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

text:
    2005 ND 143
    City of BISMARCK, Plaintiff and Appellee v. Jenae Marie JUDKINS, Defendant and Appellant.
    No. 20040370.
    Supreme Court of North Dakota.
    July 25, 2005.

      Paul H. Fraase, City Prosecutor, Bismarck, N.D., for plaintiff and appellee.
    Thomas M. Tuntland, Mandan, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Jenae Judkins appealed from a judgment of conviction entered upon a jury verdict finding her guilty of driving while under the influence of alcohol. We affirm, concluding any error in admitting results of a blood alcohol test was harmless.

I

[¶ 2] In the early morning hours of June 5, 2004, Burleigh County Deputy Sheriff Jeffrey Ball noticed a vehicle traveling the wrong way on a one-way street in the city of Bismarck. Deputy Ball contacted the dispatch office and told them an older tan Pontiac was traveling the wrong way on Seventh Street. He asked them to contact Bismarck Police Officer Clint Fuller, whom Deputy Ball knew was in the area. Officer Fuller responded to the call, located the tan Pontiac, and eventually stopped the vehicle. Deputy Ball arrived and verified that the stopped vehicle, driven by Judkins, was the one he had observed traveling the wrong way on Seventh Street.

[¶ 3] Officer Fuller conducted a Horizontal Gaze Nystagmus test, a “walk and turn” test, and a “one-legged stand” test. Judkins failed these field sobriety tests, and Officer Fuller arrested her for driving under the influence. Judkins was transported to a hospital for a blood alcohol test. A subsequent analysis of Judkins’s blood sample conducted by the State Toxicologist’s office showed a blood alcohol content (“BAC”) of .23 percent.

[¶ 4] Judkins was charged with driving under the influence of alcohol and driving with a blood alcohol content of .08 percent or greater. At Judkins’s jury trial, the court admitted over objection the results of the blood test. The jury found Judkins guilty of driving under the influence of alcohol, but not of driving with a BAC of .08 percent or greater. A judgment of conviction was entered on the jury verdict, and Judkins appealed.

[¶ 5] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. §§ 27-05-06 and 40-18-15.1. Judkins’s appeal was timely under N.D.R.App.P. 4(b)(1)(A). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. §§ 27-28-06(2) and 29-01-12.

II

[¶ 6] Judkins contends the admission of the blood test results without in-court testimony of the nurse who drew the blood sample and of the State Toxicologist, who certified the results of the blood test, violated her right to confront the witnesses against her under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The City contends admission of the blood test results did not violate the Confrontation Clause and, even if it did, any error in admitting the blood test results was harmless beyond a reasonable doubt. We need not reach the Confrontation Clause issue because we conclude, under the facts in this case, any error in admitting the blood test results was harmless beyond a reasonable doubt.

[¶ 7] In a criminal case, “[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” N.D.R.Crim.P. 52(a). Even federal constitutional errors do not automatically require reversal if it is shown they were harmless, but before a federal constitutional error will be held harmless, the court must be able to declare a belief that the error was harmless beyond a reasonable doubt. See, e.g., Clark v. State, 2001 ND 9, ¶ 15, 621 N.W.2d 576; State v. Syvertson, 1999 ND 134, ¶ 38, 597 N.W.2d 652; City of Mandan v. Baer, 1998 ND 101, ¶ 10, 578 N.W.2d 559; State v. Chihanski, 540 N.W.2d 621, 623 (N.D.1995); see also State v. Klose, 2003 ND 39, ¶ 32, 657 N.W.2d 276 (“a constitutional error may be found harmless beyond a reasonable doubt”). Before determining error is harmless beyond a reasonable doubt, the court must review the entire record and determine, in light of all of the evidence, the probable effect of the alleged error upon the defendant’s rights. Syvertson, at ¶ 38; Chihanski, at 623-24; State v. Kelley, 450 N.W.2d 729, 732 (N.D.1990). A federal constitutional error may be declared harmless if the court is convinced that the error did not contribute to the verdict. Syvertson, at ¶ 38; Chihanski, at 621.

[¶ 8] From the record in this case, we are convinced the admission of the blood test results did not contribute to the verdict. The verdict form allowed the jury to find Judkins guilty of the general offense of driving under the influence, guilty of the per se violation of driving with a BAC of .08 percent or greater, guilty of both, or not guilty of either. The jury specifically found Judkins guilty of the general driving-under-the-influence offense, but not of driving with a BAC of .08 percent or greater. Upon receiving the verdict, the trial court specifically asked the presiding juror:

THE COURT: I interpret the verdict form to mean that the jury made a finding that the defendant was guilty of driving under the influence, but did not make the finding that she was guilty of driving with a blood alcohol concentration of in excess of .08. Am I reading that correctly?

The presiding juror responded, “Yes, that’s correct.” The jury was then polled at Judkins’s request, and each juror responded that they agreed with the verdict as read.

[¶ 9] In addition, during deliberations the jury had sent a note to the trial court asking about the burden of proof for the blood test:

Is the burden of proof on the prosecution to prove on the blood acohal [sic] test, (that the machine was accurate) so that the test is accurate?

After consulting with counsel, the trial court responded to the jury that the prosecution has the burden of proving the charged offense, and directed the jury to review the previously given instruction on chemical tests, which stated:

In this case evidence of the concentration of alcohol in the defendant’s blood was received in the form of the results of a chemical test.
By admitting the results of a chemical test into evidence, the Court does not imply that the test administered was an accurate or reliable test of the defendant’s blood alcohol concentration. The accuracy and reliability of the test is a question of fact which is left solely for your determination.
You are not bound by the results of the chemical test. If you have a reasonable doubt as to the accuracy or reliability of the chemical test or the results, you must disregard it.

[¶ 10] It is clear that the jury in this case disregarded the blood test results. Jurors are presumed to follow the instructions given by the trial court. E.g., State v. Ramsey, 2005 ND 42, ¶ 31, 692 N.W.2d 498; State v. Thill, 2005 ND 13, ¶ 12, 691 N.W.2d 230. The jury in this case specifically found Judkins guilty of driving under the influence of alcohol, but also found she was not guilty of driving with a BAC greater than .08 percent.

[¶ 11] There was ample evidence other than the test results from which the jury could find Judkins was driving under the influence. The officers testified Judkins was driving the wrong way on a one-way street at approximately 5:00 a.m.; she smelled of alcohol; she failed numerous field sobriety tests; she had poor balance; she was confused and had gotten lost on her way home; her makeup was smeared and her hair was unkempt; and, she became angry and belligerent when arrested. On this record, it is clear that the jury disregarded the blood test results and instead found Judkins guilty of the general driving-under-the-influence violation on the basis of other evidence. We are convinced that admission of the blood test results did not contribute to the verdict, and therefore any error in admitting the results was harmless beyond a reasonable doubt.

[¶ 12] The judgment of conviction is affirmed.

[¶ 13] DALE V. SANDSTROM and CAROL RONNING KAPSNER, JJ., concur.

[¶ 14] The Honorable DANIEL J. CROTHERS did not participate in this decision.

VANDE WALLE, Chief Justice,

concurring specially.

[¶ 15] The majority avoids, for the moment, the encounter of N.D.C.C.1 § 39-20-07 with the recent decision of the United States Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) and the confrontation clause of the Sixth Amendment to the Constitution of the United States made applicable to the States under Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

[¶ 16] I am skeptical of the harmless-error analysis involving the admission of evidence which should not be admitted or the exclusion of evidence which should be admitted because whether certain evidence had or would have any influence with the jury is conjectural, see State v.Entze, 272 N.W.2d 292, 298 (N.D.1978) (VandeWalle, J., concurring and dissenting). However, in this instance I am convinced that the question from the jury during deliberations, the failure of the jury to convict on the per se offense of driving under the influence of alcohol while convicting on the general charge of driving under the influence of alcohol, the judge’s specific questions to the jury when it returned its verdict and the overwhelming evidence supporting the conviction on the general charge leads us to this result. Although I cannot say the admission of the blood test was disregarded by the jury it obviously was not the deciding factor in the jury’s verdict.

[¶ 17] I concur in the result reached by the majority opinion.

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


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2005 ND 140
    STATE of North Dakota, Plaintiff and Appellee v. Dale Matt RESSLER, Defendant and Appellant.
    No. 20040327.
    Supreme Court of North Dakota.
    July 25, 2005.

      Allen M. Koppy, State’s Attorney, Man-dan, ND, for plaintiff and appellee.
    Chad R. McCabe, Vinje Law Firm, Bismarck, ND, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Dale Matt Ressler appealed an order deferring imposition of his sentence for possession of drug paraphernalia. Ressler entered a conditional plea of guilty to the charge, reserving the right to appeal the denial of the suppression of evidence. We hold the district court erred in refusing to suppress evidence, and we reverse Ressler’s conviction and order deferring imposition of his sentence and remand to the district court to allow Ressler to withdraw his guilty plea.

[¶ 2] On February 24, 2004, Ressler brought a box to a private shipping outlet, We Ship, located in Mandan, North Dakota. Ressler wanted to send his package to his brother in California through United Parcel Service’s (“UPS”) next-day-air service. The owner of We Ship, Kent Daniel-son, became suspicious of Ressler, who seemed nervous, kept looking over his shoulder, and was shipping an uninsured, next-day-air package whose weight did not coincide with its stated contents. Daniel-son opened the package after Ressler left the store. Danielson discovered numerous magazines, some of which had scotch tape around their three open sides. Danielson cut one of the magazines open and found money in various pages throughout the magazine. The amount of money in this magazine was later determined to be $870. Danielson also examined a second magazine, which was not taped, but it did not contain any currency. Danielson called the Mandan Police Department.

[¶ 3] Officer Ray Eisenmann arrived at the store and observed what the store owner had uncovered. According to Officer Eisenmann, there were several magazines, a plastic bag, newspaper wrapping, packaging materials, and the money Dan-ielson discovered inside the first magazine. Danielson also told Officer Eisenmann his suspicions about Ressler.

[¶ 4] Officer Eisenmann wanted to conduct a canine sniff on the package, but the We Ship store was too small to conduct a valid canine test. Officer Eisenmann transported Ressler’s package to a nearby law enforcement center, and the canine alerted on the relevant box. Following this positive test result, Officer Eisenmann inventoried the full contents of the box by opening the remaining magazines, and he discovered a total of $9,800 in bills. Police later conducted a garbage search at Res-sler’s residence and found various items of drug paraphernalia.

[¶ 5] Based on the evidence from the garbage search, police obtained and executed a'search warrant for Ressler’s residence on February 25, 2004, and uncovered additional drug paraphernalia. The State charged Ressler with possession of the drug paraphernalia found in his home.

I.

[¶ 6] Ressler argues the steps taken by police violated his constitutional right against unreasonable searches and seizures. Ressler claims a sender of a package retains a reasonable expectation of privacy in his parcel, and he notes he had a continuing expectation of privacy in his package extending beyond Danielson’s limited, private-party search. Ressler asserts the initial government seizure of his package was without a search warrant or probable cause. Ressler claims Officer Eisen-mann needed probable cause to support his actions because Officer Eisenmann exercised dominion and control over the package and its contents when he removed the shipment to the law enforcement center.

[¶ 7] Further, Ressler argues that, even after establishing probable cause to search through the canine sniff, the government nonetheless failed to obtain a search warrant before proceeding with its inventory search. Ressler contends an inventory search should not be used as a subterfuge for criminal investigation. Finally, Ressler argues the evidence from his trash and home, which was derived from the illegal seizure and search of his package, should be suppressed as fruit of the poisonous tree.

[¶ 8] In contrast, the State argues the police conduct in this case did not violate Ressler’s constitutional rights. Accordingly, the State denies suppression of the evidence discovered during the search of Ressler’s home is required. The State notes the initial search of Ressler’s package was carried out by a private actor, the owner of the shipping store, and not a government official. The State asserts removal of the package from the shipping store to the law enforcement center for canine testing was a constitutionally reasonable field test because it did not further compromise any legitimate interest Ressler had in his package that had not already been breached by Danielson’s private search, and the removal of the package to the law enforcement center was based upon the reasonable suspicion gained' at the shipping store. The State contends the initial detention and movement of Ressler’s package need only be supported by reasonable suspicion, not probable cause.

[¶ 9] The State opines that, after the canine identified Ressler’s package, the Officer had probable cause to inventory the box and, as the events leading up to the garbage search and the issuance of the search warrant for Ressler’s residence were in accordance with constitutional protections, there is no basis upon which to suppress the evidence discovered in Res-sler’s home.

A.

[¶ 10] The Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment, Mapp v. Ohio, 867 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), provides “[t]he- right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated.” Ressler’s package, which was delivered to We Ship for private interstate shipment, was an “effect” within the meaning of the Fourth Amendment. United States v. Jacobsen, 466 U.S. 109, 114, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). Analyzing the events as they unfolded, the private-party search of Ressler’s shipment, which was not done at the behest of a government official, does not implicate any constitutional protections. Id. at 114-15, 104 S.Ct. 1652. Further, the record reveals Danielson displayed what he had uncovered to Officer Eisenmann, and there is no indication Officer Eisenmann exceeded the scope of the private-party search during his initial examination at We Ship. Id. at 115, 104 S.Ct. 1652.

B.

[¶ 11] Officer Eisenmann was suspicious of Ressler’s shipment, and he determined to move the package to a nearby law enforcement center for a canine test. Danielson told Officer Eisenmann of Res-sler’s peculiar behavior. Officer Eisen-mann saw what appeared to be a large quantity of money shipped inside a taped magazine, and, when viewed through the prism of his training in narcotics enforcement, Officer Eisenmann had grounds for suspicion. At oral argument, the State’s Attorney acknowledged the suspicion only amounted to reasonable suspicion, not probable cause. Ressler argued that even reasonable suspicion was lacking. Given the facts of the case, we conclude Officer Eisenmann’s suspicion was reasonable.

[¶ 12] Initially we must decide whether Officer Eisenmann’s movement of the package constituted a seizure at all. If no seizure occurred, police do not need any level of suspicion to support their conduct. Defining a seizure as “some meaningful interference with an individual's possesso-ry interests,” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), some courts have held no seizure occurs where the government’s investigation, such as a canine test, would not delay the shipment of an individual’s package if the test returned negative. United States v. Francisco Zavala, 2003 WL 431636, at * 1-2, 2003 U.S. Dist. LEXIS 2521, at * 5-6 (E.D.Pa.2003) (collecting similar cases); see also 3 W. LaFave, Search and Seizure § 9.6, p. 71 (Supp.1982) (noting United States v. Van Leeuwen, 397 U.S. 249, 252-53, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970), which involved a prolonged detention, but no search, of a shipped parcel, “was an easy case for the Court because the defendant was unable to show that the invasion intruded upon either a privacy interest in the contents of the packages or a possessory interest in the packages themselves”) (cited in United States v. Place, 462 U.S. 696, 705 n. 6, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)). Another court has utilized a contract-based theory of possessory interests when dealing with shipped packages, holding the critical time runs from when the defendant has a contractual right to receive the package to when police establish probable cause to seize the package. United States v. La France, 879 F.2d 1, 7 (1st Cir.1989).

[¶ 13] Under this rationale, it is arguable whether Officer Eisenmann’s movement of Ressler’s package to the law enforcement center impinged Res-sler’s possessory interests or constituted a seizure. Officer Eisenmann arrived at We Ship around 11:00 a.m. on February 24, 2004, briefly after Ressler dropped off his shipment. The package was moved to the law enforcement center shortly thereafter and it does not appear a significant delay occurred before police conducted the canine test. Had the canine sniff been negative, the record does not indicate whether the package could have nonetheless arrived at its destination on time, but the early time of day, the speed with which police conducted the canine test, and the close proximity of the law enforcement center and We Ship indicate that on-time delivery might have been plausible.

[¶ 14] There is not universal acceptance of these approaches, however. In United States v. Morones, 355 F.3d 1108, 1111 (8th Cir.2004), the court rejected the government’s argument that no seizure of a Federal Express package occurred when an officer removed the package from the mail stream and held it for a canine sniff. The government argued the brief stop of the package would not have delayed its ultimate forward progress if the canine did not alert. Id. The government claimed a seizure did not occur until after the canine alerted to the package and the officer made the decision to obtain a search warrant. Id. The court dismissed this reasoning, holding the officer exercised meaningful interference with the defendant’s possessory rights when he held the package pending the canine sniff. Id.; see also Jacobsen, 466 U.S. at 120-21 & n. 18, 104 S.Ct. 1652 (agents “clearly” seized a Federal Express package when they took custody of the package at the shipper’s facility and exerted dominion and control over the package for law-enforcement purposes; the Court did not find it necessary to determine that an on-time delivery was frustrated before labeling the government’s actions a seizure). We believe the Morones and Jacobsen rationale is sound. It seeks to recognize and validate the minimal, yet ever-present, possessory rights an individual maintains in shipped articles. Further, it provides some mechanism to check what would otherwise be a nearly unrestrained power of government to temporarily confiscate any shipped package.

[¶ 15] The relevant question thus becomes whether Officer Eisenmann, armed with reasonable suspicion, could transport a seized package from We Ship to the law enforcement center for canine testing. We hold reasonable suspicion does not afford police this option. Many courts have noted reasonable suspicion permits government officials to temporarily detain a package pending further investigation, often involving a canine test, that leads to the establishment of probable cause. See, e.g., United States v. Van Leeuwen, 397 U.S. 249, 252-53, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970); United States v. Fuller, 374 F.3d 617, 621 (8th Cir.2004); United States v. Morones, 355 F.3d 1108, 1111-12 (8th Cir.2004). However, most courts have addressed the detention of a package in the location where reasonable suspicion originated, pending the arrival of a canine unit. See, e.g., State v. Kesler, 396 N.W.2d 729, 730-31 (N.D.1986) (suspected packages held at post office pending arrival of out-of-town canine units).

[¶ 16] Some courts have decided cases involving the movement of a package to another location for a canine test based on reasonable suspicion, but few of these courts have explicitly discussed the ramifications of moving such a package or whether it was moved by law enforcement or another entity. See United States v. Allen, 990 F.2d 667 (1st Cir.1993) (postmaster transported suspected package to his personal home so police could conduct canine test in private; case decided on other grounds); United States v. Aldaz, 921 F.2d 227 (9th Cir.1990) (postmaster sent suspected package from rural Alaska to postal inspector in Anchorage for canine test; court discussed the movement of the package only in terms of the length of detention); United States v. La France, 879 F.2d 1 (1st Cir.1989) (police directed Federal Express to deliver a suspected package to their police station for a drug sniff; case decided on grounds of defendant’s lack of possessory interests in package until scheduled time of delivery); United States v. Dass, 849 F.2d 414 (9th Cir.1988) (law enforcement authorities sent suspected packages from various Hawaii post offices to a law enforcement center in Hilo for canine inspection; case decided on other grounds); United States v. Francisco Zavala, 2003 WL 431636, 2003 U.S. Dist. LEXIS 2521 (E.D.Pa.2003) (suspected package was transported from a Pennsylvania air-mail facility to a Philadelphia post office for canine testing; court held no seizure of package occurred before the canine alerted because no meaningful interference with the defendant’s possessory interests occurs where package could be delivered on time if canine test is negative); United States v. Bailey, 193 F.Supp.2d 1044 (S.D.Ohio 2002) (post office in a county where canine testing unavailable sent suspected package to a postal inspector in another county for testing; court held the shipment was reasonable because no canine units were present in original location and movement of package from one federal judicial district to another was not done for forum-shopping purposes); Illinois v. Shapiro, 177 Ill.2d 519, 227 Ill.Dec. 142, 687 N.E.2d 65 (1997) (suspected postal package was sent from Chicago’s O’Hare International Airport to a postal inspector in Missouri for a canine sniff; court held the movement was unreasonable because the ensuing delay in delivery could have been reduced if the police would have acted more diligently in conducting the test in Chicago).

[¶ 17] Here, we are not troubled by the length of Officer Eisenmann’s detention of the package before probable cause was established because it appears the canine sniff occurred shortly after Officer Eisen-mann first arrived at We Ship and seized the package. Compare United States v. Place, 462 U.S. 696, 708-10, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (where a person’s liberty interests were implicated by the detention of his luggage, the Supreme Court found a 90-minute delay to be unacceptable) with Van Leeuwen, 397 U.S. at 249-50, 252-53, 90 S.Ct. 1029 (Supreme Court approved detention of mailed parcels where probable cause to suspect one of the shipped packages did not exist until the “next morning”). Officer Eisenmann was diligent in arranging the canine test. See Place, 462 U.S. at 709, 103 S.Ct. 2637 (discussing the length of detention and the police’s diligence in pursuing their investigation in assessing the reasonableness of a seizure on less than probable cause). Rather, we are concerned with the discrete question of whether reasonable suspicion allows for the transportation by law enforcement of a package from the place where suspicion arose to a wholly different venue, here a law enforcement center.

[¶ 18] The Supreme Court has noted “a seizure lawful at its inception can nevertheless violate the Fourth Amendment because its manner of execution unreasonably infringes possessory interests protected by ... the Fourth Amendment’s prohibition on ‘unreasonable seizures.’ ” United States v. Jacobsen, 466 U.S. 109, 124 & n. 25, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (discussing United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (involving the detention of a person’s luggage on reasonable suspicion)). Here, Officer Eisenmann had reasonable suspicion to suspect Ressler’s package, and this level of suspicion would have justified a decision to detain the package at We Ship pending further investigation. By transporting the package, however, police executed the. seizure in a manner we believe is contrary to the constitutional prohibition against unreasonable seizures.

[¶ 19] A seizure of a package based on reasonable suspicion affords government officials less command, dominion, or control over the package than they would possess if executing a full-fledged seizure based on probable cause or a warrant. A contrary conclusion would distend the rationale for a Terry stop to a point where it envelops a seizure based on probable cause or a seizure supported by a warrant. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Police could not seize Ressler’s package to a greater extent than by placing it in their exclusive control, removing it from the location where it was submitted for shipping, and transporting it to a law enforcement center. This full-fledged seizure required either probable cause supported by an exception to the warrant requirement or a warrant to be valid. Place, 462 U.S. at 701-02, 103 S.Ct. 2637; see Garmon v. Foust, 741 F.2d 1069, 1073-74 (finding exigent circumstances existed where a shipped parcel could be lost or mistakenly delivered). A Terry stop of a package is distinguishable from a full-fledged seizure supported by probable cause, and we hold reasonable suspicion was an inadequate basis upon which to transport Ressler’s package to the law enforcement center.

[¶ 20] In its recent decision in Illinois v. Caballes, — U.S. -, --, 125 S.Ct. 834, 838, 160 L.Ed.2d 842 (2005), the United States Supreme Court affirmed a canine sniff performed on the outside of a person’s automobile while the driver was lawfully seized for a traffic violation. The Court emphasized the sniff did not elongate the otherwise valid traffic stop. Id. 125 S.Ct. at 837. One of the inferences to be drawn from this ease is that, if police desire to conduct a canine sniff at a traffic stop, they must take the traffic stop as they find it. Similarly, that a valid canine test could not have been done in We Ship does not mean transporting the package to a more accommodating location is acceptable. If police are unable to investigate in a manner consistent with the level of suspicion they possess, the proper result is to cease investigation, not impinge constitutional protections.

C.

[IT 21] Although we dispose of this case on the basis of the illegal seizure, we note Officer Eisenmann subjected the package to a canine sniff and an inventory search at the law enforcement center. The Supreme Court has indicated a canine sniff “discloses only the presence or absence of narcotics, a contraband item,” and does not “constitute a ‘search’ within the meaning of the Fourth Amendment.” United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). Thus, a canine sniff does not, in and of itself, implicate a person’s legitimate expectations of privacy. It is also clear that a positive canine test provides probable cause to suspect a package. See, e.g., United States v. Lingenfelter, 997 F.2d 632, 639 (9th Cir.1993) (holding “[a] canine sniff alone can supply the probable cause necessary for issuing a search warrant if the application for the warrant establishes the dog’s reliability”). Both parties on appeal agree that positive canine sniffs establish probable cause.

[¶ 22] After establishing probable cause to suspect Ressler’s shipment, Officer Eisenmann proceeded to inventory the full contents of the package, without first obtaining a warrant. At this point, Res-sler still maintained a legitimate expectation of privacy in the contents of the magazines not inspected during the private-party search. Cf. United States v. Jacobsen, 466 U.S. 109, 115, 120-22, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (additional invasions of privacy by the government must be tested by the degree to which they exceed the scope of the private search; package opened by private party could not support any expectation of privacy where private search revealed package “contained contraband and little else”). It is well-established law that probable cause alone does not justify a warrantless search of a package, absent an exception to the warrant requirement. See Jacobsen, 466 U.S. at 114, 104 S.Ct. 1652 (“Even when government agents may lawfully seize such a package to prevent loss or destruction of suspected contraband, the Fourth Amendment requires that they obtain a warrant before examining the contents of such a package.”); Place, 462 U.S. at 701, 103 S.Ct. 2637 (“Where law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant, the Court has interpreted the Amendment to permit seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.”).

[¶ 23] Both the State and the district court argued Officer Eisenmann conducted an inventory search, which is an exception to the warrant requirement. An inventory search is “predicated on the interest in protecting the owner’s property while it is in police custody, protecting the police against claims of lost, stolen or vandalized property and protecting the police against danger posed by the inventoried 'property.” State v. Kunkel, 455 N.W.2d 208, 211 (N.D.1990). “Limited to these [administrative and caretaking] purposes, inventories conducted according to reasonable police regulations relating to inventory procedures administered in good faith are permissible under the fourth amendment.” Id. (internal quotations omitted).

[¶ 24] Here, Officer Eisenmann’s search of Ressler’s package was carried out in the midst of a criminal investigation. Officer Eisenmann searched the packagé immediately after the canine test and there is no evidence the police were concerned with protecting or safeguarding either their interests or Ressler’s property interests. See State v. Gelvin, 318 N.W.2d 302, 307 (N.D.1982) (upholding inventory search of wallet conducted pursuant to standard jailhouse procedures). Absent a warrant or a valid exception to the warrant requirement, the search of Ressler’s package at the law enforcement center contravened the Fourth Amendment.

D.

[¶25] Officer Eisenmann legitimately observed the evidence discovered during Danielson’s private-party search. But, Officer Eisenmann’s movement of Ressler’s shipment to the law enforcement center was a seizure that was not reasonable, and the evidence that flowed from this seizure, the resulting positive canine alert and the warrantless search of the package, must be suppressed as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

[¶ 26] Although the State did not argue inevitable discovery, excluding the events following Officer Eisenmann’s observation of the package at We Ship, as we must, there is, in any event, insufficient evidence to conclude police would have nonetheless conducted a garbage search at Ressler’s residence. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) (inevitable discovery). Because the garbage search provided the probable cause to obtain a search warrant for Res-sler’s residence, the evidence discovered in Ressler’s home must also be suppressed.

[¶ 27] We hold the district court erred in refusing to suppress evidence, and we reverse Ressler’s conviction and order deferring imposition of his sentence and remand to the district court to allow Ressler to withdraw his guilty plea.

[¶ 28] DALE V. SANDSTROM, CAROL RONNING KAPSNER, and MARY MUEHLEN MARING, JJ., concur.

[¶ 29] The Honorable DANIEL J. CROTHERS did not participate in this decision.


author: SANDSTROM, Justice.

text:
    2005 ND 138
    In the Interest of B.J.K., a child. Thomas H. Falck, Jr., Assistant State’s Attorney, Petitioner and Appellee v. T.L., (Mother), Grand Forks County Social Service Center (Custodian), Respondents and R.K., (Father), Respondent and Appellant.
    No. 20050025.
    Supreme Court of North Dakota.
    July 25, 2005.

      Carmell F. Mattison (appeared), Assistant State’s Attorney, Grand Forks, N.D., and Meredith Larson (argued), third-year law student, appearing under the Rule on the Limited Practice of Law by Law Students, for petitioner and appellee.
    DeWayne A. Johnston, Grand Forks, N.D., for respondent and appellant.
   SANDSTROM, Justice.

[¶ 1] R.K. appeals a juvenile court judgment terminating his parental rights to B.J.K. Concluding the juvenile court did not err in terminating R.K.’s parental rights, we affirm.

I

[¶ 2] R.K. (“the father”) and T.L. (“the mother”) are the unmarried biological parents of B.J.K. (“the child”), who was five years old at the time of the termination hearing. The mother has another child, C.L. (“the other child”), of whom R.K. is not the biological father. Before the birth of the younger child, the Grand Forks County Social Service Center (“Social Services”) received two reports of possible abuse and neglect of the other child by the mother. In May and November of 2001, Social Services received additional reports of possible abuse or neglect of both children by the mother. After investigating the two reports, Social Services did not recommend removing the children from the household, but after the November report, Social Services recommended that the parents stop fighting in the presence of the children. In 2002, Social Services received another report alleging the father and mother were using drugs and the mother was being verbally abusive to others in the presence of the children. Social Services found drug use by both parents as well as domestic violence, inadequate child supervision, and unsanitary home conditions. Social Services noted that both parents completely denied the existence of any problems and were unwilling to participate in any services that might be beneficial in remedying the problems. Because of the risk to the children, Social Services set requirements for the father and mother to meet, including having chemical dependency evaluations, maintaining a clean and safe home, and making sure the other child went to school.

[¶ 3] On May 14, 2002, a social worker arrived at the father and mother’s residence for a scheduled home visit and found the mother asleep with the children in the house. The other child could not wake the mother, so the social worker called the police because she was concerned the mother was not all right. The social worker let herself into the house and eventually was able to shake the mother awake. On May 20, 2002, an affidavit was submitted by Social Services requesting the children be placed in temporary custody pending further investigation. A hearing was held, and an order issued, on May 22, 2002, removing the children from the care, custody, and control of the father and mother for 60 days. A series of hearings and orders continued to keep the children in the control of Social Services and out of the parents’ home. The other child was later placed with a relative. The younger child, whose custody is the center of this appeal, was placed with another relative and then was moved to foster care in 2003.

[¶ 4] In August 2004, Social Services petitioned the juvenile court for an involuntary termination of parental rights. The juvenile court found the mother did not follow through on her drug and alcohol treatment and other programs recommended by Social Services. The juvenile court found the father did not maintain his sobriety, submit to drug screening, or maintain regular contact with his case manager. After finding that the mother and father did not follow Social Services’ recommendations and that the child was a deprived child, the juvenile court terminated the father’s and the mother’s parental rights.

[¶ 5] The father appeals.

[¶ 6] The juvenile court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. §§ 27-20-02(12) and 27-20-03(1). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 27-20-56(1).

II

[¶ 7] The father appeals, arguing the juvenile court erred in concluding there was clear and convincing evidence that the conditions and causes of deprivation were likely to continue. He argues there are no facts in this case that present the degree of abuse or neglect required under the statute to terminate his parental rights. He claims that even with the alleged neglect, the child was not without appropriate clothing, food, or housing. He concedes the mother has unresolved problems but argues he should not be punished for her behavior.

[¶ 8] Social Services argues there was clear and convincing evidence that the conditions and causes of deprivation were likely to continue and that the child would suffer future physical, mental, moral, or emotional harm if returned to the father.

[¶ 9] Parental rights may be terminated if a child is deprived and the court finds the “conditions and causes of the deprivation are likely to continue or will not he remedied and that by reason thereof the child is' suffering or will probably suffer serious physical, mental, moral, or emotional harm.” N.D.C.C. § 27-20-44(l)(b)(l). A deprived child is one who is “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child’s parents, guardian, or other custodian.” N.D.C.C. § 27-20-02(8)(a).

[¶ 10] A juvenile court has jurisdiction over proceedings in which a child is alleged to be deprived. N.D.C.C. § 27-20-03(l)(a). A juvenile court’s finding of deprivation will not be set aside unless it is clearly erroneous. N.D.R.Civ.P. 52(a). A finding of fact is clearly erroneous if there is no evidence to support it, if the reviewing court is left with a definite and firm conviction that a mistake has been made, or if the finding was induced by an erroneous view of the law. Interest of T.T., 2004 ND 138, ¶ 5, 681 N.W.2d 779. We give “due regard to the juvenile court’s opportunity to judge the credibility of witnesses.” Id.

[¶ 11] The juvenile court held the child was deprived because the mother had not followed through on her inpatient treatment for drugs and alcohol, nor had she addressed the domestic violence problems, completed anger management treatment, maintained contact with her case managers, or completed a nurturing parent program. The court stated the situation was not safe because of the continued drug use by both parents. The court found the father has not maintained sobriety or contact with his case manager, and he did not follow through on his urinalysis screenings.

[¶ 12] This Court has affirmed juvenile court judgments terminating parental rights when parents were using drugs and showed little or no signs of improving. See Interest of E.R., 2004 ND 202, 688 N.W.2d 384 (incarceration and indications that parent has not changed and may return to drugs sufficient to terminate parental rights); Interest of T.T., 2004 ND 138, 681 N.W.2d 779 (parents had previously been warned about their behavior and had not changed their behavior in over five years); Interest of B.N., 2003 ND 68, 660 N.W.2d 610 (mother failed to participate in numerous programs recommended by county social service agency to improve her parenting abilities, including parenting classes, nurturing classes, domestic violence treatment, anger management treatment, and relationship counseling); Interest of K.S., 2002 ND 164, 652 N.W.2d 341 (terminated parental rights because mother had not taken meaningful steps to address her alcoholism or receive treatment; she continued to be involved in unstable relationships with alcoholic and abusive men and continued not to cooperate and work with social services, including social workers and other professionals, in a meaningful way); Interest of D.R., 2001 ND 183, 636 N.W.2d 412 (mother abused drugs in the presence of children and lived with male roommates who had been abusive to her and the children); but see Interest of W.E., 2000 ND 208, 619 N.W.2d 494 (deprivation not likely to continue because church congregation offered mother help, and there was testimony the mother was capable of raising children despite being mildly retarded).

[¶ 13] The juvenile court found that the father used drugs and alcohol, was verbally abusive to the mother in front of the children, could not control his anger, and was hostile toward the social workers, and that the child’s fine motor skills were underdeveloped from living with the father and the mother. These findings support the conclusion the child was deprived.

[¶ 14] The father argues, if there was deprivation, it would not continue. “In determining whether the causes and conditions of deprivation will continue or will not be remedied, evidence of past deprivation alone is not enough, and there must be prognostic evidence that forms the basis for reasonable prediction of continued or future deprivation.” Interest of E.R., 2004 ND 202, ¶ 7, 688 N.W.2d 384. Prognostic evidence is “evidence that forms the basis of reasonable prediction as to future behavior.” Interest of D.R., 2001 ND 183, ¶ 11, 636 N.W.2d 412.

[¶ 15] The juvenile court found that the father failed to complete the requirements set out by Social Services and that he was living with the mother again. The juvenile court and the father recognize the mother has a detrimental effect on the child. The failure of one parent to separate from the other parent justifies termination of a parental relationship if the one spouse creates a dangerous environment for the child. See Interest of D.N., 2001 ND 71, 624 N.W.2d 686; Interest of N.N., 278 N.W.2d 150 (N.D.1979); Interest of K.P., 267 N.W.2d 1 (N.D.1978); Interest of J.Z., 190 N.W.2d 27 (N.D.1971). The father’s allowing the mother to move back in with him demonstrates that his priority is to maintain a relationship with the mother instead of his child.

[¶ 16] At the time of the trial, the child had been out of the father’s home for 927 days. “When there has been an extensive period in which efforts have been made to overcome a parent’s inabilities to effectively parent, the courts cannot allow the children ‘to remain in this indeterminate status midway between foster care and the obvious need for permanent placement.’ ” Interest of B.N., 2003 ND 68, ¶ 25, 660 N.W.2d 610 (citations omitted). This child’s living situation should not continue to linger on in the hope that the father may finally follow through on his promise to reform.

Ill

[¶ 17] The juvenile court was not clearly erroneous in determining that the child was deprived and that the father’s living with the mother and his failure to follow through on his programs are prognostic evidence that deprivation would continue if the child returned home.

[¶ 18] We affirm the juvenile court’s judgment.

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

[¶ 20] The Honorable DANIEL J. CROTHERS did not participate in this decision.


author: MARING, Justice.

text:
    2005 ND 134
    STATE of North Dakota, Plaintiff and Appellee v. Dale BARTH, Defendant and Appellant.
    No. 20050015.
    Supreme Court of North Dakota.
    July 15, 2005.

      Jeffrey L. Sheets of Farhart & Sheets, P.C., Minot, N.D., for defendant and appellant.

      John J. Mahoney, State’s Attorney, Center, N.D., for plaintiff and appellee.
   MARING, Justice.

[¶ 1] Dale Barth appeals from criminal judgments entered on a jury verdict convicting him of disorderly conduct, preventing arrest or other discharge of duties, and attempted simple assault. We affirm.

I

[¶ 2] On July 20, 2004, David Bueligen cut hay on land he had orally agreed to rent from Fanny Kobs. On July 22, 2004, Dale Barth and his father, Otto Barth, who also rented certain tracts of land from Kobs, entered the land and began raking the hay cut by David Bueligen. When Kobs witnessed the Barths raking the hay, she approached Dale Barth and told him she was going to call David Bueligen. Dale Barth responded, requesting that Kobs also call the sheriff. Kobs proceeded to telephone the Bueligens and asked them to come to the land. David Bueligen and his father, Roger Bueligen, arrived at the land. David Bueligen and Dale Barth argued over who owned the hay. The Bueli-gens then left the area and proceeded to Kobs’ house.

[¶ 3] Approximately ten minutes later, Sheriff David Hilliard arrived. After a heated exchange with Dale Barth, Sheriff Hilliard went to Kobs’ house to discuss the situation with the Bueligens and Kobs. Sheriff Hilliard and the Bueligens then returned to the hayfield. At this point, David Bueligen attempted to remove his machinery from the land. However, Otto Barth blocked the approach with a tractor. Dale Barth demanded David Bueligen pay $250 before he would allow him to pass. Sheriff Hilliard asked the Barths “four, five” times to move their tractor so David Bueligen could remove his machinery. Barth refused. Sheriff Hilliard then ordered Dale Barth off Kobs’ property. Dale Barth refused, began yelling obscenities, made obscene gestures, and allegedly attempted to hit Sheriff Hilliard. Sheriff Hilliard, with the assistance of Officer Schmitz, wrestled Dale Barth to the ground, handcuffed, and arrested him.

[¶ 4] On July 23, 2004, Dale Barth was charged with disorderly conduct under N.D.C.C. § 12.1-31-01, preventing arrest or discharge of other duties under N.D.C.C. § 12.1-08-02, and attempted simple assault under N.D.C.C. §§ 12.1-06-01 and 12.1-17-01. On January 6, 2005, a jury found Barth guilty of all charges.

[¶ 5] Barth appeals the criminal judgments.

II

[¶ 6] On appeal, Barth argues the arrest was an unlawful violation of his First Amendment right to free speech under the United States Constitution. Barth also argues there was insufficient evidence to support the convictions, and the State failed to meet its burden of proof with respect to each of the charges. The State argues Barth’s threatening conduct and use of profane and threatening language is not constitutionally protected speech. Consequently, Barth’s arrest and subsequent conviction were justified. The State further argues the consistent and corroborated testimony of several witnesses was sufficient to prove Barth committed the offenses.

[¶ 7] The State must prove each element of a criminal offense beyond a reasonable doubt. State v. Kurle, 390 N.W.2d 48, 49 (N.D.1986). On appeal, we look for competent and substantial evidence from which the jury could reasonably conclude that each essential element of the offense had been proven. City of Bismarck v. Schoppert, 469 N.W.2d 808, 812 (N.D.1991). This Court does not weigh conflicting evidence, or judge the credibility of witnesses; instead, we look only to the evidence most favorable to the verdict and the reasonable inferences to determine if substantial evidence exists to support a conviction. Id.

[¶ 8] We use particular caution when reviewing claims of constitutionally protected activity. City of Fargo v. Brennan, 543 N.W.2d 240, 243 (N.D.1996). “When Free Speech arguments are made, the reviewing court must independently scrutinize the record to see if the charged conduct is protected.” Id. (citing Houston v. Hill, 482 U.S. 451, 458 n. 6, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987)). A reviewing court has a constitutional duty to independently examine the entire record to ensure the judgment does not constitute a forbidden intrusion on free expression. Id.

Ill

[¶ 9] Barth argues the arrest was unlawful because his expression during the July 22, 2004, incident was protected by the right to free speech under the First Amendment to the United States Constitution. We disagree.

[¶ 10] Barth was charged with disorderly conduct in violation of N.D.C.C. § 12.1-31-01, which provides:

1. An individual is guilty of a class B misdemeanor if, with intent to harass, annoy, or alarm another person or in reckless disregard of the fact that another person is harassed, annoyed, or alarmed by the individual’s behavior, the individual:
a. Engages in fighting, or in violent, tumultuous, or threatening behavior;
b. Makes unreasonable noise;
2. This section does not apply to constitutionally protected activity. If an individual claims to have been engaged in a constitutionally protected activity, the court shall determine the validity of the claim as a matter of law and, if found valid, shall exclude evidence of the activity.

Subsection 2, N.D.C.C. § 12.1-31-01, specifically directs a court to decide the validity of claims of constitutionally protected activity and, if the claims are valid, to exclude the evidence. While not explicitly stated in N.D.C.C. § 12.1-31-01(2), a motion in limine would be an appropriate method to advance a “constitutionally protected activity” argument in order to keep inadmissible evidence from the hearing of the jury. In this case, a motion in limine was not made requesting the trial court examine certain offered evidence to determine whether any or all of Barth’s conduct was constitutionally protected activity. Barth, instead, made a Rule 29, N.D.R.Crim.P., motion for judgment of acquittal arguing the evidence was insufficient to sustain a conviction of disorderly conduct. While not an improper motion, a more effective motion to raise the issue of constitutionally protected activity would be a motion in limine to exclude the evidence.

[¶ 11] In making his free speech argument, Barth contends he was arrested for “verbally, and by way of a gesture, opposing or challenging a police action.” He further asserts “no threat of violence to the officer or any attempt to strike the officer” or “profanity or gestures directed toward anyone” other than Sheriff Hilliard occurred. Barth asserts his situation is analogous to and supported by this Court’s decision in City of Bismarck v. Schoppert, 469 N.W.2d 808 (N.D.1991).

[¶ 12] In Schoppert, the defendant was convicted of disorderly conduct under a city ordinance for making an obscene gesture and directing obscenities toward two police officers. Schoppert appealed, arguing a jury instruction allowing the jury to convict him if it found the “obscene language ... by its very utterance or gesture inflicts injury ... is guilty of disorderly conduct” allowed the jury to convict him for constitutionally protected conduct. Id. at 810. We agreed and reversed, holding “injuring the feelings of the officers” with obscene language and gestures, without other threatening behavior, is an unconstitutional ground for a criminal conviction. Id. at 812.

[¶ 13] The instant case is distinguishable from Schoppert. In Schoppert, the profanity and vulgar expressions were directed at police officers without a breach of peace or otherwise threatening behavior. Id. at 809. Here, witnesses testified that Barth’s behavior went far beyond the conduct exhibited in Schoppert. David Bueligen testified that just before the arrest, Barth gave Sheriff Hilliard “the finger” five or six inches from his face, “put up his fist and said, ‘C’mon you son of a bitch.’ ” Next, according to David Bueli-gen, Sheriff Hilliard asked Barth to calm down or he would arrest him. Sheriff Hilliard then grabbed Barth’s “arm and threw him to the ground while [Barth] swung at him once or two times for sure, scruffed him alongside the face.” Roger Bueligen testified Barth “gave [Sheriff Hil-liard] the finger ... and threatened to swing at him. And sheriff asked him a couple times if he didn’t cool down he would have to put him under arrest. And he said FU and try it or whatever.” Roger Bueligen further testified that, when Sheriff Hilliard tried to arrest Dale Barth, “he stepped back a step or so and then he put his arm back like, come on, come at me, like he was going to swing at him.” Sheriff Hilliard testified that Barth was very angry, using profanity, and, after twice being told to calm down and threatened with arrest, Barth responded by walking up to him, putting his middle finger up approximately six inches from his face, and saying, “Fuck you. You can join my church.” Next, according to Sheriff Hilliard, he twice told Barth, “Dale, you need to calm down. If you keep this up, I’m going to arrest you for disorderly conduct.” Barth then “stuck his middle finger up in my face again” and repeated the “church” comment. Sheriff Hilliard testified he then told Barth, “Dale, I’m going to place you under arrest.” Barth then put up both his fists and said “C’mon,” and “swung, and he grazed the side of [the sheriffs] face.” Sheriff Hilliard then wrestled Barth to the ground and Barth “was swearing at [the sheriff] the whole time, using profanity” and “he was trying to kick [the sheriff].” Sheriff Hilliard testified he arrested Barth for “the actions that [Barth] did to [him], by the profanity he was using, by putting his finger in [the sheriffs] face, and the profanity being used towards David and Roger [Bueligen] and pointing his finger at them.” Sheriff Hilliard further testified he “felt in danger of [Barth] from being that close to [the sheriffs] face.” Officer Schmitz testified that, after Sheriff Hilliard told Barth he was going to arrest him for disorderly conduct, Barth “took a swing at [the sheriff] and he swung a couple more times.”

[¶ 14] Barth testified admitting he gave Sheriff Hilliard “the finger” and made the “church” comment, but he disputed attempting to hit Sheriff Hilliard. Barth testified that when he turned his back on Sheriff Hilliard to turn his tractor off, Sheriff Hilliard grabbed him from behind, threw him to the ground, and handcuffed him. Otto Barth corroborated this testimony.

[¶ 15] We do not weigh conflicting evidence, nor do we judge the credibility of witnesses. State v. Klindtworth, 2005 ND 18, ¶ 10, 691 N.W.2d 284. When considering the sufficiency of the evidence, we look only to the evidence most favorable to the verdict and the reasonable inferences to determine if substantial evidence exists to support a conviction. Id. (citing State v. Klose, 2003 ND 39, ¶ 19, 657 N.W.2d 276).

[¶ 16] Despite Barth’s claim of constitutionally protected speech, we believe Barth’s persistent use of profane and threatening language combined with threatening hand gestures, including giving Sheriff Hilliard “the finger” five or six inches from his face, raising his físt and saying, “C’mon you son of a bitch,” were reasonably found to be threatening and alarming. See Svedberg v. Stamness, 525 N.W.2d 678, 684 (N.D.1994) (holding “taunts, threats including a threat to kill,” and other harassing conduct were “unprotected by the First Amendment”); City of Mandan v. Hoesel, 497 N.W.2d 434, 436 (N.D.Ct.App.1993) (holding that “[striking out or attempting to hit someone is not protected expression, but rather is physical conduct that can be the basis of a disorderly conduct conviction”); City of Bismarck v. Nassif, 449 N.W.2d 789, 791-94 (N.D.1989) (affirming sufficiency of the evidence for disorderly conduct when a defendant was “upset, shouting, loud, and aggressive” and threatening “to get [his] shotgun and ‘blow you bastards away’ ”); City of Beach v. Kryzsko, 434 N.W.2d 580 (N.D.Ct.App.1989) (holding an accused who “screamed, hollered, [and] swore” at a citizen, and who swore and swung at police officer was guilty of disorderly conduct).

[¶ 17] We conclude Barth’s threatening-words and gestures are not constitutionally protected free speech under the First Amendment of the United States Constitution.

IV

[¶ 18] Barth argues there was not sufficient evidence to support his convictions. At the close of the State’s case, Barth moved for judgment of acquittal under N.D.R.Crim.P. 29, preserving the issue of sufficiency of the evidence. See State v. Igou, 2005 ND 16, ¶4, 691 N.W.2d 213. The trial court denied the motion.

[¶ 19] In reviewing challenges to the sufficiency of the evidence, “this Court merely reviews the record to determine if there is competent evidence that allowed the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction.” Id. at ¶ 5. The defendant has the burden to show the evidence, when viewed in the light most favorable to the verdict, permits no reasonable inference of guilt. Id. “A conviction rests upon insufficient evidence only when no rational factfinder could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonable to be drawn in its favor.” Id. (citing State v. Knowels, 2003 ND 180, ¶ 6, 671 N.W.2d 816).

A. Disorderly Conduct

[¶20] The jury found Barth guilty of disorderly conduct, a class B misdemeanor, in violation of N.D.C.C. § 12.1-31-01(l)(a) and (b), which provide:

1. An individual is guilty of a class B misdemeanor if, with intent to harass, annoy, or alarm another person or in reckless disregard of the fact that another person is harassed, annoyed, or alarmed by the individual’s behavior, the individual:
a. Engages in fighting, or in violent, tumultuous, or threatening behavior;
b. Makes unreasonable noise;

[¶21] Barth argues there was not sufficient evidence to convict him of disorderly conduct because he did not threaten or attempt to strike the sheriff or use profanity or gestures directed at anyone other than the sheriff. In viewing the evidence most favorable to the verdict, we conclude it is sufficient to support Barth’s conviction of disorderly conduct.

[¶ 22] The evidence shows, on July 22, 2004, Barth was involved in a dispute with David Bueligen over the right to cut hay on land owned by Fanny Kobs. Barth refused to allow Bueligen to remove his machinery from Kobs’ land unless Bueli-gen paid $250. Sheriff David Hilliard was called to the scene and asked Barth to allow the Bueligens to remove their machinery. Barth refused. Sheriff Hilliard then asked Barth to leave the property, and Barth refused. Barth became angry, began yelling obscenities and made obscene and threatening gestures toward Sheriff Hilliard. David Bueligen testified that Barth gave Sheriff Hilliard “the finger” five or six inches from his face, “put up his fist and said, ‘C’mon you son of a bitch.’ ” Roger Bueligen testified Barth “gave [Sheriff Hilliard] the finger ... and threatened to swing at [the sheriff]. And sheriff asked him a couple times if he didn’t cool down he would have to put him under arrest. And he said FU and try it or whatever.” Sheriff Hilliard testified Barth was very angry, using profanity, and, after twice being told to calm down and threatened with arrest, Barth responded by walking up to him, putting his middle finger up approximately six inches from his face, and saying, “Fuck you. You can join my church.” Next, according to Sheriff Hilliard, he twice told Barth, “Dale, you need to calm down. If you keep this up, I’m going to arrest you for disorderly conduct.” Barth then “stuck his middle finger up in [the sheriffs] face again” and repeated the “church” comment. Sheriff Hilliard testified he then told Barth, “Dale, I’m going to place you under arrest.” Barth then put up both his fists and said “C’mon,” and “swung and he grazed the side of [the sheriffs] face.” Sheriff Hilli-ard then wrestled Barth to the ground and Barth “was swearing at [the sheriff] the whole time, using profanity” and “he was trying to kick [the sheriff].” Sheriff Hilli-ard testified he arrested Barth for “the actions that [Barth] did to [the sheriff], by the profanity he was using, by putting his finger in [the sheriffs] face, and the profanity being used towards David and Roger [Bueligen] and pointing his finger at them.” Sheriff Hilliard further testified he “felt in danger of [Barth] from being that close to [the sheriffs] face.” Officer Schmitz testified that, after Sheriff Hilli-ard told Barth he was going to arrest him for disorderly conduct, Barth “took a swing at [the sheriff] and swung a couple more times.”

[¶ 23] Viewing the evidence in the light most favorable to the verdict, we conclude the jury could reasonably have found beyond a reasonable doubt that Barth engaged in threatening behavior and committed disorderly conduct in violation of N.D.C.C. § 12.1-31-01.

B. Preventing Arrest or Discharge of Other Duties

[¶ 24] The jury found Barth guilty of preventing arrest or discharge of other duties, in violation of N.D.C.C. § 12.1-08-02, which provides:

1. A person is guilty of a class A misdemeanor if, with intent to prevent a public servant from effecting an arrest of himself or another for a misdemeanor or infraction, or from discharging any other official duty, he creates a substantial risk of bodily injury to the public servant or to anyone except himself, or employs means justifying or requiring substantial force to overcome resistance to effecting the arrest or the discharge of the duty. A person is guilty of a class C felony if, with intent to prevent a public servant from effecting an arrest of himself or another for a class A, B, or C felony, he creates a substantial risk of bodily injury to the public servant or to anyone except himself, or employs means justifying or requiring substantial force to overcome resistance to effecting such an arrest.
2. It is a defense to a prosecution under this section that the public servant was not acting lawfully, but it is no defense that the defendant mistakenly believed that the public servant was not acting lawfully. A public servant executing a warrant or other process in good faith and under color of law shall be deemed to be acting lawfully.

[¶ 25] Barth argues there was not sufficient evidence to convict him of preventing arrest or other discharge of duties because the State failed to submit evidence showing Sheriff Hilliard was acting lawfully when he arrested Barth for disorderly conduct. Barth contends that because Sheriff Hilliard did not have a warrant for his arrest or a court order ordering him off the land, no legal basis existed for the disorderly conduct arrest. Therefore, Barth asserts the conviction for preventing arrest or discharge of other duties should be overturned under N.D.C.C. § 12.1-08-02(2).

[¶ 26] Unlawful police conduct is a statutory defense in a prosecution for preventing arrest or discharge of other duties but it is not a defense if the defendant mistakenly believed the public servant was acting unlawfully. State v. Mathre, 2004 ND 149, ¶ 9, 683 N.W.2d 918; N.D.C.C. § 12.1-08-02(2). Unlawful police conduct is not an absolute defense to a preventing arrest charge, and a defendant is allowed to resist only excessive force used to effect an arrest. Id.; see also N.D.C.C. § 12.1-05-03(1).

[¶ 27] Here, Sheriff Hilliard was acting lawfully when he placed Barth under arrest for disorderly conduct. Section 29-06-15, N.D.C.C., provides:

1. A law enforcement officer, without a warrant, may arrest a person:
a. For a public offense, committed or attempted in the officer’s presence; and for the purpose of this subdivision, a crime must be deemed committed or attempted in the officer’s presence when what the officer observes through the officer’s senses reasonably indicates to the officer that a crime was in fact committed or attempted in the officer’s presence by the person arrested.

The term “public offense” includes disorderly conduct. Mathre, 2004 ND 149, ¶ 12, 683 N.W.2d 918. Therefore, because Barth committed disorderly conduct in Sheriff Hilliard’s presence, Sheriff Hilliard was acting lawfully when he arrested him.

[¶ 28] A person is guilty of preventing arrest or discharge of other duties “if, with intent to prevent a public servant from effecting an arrest of himself or another for a misdemeanor ... he creates a substantial risk of bodily injury to the public servant or to anyone except himself, or employs means justifying or requiring substantial force to overcome resistance to effecting the arrest or the discharge of the duty.” N.D.C.C. § 12.1-08-02(1). Sufficient evidence shows Barth created “a substantial risk of bodily injury” to Sheriff Hilliard and “substantial force” was required to overcome Barth’s “resistance to effecting the arrest.” See N.D.C.C. § 12.1-08-02(1). David Bueligen testified Barth “swung at [Sheriff Hilliard] once or two times for sure.” Sheriff Hilliard testified that, when he told Barth he was placing him under arrest, Barth put up both fists and “swung and [Barth] grazed the side of [the sheriffs] face.” After wrestling Barth to the ground “he was trying to kick [the sheriff].” Officer Schmitz testified Barth “took a swing at [Sheriff Hilli-ard] and swung a couple more times” when the sheriff attempted to arrest him.

[¶ 29] Viewing the evidence in the light most favorable to the verdict, we conclude the jury could reasonably have found beyond a reasonable doubt that Barth committed preventing arrest or discharge of other duties in violation of N.D.C.C. § 12.1-08-02.

C. Attempted Simple Assault

[¶ 30] The jury found Barth guilty of attempted simple assault, in violation of N.D.C.C. §§ 12.1-06-01 and 12.1-17-01. Section 12.1-06-01, N.D.C.C., provides:

1. A person is guilty of criminal attempt if, acting with the kind of culpability otherwise required for commission of a crime, he intentionally engages in conduct which, in fact, constitutes a substantial step toward commission of the crime. A “substantial step” is any conduct which is strongly corroborative of the firmness of the actor’s intent to complete the commission of the crime. Factual or legal impossibility of committing the crime is not a defense, if the crime could have been committed had the attendant circumstances been as the actor believed them to be.

Section 12.1-17-01, N.D.C.C., provides, in relevant part:

1. A person is guilty of an offense if that person:
a. Willfully causes bodily injury to another human being; or
2. The offense is:
a. A class C felony when the victim is a peace officer or correctional institution employee acting in an official capacity, which the actor knows to be a fact, a person engaged in a judicial proceeding, or a member of a municipal or volunteer fire department or emergency medical services personnel unit or emergency department worker in the performance of the member’s duties.

[¶ 31] Barth argues there was not sufficient evidence to convict him of attempted simple assault because the State failed to prove Barth had any intent to cause physical harm to Sheriff Hilliard, and because he was entitled to use reasonable force to defend himself when Sheriff Hilli-ard initiated the contact.

[¶ 32] Criminal attempt requires an actor to intentionally engage in conduct constituting a substantial step toward commission of the crime. N.D.C.C. § 12.1-06-01. A “substantial step” is “any conduct which is strongly corroborative of the firmness of the actor’s intent to complete the commission of the crime.” N.D.C.C. § 12.1-06-01. The essential elements of simple assault on a peace officer include willfully causing bodily injury. N.D.C.C. § 12.1-17-01. An individual acts “willfully” if the individual engages in conduct “intentionally, knowingly, or recklessly.” N.D.C.C. § 12.1 — 02—02(l)(e). An individual engages in conduct “intentionally” if it is the individual’s purpose to engage in the conduct, N.D.C.C. § 12.1 — 02—02(l)(a); “knowingly” if “he knows or has a firm belief, unaccompanied by substantial doubt, that he is doing so, whether or not it is his purpose to do so,” N.D.C.C. § 12.1-02-02(l)(b); “recklessly” if “he engages in the conduct in conscious and clearly unjustifiable disregard of a substantial likelihood of the existence of the relevant facts or risks, such disregard involving a gross deviation from acceptable standards of conduct,” N.D.C.C. § 12.1 — 02—02(1) (c). Section 12.1-01-04(4), N.D.C.C., further provides “bodily injury” is the “impairment of physical condition, including physical pain.”

[¶ 38] To prove Barth committed attempted simple assault on a peace officer, the State must demonstrate Barth willfully engaged in activity constituting a substantial step toward causing physical pain to one or more of the officers present. Sheriff Hilliard testified Barth “swung, and he grazed the side of my face,” leaving a “mark on my face” and “also a mark on my knee where he had kicked me.” Barth’s conduct evidences he intentionally attempted to hit Sheriff Hilliard and did hit and kick Sheriff Hilliard, leaving visible marks on his body. Viewing the evidence in a light most favorable to the verdict, we conclude sufficient evidence exists to support the jury’s verdict convicting Barth of attempted simple assault.

rv

[¶ 34] We conclude Barth’s conviction for disorderly conduct was not a violation of his First Amendment rights. We affirm the disorderly conduct, preventing arrest or discharge of other duties, and attempted simple assault criminal judgments.

[¶ 35] GERALD W. VANDE WALLE, C.J., LAWRENCE A. LECLERC, S.J., and CAROL RONNING KAPSNER, JJ., concur.

[¶ 36] The Honorable LAWRENCE A. LECLERC, S.J., sitting in place of SANDSTROM, J., disqualified.


author: MEIERHENRY, Justice.

text:
    2005 SD 88
    Ronda Meyer OMAN, Plaintiff and Appellee, v. Gregory Eugene OMAN, Defendant and Appellant.
    No. 23401.
    Supreme Court of South Dakota.
    Considered on Briefs April 25, 2005.
    Decided July 20, 2005.

      Jay C. Shultz of Lynn, Jackson, Shultz <& Lebrun, Rapid City, South Dakota, Attorneys for plaintiff and appellee.
    Rexford A. Hagg of Whiting, Hagg & Hagg, Rapid City, South Dakota, Attorneys for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] This is an appeal from the trial court’s grant of Ronda Oman’s motions for contempt and continuation of alimony and the trial court’s denial of Gregory Omaris motion to terminate alimony because of Ronda’s remarriage. We reverse.

FACTS

[¶ 2.] Ronda and Gregory were divorced without trial on the grounds of irreconcilable differences. As part of the divorce, the parties executed and the court adopted a Stipulation and Agreement addressing alimony, the division of property, and the care and custody of their minor child. The provision of the agreement providing for alimony is now in dispute.

[¶ 3.] Ronda remarried approximately three years after the divorce. In response, ex-husband Gregory stopped making his monthly alimony payments. Ronda filed a motion for contempt requesting that the trial court find Gregory in contempt for failing to make alimony payments as required by the Judgment and Decree of Divorce. She also filed a motion for continuation of alimony or, in the alternative, to modify child support. Gregory then filed a motion to terminate alimony based on Ronda’s remarriage. The trial court granted Ronda’s motion for contempt and her motion for continuation of alimony and denied Gregory’s motion for termination of alimony. In doing so, the court found that the parties intended the alimony obligation to continue in the event of remarriage. The trial court further found that “[Ronda], as consideration for the lump sum, fixed payment of alimony for a specific term of seven years, forewent an equalization payment of $4,000 and reduced child support, and for tax considerations, accepted a fixed, unqualified lump sum payment of alimony for a seven year period at $429 per month[.]” Husband appeals and raises the following issue:

Whether the trial court erred in determining that the parties’ Stipulation and Agreement and Divorce Decree created an obligation for husband to continue paying alimony to ex-wife upon her remarriage.

STANDARD OF REVIEW

[¶ 4.] The trial court’s interpretation of the parties’ stipulation and agreement is reviewed de novo. Duran v. Duran, 2003 SD 15, ¶ 7, 657 N.W.2d 692, 696. Likewise, questions of law are reviewed de novo. Hanig v. City of Winner, 2005 SD 10, ¶ 6, 692 N.W.2d 202, 204.

DECISION

[¶ 5.] Ronda’s claim for continuing alimony is based on the following: (1) that the language of the parties’ stipulation made the alimony non-modifiable in duration and amount, and (2) that the alimony award was in the nature of a lump-sum fixed payment as part of the property settlement.

[¶ 6.] First, Ronda claims that the court cannot modify alimony because of the agreement of the parties, regardless of her remarriage. She relies on the following language in the agreement:

HUSBAND shall pay, in cash or money order, alimony to WIFE in the sum of Four Hundred and Twenty Nine Dollars ($429) per month by the first of each month for seven (7) years from the date of the Entry of the Decree of Divorce. It is specifically understood by the parties that the alimony provided for herein is non-modifiable by either party, as to the amount and duration, for so lony as alimony is ordered to be paid. It is further specifically understood that alimony is taxable to the recipient, as income, and tax deductible to the obligor. The parties have entered into this provision with the foregoing factors in mind. It is recognized that one of the reasons for this support is the reduced child support set forth herein, based on the custodial arrangement.

(Emphasis added).

[¶ 7.] We first addressed whether alimony automatically terminates upon remarriage in Marquardt v. Marquardt by Rempfer, 396 N.W.2d 753 (S.D.1986). In Marquardt, we rejected automatic termination and adopted, instead, the rule “that remarriage establishes a prima fa-cie showing supporting termination.” Id. at 754. The burden then shifts to the recipient to show that “extraordinary circumstances exist which require the continuation of the alimony payments.” Id. (quotations and citation omitted). We said:

While we recognize that in some states remarriage is grounds for automatic termination of alimony benefits, we feel the more judicious course is to hold that remarriage establishes a prima facie showing supporting termination. Sound public policy abounds to support this holding. South Dakota law places a statutory duty on one spouse to support the other. SDCL 25-7-1. As has been said by a number of other courts, it is “illogical and unreasonable” that a spouse should receive support from a present spouse and a former spouse at the same time.

Id. (citing In re Marriage of Shima, 360 N.W.2d 827, 828 (Iowa 1985); Wolter v. Wolter, 183 Neb. 160, 158 N.W.2d 616, 619 (1968)).

[¶ 8.] Although we have specifically rejected the rule that alimony automatically terminates upon remarriage, we note that courts applying the automatic termination rule recognize an exception when the parties have expressly agreed to continue alimony upon remarriage. See Voyles v. Voyles, 644 P.2d 847, 850 (Alaska 1982); Keller v. Keller, 130 Idaho 661, 946 P.2d 623, 627 (1997); Driscoll v. O’Reilly, 486 So.2d 693, 694 (Fla.Dist.Ct.App.1986). In effect, Ronda is asking this Court to adopt a similar exception to the Marquardt rule by enforcing the terms of the parties’ agreement. She claims that the terms of the agreement expressly contemplate continuing alimony upon remarriage. The specific term upon which Ronda relies provides that alimony is “non-modifiable by either party, as to the amount and duration” for a period of seven years. Obviously, this language makes no reference to remarriage. Nevertheless, Ronda urges enforcement of the agreement because of the “non-modifiable” language, regardless of her remarriage. In only one other case, Driscoll v. Driscoll, has this Court enforced an agreement not to modify alimony. 1997 SD 113, 568 N.W.2d 771. In Driscoll, the wife had specifically agreed “never” to raise a change in her health or an increase in the value of husband’s stock as “a material change of circumstances which might otherwise justify a modification” of the divorce decree. Id. ¶4, 568 N.W.2d at 772. The trial court determined that the wife was estopped by the language in the agreement. Id. ¶¶ 16-17, 568 N.W.2d at 774. We affirmed the trial court. “An important fact” in our decision to enforce the agreement was as follows:

the parties agreed at the time of the stipulation that [wife] would not claim her health or the increase in the value of the [stock] as a change of circumstance in order to modify the alimony provisions of the divorce decree. These are the very factors she now claims have changed to the extent that a modification of the alimony award is justified.

Id. ¶ 12, 568 N.W.2d at 773.

[¶ 9.] We have since said that Driscoll has limited precedential effect. See Savage v. Savage, 2003 SD 46, ¶ 9, 661 N.W.2d 762, 765. We emphasized in Savage that the court always retains the power to modify alimony when there is a change in circumstances, regardless of the parties’ agreement. We said:

This Court has been very clear about a trial court’s ability to modify an alimony award. In Paradeis v. Paradeis, we reiterated the rule that “[o]nce a court approves an alimony award, it can modify it. This authority of a trial court is not affected by the fact [that] the original divorce judgment was based on an agreement between the parties[.]” 461 N.W.2d 135, 137 (S.D.1990) (citing Connolly v. Connolly, 270 N.W.2d 44 n2 (SD 1978)). In Harding-Moyer v. Harding, we again acknowledged that a stipulation in the nature of spousal support or maintenance was not contractual in nature, but rather that it was subject to modification or termination on a showing of changed circumstances. 2000 SD 126, ¶ 13, 616 N.W.2d 899, 902 (citing Saxvik v. Saxvik, 1996 SD 18, ¶ 9, 544 N.W.2d 177, 179).

Id. at ¶ 13, 661 N.W.2d at 765-66 (emphasis added). Consequently, the limited precedent of Driscoll does not stand for the premise that an agreement not to modify future alimony binds the court in the event of remarriage.

[¶ 10.] Here, the trial court found that terms of the agreement making alimony “non-modifiable by either party, as to the amount and duration” indicated that the parties intended the alimony to survive in the event of remarriage. Some jurisdictions that approve of alimony continuing upon remarriage require express language about remarriage in the parties’ agreement. See, e.g., Gunderson v. Gunderson, 408 N.W.2d 852, 853 (Minn.1987); In re Marriage of Allen, 78 Wash.App. 672, 898 P.2d 1390, 1392 (1995); Daopoulos v. Daopoulos, 257 Ga. 71, 354 S.E.2d 828, 830 (1987). The agreement in this case does not expressly state that alimony should continue upon Ronda’s remarriage. Since the agreement does not expressly state that alimony is to continue, the trial court erred by not applying the Marquardt rule. Under the rule, the remarriage of Ronda established a prima facia case for termination of alimony shifting the burden to Ronda to show extraordinary circumstances for its continuation. Ronda did not claim or present a case for extraordinary circumstances. Absent a showing of extraordinary circumstances, her alimony should have ceased as of the date of Gregory’s notice of hearing on the motion. See Culhane v. Michels, 2000 SD 101, ¶¶ 9-13, 615 N.W.2d 580, 584-85 (holding that pursuant to SDCL 25-7-7.3, alimony payments that become due prior to the notice of hearing on the petition for modification are final judgments and may not retroactively be erased).

[¶ 11.] Second, Ronda claims that her alimony is non-modifiable because it was in the nature of a lump-sum award. We have previously held that when alimony is awarded as a lump-sum, finality attaches preventing subsequent modification. In Holt v. Holt, we adopted the view that a divorce decree involving a lump-sum payment in gross or payable in installments is a final “adjustment of mutual rights and obligations as to be capable of a present vesting and ... absolute judgment.” 84 S.D. 671, 674-75, 176 N.W.2d 51, 53 (1970). This includes a lump-sum as alimony. Id. See also Steffens v. Peterson, 503 N.W.2d 254, 259 (S.D.1993); Bahr v. Bahr, 85 S.D. 240, 246 n7, 180 N.W.2d 465, 468 n7 (1970). We have also determined that where alimony is actually provided as part of the property settlement, it is to be treated as a property division and, thus, is not modifiable. See Lien v. Lien, 420 N.W.2d 26, 28-29 (S.D.1988). Ronda asserts that the support award in this case was a lump-sum award for alimony and part of the property settlement. Ronda’s evidence to the trial court was based upon negotiations between the parties prior to the final settlement. This evidence, however, is not relevant, since the agreement speaks for itself and is clear and unambiguous on its face. Flynn v. Flynn, 338 N.W.2d 295, 296 (S.D.1983) (holding that the trial court erred in determining a divorce decree was ambiguous on its face and that, because of this error, parole evidence was improperly admitted). See also Steffens, 503 N.W.2d at 258 (“A trial court, when asked to interpret a property settlement agreement incorporated into a divorce decree, applies contract principles.”).

[¶ 12.] The plain meaning of the agreement does not support Ronda’s claim. The provision on which she relies makes no reference to alimony as a lump-sum neither does it specify a gross amount payable in installments. The agreement is for a specified monthly amount for a duration of years. It is referred to throughout the agreement as “alimony.” Nothing in the language of the agreement indicates that alimony was agreed to in lieu of property. In fact, the agreement specifies that the alimony award is related to child support and tax considerations. The agreement explains:

It is further specifically understood that alimony is taxable to the recipient, as income, and tax deductible to the obli-gor. The parties have entered into this provision with the foregoing factors in mind. It is recognized that one of the reasons for this support is the reduced child support set forth herein, based on the custodial arrangement.

[¶ 13.] In conclusion, the trial court erred by denying Gregory’s motion to cease alimony. We reverse the denial of Gregory’s motion. Since Ronda’s alternative motion to modify child support was not considered by the trial court, we remand for consideration of that motion.

[¶ 14.] GILBERTSON, Chief Justice, and KONENKAMP and ZINTER, Justices, concur.

[¶ 15.] SABERS, Justice, deeming himself disqualified, did not participate.

      . In Peterson v. Peterson, we were also urged to adopt an exception to the Marquardt rule. 434 N.W.2d 732, 735 (S.D.1989). We declined to adopt an exception in that case. Justice Morgan (voicing the majority on this issue) opined that since we had rejected the rule of automatic termination of alimony upon remarriage, the exception was also rejected and reliance on an exception to the rule "fail[s] out-of-hand.” Id. at 739 (Morgan, J., concurring in result) (Sabers, J. and Miller, J., joining).

      . SDCL 25-4-41 sets forth the power of the court to compel alimony:
      Where a divorce is granted, the court may compel one party to make such suitable allowance to the other party for support during the life of that other party or for a shorter period, as the court may deem just, having regard to the circumstances of the parties represented; and the court may from time to time modify its orders in these respects.

      . It is not necessary for us to address the circumstances or procedures under which we would enforce an express agreement to continue alimony upon remarriage, since it is not pertinent to the facts of this case.