helland’s computer is relevant to determining whether Helland was in knowing possession in violation of SDCL 22-22-24.2(3), as knowledge is an element of the crime of possession of child pornography. As such, the State must prove the existence of knowledge on Hel-land’s part beyond a reasonable doubt at trial in order to obtain a conviction, A pop-up defense goes to the issue of whether a defendant was in knowing possession of child pornography, because the pop-up defense is designed to show the computer obtained the images without the operator’s knowledge. See Ty E. Howard, Don’t Cache Out Your Case: Prosecuting Child Pornography Possession Laws Based on Images Located in Temporary Internet Files, 19 Berkeley Tech. L.J., 1227 (2004). While such a defense may be relevant at trial in disputing the element of knowledge, the place and time for that consideration is at trial and not at a suppression hearing.

[¶ 26.] The information in the affidavit made it clear that dozens of pornographic images of children were found in the temporary internet files on Helland’s computer, a fact Helland does not dispute. It was reasonable for the issuing court to infer from the existence of these images that someone had committed the crime of possession or distribution of child pornography. However, at the point in time that the issuing court approved the search warrant it was not necessary for it to have legal evidence establishing how the images came to be on the computer or whose actions had caused the images to be on Helland’s computer. The issuing court had all the facts that it needed to establish that it was “fairly probable” that someone had committed the crime of possession of child pornography, thus satisfying the first inquiry under the probable cause standard for issuing a search warrant.

[¶ 27.] It was also reasonable for the issuing court to conclude there was a “fair probability” based on the dozens of suspicious file names in the temporary internet file folders and the images viewed by Els-ing that those same images would still be located in the computer’s temporary internet files and be discovered during the search. Finally, it was reasonable for the issuing court to infer that additional images of child pornography might be contained on the computer or on disks, CDs or in printed form in the office, as Hel-land’s computer was attached to a printer, a CD burner and had a disk drive that were available to further manipulate, view, store or print out the images.

[¶ 28.] The suppression court erred when it considered evidence not contained in the affidavit to conclude there was insufficient probable cause to issue the warrant. The suppression court entered into its findings of fact and conclusions of law a substantial amount of information on the nature of temporary internet files that was not before the issuing court. The suppression court also erred when it elevated the issuing court’s evidentiary standard by requiring that the affidavit contain facts that indicated how the images of child pornography came to be on the computer.

[¶ 29.] All the issuing court and suppression court needed to consider was whether the presence of dozens of images of child pornography in the temporary internet file folders on Helland’s computer, as attested to in the affidavit, constituted sufficient probable cause to conclude that there was a fair probability that the crime of possession of child pornography had been committed and that the search of Helland’s computer and office would reveal evidence of the crime. Based on the information as contained in Detective Thorsten-son’s affidavit, we conclude it was reasonable for the issuing court to determine that there was probable cause to conclude that the crime of possession of child pornography had been committed, and that evidence of that crime would be found either on Helland’s computer or in his office. We therefore hold the warrant was supported by probable cause and that the evidence obtained in the search should not be suppressed.

[¶ 30.] 2. Whether Detective Thor-stenson recklessly made false or misleading statements in his affidavit, or recklessly withheld material information from the affidavit, so as to invalidate the search warrant.

[¶ 31.] The suppression court concluded Detective Thorstenson recklessly withheld material information from the affidavit that amounted to misleading statements. The suppression court based its conclusion on Thorstenson’s 1) failure to specify that the evidence discovered by Elsing consisted exclusively of temporary internet files, and 2) failure to include a description of temporary internet files that informed the issuing court that “temporary internet files may not be user created, but rather may result from actions taken by the computer without -the user’s knowledge.” The suppression court did not find that Detective Thorstenson recklessly made false statements.

[¶ 32.] An affidavit that is purported to contain recklessly and intentionally misleading information or material omissions is reviewed under the two-part analysis in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). State v. Brings Plenty, 459 N.W.2d 390, 401 (S.D.1990) (citing Habbena, 372 N.W.2d 450). “First, the defendant must show by a preponderance of the evidence that a ... statement knowingly and intentionally, or with reckless disregard for the truth, was [omitted] ... by the affiant in the warrant affidavit. Second, the allegedly [omitted] ... statement must be necessary to the finding of probable cause.” Id. (citing Habbena, 372 N.W.2d at 456). Omissions will only be considered misrepresentation for purposes of the analysis, when the omissions cast doubt on the existence of probable cause. Id. (citing United States v. Dennis, 625 F.2d 782, 791 (8thCir.l980)). However, we do not read a warrant affidavit in a hyperteehnical manner. Habbena, 372 N.W.2d at 456 (citing United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)); State v. Kaseman, 273 N.W.2d 716 (S.D.1978); Gerber, 90 S.D. 432, 241 N.W.2d 720; Haron, 88 S.D. 397, 220 N.W.2d 829; and State v. Kietzke, 85 S.D. 502, 186 N.W.2d 551 (1971). Instead, “we read each affidavit as a whole and interpret each in a common sense and realistic manner.” Id.

[¶ 33.] Helland argues that Detective Thorstenson knowingly and intentionally, or with reckless disregard for the truth, omitted the words “temporary internet” before the word “file” from paragraphs eleven (11) and thirteen (13) of the affidavit when describing the files containing images of child pornography as discovered by Elsing. The suppression court agreed that the omission was knowing and intentional.

[¶ 34.] However, our reading of the affidavit as a whole indicates that the references to “temporary internet files” in paragraphs nine (9), ten (10) and twelve (12), make it clear that the entire affidavit is describing the contents and names of tern-porary internet files. The shortening of the descriptor from “temporary internet files” to “some files” and “these files” in paragraphs eleven (11) and (13) is apparent as no other file location is specified for the images containing child pornography.

[¶ 35.] Therefore, we conclude that Helland has failed to satisfy the first prong of the analysis as there is no evidence that an omission exists. Even if we were to conclude that an omission was committed by Thorstenson and proceed to the second prong of the Franks v. Delaware test, there is no evidence in the affidavit or in the suppression hearing transcript to support a finding that the omission was done recklessly or intentionally to mislead the issuing court.

[¶ 36.] Helland has failed to satisfy the Franks v. Delaware test for recklessly and intentionally misleading information or material omissions in an affidavit. There was no material omission in the affidavit. Therefore, there cannot be any reckless or intentional conduct on the part of Detective Thorstenson that prejudiced Helland.

[¶ 37.] Based on our holdings in Issues 1 and 2, there is no need to address the good faith exception to the exclusionary rule in Issue 3. We reverse.

[¶ 38.] SABERS, KONENKAMP and ZINTER, Justices, concur.

[¶ 39.] MEIERHENRY, Justice, concurs in result.

MEIERHENRY, Justice

(concurring in result).

[¶ 40.] I concur in result. The proper review of this case is the two part analysis of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). First, the defendant must show “that the police omitted facts with the intent to make, or in reckless disregard of whether they thereby made, the -affidavit misleading!)]” U.S. v. Jacobs, 986 F.2d 1231, 1234 (8thCir.1993) (citing U.S. v. Reivich, 793 F.2d 957, 961 (8thCir.1986)). Second, the defendant must further show “that the affidavit if supplemented by the omitted information would not have been sufficient to support a finding of probable cause.” Id. (citing Reivich, 793 F.2d at 961).

[¶ 41.] The main concern of the trial court was the omission of “explanatory information regarding the nature of the temporary internet files.” The trial court determined that “[a]ny reasonable person would have known that an explanation of temporary internet files was necessary to thoroughly inform the issuing judge.” The intentionally omitted material, according to the trial court, was “that a temporary internet file may be computer generated without the user knowing that such a file is being created.” Further, “no statement in the Affidavit indicates that pop-up windows may also generate temporary internet files without any action by the user.” Additionally, the trial court found that “without that explanatory information, the statements referring to ‘some files’ and ‘other files’ were misleading.” The trial court found the omission to be recklessly misleading.

[¶ 42.] In the affidavit, the officer explains that the technician first noticed the files while performing a diagnostic scan of defendant’s computer. The officer includes the following information:

9. ... [The technician] observed that the scan was taking a very long time and that it was in the temporary internet files for a very long time.
10. [The technician] decided at this point to delete the contents of the temporary internet files. [He] searched for the “content.ie5” folder and began deleting the files. [He] noted that this process seemed to be taking forever, and it didn’t seem to him to be deleting the files. [He] then started looking into the folders to see if the contents were being deleted and noted suspicious file names, using words like “hot boys”, “teens”, etc and [he] did open some of these files at this time.
11. ... upon opening some files he discovered that there were images of young males, depicted in a nude state, with some being clothed. [He] recalls one such image of two boys, guessing them to be 8 to 10 years of age, naked, sitting on the shore of a lake or stream, sitting side by side, hands behind them, with their legs spread.
12. ... [he] could not believe what he was seeing on the defendant’s computer and in this state of disbelief, did start opening other folders and images, observing similar images, as described in paragraph ll.[He] realized at this point that the system was still deleting the temporary internet files, so he stopped it from doing so.

The affidavit consistently refers to the suspicious files as temporary internet files. It does not appear from the four corners of the affidavit that the officer was attempting to mislead the court about the nature of the suspicious files being anything other than temporary internet files. Nevertheless, an explanation of how content gets placed into temporary internet files would have been helpful to the court’s determination of probable cause. “Any reasonable person would have known that this was the kind of thing the judge would wish to know.” Jacobs, 986 F.2d at 1235. Although an affidavit need not be hypertech-nical, information on the workings of the technology may be important for a judge to know, especially when the crime is committed by the use of that technology. Common sense tells us that the affiant needs to provide enough technical information for the judge to assess whether criminal activity is a probability. Consequently, the crucial omission was the officer’s failure to explain the nature of temporary internet files to the judge.

[¶43.] Under the second part of the analysis, the defendant must show that the omitted information, if added to the affidavit, would defeat a probable cause showing. Here, addition of the information would have informed the issuing court that the alleged child pornography in the temporary internet files may not have been viewed by the defendant and may have been stored in the temporary internet files without the defendant’s knowledge. However, adding this information does not defeat a finding of probable cause.

[¶ 44.] The standard of probable cause required for the issuance of a search warrant is a showing of “probability of criminal activity.” State v. Kaseman, 273 N.W.2d 716, 723 (S.D.1978) (citing State v. Gerber, 90 S.D. 432, 241 N.W.2d 720 (1976); State v. Haron, 88 S.D. 397, 220 N.W.2d 829 (1974)). In determining probability, it is not necessary that there be a “prima facie showing of legal evidence of a suspected act.” Id. Under this standard, with the added information, there was still a probability of criminal activity, ie., that there was a probability that someone purposely retrieved the pictures from the internet and viewed them without saving them to a user created file. Consequently, the defendant has failed to meet the second part of the analysis. I would reverse for these reasons.

      . Antivirus software is designed to protect a computer from viruses, worms, Trojan horses, and other programs designed to attack a computer and perform malicious acts such as deleting files, accessing personal data, or using the computer to attack other computers. http://www.micros oft.com/athome/security/protect/antivirus.mspx (last visited December 5, 2005).

      . Spyware is software that installs itself onto a user’s computer and performs specific and usually unwanted tasks without the user’s consent. These functions include delivering unwanted advertising or collecting personal information about the user. Signs of spyware infection include pop-up ads, the alteration of internet settings such as home page or search page settings, the sudden appearance of additional software and tool bars. Antispyware is software designed to remove these harmful programs. http://www.micro-soft.com/athome/security/spy-ware/default.mspx and http://www.micro-soft.com/athome/security/spy-ware/spywaresigns.mspx (last visited December 5, 2005).

      .The index.dat file is located in the Temporary Internet Files folder. It serves as a cache file for Internet Explorer 4.0.
      When [a computer user] visit[s] a Web page, Internet Explorer assigns the [page’s] Web address a unique identification number and searches the [index.dat] file for that identification number. If the Web page's identification number is found, the contents of the Web page are stored locally on [the] computer’s hard disk and Internet Explorer uses the locally stored content instead of downloading the information from the- Internet. If the Web page’s identification number is not found, the contents of the Web page must be downloaded from the Internet. This occurs if [the user has] not visited the Web page before, the Web page has changed, or the Web page's identification number has expired. When the Web page’s content has been downloaded to the hard disk, the [index.dat] file is updated with the Web page’s identification number. http://support.microsoft.com/de-fault.aspx?scid=kb;en-us;178702 (last visited December 5, 2005).

      . SDCL 22-22-24.18 provides:
      Any commercial computer repair technician who has knowledge of or observes, within the scope of the technician's professional capacity or employment, a film, photograph, video tape, negative, slide or other visual depiction of a minor whom the technician knows or reasonably should know to be under the age of eighteen, engaged in prohibited sexual acts or in the simulation of prohibited sexual acts, shall report the depiction to an appropriate law enforcement agency as soon as reasonably possible. The computer repair technician need not report to law enforcement depictions involving mere nudity of the minor, but shall report visual depictions involving prohibited sexual acts. This section may not be construed to require a computer repair technician to review all data, disks, or tapes delivered to the computer repair technician within the computer repair technician's professional capacity or employment.
      A violation of this section is a Class 1 misdemeanor. However, a violation of this section does not constitute grounds for a civil action for damages against any person.

      . SDCL 22-22-24.2(3) provides in relevant part: "A person is guilty of possessing, manufacturing, or distributing child pornography if the person:
      (3) Knowingly possesses, distributes, or otherwise disseminates any visual depiction of a minor engaging in a prohibited sexual act, or in the simulation of such an act.”

      . In Zurcher v. Stanford Daily, university students and staff members argued the Fourth Amendment prevented a state from issuing a search warrant for the student newspaper’s premises for negatives, films, and pictures revealing the identities of demonstrators who assaulted police officers. 436 U.S. at 550-51, 98 S.Ct. at 1973-74, 56 L.Ed.2d at 525. Plaintiffs alleged the warrant was deficient because it authorized the search of a third party's premises, but there was no probable cause to believe that the owners or the possessors of the premises were implicated in a crime that had occurred or was occurring. Id. at 552-53, 98 S.Ct. at 1974-75, 56 L.Ed.2d at 525. The Supreme Court held that in the context of a third party search when there is probable cause to believe the fruits or instru-mentalities of a crime are in a specific location, the Fourth Amendment does not require that the occupant, owner or possessor of the premises must also be reasonably suspected of crime and be subject to arrest before a search warrant may issue. Id. at 559, 98 S.Ct. at 1978, 56 L.Ed.2d at 525.

      . Our state code is filled with crimes that require the State to prove knowing possession on the part of the accused. See SDCL 22-42-6 (“No person may knowingly possess marijuana.”) (emphasis added.); SDCL 22-42-5 (“No person may knowingly possess a controlled drug or substance") (emphasis added.); SDCL 22-42-8 ("Any person who knowingly obtains possession of a controlled drug or substance by theft, misrepresentation, forgery, fraud, deception, or subterfuge is guilty of a Class 4 felony.”) (emphasis added.); and SDCL 22-14-23 ("Except as provided in § 22-14-24, any person who knowingly possesses or causes to be present a firearm or other dangerous weapon, in any county courthouse, or attempts to do so, is guilty of a Class 1 misdemeanor.)” (emphasis added). See also SDCL 22-14A-4 (knowingly possesses a destructive device) (emphasis added.); SDCL 58-4A-2(l) (knowingly possess fraudulent insurance policies) (emphasis added.); SDCL 10-50-21 (knowingly possess counterfeit stamp) (emphasis added.); SDCL 22-11-27 (knowing possession of property with altered serial number) (emphasis added.); and SDCL 22-42-9 (knowing possession of equipment for making counterfeit controlled substance) (emphasis added). However, we require the State to prove up the knowledge requirement at trial. See State v. McDonald, 500 N.W.2d 243 (S.D.1993) (defendant who was arrested and charged with knowing possession of controlled substance under SDCL 22-42-5 used defense of lack of knowledge at trial).

      . Helland stated at oral argument that the images identified by Elsing as child pornography were of nude children, and therefore did not meet the definition of pornography under SDCL 22-22-24.2(3), which makes illegal the possession, distribution and dissemination of images that are a "visual depiction of a minor engaging in a prohibited sexual act, or in the simulation of such an act.” However, that argument was not made at the suppression hearing, and therefore is not addressed by this Court. See Knudson v. Hess, 1996 SD 137, ¶ 8, 556 N.W.2d 73, 75 (holding parties must have presented the issue to the court below and obtained a ruling before it will be permitted to be raised on appeal) (quoting Klinker v. Beach, 1996 SD 56, ¶ 17 n. 3, 547 N.W.2d 572, 576; and Hawkins v. Peterson, 474 N.W.2d 90, 95 (S.D.1991)).