author: LANSING, Judge.

text:
    Aldo Olaf HERNANDEZ, a minor, by Nelly Hernandez, and Jaime Hernandez, his parents and natural guardians, et al., Respondents, v. STATE of Minnesota, Respondent (A03-1433), Appellant (A03-1445), City of Marshall, Appellant (A03-1433), Respondent (A03-1445), Jesus Pineda, a/k/a Pablo Rodriguez, Respondent, Laura Leticia Salinas, Respondent.
    Nos. A03-1433, A03-1445.
    Court of Appeals of Minnesota.
    May 25, 2004.

      Sharon L. Van Dyck, Paul E. Godlewski, Schwebel, Goetz & Sieben, P.A., Minneapolis, MN, for respondents Hernandez.
    Mike Hatch, Attorney General, W. Karl Hansen, Assistant Attorney General, St. Paul, MN, for appellant State of Minnesota.
    Paul D. Reuvers, Jason J. Kuboushek, Iverson Reuvers, LLC, Bloomington, MN, for appellant City of Marshall.
    Fred Soucie, Soucie, Buchman & Bolt, Ltd., Anoka, MN, for respondent Laura Leticia Salinas.
    Jesus Pineda, Worthington, MN, pro se, respondent.
    Considered and decided by PETERSON, Presiding Judge; LANSING, Judge; and HALBROOKS, Judge.
   OPINION

LANSING, Judge.

In this consolidated appeal from summary judgment in a negligence action for personal injuries sustained in a train-car collision, the State of Minnesota and the City of Marshall argue that the district court erred by failing to apply federal-preemption or governmental-immunity doctrines to dismiss all of the claims. By notice of review, Aldo Hernandez argues that the district court erred by determining that federal law preempts his claim for negligent placement of a stop sign at the railroad crossing. Because federal law preempts common law negligence actions for failure to provide adequate warning devices at a railroad crossing and also preempts common law negligence actions against the state and the city for allegedly failing to timely install additional warning devices, we affirm in part and reverse in part.

FACTS

A train operated by the Burlington Northern and Santa Fe Railway Company (BNSF) struck a car at the Legion Field Road railroad crossing in Marshall, Minnesota on January 8, 1999. Aldo Hernandez, a child sitting in the back seat of the car, sustained severe and permanent injuries as a result of the collision.

At the time of the collision, the Legion Field crossing was marked with retro-reflective stop signs, advance-warning signs, pavement markings, and crossbucks. Crossbucks are the posted black-and-white, X-shaped signs that read “RAILROAD CROSSING.” These safety devices, referred to as passive devices, were installed as part of the “Corridor 11 project,” which was initiated by the Minnesota Department of Transportation (Mn/DOT) in 1991 to improve safety at grade crossings along the BNSF corridor between Willmar, Minnesota and the South Rock County Line in South Dakota. When the project was initiated, the Legion Field crossing had only advance-warning signs and crossbucks. The Federal Highway Administration (FHWA) approved the Corridor 11 project and funded ninety percent of the cost to install the additional warning devices.

Approximately ten months prior to the accident, the state initiated another project for additional warning devices at the Legion Field crossing. The proposed warning devices included automatic gates and signals, referred to as active warning devices. The state allocated funds from the FHWA to help finance the project and executed a contract with BNSF for the installation of the gates and signals. The project was not authorized to begin until January 19, 1999, because a number of state agencies, including Mn/DOT, the Attorney General’s Office, and the Department of Administration, were in the process of reviewing the contract and recommending whether to approve the project.

Following the accident, Hernandez’s parents, on behalf of Aldo Hernandez, sued, among others, BNSF, the City of Marshall, and the State of Minnesota. The complaint alleged that the state and the city were negligent in failing to install automatic gates and signals at the crossing. The complaint also raised negligence claims against BNSF. A settlement was reached with BNSF and, by stipulation, BNSF was dismissed from the action.

The city and state separately moved for summary judgment, arguing that federal law preempted Hernandez’s claims and that they were immune from liability. The state also argued that it was entitled to vicarious official immunity and immunity under Minn.Stat. § 219.402 (2002). Hernandez moved for partial summary judgment, arguing that the district court should strike the state’s and city’s affirmative defenses of federal preemption, statutory immunity, and the state’s defense of official immunity.

The district court granted Hernandez’s motion and denied the state’s and the city’s motion, except it concluded that preemption applied to the location of the stop sign. The state and the city then filed separate appeals, which we consolidated. Hernandez filed a notice of review of the district court’s conclusion that federal law preempts the negligence claims on placement of the stop sign.

ISSUES

I. Does federal law preempt Hernandez’s state-law negligence claims for failure to maintain adequate warning devices at a railroad grade crossing?

II. Does federal law preempt state-law negligence claims against the State of Minnesota and City of Marshall for failing to timely install additional warning devices?

ANALYSIS

I

Under the umbrella of the Supremacy Clause, U.S. Const., art. VI, cl. 2, federal law may preempt state law in three ways: (1) by an express statement of the extent to which the congressional enactment displaces state law, (2) by implication when congress has legislated so pervasively in a field that the federal system must be assumed to preclude enforcement of state laws on the same subject, and (3) by implication when congress enacts law that conflicts with state law and makes it impossible to comply with both federal and state requirements or makes the state law an obstacle to achieving the full purpose of the federal enactment. English v. Gen. Elec. Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270, 2275, 110 L.Ed.2d 65 (1990).

The preemption issues raised in this appeal are a product of the interplay between two federal acts, the Federal Railroad Safety Act (FRSA) and the Federal Highway Act (FHWA). Congress enacted the FRSA in 1970 to “promote safety in every area of railroad operations and reduce railroad-related accidents.” 49 U.S.C. § 20101 (2000). The FRSA contains a preemption provision that is conditioned on administrative action but is nonetheless express:

Laws, regulations and orders related to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the State requirement.

49 U.S.C. § 20106 (2000).

In 1973, Congress enacted the Highway Safety Act, which created the Federal Railway Highway Crossings Program. See Highway Safety Act of 1973, Pub.L. No. 93-87, 87 Stat. 250 (codified at 23 U.S.C. §§ 130, 152 (2000)). This program provides funding to states for the cost of projects designed to eliminate hazards at railway-highway crossings. 23 U.S.C. § 130(a). Regulations have been promulgated under the FHWA to implement the. crossing program, including regulations that govern the design of grade-crossing improvements and the adequacy of warning devices installed under the program. 23 C.F.R. § 646.214(b) (2004). These regulations, set forth in sections 646.214(b)(3) and (4), contain three provisions that pertain to the preemption issues raised in this appeal. The first provision specifies the conditions under which adequate warning devices are to include automatic gates with, flashing lights. Id. (b)(3)(i). The second provides that in individual cases when a diagnostic team justifies that gates are not appropriate, FHWA may find that the requirements do not apply. Id. (b)(3)(ii). The third provides that if the requirements of § 646.214(b)(3) are not applicable to a particular crossing, the type of warning device to be installed is subject to approval by the FHWA. Id. (b)(4).

In two successive cases,. the United States Supreme Court has resolved the issue of whether these FHWA regulations, read in combination with the FRSA express-uniformity provision, preempt a plaintiffs state tort claim for injuries from an alleged failure to maintain adequate warning devices at a railroad grade crossing. Norfolk S. Ry. v. Shanklin, 529 U.S. 344, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000); CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993).

In Easterwood, the Supreme Court determined that the express-uniformity provision allows for preemption not only of state statutory and regulatory law, hut also of state common law to the extent that federal regulations are adopted that substantially subsume the same subject matter. Easterwood, 507 U.S. at 664, 113 S.Ct. at 1737-38. The Court specifically concluded that sections “646.214(b)(3) and (4) displace state and private decisionmak-ing authority by establishing a federal-law requirement that certain protective devices be installed or federal approval obtained.” Id. at 670, 113 S.Ct. at 1741. The Court ultimately concluded, however, that the plaintiffs state tort claim was not preempted because the warning devices for which federal funds had initially been obtained were never installed at the crossing where the collision occurred, and the federal funding was diverted to another intersection. Id. at 671-73, 113 S.Ct. at 1741-42. Thus preemption did not defeat Easterwood’s claims, but only because federal monies were not expended on the passive warning devices at the crossing where the collision- occurred. Id. at 673, 113 S.Ct. at 1742.

In Shanklin, the Court reiterated that the requirements spelled out in sections 646.214(b)(3) and (4) are mandatory for all warning devices installed with federal funds. Shanklin, 529 U.S. at 353-54, 120 S.Ct. at 1474. The warning devices in Shanklin were installed using federal funds. Id. at 347, 120 S.Ct. at 1471. Addressing the preemptive effect of sections 646.214(b)(3) and (4), the Court stated that these sections establish a standard of adequacy that “determine^ the devices to be installed” when federal funds participate in the crossing improvement project. Id. at 354, 120 S.Ct. at 1474 (quotation omitted). “As a result, once the FHWA has funded the crossing improvement and the warning devices are actually installed and operating, the regulation displaced state and private decisionmaking authority by establishing a federal-law requirement that certain protective devices be installed or federal approval obtained.” Id. (quotation omitted).

The Court in Shanklin described the preemptive effect: “When the FHWA approves a crossing improvement project and the State installs the warning devices using federal funds, §§ 646.214(b)(3) and (4) establish a federal standard for the adequacy of those devices that displaces state tort law addressing the same subject.” Id. at 357, 120 S.Ct. at 1476. The Court further described the displacement:

It is this displacement of state law concerning the devices’ adequacy, and not the State’s or the FHWA’s adherence to the standard set out in §§ 646.214(b)(3) and (4) ... that pre-empts state tort actions. Whether the State should have originally installed different or additional devices, or whether conditions at the crossing have since changed such that automatic gates and flashing lights would be appropriate, is immaterial to the pre-emption question.

Id. at 357-58, 120 S.Ct. at 1476.

The relevant facts in Shanklin do not differ from the facts of Hernandez’s claim. Shanklin, the widow of a man killed in a crossing accident, sued the railroad for its alleged failure to maintain adequate warning devices at a grade crossing in Tennessee. Id. at 347, 120 S.Ct. at 1470-71. At the time of the accident, the crossing was equipped with advance-warning signs and reflectorized crossbucks. Id. at 350, 120 S.Ct. at 1472. The Tennessee Department of Transportation had installed these devices with federal funds as part of a project to improve various crossings throughout the state. Id.

Hernandez argues, as Shanklin argued, that maintaining only passive warning devices, when the factors listed in section 646.214(b)(3)(i)(E) require active warning devices, constitutes actionable negligence. The state and city argue that no determination has been made on whether the Legion Field crossing met those factors. But that issue is immaterial in light of the FHWA approval of the passive warning devices. See id. at 354, 120 S.Ct. at 1474 (regardless of whether the factors are absent or present, “ § 646.214(b)(3) or (4) ‘is applicable’ and determines the type of warning device that is ‘adequate’ under federal law”).

The record in this case, as in Shanklin, confirms that federal funds were used to install the passive warning devices. The record shows that the FHWA approved the Corridor 11 project to install crossbucks, retro-reflective stop signs, advance-warning signs, and pavement markings at the Legion Field crossing. The record also shows that the FHWA financed ninety percent of the costs to install these warning devices. Because the federal government approved and financed the installation of the passive warning devices at the Legion Field crossing, these devices are conclusively established as “adequate,” and state tort claims alleging the inadequacy of these devices are preempted. See id. at 357, 120 S.Ct. at 1476. This is true regardless of whether the state or the FHWA adhered to the standards for warning devices established in sections 646.214(b)(3) and (4). See id. at 357-58, 120 S.Ct. at 1476 (stating “[w]hether the State should have originally installed different or additional devices ... is immaterial to the pre-emption question”); see also Bock v. St. Louis Southwestern Ry., 181 F.3d 920, 923 (8th Gir.1999) (stating that the issue “is not what warning system the federal government determines to be necessary, but whether the final authority to decide what warning system is needed has been taken out of the railroad’s and the state’s hands” under sections 646.214(b)(3) and (4) (quotation omitted)). In other words, “[i]t is the identity of the decision-maker, and not the accuracy of the decision, that determines preemption.” Powers v. CSX Transp., Inc., 97 F.Supp.2d 1297, 1303 (S.D.Ala.2000). The district court erred by concluding that Hernandez’s state tort claims, which squarely rest on the claimed inadequacy of the warning devices at the Legion Field crossing, are not preempted by federal law.

Hernandez, by notice of review, also argues that federal law does not preempt his claim that the city and state were negligent in the location of the Legion Field crossing stop sign. He reasons that stop signs are not warning devices designed for the purpose of indicating a railroad crossing and, therefore, they are not preempted by section 646.214(b). Passive railroad warning devices are defined as “those types of traffic control devices, including signs ... located at or in advance of a grade crossing to indicate the presence of a crossing....” 23 C.F.R. 646.204 (2004). The record shows that the stop sign at the Legion Field crossing is located on the same post as the crossbuck and was installed as part of the Corridor 11 project to. increase safety devices at railroad crossings. The stop sign constitutes a passive warning device designed to indicate the presence of the Legion Field crossing. Thus, for the same reasons that we concluded that federal law preempted a state-law negligence action for inadequate warning devices, we-conclude that federal law preempts Hernandez’s state-law claim alleging negligent placement of the stop sign.

The final distinction that Hernandez advances is between the identity of the defendants in Easterwood and Shanklin— railroads—and the identity of the defendants in this case—governmental entities. Hernandez contends that the rationale of Easterwood and Shanklin, formulated for railroad defendants, does not apply to governmental entities. We disagree. Because the essential question in the state negligence action is whether the defendant has a duty to the plaintiff, the issue is “whether the final authority to decide what warning system is needed has been taken out of the railroad’s and the state’s hands.... ” Bock, 181 F.3d at 923 (emphasis added). The state as well as the railroad is “no longer duty-bound in the tort sense, for causes of action based on the adequacy of the crossing safety device.” Id. (addressing absence of railroad’s duty in the face of federal preemption); Smallwood v. Ill. Cent. R.R., 203 F.Supp.2d 686 (S.D.Miss.2002) (addressing the absence of the state’s common law duty to install additional devices in the face of federal preemption).

The FHWA was charged with deciding what warning devices were appropriate for the Legion Field crossing and the FHWA approved the changes made to the crossing under the Corridor 11 project, which included additional passive warning devices but not active warning devices. Because the FHWA was the decisionmaker, Hernandez’s claims against the state and city alleging inadequate warning devices at the Legion Field crossing are preempted.

II

As a second ground for his state-law negligence action, Hernandez argues that the state and city were negligent in delaying the installation of active warning devices at the Legion Field crossing. This precise argument was raised in Bock. In Bock, a fatality occurred as a result of a train-car collision at a grade crossing protected only by reflectorized crossbucks. Bock, 181 F.3d at 921. The crossbucks were installed with federal funds as part of a statewide initiative in Arkansas to improve the safety of all railroad grade crossings. Id. At the time of the accident, however, a federally funded project to install lights and automatic gates at the crossing had been approved. Id. The deceased’s spouse sued the railroad, arguing, in part, that the railroad negligently delayed the installation of the active warning devices at the crossing. Id. at 923. The Eighth Circuit Court of Appeals stated that the project to install the active warning devices at the crossing was “irrelevant,” and held that any Arkansas common law tort cause of action for negligently delaying the installation of the devices was preempted because federal funds were used to install the crossbucks in place at the time of the accident. Id.

The Bock court reasoned that a claim of negligent delay is essentially founded on the premise that the existing and approved warning devices are inadequate and that the final authority to decide what warning system is adequate has been preempted by federal regulation. Id. Since Bock, two federal district courts have analyzed this question. In Powers the court concluded that while sections 646.214(b)(3) and (4) “substantially subsume the subject matter of the selection of adequate grade crossing warning devices, ... they do not substantially subsume the subject matter of timely installation of such devices once selected.” Powers, 97 F.Supp.2d at 1307. In holding that the plaintiffs negligent-delay claim is not preempted, the court reasoned that the language in sections 646.214(b)(3) and (4) does not “set forth any requirements for the timely installation of approved warning devices.” Id. at 1305.

In Smallwood the court adopted the Bock rationale, reasoning that a delay-in-gate-installation action challenges the adequacy of the existing warning devices and that once federally funded devices have been installed, state law cannot be used to make that determination. Smallwood, 203 F.Supp.2d at 693. The court concluded that any common law duty of the state to install warning devices in addition to those determined adequate by the FHWA is preempted; consequently, “there cannot be a common law duty to timely install such additional devices.” Id.

The Bock and Smallwood decisions parallel the reasoning in Easterwood and Shanklin that sections 646.214(b)(3) and (4) “displace[] state and private decision-making authority by establishing a federal-law requirement that certain protective devices be installed or federal approval obtained.” Shanklin, 529 U.S. at 354, 120 S.Ct. at 1474 (citing Easterwood, 507 U.S. at 670, 113 S.Ct. at 1732). We therefore conclude that the state and the city have no common law duty that could be violated by failing timely to install additional warning devices. Because we conclude that the negligent-delay claim is preempted by federal law, we do not address the state and the city’s alternative argument that governmental-immunity doctrines preclude the imposition of liability for their decisions.

D E C I S I O N

The district court correctly concluded that 23 C.F.R. § 646.214(b) (2004) preempts Hernandez’s state tort claim alleging negligent placement of the stop sign at the Legion Field crossing. That same provision preempts Hernandez’s remaining claims alleging inadequate warning devices at the Legion Field crossing and preempts his common law negligence claim against the city and the state for failure timely to install active warning devices. Because we conclude that federal law preempts all of Hernandez’s state tort claims, we do not reach the issue of whether the State of Minnesota or the City of Marshall are entitled to immunity.

Affirmed in part and reversed in part.


source: Caselaw Access Project

author: KLAPHAKE, Judge. RANDALL, Judge

license: Public Domain

text:
    Lena M. HYATT, Respondent, v. ANOKA POLICE DEPARTMENT, et al., Appellants.
    No. A03-1707.
    Court of Appeals of Minnesota.
    May 25, 2004.
    Review Granted July 20, 2004.

      Robert F. Mannella, Babcock, Neilson, Mannella, LaFleur & Klint, Anoka, MN, for respondent.
    Paul D. Reuvers, Jason J. Kuboushek, Iverson Reuvers, LLC, Bloomington, MN, for appellants.
    Considered and decided by RANDALL, Presiding Judge, KLAPHAKE, Judge, and FORSBERG, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

KLAPHAKE, Judge.

After a police dog bit her during the arrest of her husband, respondent Lena M. Hyatt sued appellants, the Anoka Police Department and the City of Anoka (collectively referred to as the city), under the “dog bite” statute, Minn.Stat. § 347.22 (2002). The city moved for summary judgment, arguing that (1) the dog bite statute, which imposes strict liability upon the owner of a dog for injuries caused to a person, does not apply to police dogs; (2) the city is entitled to statutory immunity for its decision to own police dogs; (3) the city is entitled to vicarious official immunity for the actions of its police officer; and (4) the police department is not a legal entity subject to suit. The district court rejected the city’s arguments and denied its motion for summary judgment. The city appeals.

Because the legislature did not intend to apply the dog bite statute to police dogs, the city is entitled to a grant of summary judgment and dismissal of the claim against it. We therefore reverse the district court’s decision.

FACTS

On May 21, 2002, at approximately 2:00 a.m., four law enforcement officers arrived at a residence in St. Francis to execute two arrest warrants on respondent’s husband, Andrew Hyatt, for controlled substance and fleeing a peace officer. The arrest team consisted of a police officer from St. Francis; two Anoka County Deputy Sheriffs, Paul Lenzmeier and Todd Diegnau; and City of Anoka Police Officer Mark Yates and his police dog, Chips.

The homeowner informed the officers that Andrew Hyatt was living with respondent in a barn behind the main residence. The officers approached the barn, knocked on the door several times, and called for Andrew Hyatt to step out. After receiving no response, the officers entered the building and came upon another man, Adam Zugschwert, who advised them that Hyatt was in the upstairs loft. By that time, the officers heard some movement upstairs.

The officer from St. Francis remained with Zugschwert. Officer Yates and Chips remained outside in case Andrew Hyatt fled, while Deputies Lenzmeier and Dieg-nau went upstairs. The deputies saw two individuals lying in bed underneath a blanket. They told the individuals to sit up and show their hands, but the individuals did not respond. Because of the two outstanding felony warrants and because the deputies were unable to tell what the individuals were holding in their hands, they had their guns drawn.

Lenzmeier pulled the blanket down and Andrew Hyatt jumped out of bed, yelling “Go ahead, just shoot me, shoot me!” Hyatt took a swing at Lenzmeier and missed; Lenzmeier pushed him away, towards Diegnau. Hyatt struck Diegnau in the face and again in the mouth as Dieg-nau attempted to subdue him.

During the struggle, Yates, who was outside with Chips, heard a woman screaming at the deputies in a threatening tone to get out of the apartment. Yates also heard what sounded like a fight occurring upstairs. When he heard someone call for assistance, he and Chips went upstairs.

According to respondent, Andrew Hyatt fled the scene prior to the time Yates and Chips arrived upstairs. Respondent claims that when Yates released Chips, the dog immediately charged her rather than chasing her fleeing husband. Respondent claims that the dog pounced on her and bit her repeatedly in the arm and leg before Yates controlled him.

According to Yates, however, when he got upstairs, he saw a woman standing in the middle of the room, a man behind her, and the deputies standing off to the side somewhat behind him. Diegnau was injured, with a large amount of blood coming from his nose and mouth.

When Yates saw Andrew Hyatt run out through a door, he gave verbal commands and released Chips from his lead. At that moment, according to Yates, respondent was either pushed by Andrew Hyatt or voluntarily stepped in front of Chips, who took her down to the ground and bit her. Yates decided to follow Hyatt and did not immediately release Chips. Yates jumped on Hyatt’s back in an attempt to tackle him, but Hyatt went through the doorway into a small porch area and threw himself through a second story window. Yates went halfway through the window before he caught himself on the ledge area. Andrew Hyatt continued to the ground and fled on foot.

Yates then returned to the other room and immediately released Chips, who was still holding onto respondent. Yates explained that he did not release Chips immediately because there wasn’t time.

Andrew Hyatt was apprehended approximately 15 minutes later. Respondent was taken to the hospital with lacerations on her left leg and right arm. She thereafter brought this suit against the city under the dog bite statute.

ISSUE

Did the district court err in determining that the dog bite statute imposes strict liability on the city as the owner of a police dog?

ANALYSIS

“On an appeal from summary judgment, this Court determines whether there are genuine issues of material fact and whether the district court erred in applying the law.” Watson v. Metro. Transit Comm’n, 553 N.W.2d 406, 411 (Minn.1996). The issue of whether immunity applies is a legal question subject to de novo review. Gleason v. Metro. Council Transit Operations, 582 N.W.2d 216, 219 (Minn.1998).

This case involves the construction and applicability of a statute, which is also a question of law and is reviewed de novo. See Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998); O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.1996). A court must initially examine the language of a statute to determine its meaning and “ascertain and effectuate the intent of the legislature.” Minn.Stat. § 645.16 (2002) (“When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit”). Wfiiere the meaning of a statute is plain and unambiguous on its face, judicial construction is neither necessary nor proper. Occhino v. Grover, 640 N.W.2d 357, 359 (Minn.App.2002), review denied (Minn. May 28, 2002). “But courts are not to give effect to the plain meaning of the statute if it produces absurd results or it is clearly at odds with the policy of the legislation as a whole.” Swenson v. Waseca Mut. Ins. Co., 653 N.W.2d 794, 797 (Minn.App.2002), review denied (Minn. Feb. 26, 2003).

Respondent’s claim against the city rests solely on the dog bite statute, which states in full:

If a dog, without provocation, attacks or injures any person who is acting peaceably in any place where the person may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained. The term “owner” includes any person harboring or keeping a dog but the owner shall be primarily liable. The term “dog” includes both male and female of the canine species.

Minn.Stat. § 347.22 (2002). The statute imposes strict liability on the owner of a dog who attacks or injures another person. The only defenses available to the owner are that the dog was provoked or that the injured person was not acting peaceably in a place where the person was lawfully entitled to be. Unlike many other cases involving personal injuries from a dog bite, respondent does not assert a negligence or excessive force claim. See, e.g., Lewellin v. Huber, 465 N.W.2d 62, 64 (Minn.1991); Kuha v. City of Minnetonka, 328 F.3d 427, 433 (8th Cir.2003).

The district court here determined that the dog bite statute is unambiguous and that nothing in its plain language exempts police dogs. The city counters that because application of the statute to police dogs leads to absurd results, we must look beyond the plain language in order to ascertain and fulfill the legislature’s intent. See Minn.Stat. § 645.17(1) (2002) (stating that when “ascertaining the intention of the legislature,” courts may presume that “legislature does not intend a result that is absurd, impossible of execution, or unreasonable”).

While the language of the dog bite statute appears clear on its face, we agree with the city that the statute’s application to police dogs leads to absurd results, presumably not intended by the legislature. For instance, application of the statute to police dogs would expose a city to a strict liability claim, regardless of the reasonableness of the use of the police dog. Such a result is directly contrary to the statute that allows police to use reasonable force in the performance of their duties. See Minn.Stat. § 609.06 (2002) (authorizing police to use reasonable force when effecting lawful arrest or attempting to prevent person from escaping); Dennen v. City of Duluth, 350 F.3d 786, 790 (8th Cir.2003); Kuha, 328 F.3d at 433 (recognizing that use of police dogs is constitutionally and statutorily permissible, and that standard is one of objective reasonableness).

In addition, application of the dog bite statute to police dogs would hamper the ability of police to use police dogs for fear of liability. In a somewhat analogous situation, the supreme court has refused to impose strict liability on police for decisions involving high-speed chases. See, e.g., Pletan v. Gaines, 494 N.W.2d 38, 41 (Minn.1992); Cairl v. City of St. Paul, 268 N.W.2d 908, 911-12 (Minn.1978). In Cairl, 268 N.W.2d at 912-13, the court concluded that other statutes already impose a negligence standard of care on police when operating their vehicles in emergency situations. In Pletan, 494 N.W.2d at 41, the court recognized that exposing police officers to civil liability whenever a third person might be injured in a police chase would “tend to exchange prudent caution for timidity in the already difficult job of responsible law enforcement.” Similarly, because the use of police dogs may be subject to negligence and excessive force claims, imposition of strict liability under the dog bite statute would render these other theories of liability useless and would hamper any decision by police to use police dogs, however reasonable.

These contradictions or absurdities lead us to examine the legislative intent of the dog bite statute. See Wegener v. Comm’r of Revenue, 505 N.W.2d 612, 617 (Minn.1993). When the legislature enacted the dog bite statute in 1951, it was generally concerned with injuries inflicted by dogs, particularly injuries to “persons who come upon private residential premises lawfully.” Lewellin, 465 N.W.2d at 65 & n. 3. The legislature clearly intended to eliminate the “one free bite” rule of common law. Id.

For several reasons, we infer that the legislature could not have intended to apply the dog bite statute to police dogs. According to the city, police dogs were not used in Minnesota for law enforcement until the 1960’s, years after the dog bite statute was enacted. Further, the doctrine of sovereign immunity, which precluded any claims against municipalities, was not abrogated until 1962. See Spanel v. Mounds View Sch. Dist. No. 621, 264 Minn. 279, 292-93, 118 N.W.2d 795, 803-04 (1962). Thus, there was no reason for the legislature to specifically exclude police dogs from the dog bite statute in 1951.

We therefore conclude that the dog bite statute does not apply to police dogs and that the district court erred in denying the city’s motion for summary judgment; respondent’s complaint, which rests solely on the dog bite statute, must be dismissed. Our decision is fully consistent with prior unpublished decisions from this court. See, e.g., Clingan v. Anoka, County, No. CX-02-1049, 2003 WL 139392, at *3 n. 4 (Minn.App. Jan.21, 2003) (“We are skeptical, given the high risk nature of law enforcement and the manner in which dogs are used by the police, that the legislature intended the dog bite statute to extend to police dogs. And, absent specific legislative direction, we are unwilling, given the facts of this case, to extend the reach of the statute.”). And our decision follows precedent from at least one other jurisdiction. See, e.g., Blais v. Town of Goffstown, 119 N.H. 613, 406 A.2d 295, 298 (1979) (concluding that New Hampshire legislature did not intend to apply its dog bite statute to suits against municipalities for injuries suffered from reasonable use of police dogs).

Finally, the city has raised a number of other arguments involving its entitlement to statutory or vicarious official immunity and as to whether the police department is a legal entity properly subject to suit. Given our determination that the dog bite statute does not apply to police dogs, we need not address these additional arguments and decline to do so. See Bruegger v. Faribault County Sheriff’s Dep’t, 497 N.W.2d 260, 262 n. 3 (Minn.1993) (noting that where court determines that no cause of action exists, ruling need not be made regarding whether statutory immunity also applies).

DECISION

Because the legislature did not intend to apply strict liability under the dog bite statute to police dogs, the district court erred in denying the city’s motion for summary judgment.

Reversed.

RANDALL, Judge

(dissenting).

I respectfully dissent and would affirm the district court. I do not find this case ripe for summary judgment. I suggest there are contested substantial fact issues. I would remand for further proceedings and leave both parties to the option of moving for summary judgment at a later date, if appropriate.

Perhaps, as to a criminal defendant, which respondent is not, the strict liability of the “dog bite” statute might not apply to police dogs as a matter of law. But I just find it difficult to believe that police dogs can willy-nilly attack and bite innocent bystanders, like respondent, at the scene of a crime and then everyone responsible for controlling the dogs gets absolved on the grounds of immunity. I suggest more discovery and perhaps even a trial on the facts are needed before it can be determined under what circumstances Chips bit respondent. Then you have the issue of why Police Officer Yates did not immediately call Chips off of respondent, but rather delayed calling Chips off and instead followed Hyatt. I suggest that the longer a trained attack dog has his teeth in a person’s arm, the more severe the damage can be. If Yates’s actions are found to be a malicious act, do you still have immunity, if you have immunity? Podruch v. State, Dept. of Pub. Safety, 674 N.W.2d 252, 254 (Minn.App.2004) (stating that the doctrine of official immunity protects from personal liability a public official charged by law with duties that call for the exercise of judgment or discretion unless the official is guilty of a willful or malicious wrong).

I conclude summary judgment for the city is inappropriate at this stage.

      . Chips was trained in the “bite and hold” method of apprehension, which means that he will hold onto a suspect until ordered to release.

      . Contrary to the assumption made by the dissent, our decision does not necessarily preclude claims alleging excessive force or negligence based on the use or deployment of police dogs.


author: G. BARRY ANDERSON, Judge.

text:
    STATE of Minnesota, Appellant, v. Mark Ajaak CHAM, Respondent.
    No. A03-1239.
    Court of Appeals of Minnesota.
    June 1, 2004.
    Review Denied July 20, 2004.

      Mike Hatch, Attorney General, St. Paul, MN, and Gordon L. Moore, III, Nobles County Attorney, William A. Lemons, Assistant County Attorney, Worthington, MN, for appellant.
    Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., Roseville, MN, for respondent.
    Considered and decided by HUDSON, Presiding Judge; ANDERSON, Judge; and STONEBURNER, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

On appeal from the district court’s dismissal of the charges against respondent Mark Ajaak Cham, the state argues that the district court improperly concluded that Cham was denied his right to a speedy trial. The state also argues that the district court abused it discretion by (1) appointing an interpreter for Cham; (2) dismissing the charges without requiring Cham to make an offer of proof that the witnesses he intended to call required an interpreter and that their testimony would have been relevant; and (3) considering the cost of the proceeding in dismissing the charges. Because we conclude that Cham was not denied his right to a speedy trial, we reverse.

FACTS

In October 2001, Kirk Honius, a Wor-thington police officer, responded to a report of a disturbance in progress in a parking lot. When Honius arrived on the scene, he found an eight-month pregnant woman, Abang Ojullu, standing in the parking lot. She told Honius that Cham, her boyfriend, had assaulted her. Ojullu also told Honius that Cham had been drinking and that he had driven away when he heard police sirens.

Honius provided information concerning the assault to Tim Gaul, another police officer who knew Cham from previous contact. Approximately one hour later, Gaul located Cham at a Texaco Food Mart and noticed that Cham was intoxicated. Gaul placed Cham under arrest for domestic assault and for driving under the influence.

Cham is an immigrant from Africa and speaks limited English. His native language is Anuak, a language spoken by a small group of people located in Sudan and western Ethiopia. When Gaul read Cham the implied consent advisory, Cham requested an Anuak interpreter. But Gaul could not obtain an Anuak interpreter. When Cham began to be disruptive Gaul restrained Cham and finally brought him to the Worthington jail.

Scott Berger, an investigator for the Worthington police, conducted two interviews with Cham. Cham told Berger that he did not need an interpreter. During the interviews, Cham spoke English unassisted, and Cham admitted both that he had assaulted Ojullu and that he had driven the car on the day of the incident. But Cham denied that he had been drinking.

After the complaint against Cham was properly filed, the court administrator set an omnibus hearing for November 2001. But the hearing was rescheduled to December 2001 after the interpreter that had been scheduled for Cham failed to appear. The omnibus hearing went forward in December 2001 with an interpreter. In February 2002, Cham appeared for arraignment. Although no interpreter was present, Cham pleaded not guilty to the charges against him and requested a jury trial and an Anuak interpreter for that trial. A jury trial and an interpreter were scheduled for July 2002. For administrative reasons, however, the jury trial was continued to October 2002.

In October 2002, the district court issued an order allowing Cham to proceed with an interpreter who would interpret those aspects of the proceeding that Cham did not understand, rather than translating every word. The trial was continued to January 2003, however, and then again to April 2003, because the interpreter was unavailable.

One day before the April 2003 trial was scheduled to begin, the interpreter contacted the court administrator to say she would not attend. Because another interpreter was not available, the trial was again rescheduled for late August 2003. In June 2003, Cham moved to dismiss the charges against him, arguing that he had been denied his right to a speedy trial. The district court denied the motion.

In mid-August 2003, the interpreter scheduled to appear at trial cancelled the appearance; no other Anuak interpreters were available for the August 2003 trial. On August 20, 2003, the district court, on its own motion, dismissed the case, reasoning that Cham’s right to a speedy trial had been violated. The state now appeals the dismissal of the charges.

ISSUES

I. Did the district court err in concluding that the state violated Cham’s right to a speedy trial?

II. Did the district court abuse its discretion by appointing an interpreter for Cham pursuant to Minn. Stat. §§ 611.30-.34 (2002)?

ANALYSIS

I.

The state argues that Cham’s right to a speedy trial was not violated because (1) the delay in this case was caused by extraordinary difficulties in obtaining an interpreter rather than by the fault of the prosecution; (2) Cham never exercised his right to a speedy trial by demanding a speedy trial; and (3) Cham was not prejudiced by the delay between his arrest and the ultimate dismissal. We agree.

All criminal defendants have a constitutional right “to a speedy and public trial.” Minn. Const. Art. I, § 6; State v. Windish, 590 N.W.2d 311, 315 (Minn.1999). Minnesota courts consider four factors in determining whether a defendant’s right to a speedy trial has been violated. State v. Widell, 258 N.W.2d 795, 796 (Minn.1977). These four factors include: (1) the length of the delay; (2) the reason for the delay; (3) whether and when the defendant asserted his right to a speedy trial; and (4) the prejudice to the defendant caused by the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972); Widell, 258 N.W.2d at 796. None of the factors is “either a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant.” Windish, 590 N.W.2d at 315 (citing Barker, 407 U.S. at 533, 92 S.Ct. 2182 at 2193, 33 L.Ed.2d 101).

The district court did not rely on the Barker four-factor test in concluding that Cham’s right to a speedy trial had been violated. Instead, the court reasoned that the cost of the matter had exceeded reasonable limits, that numerous attempts at obtaining an interpreter had failed, and that “based upon the inability of the Court to obtain an interpreter, the Defendant’s right to a speedy trial has been denied.”

Both parties cite State v. Friberg, 435 N.W.2d 509, 515 (Minn.1989), for the proposition that the decision of the district court that Cham’s right to a speedy trial has been violated is reviewed using an abuse-of-discretion standard. But Friberg does not state a standard of review. See Friberg, 435 N.W.2d at 515 (concluding merely that “[c]onsidering the Barker factors in light of all the circumstances, we find that the trial court did not abuse its discretion by ruling that there was good cause for the delay and that defendants were not denied their right to a speedy trial”). Because appellate courts review constitutional questions de novo and Cham’s claim raises a constitutional question, we conclude that the district court’s speedy trial determination is subject to de novo review. State v. Wiegand, 645 N.W.2d 125, 129 (Minn.2002) (“We review de novo a lower court’s ruling on constitutional questions.”); State v. Sewell, 595 N.W.2d 207, 211 (Minn.App.1999) (We review constitutional issues de novo.), review denied (Minn. Aug. 25, 1999).

The district court erred by failing to apply the Barker test, but because we review de novo whether Cham’s right to á speedy trial was violated, we will apply the Barker test to the facts in this case.

1.The length of delay

We evaluate the length of delay to determine if further review of a defendant’s speedy-trial claim is warranted. Barker, 407 U.S. at 530, 92 S.Ct. at 2192. We measure the length of delay from the time when the police arrest the defendant. State v. Jones, 392 N.W.2d 224, 235 (Minn.1986). Here, there was a delay of 23 months from the date of arrest until the district court dismissed the charges. A delay of this length creates the presumption that Cham’s right to a speedy trial was violated and triggers further inquiry. See State v. Corarito, 268 N.W.2d 79, 80 (Minn.1978) (concluding that delay of six months is sufficient to trigger further inquiry in the speedy trial analysis).

2.The reason for delay

We next consider the reasons for the delay. Barker, 407 U.S. at 531, 92 S.Ct. at 2192. Barker places the primary burden of ensuring a speedy trial on the state and the court and recognizes that different weights will be assigned to different reasons for delay. Id. at 529, 531, 92 S.Ct. at 2192, 2191. In this case, administrative difficulties at the district court caused one continuance. But the on-going problem of obtaining an interpreter for Cham caused the majority of the delay. This delay had nothing to do with the district court administrator’s effort to locate an interpreter, and the state was in no way responsible for the delay. Under these circumstances, despite the unusually long delay, and because the prosecution did not act in bad faith to delay the proceeding, the reason for delay weighs in favor of the state. See State v. Sap, 408 N.W.2d 638, 640 (Minn.App.1987) (under similar facts, denying appellant’s claim that he was denied a speedy trial).

3. Whether and when the defendant asserted his right to a speedy trial

Cham never moved for a speedy trial, but he twice moved to dismiss the case based on violation of his right to a speedy trial. When a defendant moves for dismissal, but does not move for a speedy trial, this factor will not favor the defendant. See e.g., Sap, 408 N.W.2d at 640 (concluding that Sap’s failure to move for a speedy trial, but instead for a dismissal, did not favor Sap in the speedy trial analysis).

4. The prejudice to the defendant caused by the delay

We consider three factors in determining if a defendant was prejudiced by the delay: “(1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the accused; and (3) preventing the possibility that the defense will be impaired.” Windish, 590 N.W.2d at 318. Cham asserts that he suffered prejudice because he was incarcerated for the DUI charge that was eventually dismissed for lack of probable cause, he suffered anxiety by having to appear again and again for a trial that never happened, and he knew that the alleged victim had recanted her testimony and therefore that the testimony was of doubtful admissibility. Only the claim that he experienced anxiety as a result of the delay supports Cham’s claim of prejudice. See Windish, 590 N.W.2d at 318 (stating that minimizing the anxiety of the accused is a factor in determining whether the defendant was prejudiced by the delay). This prong of the speedy-trial analysis thus weighs in Cham’s favor, if only slightly.

In conclusion, after applying the Barker test de novo to these facts, we conclude that the dismissal of the charges against Cham based on a violation of his right to a speedy trial was error. We reverse the determination of the district court and remand with instructions to reinstate the complaint against Cham and to conduct proceedings not inconsistent with this opinion.

II.

The state argues that the district court abused its discretion by appointing an interpreter for Cham because (1) the evidence—including evidence that in a pri- or case Cham was not found to be handicapped in the English language—indicates that Cham is not handicapped in the English language, and therefore, is not entitled to an interpreter; and (2) the interpreter statute does not entitle Cham to have “somebody available in the event of a possible question”; it applies only to people so handicapped in the English language that they do not understand any of the proceedings.

The interpreter statute requires the appointment of an interpreter for a criminal defendant when that defendant is “handicapped in communication” because the defendant has “difficulty in speaking or comprehending the English language, cannot fully understand the proceedings or any charges made against the person ... or is incapable of presenting or assisting in the presentation of a defense.” Minn.Stat. §§ 611.80, .81 (2002). Whether an interpreter shall be appointed for a defendant is within the discretion of the district court. State v. Perez, 404 N.W.2d 834, 838 (Minn.App.1987), review denied (Minn. May 20, 1987). We review the district court’s decision to appoint or not appoint an interpreter under an abuse of discretion standard. State v. Saldana, 310 Minn. 249, 246 N.W.2d 37, 39 (1976).

Here, the district court implicitly found that Cham was “handicapped in communication” and therefore needed an interpreter present during the proceedings. Although the state’s evidence that Cham was not handicapped in his ability to understand and speak English is compelling, we afford the district court “broad discretion based on its first-hand view” of indicators that a person is handicapped in communication, including: “mispronunciations, pauses, facial expressions, and gestures.” See State v. Yang, 627 N.W.2d 666, 676 (Minn.App.2001) (finding, in the context of a witness who had already begun to testify, that the district court did not abuse its discretion in refusing to appoint an interpreter for the witness), review denied (Minn. July 24, 2001). Other indicators that a district court may consider, on a nonexclusive basis, in evaluating whether a person is handicapped in the English language include whether a “party’s comprehension of the proceedings or communication with counsel or the presiding judicial officer” are inhibited. See 28 U.S.C. § 1827(d)(1) (discussing factors a presiding judicial officer may consider in assessing a party’s need for an interpreter). The district court may also consider the complexity of the proceedings in evaluating the defendant’s need for an interpreter. United States v. Febus, 218 F.3d 784, 791 (7th Cir.2000). The district court should consider these factors, as well as other indicia of language competency, in evaluating whether an interpreter is required. The district court may wish to consider the possibility of a pre-trial hearing devoted, at least in part, to language competency issues. Here, because the standard of review for the appointment of interpreters is abuse of discretion, and because it does not appear that the district court abused its discretion, we affirm the district court’s determination that Cham was entitled to an interpreter under Minnesota statute.

DECISION

We reverse the order of the district court dismissing the complaint against Cham. We remand with instructions to reinstate the complaint against Cham and proceed with the disposition of Cham’s case. Because we reverse and remand the district court’s dismissal of the action against Cham on this basis, we do not reach the state’s remaining arguments for reinstatement of the complaint against Cham.

We affirm the district court’s conclusion that Cham is entitled to an interpreter.

Reversed and remanded.

      . Because we conclude that Cham was not denied his right to a speedy trial, and reverse the determination of the district court on this ground, we do not reach the state’s other challenges to the district court's dismissal of the charges against Cham, specifically: that the district court abused its discretion by dismissing the charges against Cham based on the court’s inability to secure interpreters for witnesses that Cham intended to call during trial without requiring Cham to (1) make an offer of proof demonstrating that the witnesses he intended to call are handicapped in communication; and (2) make an offer of proof demonstrating that those witnesses would provide testimony that would be helpful to Cham. Although we decline to address those issues directly here, the district court is not precluded from reevaluating those issues at trial under the standards set forth in State v. Yang, 627 N.W.2d 666, 676 (Minn.App.2001), review denied (Minn. May 8, 2001) and State v. Lavastida, 366 N.W.2d 677, 680-81 (Minn.App.1985).


author: YANDE WALLE, Chief Justice.

text:
    2004 ND 100
    STATE of North Dakota, Plaintiff and Appellee v. Matthew GUTHMILLER, Defendant and Appellant.
    No. 20030298.
    Supreme Court of North Dakota.
    May 7, 2004.

      Michelle llene Schulz, Assistant State’s Attorney, Mandan, N.D., for plaintiff and appellee.
    Kent M. Morrow, Bismarck, N.D., for defendant and appellant.
   YANDE WALLE, Chief Justice.

[¶ 1] Matthew David Guthmiller appealed a judgment on his conditional plea of guilty and an order denying his motion to suppress evidence. We conclude there is sufficient evidence to support the trial court’s denial of Guthmiller’s suppression motion, and we affirm.

[¶ 2] Guthmiller was arrested for possession of drug paraphernalia, in violation of N.D.C.C. § 19-03.4-03, and minor in possession or minor in consumption of an alcoholic beverage, in violation of N.D.C.C, § 5-01-08. Guthmiller moved to suppress evidence found at his residence.

[¶ 3] At a hearing on Guthmiller’s suppression motion, Officer Vanderhoef of the Mandan Police Department testified: (1) on May 9, 2003, he and Detective Ternes took a minor female into custody for being a minor in consumption of alcohol; (2) the minor female said she had been drinking at Guthmiller’s residence and that there were others there; (3) as he was going to Guthmiller’s residence, he met Guthmiller and took him into custody for minor in consumption; (4) in his initial contact with Guthmiller, he asked Guthmiller where an empty rum bottle at his feet came from, and Guthmiller “indicated it must have blown in on a tumbleweed”; and (5) the officers knocked on the front door, identified themselves as police officers, and saw a glass smoking device on a table through a window to the right of the door. Van-derhoef testified Guthmiller consented to their entry into the house:

Q Okay. At any time during this evening had you received permission from Mr. Guthmiller to actually go in the house?
A He had—yes. We had asked him if—before he was taken to the jail I asked him, do you want me to have everybody leave the residence and lock the doors.
Q Okay.
A And he said yes. I asked him if it was okay and he said yes.
Q Okay. So at that point you did have permission to go in the residence?
A Correct.

On cross-examination by Guthmiller’s attorney, Vanderhoef testified that Guthmil-ler never asked for a copy of a search warrant to go into the house, and further testified:

A I asked him what do you want to do with the people in the house, do you want them to leave and lock the door or what do you want me to do and he said yes.
Q Did you ever ask him specifically, Matt, can I go into your house and look around—
A No, I did not.

On direct examination, Guthmiller testified:

A ... I told him before he could go into my house he would need a search warrant. Which he said we’ll take care of that, don’t worry about that.
Q Do you recall him asking you if there was anybody else in the house?
A Yes, and I said yes.
Q Okay. Do you recall him asking if you wanted the officer to go in to the house and tell the people there to get out and—
A Well, no. I told him that he could tell everybody to come outside and they could take care of whatever they need to out there.
Q In your mind, did you ever give the officer permission to go into the house?
A No, I did not.

On cross-examination, Guthmiller testified:

Q Okay. And you did tell him he could tell everyone else to come outside?
A Yeah, come outside.
Q Okay. And to do that, he would have to go in the home, right?
A No, he’d just have to knock on the door.

[¶ 4] The trial court denied Guth-miller’s suppression motion:

Based on the evidence before me in this matter I am going to deny the motion to suppress. Plain view requires that the police be in an area where they have a right to be. So seeing something through a window isn’t plain view, you can’t enter then to seize it. However, in this case I’m finding based on the testimony that the defendant told the officers that they could remove people from the house and lock it. It wouldn’t be reasonable to assume that they would be able to do that without making at least some limited entry into the house. In making that limited entry, the item which they believed to be drug paraphernalia was in plain view and since they were in an area where they had a right to be, they had a right to seize it. So the motion to suppress is denied.

Guthmiller entered a conditional plea of guilty to the charge of possession of drug paraphernalia and the trial court issued a sentencing order. On appeal, Guthmiller contends the trial court erred in determining he had given police officers permission to enter his house, where paraphernalia was in plain view.

[¶ 5] “The touchstone of the Fourth Amendment is reasonableness.” Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). “A search without a valid search warrant is unreasonable unless the state shows that the search comes within an exception to the general rule of exclusion.” State v. Frank, 350 N.W.2d 596, 599 (N.D.1984). One such exception is voluntary consent, free from explicit or covert coercion. Id. “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Jimeno, 500 U.S. at 251, 111 S.Ct. 1801.

[¶ 6] In an appeal from an order issued on a suppression motion, we accord great deference to the trial court:

[W]e defer to the district court’s findings of fact and resolve conflicts in testimony in favor of affirmance. We affirm the district court’s decision unless, after ‘ resolving conflicting evidence in favor of affirmance, we conclude there is insufficient competent evidence to support the decision, or unless the decision goes against the manifest weight of the evidence.

State v. Bergstrom, 2004 ND 48, ¶ 10, 676 N.W.2d 83 (quoting State v. Matthews, 2003 ND 108, ¶ 8, 665 N.W.2d 28 (internal citations and quotations omitted)).

[¶ 7] The trial court hears the witnesses, sees their demeanor on the stand, and is in a position to determine the credibility of witnesses. Wellens v. Beck, 103 N.W.2d 281, 285 (N.D.1960). On the other hand, this Court on appeal has before it “but a cold and lifeless record” and has “not the advantage ... of the innumerable intangible indicia that are so valuable to a trial judge.” Doyle v. Doyle, 52 N.D. 380, 389, 202 N.W. 860, 863 (1925). Thus, the trial court is in a much better position to ascertain the true facts than an appellate court relying on a cold record. State v. Gagnon, 1997 ND 153, ¶ 8, 567 N.W.2d 807. Credibility “denotes ‘[t]he quality that makes something (such as a witness or some evidence) worthy of belief,’ ” while demeanor “relates to ‘[o]ut-ward appearance or behavior, such as facial expressions, tone of voice, gestures, and the hesitation or readiness to answer questions.’ ” Haebe v. Department of Justice, 288 F.3d 1288, 1300 n. 27 (Fed.Cir.2002) (quoting Black’s Law Dictionary 374, 442 (7th ed. 1999)). See also U.S. v. Shonubi, 895 F.Supp. 460, 480 (E.D.N.Y.1995) (demeanor includes facial expressions and body language). “The words used are by no means all that we rely on in making up our minds about the truth of a question.” Dyer v. MacDougall, 201 F.2d 265, 269 (2d.Cir.1952) (Learned Hand, Judge). In weighing the evidence and assessing the credibility of a witness, a trier of fact may consider:

any facts or circumstances in the case which tend to strengthen, weaken, or contradict a witness’s testimony. You may consider age, intelligence, and experience; strength or weakness of recollection; how a witness came to know the facts to which the witness testified; possible interest in the outcome of the trial; any bias or prejudice a witness may have; manner and appearance; whether a witness was frank or evasive; and whether the testimony was reasonable or unreasonable.

NDJI-CRIMINAL K-5.04 (1998). See also State v. His Chase, 531 N.W.2d 271, 274 (N.D.1995) (approving similar language in former N.D.J.I. No. 2101).

[¶ 8] From our review of the record, according appropriate deference to the trial court in light of its superior opportunity to observe the witnesses and assess their credibility in determining the objective reasonableness of what Guthmiller and the officers understood from their exchange, and resolving conflicts in testimony in favor of affirmance, we conclude there is sufficient evidence to support the trial court’s finding that Guthmiller consented to the entry of his residence. Therefore, the trial court’s order on the suppression motion is not against the manifest weight of the evidence.

[¶ 9] Affirmed.

[¶ 10] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and WILLIAM A. NEUMANN, JJ., and GORDON O. HOBERG, Surrogate Judge, concur.

[¶ 11] The Honorable GORDON O. HOBERG, Surrogate Judge, sitting in place of SANDSTROM, J., disqualified.


author: PER CURIAM.

text:
    2004 ND 101
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Donald L. PETERSON, a Member of the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of North Dakota, Petitioner v. Donald L. Peterson, Respondent.
    No. 20040134.
    Supreme Court of North Dakota.
    May 28, 2004.
   PER CURIAM.

[¶ 1] On May 13, 2004, an Application with attached exhibits seeking the Interim Suspension of Donald L. Peterson, a member of the Bar of North Dakota, was filed under N.D.R. Lawyer Discipl. 3.4 by Paul W. Jacobson, Disciplinary Counsel for the Disciplinary Board of the Supreme Court, asserting Peterson has committed misconduct and that he poses a substantial threat of irreparable harm to the public. On May 24, 2004, Jacobson also filed an Affidavit with attachments of Linda B. Reed in support of the Application for Interim Suspension. On May 24, 2004, Peterson filed his Affidavit along with the Affidavits of L. Mark Bell and Laura Larson resisting the Application for Interim Suspension.

[¶ 2] The evidence implicates N.D.R. Prof. Conduct 1.4, Communication, which provides that a lawyer shall make reasonable efforts to keep a client reasonably informed about the status of a matter, promptly comply with a client’s reasonable requests for information, and explain matters related to the representation to the extent reasonably necessary to permit the client to make informed decisions; N.D.R. Prof. Conduct 8.4, which provides it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice or engage in other conduct that is enumerated in the North Dakota Century Code as a basis for revocation or suspension of a lawyer’s certificate of admission through violation of § 27-13-01(1), N.D.C.C., which provides that an attorney must maintain respect for the courts and judicial officers, § 27-14-02(1), N.D.C.C., which provides that an attorney’s admission to the bar may be revoked or suspended when the attorney has committed an offense determined by the Supreme Court to have a direct bearing upon a person’s ability to serve the public as an attorney, and § 27-14-02(7), N.D.C.C., which provides that an attorney may not commit any act which brings reproach upon the legal profession; and N.D.R. Lawyer Discipl. 1.2(A)(3), Grounds for Discipline, which provides a lawyer may be disciplined for engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

[¶ 3] Additionally, it is alleged Peterson forged documents, which, if proven, show a pattern of misrepresentation and deception to a client and to the court. Furthermore, N.D. Stds. Imposing Lawyer Sanctions 5.11 is implicated as it provides in part that disbarment is generally appropriate when a lawyer engages in serious conduct a necessary element of which includes false swearing or misrepresentation and when the lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously reflects on a lawyer’s fitness to practice law.

[¶ 4] The Application further asserts that formal proceedings are pending against Peterson. The allegations heard by the Hearing Panel involve Peterson filing documents with the Ward County Clerk of Court’s office on May 16, 2003, one of which was an “Affidavit of Robert Taylor” purporting to bear the signature of Taylor. The purported Taylor signature was noted as “Subscribed and sworn to before me this 30th day of April, 2003.”, and was signed by Donald L. Peterson, Notary Public. Peterson admits in his Affidavit to the Court that Taylor did not sign the document notarized by him, rather Peterson wrote Taylor’s name and notarized the false signature. Additionally, the Hearing Panel heard allegations concerning a copy of a purported Order Dismissing Complaint involving Austin Mutual Insurance Company, dated March 2, 2003, signed by Judge Gary A. Holum, bearing a number for a civil case venued in District Court, Ward County, North Dakota. Peterson prepared the purported Order Dismissing Complaint; it was not, in fact, signed by Judge Holum, but rather the signature was either made by Peterson or at his direction. The case number on the purported Order was not for the matter involving Austin Mutual Insurance Company; such a case had not been filed with the court. The matters were consolidated for hearing, and the findings, conclusions and recommendation of the Hearing Panel have not been filed. At the request of Peterson, the time for filing Peterson’s post hearing brief was extended to May 28, 2004.

[¶ 5] Following the granting of additional time in the pending formal proceedings, another disciplinary complaint was filed alleging that Peterson provided a client with copies of a purported complaint in a medical malpractice action filed in Ward County District Court, which, in fact, has not been filed in Ward or Williams County District Court. The disciplinary complaint further raised questions on the veracity of an Affidavit of Service Peterson provided to his client and the evidence submitted with this complaint precipitated the filing of the Application for Interim Suspension.

[¶ 6] On May 17, 2004, Peterson filed a request for an opportunity to be heard on the Application for Interim Suspension under N.D.R. Lawyer Discipl. 3.4(B). The matter was heard on May 27, 2004, at 1:30 p.m.

[¶ 7] Sufficient evidence was submitted by Disciplinary Counsel demonstrating misconduct and a substantial threat of irreparable harm to the public. The Court considered the matter, and

[¶ 8] ORDERED, under N.D.R. Lawyer Discipl. 3.4(B), Donald L. Peterson’s license to practice law in the State of North Dakota is SUSPENDED effective immediately and until disposition by this Court of the pending formal proceedings upon which this Application is predicated. The Hearing Panel should proceed expeditiously on the formal proceedings that have been heard.

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

[¶10] IT IS FURTHER ORDERED that Donald L. Peterson comply with N.D.R. Lawyer Discipl. 6.3.

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


author: VANDE WALLE, Chief Justice.

text:
    2004 ND 112
    STATE of North Dakota, Plaintiff and Appellee v. David FLANAGAN, Defendant and Appellant.
    No. 20030247.
    Supreme Court of North Dakota.
    June 3, 2004.
    Rehearing Denied June 30, 2004.

      Lloyd Clayton Suhr, Assistant State’s Attorney, Bismarck, ND, for plaintiff and appellee.
    Chad R. McCabe, Vinje Law Firm, Bismarck, ND, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] David Flanagan appealed from a criminal judgment entered upon a jury verdict finding him guilty of gross sexual imposition. We conclude the trial court committed obvious error in failing to instruct the jury on the elements of gross sexual imposition, but reversal of the judgment is not warranted because this record establishes the error did not seriously affect the fairness, integrity, or public reputation of the judicial proceeding. We affirm.

I

[¶ 2] Flanagan was charged with gross sexual imposition under N.D.C.C. § 12.1-20-03(2)(a) for allegedly engaging in sexual contact with a person less than fifteen years old, specifically a thirteen-year-old female identified as L.L. The incident precipitating the criminal charge occurred on July 28, 2002, at a birthday party at a motel swimming pool when Flanagan allegedly engaged in sexual contact with L.L. Sexual contact is defined under N.D.C.C. § 12.1-20-02(4) as “any touching, whether or not through the clothing or other covering, of the sexual or other intimate parts of the person ... for the purpose of arousing or satisfying sexual or aggressive desires.”

[¶ 3] The State presented evidence L.L. was thirteen years old on July 28, 2002, and Flanagan inappropriately put his hand under her swimsuit bottom, on her hips and the strings of her bikini bottom, on her bikini top over her breast, under the top part of her swimsuit, and on her buttocks. The State also presented evidence Flanagan pinched L.L.’s buttocks. Flanagan claimed any touching of L.L.’s “sexual or other intimate parts” which may have occurred was accidental while playing with several kids and picking L.L. and the other kids up and throwing them into the swimming pool. Flanagan claimed any touching of L.L. which occurred was not for the purpose of arousing or satisfying his sexual desires. A jury found Flanagan guilty of gross sexual imposition.

II

[¶ 4] Flanagan argues the trial court committed obvious error in failing to instruct the jury on an essential element of N.D.C.C. § 12.1-20-03(2)(a), which provides “[a] person who engages in sexual contact with another, or who causes another to engage in sexual contact, is guilty of an offense if ... [t]he victim is less than fifteen years old.” Before trial, Flanagan indicated he had no objections to the trial court’s jury instructions, which outlined the essential elements of gross sexual imposition:

The Information alleges that the defendant committed the offense of Gross Sexual Imposition. The burden of proof resting upon the State of North Dakota is satisfied only if the evidence shows to your satisfaction beyond a reasonable doubt the following essential elements of the offense charged:
1. On or about the 28th day of July, 2002;
2. In Burleigh County, North Dakota;
3. The defendant, David Flanagan;
4. Willfully engaged in sexual contact with another or caused another to engage in sexual contact.

The trial court’s instructions did not inform the jury the sexual contact must have been with a person less than fifteen years old as required by N.D.C.C. § 12.1-20-03(2)(a) and is facially incorrect.

[¶ 5] Under N.D.R.CrimJP. 30, if the trial court gives counsel an opportunity to object to proposed instructions, counsel must designate objectionable parts of the instructions and thereafter only the parts so designated are deemed excepted to by counsel. State v. Olander, 1998 ND 50, ¶ 9, 575 N.W.2d 658. Because Flanagan did not object to the court’s instructions, he failed to adequately preserve this issue for our review under N.D.R.Crim.P. 30, and our inquiry is therefore limited under N.D.R.Crim.P. 52(b) to whether the court’s failure to instruct the jury was obvious error affecting substantial rights. See Olander, at ¶ 11.

[¶ 6] We exercise our authority to notice obvious error cautiously and only in exceptional circumstances in which the defendant has suffered a serious injustice. State v. Anderson, 2003 ND 30, ¶ 8, 657 N.W.2d 245; Olander, 1998 ND 50, ¶ 12, 575 N.W.2d 658. In Olander, at ¶ 13, we applied the plain error framework from F.R.Crim. P. 52(b) for analyzing claims of obvious error under N.D.R.Crim.P. 52(b). We recognized our rule differs from the federal rule only in the substitution of the word “obvious” for the word “plain,” and we said an appellate court may notice a claimed error that was not brought to the attention of the trial court if there was (1) error, (2) that is plain, and (3) affects substantial rights. Olander, at ¶ 14. Under that framework, we said once a defendant establishes that a forfeited plain error affects substantial rights, we have discretion to correct the error and should correct it if it “ ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Id. at ¶ 16 (quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). In Olander, at ¶¶ 22, 26, we held the trial court’s failure to instruct the jury that the State had the burden of proving beyond a reasonable doubt the defendant did not act in self-defense was obvious error which affected the defendant’s substantial rights under the circumstances of that case. We concluded the failure to exercise our discretion to correct the obvious error in that case would seriously affect the fairness, integrity, and public reputation of criminal jury trials, and we reversed the conviction and remanded for a new trial. Id. at ¶¶ 27-28, 34.

[¶ 7] In Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), the United States Supreme .Court considered an issue similar to the issue presented in this case. The defendant was indicted for perjury under federal law which proscribed “knowingly mak[ing] any false material declaration” under oath before a grand jury. Johnson, at 463-65, 117 S.Ct. 1544. Without objection by the defendant and in accordance with existing federal precedent, the trial court instructed the jury that materiality was a question for the court to decide and it had determined the defendant’s statements were material. Id. at 464, 117 S.Ct. 1544. After the defendant’s conviction but before her appeal, the United States Supreme Court held that materiality of a false statement must be submitted to the jury, rather than decided by the court. Id. (citing United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995)). In Johnson, at 467-68, 117 S.Ct. 1544, the Supreme Court held the failure to submit the issue of materiality to the jury was plain error under the Olano framework. The Supreme Court discussed whether that plain error affected the defendant’s substantial rights in the context of whether the failure to submit the issue of materiality to the jury was a “structural error.” Id. at 468-69, 117 S.Ct. 1544. The Court recognized an erroneous definition of reasonable doubt was a structural error that vitiated all of the jury’s findings, see Sullivan v. Louisiana, 508 U.S. 275, 280, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), but the Court said the failure to submit materiality to the jury could just as easily be analogized to improperly instructing the jury on an element of the offense, which is subject to harmless-error analysis. Johnson, at 469, 117 S.Ct. 1544. However, the Court declined to decide whether the failure to submit the issue of materiality to the jury affected the defendant’s substantial rights, because the Court concluded that, assuming it did, the failure to submit that issue to the jury did not seriously affect the fairness, integrity, or public reputation of the proceeding under the circumstances of that case. Johnson, at 469-70, 117 S.Ct. 1544. In reaching that conclusion, the Court said the evidence supporting materiality was overwhelming and was essentially uncontroverted at trial and on appeal. Id. at 470, 117 S.Ct. 1544. The Court said the defendant presented no plausible argument that her false statement under oath was somehow not material to the grand jury investigation and ruled there was no basis for concluding the error “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Id. at 470, 117 S.Ct. 1544. Rather, the Court said a reversal of the conviction would seriously affect the fairness, integrity or public reputation or judicial proceedings, and held no miscarriage of justice would result if the obvious error was not noticed. Id.

[¶ 8] In Neder v. United States, 527 U.S. 1, 7-20, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), the United States Supreme Court held the harmless-error rule of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), applied to a jury instruction that omits an element of an offense. In Neder, at 6, 119 S.Ct. 1827, the defendant had objected to the trial court’s instruction that, to convict the defendant of certain tax offenses, the jury need not consider the materiality of any false statements. The Supreme Court concluded the erroneous instruction was harmless error. Id. at 7-20, 119 S.Ct. 1827.

[¶ 9] Here, Flanagan did not object to the trial court’s instructions, and we conclude his obvious error claim is controlled by the rationale of Johnson. The trial court’s failure to instruct the jury on the elements of gross sexual imposition under N.D.C.C. § 12.1-20-03(2)(a) for allegedly engaging in sexual contact with a person less than fifteen years old was obvious error under the framework of Olander and Olano. But for reasons explained below, it is not reversible error.

[¶ 10] Flanagan claims the disputed facts and arguments presented to the jury established more than one alleged victim in this case and it is impossible to determine whether the jury unanimously agreed as to a particular victim. Our review of the record, however, indicates the only evidence of inappropriate touching presented to the jury involved Flanagan’s contact with L.L., who was undisputedly less than fifteen years of age at the time of the incident. Although there was evidence Flanagan was throwing both the victim and another thirteen-year-old girl in the water and some witnesses testified they did not see any inappropriate touching by Flanagan, the only testimony about inappropriate touching pertained to L.L. This is not a case about an erroneous jury instruction shifting the State’s burden of proof for a defense to the defendant. See State v. Johnson, 2001 ND 184, ¶ 1, 636 N.W.2d 391; Olander, 1998 ND 50, ¶¶ 27-28, 575 N.W.2d 658. Rather, the identity of the victim of the inappropriate touching was essentially undisputed at trial, and the evidence focused on whether Flanagan’s touching of L.L. was accidental, or for the purpose of arousing or satisfying his sexual desires. On this record, we conclude there is no basis for holding the trial court’s erroneous jury instruction seriously affected the fairness, integrity or public reputation of the judicial proceeding. Rather, we conclude the reversal of Flanagan’s conviction on this record would seriously affect the fairness, integrity or public reputation of the judicial proceeding. We therefore decline to notice the obvious error.

Ill

[¶ 11] At trial, the court sustained Flanagan’s objection when the prosecuting attorney asked him, “Is this the first time that you’ve ever been accused of doing this?” The court denied Flanagan’s request for a curative instruction, and instead, the court repeated its instructions about rulings by the court and statements by counsel and by the court. Flanagan argues the court’s refusal to grant a mistrial, or give his requested curative instruction denied him a fair trial.

[¶ 12] Flanagan requested the following curative instruction:

As you have already been instructed, during the trial of a criminal action, the attorneys make such objections as they see fit and proper, and the Court rules on those objections. The objections, the reasons for the rulings, and just as importantly, the reasons for the objections are not evidence, and are matters that must play no part in your jury deliberations.
. During the course of this trial, however, the assistant State’s Attorney asked a question of witness and defendant, David Flanagan, and Mr. Flanagan’s attorney objected to the question. This is a grave matter of consideration to the Court, because the Court had earlier told the assistant State’s Attorney on two occasions that it would not allow that question to be asked, yet he went ahead and asked the question anyway. Once again, the reasons for that ruling are not for you to consider. The Court considered directing a mistrial in this action, but chose not to do so. However, the Court remains concerned that the unethical actions of the assistant State’s-Attorney may have unfairly prejudiced you in your deliberations of this case. Therefore, I specifically urge the jury to disregard yesterday’s exchange, and to base your decision on the evidence, and only on the evidence. If any of you feel that you cannot do this, because you have been and remain influenced by the actions of the assistant State’s Attorney, then I ask you to indicate this immediately to the bailiff at the onset of your deliberations. You will not be questioned about this, and if you indicate that this matter will influence your decision, despite the instructions from the Court, then the Court will be compelled to order a mistrial of the action, and the ease will be tried to another jury at a later date.

[¶ 13] At trial, the following colloquy occurred during the discussion about Flanagan’s proposed curative instruction:

THE COURT: Okay. All right. With regard to the requested curative instruction ... I’ve read it. Did you want to say anything else regarding the requested instruction?
[DEFENSE COUNSEL]: Well just at the time I didn’t say much and— didn’t say anything but when I went back to the office, I kept thinking well I’d hate to have the jury—-and we only get one shot at this, to find [Flanagan] guilty because of something like that and I know you give them an instruction but nothing was done to address that situation and I thought something in fairness should. Maybe not necessarily what I’ve proposed but I think they should have something. The part I guess—I’ve had a long discussion with [the prosecuting attorney] this morning and maybe some of what I put in there is uncalled for. I guess some of it was based on conversation we had in passing afterwards that I took maybe wrong but I was under the impression—there was a comment about being another overzealous prosecutor and I thought well if this is what we do downstairs these days and this is a game they do, I guess maybe I was thinking too much and maybe it was just more deliberate. I perceived it as a deliberate thing and not an act of in the heat of the moment. The more I thought about it, the more serious it seemed to me. I guess the part that gave me heebie-geebies when I put it in there was asking the jury about—-right at the bottom of page one, asking them if they felt that they couldn’t do this to let you know and I know that’s really out of the ordinary and I don’t know what else to do and I put it in there. I certainly would like a curative instruction of some sort.
[THE COURT]: My concern with giving this instruction is telling the jury not to think of a pink elephant. I’m not sure that the jury paid a lot of attention to that. I don’t know. I mean it could have been a big deal to them, it maybe just was a passing thing that they paid no attention to. My concern is if I give this instruction, then they’re going to spend a lot of time talking about something that they may or may not have talked about otherwise.
[DEFENSE COUNSEL]: Is that an instruction that comes up now or is that something—yeah, you did in the opening, right?
THE COURT: What’s that?
[DEFENSE COUNSEL]: About the rulings and objections?
THE COURT: Yeah, mm hmm.
[DEFENSE COUNSEL]: Maybe if you just gave that one again.
THE COURT: I could do that. I’d agree to do that. Otherwise like I say, I’m just concerned that it would overemphasize something.
[DEFENSE COUNSEL]: Just preface it, you know, because a number of objections were made yesterday and rul-mgs made, I feel it’s necessary to repeat this instruction.
THE COURT: Right and I might even just add to that say—just reiterate that they’re to decide the case solely on the evidence before them. I’ll do that.
[DEFENSE COUNSEL]: All right. Thank you.

[¶ 14] We conclude Flanagan’s acquiescence in the trial court’s curative instruction constitutes a waiver of this issue and precludes him from raising this claim as obvious error. See Olander, 1998 ND 50, ¶ 14, 575 N.W.2d 658 (stating “[forfeiture is the failure to timely assert a right, while waiver is the intentional relinquishment of a right, and F.R.Crim. P. 52(b) applies only to ‘forfeited’ and not to “waived’ errors.”).

IV

[¶ 15] Flanagan argues he was denied his right to a fair trial under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and City of Mandan v. Fern, 501 N.W.2d 739 (N.D.1993), because the State used gender-based peremptory challenges to eliminate prospective male jurors from the jury and to seat twelve female jurors. The State responds Flanagan failed to object at trial to the procedure for selecting the jury, and he may not raise this issue for the first time on appeal. The State argues even if Flanagan did preserve this issue for review, he did not establish the State’s peremptory challenges were based solely on gender.

[¶ 16] During jury selection, the State used peremptory challenges to remove five males and one female from the jury, and Flanagan used peremptory challenges to remove five males from the jury. As a result, a jury of twelve females was chosen to decide the case. Thereafter, in response to a question from the trial court, Flanagan indicated he had no objection or problem with the jury selection process, and he raised this issue for the first time on appeal. We decline to consider this issue because issues not presented to the trial court cannot be considered for the first time on appeal. State v. Steffes, 500 N.W.2d 608, 615 (N.D.1993) (refusing to consider issue about gender-based peremptory challenges against male jury panel members). Moreover, on this record, we conclude Flanagan’s claim does not rise to the level of obvious error. N.D.R.Crim.P. 52(b).

V

[¶ 17] We affirm the judgment of conviction.

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