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

text:
    2002 ND 2
    Faron E. TERRY, Plaintiff and Appellee, v. Lana K. TERRY, Defendant and Appellant.
    No. 20010039.
    Supreme Court of North Dakota.
    Jan. 4, 2002.

      Paul M. Probst, Probst Law Firm, Minot, for plaintiff and appellee.
    Robert S. Rau, Bosard, McCutcheon & Rau, Ltd., Minot, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Lana Terry appealed from a district court order denying her motion under N.D.R.Civ.P. 60(b) to vacate a divorce judgment. We hold the trial court did not abuse its discretion in ruling Lana Terry failed to demonstrate adequate grounds to vacate the divorce decree, and we affirm.

I

[¶ 2] Faron and Lana Terry were married in February 1986. Together they have a daughter and a son. After 14 years of marriage, irreconcilable differences developed in their relationship and Faron filed for divorce. There was no trial. Rather, the parties entered into a stipulation, agreeing to all issues relating to the divorce, which was incorporated into the divorce decree. The stipulation was dated December 29,1999 and an addendum modifying the stipulation was signed on January 5, 2000. These documents and the complaint were filed with the court on January 20, 2000. The trial court accepted the parties’ stipulation, as amended, and incorporated it into the divorce judgment, which was entered on January 24, 2000.

[¶ 3] On August 29, 2000, Lana filed a motion under N.D.R.Civ.P. 60(b), requesting the district court to vacate the divorce judgment and reopen the case. She claimed Faron, who is an attorney, used undue influence and pressured her to accept the terms of the stipulation; she alleged Faron told her she would lose custody of the children if she did not agree to it. After a hearing on the motion, the district court concluded the stipulation was not obviously unfair and Lana failed to demonstrate wrongdoing by Faron or the existence of injustice warranting the vacating of the divorce judgment. The district court also concluded there was no evidence to show Lana was prevented from or unable to seek independent legal advice before agreeing to the terms of the divorce and signing the stipulation. The court entered an order denying the motion, which is the subject of this appeal.

II

[¶ 4] On appeal, Lana asserts the trial court abused its discretion in refusing to vacate the divorce decree and grant her a hearing on the issues of property division and spousal support. Under N.D.R.Civ.P. 60(b), the court may relieve a party from a final judgment for, among other things, fraud, misrepresentation, or other misconduct of an adverse party or any other reason justifying relief from the operation of the judgment. In reviewing a trial court’s denial of a motion under N.D.R.Civ.P. 60(b) to set aside a regularly entered judgment, we do not determine whether the trial court was substantively correct in entering the judgment from which relief is sought, but determine only if the trial court abused its discretion in ruling that sufficient grounds for disturbing the finality of the judgment were not established. Clooten v. Clooten, 620 N.W.2d 843, 845 (N.D.1994). The trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner. Crawford v. Crawford, 524 N.W.2d 833, 835 (N.D.1994). A trial court acts in an arbitrary, unreasonable, or unconscionable manner when its decision is not the product of a rational mental process by which the facts and law relied on are stated and considered together for the purpose of achieving a reasoned and reasonable determination. Peterson v. Peterson, 555 N.W.2d 359, 361 (N.D.1996). If the judgment sought to be set aside is entered pursuant to a stipulation of the parties, the party challenging the judgment has the additional burden of showing that under the law of contracts there is justification for setting aside the stipulation. Id. Relief under N.D.R.Civ.P. 60(b) for fraud, misrepresentation, or other misconduct is extraordinary relief and should be granted only in exceptional circumstances. Soli v. Soli, 534 N.W.2d 21, 23 (N.D.1995).

A

[¶ 5] Lana asserts the judgment should be vacated because she was not represented by independent counsel prior to entering into the stipulation and Faron used undue influence and pressure to convince her to agree to the terms of the divorce, including statements that no attorney would represent her and that she would not be able to get spousal support as long as she was working. The trial court found Faron never claimed to be representing Lana in these proceedings and, although it was unclear whether Lana had contacted an attorney before signing the stipulation, there was no evidence to demonstrate she was prevented from or unable to secure independent legal advice. The trial court’s findings are not disturbed on appeal unless they are clearly erroneous. N.D.R.Civ.P. 52(a). We conclude these findings are supported by the record evidence.

[¶ 6] The stipulation states in bold print immediately above the parties’ signatures that Lana “has not been given legal advice or counsel by Faron E. Terry of Terry Law Office” and that she “has had an opportunity to consult with an attorney of ... her choice prior to entering this stipulation.” Faron testified that, in hopes he and Lana could reconcile, he abstained from filing the divorce documents until Lana telephoned him and urged him to file the papers and get the divorce completed. Lana does not dispute this testimony.

[¶ 7] The parties’ stipulation was amended a few days after it was signed, changing the debt and property distribution provisions. This addendum supports the trial court’s conclusion that the parties negotiated the terms of the stipulation and that Lana made specific requests which were incorporated into the parties’ agreed-upon divorce terms. The stipulation appears to be a product of free choice. Rule 60(b), N.D.R.Civ.P., is not to be used to relieve a party “from free, calculated, and deliberate choices he or she has made.” Fleck v. Fleck, 337 N.W.2d 786, 791 (N.D.1983).

B

[¶ 8] Lana asserts she was severely distressed during the breakup of the marriage and she was not mentally able to voluntarily stipulate to the terms of the divorce. During the motion hearing, Lana introduced testimony by a psychiatric nurse that Lana suffered from traumatic stress disorder and chronic depression. However, the nurse first saw Lana on July 11, 2000, many months after the divorce judgment had been entered, and she had no independent knowledge that Lana experienced those conditions during the divorce proceedings. Furthermore, the nurse did not testify Lana’s depression or stress disorder, if present when she signed the stipulation, would have rendered her incapable of making voluntary choices or incompetent to contract. There was also no testimony that the depression and stress suffered by Lana was significantly worse than that often experienced by spouses during marital breakdowns.

[¶ 9] The facts of this case are distinguishable from those in Galloway v. Galloway, 281 N.W.2d 804, 807 (N.D.1979), wherein this Court concluded a divorce judgment entered upon a stipulation of the parties should be partially vacated because the wife was incompetent to enter a contractual agreement. In Galloway it was undisputed that the wife suffered from alcoholism and that, a few months after entry of the divorce judgment, she was declared incompetent and needed a guardian and conservator to handle her personal affairs.

[¶ 10] Here, the trial court made the following specific findings:

Lana Terry was able to continue to work, take on added job responsibilities and begin a new job during the time period in question. She was involved in at least one relationship which she terminated because she did not feel it was a positive relationship. The evidence does not support Lana Terry’s claim she was not able to make a reasoned decision when she entered into the stipulation on which the judgment in this case was based.

We conclude the trial court’s findings on this issue are supported by the record and are not clearly erroneous.

C

[¶ 11] Lana asserts the divorce judgment should be vacated because it is unconscionable. In support of this contention she relies upon the decision in Crawford v. Crawford, 524 N.W.2d 833, 835 (N.D.1994), wherein this Court held a divorce judgment should be vacated when “the stipulation is so one-sided and creates such hardship that it is unconscionable.” In Crawford, the husband was a doctor who was earning $130,000 per year while the wife was working as a meat wrapper for $300 per month. The husband received custody of the parties’ four children and the wife was ordered to pay $15 per month in child support. Although the husband was earning nearly $11,000 per month, the stipulation and decree provided that he would pay his wife only $250 per month spousal support for a total of six months. This Court concluded the stipulation and resulting judgment was “so blatantly one-sided and so rankly unfair” it was unconscionable and unenforceable. Id. at 836.

[¶ 12] The stipulated divorce terms in this case are distinguishable from those in Crawford. While there is a difference in income between the parties, it is not nearly as disparate as in Crawford. The stipulation provides that Faron earns $2,815 per month while Lana earns about $1,300 per month. Under the stipulation and decree, Lana was awarded custody of the children and Faron was ordered to pay child support to her of $808 per month. The parties divided the personal property and assumed their individual debt. Faron received the parties’ 1998 Dodge Caravan, subject to the debt on it. Lana received the parties’ leased 1997 Mazda 626 automobile until the lease expired in April 2000, at which time Faron agreed to give her $3,000 for the purchase of an automobile. In addition, Faron agreed to pay Lana $1,500 cash “for her interest in the savings account.” Faron received the parties’ home, valued at $118,000, and he assumed the mortgage with a balance of $110,800. In return, Faron agreed to “help [Lana] with moving expenses and to find another residence in which to live. If necessary, [Faron] will help [Lana] with financing on the purchase of a mobile home.” While Lana may have received more favorable terms if she had sought independent counsel to assist her, we cannot conclude, as a matter of law, that the stipulation and decree in this case involve such blatant, one-sided terms that they are unconscionable and unenforceable.

[¶ 13] This case is also distinguishable from Weber v. Weber, 548 N.W.2d 781 (N.D.1996), wherein this Court reversed a divorce judgment and remanded the case to the district court with instructions the court scrutinize for unconscionability a property settlement agreement signed by the parties. In Weber, the wife, after one month of marriage, filed for divorce. Her husband, who was not represented by counsel at the time, signed documents, including the property settlement agreement, in the office of his wife’s lawyer. While the case was pending, the husband retained an attorney and filed a motion with the court to set aside the property agreement. We reversed the district court’s denial of the motion, explaining:

The district court stated, “Notwithstanding the decision in Crawford, the obligation of the trial court is limited to a determination of whether or not the parties were capable of contracting with each other, freely and knowingly, and absent fraud, duress, menace or undue influence of one upon another, or a genuine mistake of fact or law.” The purview of the district court in reviewing a property settlement agreement in a marital dissolution matter is not so limited....
Property settlement agreements in divorce cases must be scrutinized for un-conscionability. The review for uncon-scionability is not ended by finding a lack of a trust relationship between the parties.
The district court in this case abused its discretion by strictly limiting its inquiry to the factors it listed.

Id. at 783. Here, the district court, in denying Lana Terry’s motion to vacate the divorce judgment and reopen the case, did not so narrowly limit its review of the circumstances as the trial court in Weber. In this case, the district court scrutinized the settlement agreement and expressly denied Lana Terry’s claim it was unfair, explaining:

While it is not unusual for a party to feel they would have liked to benefit more from a judgment, the stipulation does not appear obviously one-sided or unfair.

[¶ 14] While the question of unconscionability is one of law, factual findings are necessary for the determination and those findings by the trial court are reviewed on appeal under the clearly erroneous standard under N.D.R.Civ.P. 52(a). Weber v. Weber, 1999 ND 11, ¶ 8, 589 N.W.2d 358. A finding of fact is clearly erroneous if it has no support in the evidence, or even if there is some supporting evidence, the reviewing court is left with a definite and firm conviction a mistake has been made, or the decision was induced by an erroneous view of the law. Id. We conclude the trial court’s finding the stipulation is not obviously one-sided is not clearly erroneous. Under the circumstances, we further conclude the trial court did not err in determining that the stipulation was not unconscionable so as to justify vacating the judgment.

Ill

[¶ 15] We conclude the trial court did not abuse its discretion in ruling that Lana failed to provide sufficient grounds for disturbing the finality of the divorce judgment. We, therefore, affirm the order denying her motion to vacate under N.D.R.Civ.P. 60(b).

[¶ 16] CAROL RONNING KAPSNER and WILLIAM A. NEUMANN, JJ., and CYNTHIA ROTHE SEEGER, D.J., concur.

[¶ 17] The Honorable CYNTHIA ROTHE SEEGER, D.J., sitting in place of SANDSTROM, J., disqualified.

MARING, Justice,

concurring.

[¶ 18] I concur in the result. I write because of my concern that the trial courts are abdicating their duty to order a fair and equitable divorce judgment when presented with settlement agreements.

[¶ 19] The record in this case establishes Lana Terry and Faron Terry were married on February 14, 1986. On Christmas Eve 1999, Faron delivered copies of pleadings for divorce to Lana at her place of work. Five days later, on December 29, 1999, Faron presented a stipulation to Lana for her signature, which she then signed. By signing the stipulation, she admitted service of a copy of the Summons and Complaint which are also dated December 29, 1999. Seven days later, on January 5, 2000, Lana signed an addendum amending the stipulation. All pleadings were filed with the court on January 20, 2000. Judgment was entered incorporating the stipulation, as amended by the addendum, on January 24, 2000, less than a month after commencement of the divorce action. Lana served a motion to reopen the Judgment on August 29, 2000, seven months after the entry of the Judgment. Her motion was based on N.D.R.Civ.P. 60(b) and that the Judgment was unconscionable.

[¶ 20] This was a long-term marriage. Two children were born to Faron and Lana, both of whom were still minors at the time of the divorce. The record indicates that while Faron attended law school, Lana obtained work and supported the family. After Faron graduated, the couple eventually moved back to Minot, where Faron opened his own law practice and Lana worked for Manor Care Nursing Home. At the time of the divorce, the parties’ stipulation indicated Faron earned approximately $2,815.00 net per month, or twice as much as Lana, who earned approximately $1,300.00 net per month. I disagree with the majority that this is not a large disparity in income. The parties accumulated very few assets, consisting mainly of the home, personal property, and retirement funds. The property division does not indicate Lana received any income producing assets. The Judgment did provide for $808.00 per month child support. Therefore, Lana and the two children are living on approximately $2,108.00 per month, while Faron is living on $2,007.00 per month.

[¶ 21] In her affidavit, Lana outlines how she has been disadvantaged by the marriage:

I have had to follow Faron both in career moves, as well as moves on account of his going back to school. During those periods of times I have changed jobs and not been able to build up retirement funds, or able to go to school myself. Because Faron was obtaining higher education, that education was the product of my financial contribution to the marriage and allowed him to be a full-time student while he only had to work part-time. During that period of time I maintained and provided for the house, took care of our children, arranged daycare, provided for meals, clothing, and did the other things that a primary care giver does. I did not know at the time that signing the papers that I would not be able to modify the same to come back later for spousal support. I was told at the time by Faron Terry that I would never get support and it was a waste of time for me to seek the same.

Our Court has said, “[a] disadvantaged spouse is one who has ‘foregone opportunities or lost advantages as a consequence of the marriage and who has contributed during the marriage to the supporting spouse’s increased earning capacity.’ ” Sommer v. Sommer, 2001 ND 191, ¶ 10, 636 N.W.2d 423. In the stipulation, Lana waives her right to spousal support. Lana was not represented by an attorney when she signed the stipulation or the addendum.

[¶ 22] The trial court, in entering the order for judgment of divorce, found the stipulation of the parties “to be a fair and reasonable agreement.” The matter proceeded by default with no appearance by either party before the court.

[¶ 23] With reference to stipulations, we have said:

District courts should not blindly accept, however, the terms the parties agree upon.... We have also held a district court should rescind an agreement if it is unconscionable.
Property settlement agreements in divorce cases must be scrutinized for un-conscionability.

Weber v. Weber, 548 N.W.2d 781, 783 (N.D.1996) (citations omitted); accord Weber v. Weber, 1999 ND 11, ¶ 11, 589 N.W.2d 358. A trial court must not abdicate its duties to make a just and proper distribution of property and to compel a party to pay the other spousal support “during life or for a shorter period as to the court may seem just, having regard to the circumstances of the parties respectively” under N.D.C.C. § 14-05-24.

Therefore, district courts should make two findings when considering whether a settlement agreement between divorcing parties should be enforced. The first inquiry is whether the agreement is free from mistake, duress, menace, fraud, or undue influence under N.D.C.C. § 9-09-02(1).
The district court’s second inquiry is whether the agreement is unconscionable.

Weber, 1999 ND 11, ¶¶ 12, 13, 589 N.W.2d 358 (citation omitted). Our Court in Weber also concluded that the Ruff-Fischer guidelines were appropriate • for a trial court to consider in determining the un-conscionability of a settlement agreement “because a domestic relations agreement should not be scrutinized in the same way as a business contract.” Id. at ¶ 17. Furthermore, our Court said “ ‘a stipulation in a divorce proceeding which occurs this rapidly with the use of one attorney and under serious threats of harm to one of the parties should be viewed with great skepticism.’ ” Id. at ¶ 18 (quoting Peterson v. Peterson, 555 N.W.2d 359, 362 (N.D.1996)). Even though there was no serious threat of physical harm in Weber, we noted: “Weber was under strain from the threat of losing considerably more of his life’s earnings if he did not sign the agreement.” Id.

[¶ 24] Rather than make a mere crypt'c finding that a settlement agreement is “fair and reasonable,” I urge trial courts to examine the content of settlement agreements for unconscionability and unfairness and to also examine the circumstances under which such agreements are entered.

[¶25] Although the quickness of the signing of the stipulation and addendum and entry of judgment, the long-term marriage, the large disparity in income and earning capacity, the lack of assets, and the lack of representation by an attorney lead me to the conclusion the agreement is unconscionable, our standard of review of the findings of the trial court is clearly erroneous. Weber, 1999 ND 11, ¶ 8, 589 N.W.2d 358. Because I cannot say the trial court was clearly erroneous, I concur in the result.

      . Lana asserts a correct calculation of child support under the guidelines would require Faron to pay an additional $56 per month. The trial court retains jurisdiction on child support issues and can entertain a motion to amend the child support order, under N.D.C.C. § 14-09-08.4(4), to conform to the guidelines. Apparently, Lana has not filed such a motion.


source: Caselaw Access Project

author: KAPSNER, Justice.

license: Public Domain

text:
    2002 ND 5
    STATE of North Dakota, Plaintiff and Appellee, v. Mark Christian PALMER, Defendant and Appellant.
    Nos. 20010123 to 20010126.
    Supreme Court of North Dakota.
    Jan. 15, 2002.

      Jonathan R. Byers (argued), Assistant Attorney General, Attorney General’s Office, Bismarck, and Robin Lynn Thompson Gordon (on brief), State’s Attorney, Drake, for plaintiff and appellee.
    William Robert Hartl (argued), Rugby, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Mark Palmer appealed from a judgment of conviction, upon a jury verdict, finding him guilty of four separate counts of gross sexual imposition. We hold Palmer has failed to demonstrate prejudicial error occurred in the jury selection process. We further hold the record does not plainly show Palmer was denied effective assistance of counsel at his trial, and we affirm.

I

[¶ 2] On Memorial Day weekend in 1999 Palmer and his ten-year-old niece attended a family holiday gathering. Late in the evening, Palmer went upstairs to bed and his niece later came upstairs and lay in the bed with him. The niece testified that Palmer then fondled her. Palmer was charged with four separate counts of class B felony gross sexual imposition for having sexual contact with a minor under fifteen years old, in violation of N.D.C.C. § 12.1-20-03(2)(a). The charges alleged Palmer touched the niece’s breast with his hand, touched her breast with his mouth, touched her between the legs with his hand, and rested his penis against her clothed buttocks. The jury found Palmer guilty on all four counts, and the court sentenced Palmer to ten years incarceration on each count, with seven years suspended on each count, and each sentence to run consecutive to the others, for a total term of imprisonment of twelve years. Palmer appealed.

II

[¶ 3] On appeal Palmer asserts prejudicial error occurred during the jury selection process.

A.

[¶ 4] When the trial judge realized there were only 30 prospective jury panel members coming for the trial he asked an acting Deputy Sheriff, Barry Vannatta, and an administrative secretary from the sheriffs office, Jennie Zahn, to gather more prospective jurors. The trial court, in instructing Vannatta and Zahn to find additional jury members, allowed them to excuse a person from sitting on the panel if that person had a scheduled conflict or if that person should “disagree” or “not want to.” They initially went to public gathering places in the town to request persons to serve on the jury pool. Deputy Sheriff Vannatta obtained one additional panel member and then left to attend to other law enforcement business. Zahn returned to the sheriffs office and, by making random phone calls, obtained seven additional jury panel members. Of the eight additional panel members brought in by Van-natta and Zahn only one sat on the jury and another sat as an alternate but did not deliberate. Palmer asserts the selection of the additional jury pool members by Van-natta and Zahn did not satisfy the statutory requirements for random jury selection.

[¶ 5] Our statutory jury selection process is designed with the express purpose of providing that persons selected for jury service be “selected at random from a fair cross section of the population of the area served by the court.” N.D.C.C. § 27-09.1-01. The trial court is authorized to have a sheriff select at random additional persons for the jury pool when there is an unanticipated shortage of jurors. N.D.C.C. §§ 27-09.1-09(2) and 29-17-13.

[¶ 6] Under N.D.C.C. § 29-17-19, one can challenge the entire jury panel if there has been a “material departure” from the statutory process for drawing the jury, and under N.D.C.C. § 27-09.1-12(1), one can also challenge the jury selection process if there is a “substantial failure to comply” with the statutory procedures. A party asserting a lack of randomness from the jury selection process must demonstrate a resulting exclusion of a constitutionally cognizable group. State v. Torgerson, 2000 ND 105, ¶ 9, 611 N.W.2d 182. To establish there was a substantial failure to comply with the statutory process requiring reversal, the complaining party must provide a factual basis showing the jury panel selection process was prejudicial, actually excluded, systematically excluded, or statistically excluded a fair cross section of the population. Id. at ¶¶ 13, 16.

[¶ 7] Palmer did not object to the jury panel selection process by which eleven of the jurors were selected. Although Palmer objected to the process used to obtain additional panels members from which one juror was selected, he has not demonstrated any factual basis showing that the overall process used by the court was so defective that Palmer was denied a random jury panel. Palmer has provided no showing or argument that the jury which sat in this case did not consist of a fair cross section of the population. We conclude Palmer has failed to demonstrate prejudicial and reversible error occurred during the jury selection process.

B.

[¶'8] Palmer also asserts the trial court erred in having Zahn assist in selecting additional jury pool members, because there is no statutory authority for her to do so. When the trial judge directed Yannatta and Zahn to gather additional jury pool members, Palmer’s attorney objected and argued that only a sheriff, not a deputy sheriff, is authorized under our statutes to gather additional persons to serve on the jury pool. Palmer has abandoned that issue, on appeal, conceding that an acting sheriff or deputy sheriff has authority to act under the statute. However, on appeal Palmer argues for the first time that Zahn was not qualified to assist in finding additional jury panel members because she is not a deputy sheriff. Palmer did not make this objection to the trial court below. His only objection was to the use of a deputy sheriff, instead of a sheriff. Because Palmer failed to object to Zahn’s status as an administrator, the record does not contain evidence whether Zahn had been sworn as a deputy or special deputy to assist Vannatta. Furthermore, because Palmer failed to object to Zahn’s status, the trial court had no opportunity to revise the procedure it would use to obtain additional members for the jury panel or to rule on whether an administrator in the sheriffs office can assist the sheriff in fulfilling his duties under N.D.C.C. §§ 27-09.1-09(2) and 29-17-13, without being deputized. One who fails to raise an appropriate objection at the trial court level waives his right and cannot raise the issue for the first time on appeal. See State v. Olander, 1998 ND 50, ¶ 11, 575 N.W.2d 658.

[¶ 9] We conclude Palmer did not preserve the issue of Zahn’s authority to assist in obtaining additional potential jurors.

Ill

[¶ 10] Palmer claims he was denied effective assistance by his trial counsel. He asserts his trial lawyer did not return phone calls, was unavailable to confer with him, missed scheduled appointments, was not prepared for trial, and did not subpoena witnesses or documents Palmer wanted to use on his behalf for the trial.

[¶ 11] A defendant claiming ineffective assistance of counsel must establish two elements: (1) counsel’s performance was deficient, and (2) counsel’s deficient performance prejudiced the defendant. Wilson v. State, 1999 ND 222, ¶ 8, 603 N.W.2d 47. To demonstrate prejudice, the defendant must establish a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different, and the defendant must specify how and where trial counsel was incompetent and the probable different result. DeCoteau v. State, 1998 ND 199, ¶6, 586 N.W.2d 156.

[¶ 12] Ordinarily, a claim of ineffective assistance of counsel should be resolved in a post-conviction relief proceeding under N.D.C.C. ch. 29-32.1, so the parties can fully develop a record on the issue of counsel’s performance and its impact on the defendant’s case. See State v. Antoine, 1997 ND 100, ¶ 9, 564 N.W.2d 637. However, when ineffective assistance of counsel is argued on direct appeal, this Court will review the record to decide if the assistance of counsel was plainly defective. Id. Unless the record affirmatively shows ineffectiveness of constitutional dimensions, the complaining party must show some evidence in the record to support the claim. Id. Representations and assertions of appellate counsel are not enough to establish a claim of ineffective assistance. Id.

[¶ 13] We conclude this record does not plainly show Palmer’s trial counsel was ineffective. Palmer has not directed us to any record evidence demonstrating ineffective performance by his trial lawyer. Although we conclude, for purposes of this appeal, that Palmer’s ineffective assistance of counsel claim is without merit, we do so without prejudice to Palmer’s right to raise the issue in post-conviction proceedings.

IV

[¶ 14] In accordance with this opinion, the judgment of conviction is affirmed.

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

      . The Double Jeopardy Clause protects against multiple punishments for the same offense. United States v. Wilson, 420 U.S. 332, 342-43, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). However, Palmer has not raised any double jeopardy or multiplicity issues regarding the multiple convictions and consecutive sentences for his criminal conduct. We will not, therefore, address these matters.

      . Section 27-09.1-09(2), N.D.C.C., provides:
      If there is an unanticipated shortage of available petit jurors, the court may require the sheriff to summon a sufficient number of petit jurors selected at random by the clerk in a manner prescribed by the court. Section 29-17-13, N.D.C.C., provides:
      If a sufficient number of jurors cannot be obtained from the box to form a trial jury, the court, as often as is necessary, may order the sheriff to summon from the body of the county as many persons qualified to serve as jurors as the court deems sufficient to form a jury. The jurors so summoned may be called from the list returned by the sheriff, and as many of them not excused or discharged as may be necessary to complete the jury must be impaneled and sworn.

      . Under N.D.C.C. § 11-15-02, a sheriff "may appoint and qualify special deputies in such numbers as are required by the conditions.”


author: PER CURIAM.

text:
    2002 ND 9
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Paul T. CRARY, a Person Admitted to the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner, v. Paul T. Crary, Respondent.
    No. 20010200.
    Supreme Court of North Dakota.
    Jan. 15, 2002.

      Loralyn Kay Hegland, Assistant Disciplinary Counsel, Bismarck, for petitioner.
    Paul T. Crary, Fargo, pro se.
   PER CURIAM.

[¶ 1] Disciplinary counsel filed a petition for discipline against Paul T. Crary. Crary contested the allegations of misconduct and a hearing was held before a hearing panel. The hearing panel issued its report on July 31, 2001, recommending that Crary be disbarred and that he be ordered to pay restitution to the victim. Crary failed to file a brief with this Court opposing the recommendations. We adopt the recommendations of the hearing panel and order that Crary be disbarred, that he pay restitution, and that he pay the costs of the disciplinary proceedings.

I

[¶ 2] Paul Crary has been admitted to practice law in North Dakota since 1965. In 1997, Crary’s wife became acquainted with 85-year-old Mary Harris. In August 1997, Harris asked to meet with Crary to prepare a new will. Crary drafted a will for Harris, and Harris also signed documents giving Crary power of attorney. Although Harris was not related to the Crarys, over the next two-and-one-half years Crary and his wife provided general assistance to Harris, including bringing her meals, taking her to medical appointments, and visiting her regularly.

[¶ 3] In December 1997, Crary drafted a codicil to Harris’s will. The codicil provided that Crary’s wife would receive one-half of any funds which Harris’s estate received from insurance companies, including annuities, life insurance policies, and other benefits. Crary’s wife also was to receive a grandfather clock under the codicil to Harris’s will.

[¶ 4] Harris also asked Crary to help with her investments. In September 1997, Crary assisted Harris in purchasing a $42,000 annuity from the Independent Order of Foresters (“IOF”). In December 1997, Crary had Harris purchase a $10,000 annuity from IOF. In January 1998, Crary assisted Harris in cashing out an existing $100,000 annuity she had purchased just over a year earlier from Bankers Life and Casualty. Harris received approximately $92,000 in proceeds from the Bankers Life annuity, and used those funds to purchase a $90,000 annuity from IOF. Throughout this series of transactions Crary never told Harris he was an agent for IOF and received commissions on the annuities she purchased.

[¶ 5] In September 1998, Harris gave Crary a check for $3,500. A note on the memo line of the check indicated it was a loan to Crary. Harris testified Crary promised to repay the loan within six months with eight percent interest. Crary never repaid the $3,500 to Harris.

[¶ 6] The relationship between Harris and the Crarys eventually soured, and in January 2000 Harris terminated Crary’s legal representation. In October 2000, disciplinary counsel filed a petition for discipline, and a hearing panel was appointed. Following a hearing, the hearing panel concluded that: (1) the $3,500 payment to Crary was a loan which constituted a prohibited transaction in violation of N.D.R. Prof. Conduct 1.8(a); (2) the annuity purchases upon which Crary received commissions were prohibited transactions under N.D.R. Prof. Conduct 1.8(b); and (3) Crary’s drafting of the codicil devising property to his wife was a prohibited transaction under N.D.R. Prof. Conduct 1.8(c). The hearing panel recommended that Crary be disbarred and ordered to pay restitution to Harris.

II

[¶ 7] We review disciplinary proceedings de novo on the record under a clear and convincing standard of proof. In re Dvorak, 1998 ND 134, ¶ 15, 580 N.W.2d 586; In re Lamont, 1997 ND 63, ¶ 8, 561 N.W.2d 650. In the context of disciplinary proceedings, de novo means we accord due weight to the findings, conclusions, and recommendations of the hearing panel, but we do not act as a mere rubber stamp. In re Howe, 2001 ND 86, ¶ 6, 626 N.W.2d 650. We consider each case on its own facts to decide what discipline is warranted. Id. Because the hearing panel had the opportunity to hear the witnesses and observe their demeanor, we accord special deference to its findings on matters of conflicting evidence. Id.

III

[¶ 8] The hearing panel found that Harris loaned $3,500 to Crary, that Crary failed to advise Harris she could cpnsult another attorney about the transaction, and that Crary never repaid the $3,500. The panel concluded this transaction violated N.D.R. Prof. Conduct 1.8(a), which provides:

(a) Except for standard commercial transactions involving products or services that the client generally markets to others, a lawyer shall not enter into a business, financial or property transaction with a client unless:
(1) The transaction is fair and reasonable to the client; and
(2) After consultation, including advice to seek independent counsel, the client consents to the transaction.

[¶ 9] Harris testified that Crary asked to borrow the money and said he would pay it back within six months with eight percent interest. She also testified he did not advise her to consult another attorney about the transaction. The check bears the notation “Lone [sic] to Paul Crary” on the memo line, and Harris testified she wrote that notation.

[¶ 10] When Crary was asked at the hearing whether he advised Harris to seek independent counsel when he received the $3,500, he replied:

A. I don’t recall telling her to seek another attorney about the $3,500. I told — do recall telling her to seek another attorney about anything that I was doing, you know.
Q. Okay. So then—
A. I mean, I recall telling her that she could seek another attorney if she wanted to. I don’t remember how many times I said this, but—
Q. Okay. But specifically in regard to this $3,500, which she indicates on the check is a loan, you did not tell her before she gives you this money she should go talk to another attorney?
A. Well, I don’t recall telling her that, no.

[¶ 11] At the hearing, Crary admitted that he asked Harris for the $3,500. When asked whether the $3,500 was a loan, Crary responded:

A. Well, at the — I don’t remember at the time exactly how I looked at it, but when I started looking at my out-of-pocket expenses on the thing, I could see where it couldn’t have been a loan, because I had out-of-pocket expenses of several thousand dollars on this deal.

Crary’s response suggests that, in hindsight, he believed he was entitled to keep the $3,500 as compensation for the personal services and expenses he and his wife had provided to Harris. Although it is clear from the record that Crary and his wife did provide personal services to Harris, the record is equally clear that there was no agreement, express or implied, for payment for those services. Nor did Crary argue the $3,500 was for legal services or expenses he had provided.

[¶ 12] On this record, we agree with the hearing panel’s finding that the $3,500 was a loan to Crary at his request, that Crary did not advise Harris to seek independent counsel before entering into the transaction, and that Crary never repaid the loan. Crary’s conduct violated N.D.R. Prof. Conduct 1.8(a).

IV

[¶ 13] The hearing panel found that Crary, while acting as Harris’s lawyer and with power of attorney, had Harris cash in other annuities and investments to purchase annuities from IOF without advising Harris that he was an agent for IOF and would receive commissions on those transactions, and without advising her to seek independent legal advice about the transactions. Disciplinary counsel argues Crary’s conduct violated N.D.R. Prof. Conduct 1.8(b), which provides:

(b) Except as permitted or required in Rules 1.6 and 3.3, a lawyer shall not use information relating to representation of a client to the disadvantage of the client for purposes of furthering either the lawyer’s or another person’s interest unless after consultation, including advice to seek independent counsel, the client consents.

[¶ 14] Harris testified that Crary never told her he worked for IOF and received a commission on these transactions, and did not advise her to seek independent legal advice about the transactions. Crary testified Harris “must have known” he was an agent of IOF because he filled out the applications with her:

Q. Now as I indicated before, you’ve also admitted that you were an agent for the Independent Order of Foresters and that you got commissions on the three annuities that were purchased from that company?
A. Well, I had a license to sell for the Independent Order of Foresters, yes.
Q. Okay.
A. And the commissions, I think, were 1 percent.
Q. Now since you were an agent for that company and making commissions on the purchase of those annuities, did you tell Mary that you worked for that company?
A. Well, she must have known that. I mean, I — she filled out the application. I told her it was Order of Foresters. I don’t recall specifically saying I work for this company, but I had the applications there and it said Order of Foresters right on it. And whether I said I worked for this company or not, I can’t remember, but it was obvious that I must have if I had the applications there.
Q. How would that be obvious to her just based on the application in your possession?
A. Well, we filled out the application.
Q. Okay.
A. And I told her it was the Order of Foresters, I believe. I don’t remember the exact wording.
Q. But you don’t recall specifically telling her that you were an agent for that company and that you got commissions on the purchases?
A. Well, I don’t recall specifically telling her that, no.

[¶ 15] Crary’s assertion that Harris “must have known” he was an agent of IOF and receiving commissions merely because he procured the applications and assisted Harris in filling them out is not plausible. It would be commonplace for a person acting as counsel, and with power of attorney, to provide such assistance without being an agent of the company from which the annuities were being purchased. We agree with the hearing panel’s findings that Crary did not advise Harris he was an agent of IOF, did not advise her he received commissions on the transactions, and did not advise her to seek independent counsel. Crary’s conduct violated N.D.R. Prof. Conduct 1.8(b), because he used his knowledge of Harris’s financial situation and her desire to find another investment to her disadvantage for his own personal profit.

V

[¶ 16] The hearing panel concluded that Crary’s drafting of the codicil to Harris’s will violated N.D.R. Prof. Conduct 1.8(c), which provides:

(c) A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, unless the client is related to the donee.

[¶ 17] There is no dispute that Crary drafted the codicil, and that the Crarys were not related to Harris. The codicil to Harris’s will created a testamentary gift to Crary’s wife of one-half of the value of “all moneys and funds which my estate shall receive from all insurance companies, including but not limited to, annuities, life insurance policies and any other benefits.” Crary’s wife was also to receive a “large Grandfather’s Clock.” At various times after Harris signed the codicil the values of her annuities ranged between $130,000 and $180,000. Crary conceded in his testimony at the hearing that his wife’s one-half testamentary interest in the annuities was “substantial.”

[¶ 18] At the hearing, Crary suggested the codicil was prepared at Harris’s request. When asked whether he told her she could consult another attorney, he responded, “I think I told her she could talk to someone else.”

[¶ 19] Unlike the prohibitions in N.D.R. Prof. Conduct 1.8(a) and (b), Rule 1.8(c) creates a bright-line rule. See In re Boulger, 2001 ND 210, ¶ 7, 637 N.W.2d 710. Disclosure of the conflict to the client and advising the client to consult independent counsel are immaterial to a violation of N.D.R. Prof. Conduct 1.8(c). Courts interpreting other states’ adoptions of Rule 1.8(c) of the Model Rules of Professional Conduct have held that the rule creates a strict and explicit prohibition against attorneys drafting documents which result in a substantial gift to the attorney or the attorney’s parent, child, sibling, or spouse. See, e.g., In re Polevoy, 980 P.2d 985, 988 (Colo.1999); In re McCann, 669 A.2d 49, 55 (Del.1995); In re Herbert, 553 N.E.2d 130, 131 (Ind.1990); In re Gillingham, 126 Wash.2d 454, 896 P.2d 656, 663-64 (1995); see also American Bar Association Center for Professional Responsibility, Annotated Model Rules of Professional Conduct 128 (3d ed.1996). Noting that Rule 1.8(c) “flatly prohibits a lawyer from preparing an instrument giving the lawyer a testamentary gift from a client” and “does not include any disclosure or fairness provisions,” Gillingham, 896 P.2d at 663 n. 9, the Supreme Court of Washington concluded:

Gillingham evidently made the 1987 revisions to Liebel’s will pursuant to her instructions. Nevertheless, the fact remains that the RPC explicitly prohibit exactly what Gillingham did, whether or not it was according to Liebel’s instructions. Unlike the other rules governing conflicts of interest, the prohibition on testamentary gifts which are drafted by the lawyer-beneficiary does not include an exception when the client gives informed consent. Compare RPC 1.8(c) with RPC 1.7; RPC 1.8(a), (b), (f), (g). Furthermore, Liebel’s instructions may have been much different had she been given the benefit of independent counsel.

Gillingham, 896 P.2d at 663-64 (citation omitted).

[¶ 20] Even prior to the adoption of N.D.R. Prof. Conduct 1.8(c), this Court had cautioned about the inherent conflicts presented when an attorney drafts a will which will result in a personal benefit:

Although Amundson’s open and candid approach has merit, he misconceives the purpose of insisting the client see another attorney. The purpose is that the client have independent advice and counsel. If, after receiving that independent advice and counsel, the testator remains steadfast in the desire to name the attorney as a beneficiary in the will, there should be little doubt that the will expresses the intent of the testator. Such a procedure not only is to the benefit of the client but will avoid the appearance of professional impropriety and promote public confidence in our legal system and the legal profession as required by Canon 9, Code of Professional Responsibility.

In re Amundson, 297 N.W.2d 433, 441-42 (N.D.1980).

[II21] Similarly, the purpose of N.D.R. Prof. Conduct 1.8(c) is to require that a client actually receive independent legal advice before executing a document giving the attorney, or close family member of the attorney, a substantial gift. See Comment to N.D.R. Prof. Conduct 1.8(c) (“If effectuation of a substantial gift requires preparing a legal instrument such as a will or conveyance, however, the client should have the detached advice that another lawyer can provide.”); see also Boulger; 2001 ND 210, ¶¶ 7, 11, 637 N.W.2d 710.

[¶ 22] We conclude Crary’s conduct violated N.D.R. Prof. Conduct 1.8(c).

YI

[¶ 23] Our determination of the appropriate sanction for a lawyer’s violation of the Rules of Professional Conduct is governed by the North Dakota Standards for Imposing Lawyer Sanctions. Factors to be considered when an attorney has acted with a conflict of interest are set out in N.D. Stds. Imposing Lawyer Sanctions 4.3:

4.3 Failure to Avoid Conflicts of Interest. Absent aggravating or mitigating circumstances ... the following sanctions are generally appropriate in cases involving conflicts of interest:
4.31 Disbarment is generally appropriate when a lawyer, without the informed consent of client(s):
(a) engages in representation of a client knowing that the lawyer’s interests are adverse to the client’s with the intent to benefit the lawyer or another, and causes serious or potentially serious injury to the client;....
4.32 Suspension is generally appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a client the possible effect of that conflict, and causes injury or potential injury to a client.

[¶ 24] In this case, the presence of numerous aggravating circumstances tips the scales in favor of disbarment. Standard 9.22, N.D. Stds. Imposing Lawyer Sanctions, lists factors which may be considered in aggravation to justify an increase in the degree of discipline to be imposed:

Aggravating factors include:
(a) prior disciplinary offenses;
(b) dishonest or selfish motive;
(d) multiple offenses;
(g) refusal to acknowledge wrongful nature of conduct;
(h) vulnerability of victim;
(i) substantial experience in the practice of law;
(j) indifference to making restitution.

[¶ 25] Crary has a prior disciplinary offense. In 1994 he received a private reprimand for failing to adequately communicate with a client, failing to maintain proper trust records, and failing to provide an accounting to a client. Crary’s conduct in handling Harris’s affairs demonstrates a dishonest and selfish motive. Crary committed multiple offenses in his representation of Harris. Crary refuses to acknowledge the wrongful ñatee of his conduct, including belatedly suggesting, after he had failed to repay the loan, that he was entitled to keep the $3,500 for his expenses in providing personal services to Harris. Crary’s victim was particularly vulnerable: an eighty-five-year old woman who had recently suffered a stroke and who was apparently dependent upon the Crarys for her personal needs. Crary had substantial experience in the practice of law, having been admitted since 1965. Finally, Crary showed indifference toward restitution, refusing to repay the loan and never offering to repay the commissions he earned on the sale of annuities to Harris.

[¶ 26] Crary has failed to file a brief with this Court, and has not called our attention to any mitigating factors. We have reviewed the mitigating factors under N.D. Stds. Imposing Lawyer Sanctions 9.32 and find none which apply on the face of the record.

[¶ 27] In light of the nature of Crary’s conduct and the presence of significant aggravating factors, we order that Crary be disbarred. We further order that Crary pay restitution to Harris and pay the costs of the disciplinary proceedings, and we remand to the Disciplinary Board for a determination of those amounts.

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

      . After the hearing panel issued its report, Crary sent a letter to the Secretary of the Disciplinary Board tendering his resignation from the bar. An attorney’s resignation does not halt pending disciplinary proceedings. See N.D. Stds. Imposing Lawyer Sanctions 9.4(d) (resignation prior to completion of disciplinary proceedings is neither an aggravating nor a mitigating factor in imposing disciplinary sanctions); In re Hoffman, 1999 ND 122, ¶ 25, 595 N.W.2d 592; In re Leier, 1997 ND 79, ¶ 7, 562 N.W.2d 741.


author: [¶ 1] NEUMANN, Justice. SANDSTROM, Justice,

text:
    2002 ND 4
    STATE of North Dakota, Plaintiff and Appellee, v. Michael Paul WEAVER, Defendant and Appellant.
    No. 20010083.
    Supreme Court of North Dakota.
    Jan. 15, 2002.

      Wade Lykken Webb, Assistant State’s Attorney, Fargo, for plaintiff and appellee.
    Douglas W. Nesheim (argued), Mervin D. Nordeng (on brief), Wegner,- Fraase, Nordeng, Johnson & Ramstad, Fargo, for defendant and appellant.
   [¶ 1] NEUMANN, Justice.

Michael Paul Weaver appeals from a criminal judgment entered upon a jury verdict finding him guilty of contact by bodily fluids with a law enforcement officer or correctional'facility employee. We affirm, concluding (1) the trial court did not err in denying Weaver’s motion for judgment of acquittal, (2) the trial court’s instruction on the definition of “knowingly” and its failure to instruct on a lesser included offense did not constitute obvious error, and (3) trial counsel’s assistance was not plainly defective.

I

[¶ 2] On July 27, 2000, Weaver was an inmate at the Cass County Jail and had been placed in “lockdown.” After Weaver urinated through the bars of his cell door onto the floor in front of the cell and refused to clean it up, he was moved to a special cell in which the inside is lined with plexiglass so the inmate cannot touch the bars or reach outside. There is a vertical gap in the plexiglass approximately one inch wide next to the sliding door of the cell.

[¶ 3] Shortly after being placed in this cell, Weaver intentionally caused the toilet to overflow, flooding the cell and the surrounding area. The water to Weaver’s cell was shut off, and Cass County Deputy Sheriff Jay Sandvig began cleaning up the water in front of Weaver’s cell. Deputy Sandvig testified Weaver threatened to urinate out his cell door if the water was not turned back on. Sandvig continued to clean up the water. As he was cleaning close to the cell door, Sandvig saw Weaver laughing and noticed that Weaver was urinating through the gap in the plexiglass onto Sandvig’s pants, ankle, and shoe. At trial, Weaver denied urinating on Sandvig, admitting he urinated through the cell door onto the floor but that Sandvig was not in the area at the time.

[¶ 4] Weaver was charged with class C felony contact by bodily fluids with a law enforcement officer or correctional facility employee under N.D.C.C. § 12.1-17-11. The case was tried to a jury, which found Weaver guilty of the offense charged. A criminal judgment was entered and Weaver appealed.

II

[¶ 5] Weaver argues the trial court erred when it denied his motion for judgment of acquittal at the close of the State’s case-in-chief.

[¶ 6] Weaver was charged with contact by bodily fluids in violation of N.D.C.C. § 12.1-17-11:

12.1-17-11. Contact by bodily fluids or excrement.
1. An individual is guilty of an offense if the individual causes blood, emesis, excrement, mucus, saliva, semen, vaginal fluid, or urine to come in contact with:
a. A law enforcement officer acting in the scope of employment;
b. An employee of a correctional facility or the department of corrections and rehabilitation acting in the scope of employment unless the employee does an act within the scope of employment which requires or causes the contact;
3. The offense is a class C felony if the individual knowingly causes the contact and is a class A misdemeanor if the individual recklessly causes the contact.

[¶7] Weaver was charged only with the class C felony, which required that the State prove he had caused the contact knowingly. “Knowingly” is defined in N.D.C.C. § 12.1 — 02—02(l)(b):

1. For the purposes of this title, a person engages in conduct:
b. “Knowingly” if, when he engages in the conduct, 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.

Weaver argues the evidence presented by the State was insufficient to establish that he caused the contact “knowingly.”

[¶ 8] Motions for judgment of acquittal are governed by N.D.R.Crim.P. 29(a), which provides in part:

(a) Motion Before Submission to Jury. The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment, information, or complaint after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.

[¶ 9] We recently outlined the standards guiding the determination of a Rule 29 motion in State v. Gonzalez, 2000 ND 32, ¶¶ 14-15, 606 N.W.2d 873 (citations omitted):

In deciding a motion for judgment of acquittal, the district court, upon reviewing the evidence most favorable to the prosecution, “must deny the motion if there is substantial evidence upon which a reasonable mind could find guilt beyond a reasonable doubt.” State v. Hafner, 1998 ND 220, ¶ 21, 587 N.W.2d 177 (citations omitted). On appeal, to successfully challenge the sufficiency of the evidence, the defendant must show the evidence, when viewed in the light most favorable to the verdict, permits no reasonable inference of guilt.
When ruling on a motion for judgment of acquittal under Rule 29, N.D.R.Crim. P., the district court must assume the truth of the evidence supporting the State’s case and then decide whether a reasonable person would be justified in concluding from this evidence that all the elements of the crime have been established beyond a reasonable doubt. To grant a judgment of acquittal, a district court must find the evidence is insufficient to sustain a conviction of the offenses charged.

[¶ 10] In reviewing a question of sufficiency of the evidence under N.D.R.Crim.P. 29(a), we do not resolve conflicts in the evidence or reweigh the credibility of the witnesses. State v. Delaney, 1999 ND 189, ¶ 4, 601 N.W.2d 573; State v. Steinbach, 1998 ND 18, ¶ 17, 575 N.W.2d 193. On appeal, we determine only whether there is evidence which could have allowed the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction. Delaney, at ¶ 4; Steinbach, at ¶ 17.

[¶ 11] Viewing the evidence and the reasonable inferences to be drawn therefrom in the light most favorable to the State, we conclude there was sufficient evidence upon which a reasonable mind could find guilt beyond a reasonable doubt. During the State’s case-in-chief, Deputy Sandvig testified:

A After I was — -been in there sucking up some of the water, cleaning up the area, he stated if. we didn’t turn his water on, he was going to start pissing out the door. That was his quote. “If you don’t turn my water on, I’m going to start pissing out the door.” I advised him that his water would not be turned on until we could get the mess cleaned up. That’s just the way it was going to be. I couldn’t take that chance of having him continue flooding the cell.
Q Okay. Did he indicate to you where on the door he was going to piss out of?
A He just said through the door.
Q Then what happened, if anything?
A As I continued to mop up the floor, it was, you know, a few minutes after that, I was still standing in very close proximity to the door, I noticed on — off to my side I could see him standing next to the door. I turned to look at him. He was laughing at me. And when I looked at him, he said, “I told you I was going to piss through the door.” At that time he was standing up close to the door in the crack, kind of facing me, and when I looked down, there was a stream of what I believe to be urine landing on my lower left leg, ankle, shoe area while I was vacuuming. It was at that time that I had — I quit vacuuming at that time and advised some other officers what had happened.
Q Okay. You could see where he was standing in the cell when he was laughing at you?
A Yes.
Q And how close is that to you? Real close or far away?
A Within a foot and a half, I suppose. I’m just guessing. From where I was standing. Might be closer.
Q And he told you what?
A He stated, I told you I was going to start pissing out the — -pissing through the door, out the door, or something like that.
Q So you see him laughing at you, and then there’s a stream of something on your leg and shoe?
A Yes.
Q What is that something?
A I believed it to be urine according to the way he was positioned. And he did have his penis out, so. What I could see through the Plexiglas standing there, whether he was aiming or not, but it was coming through the crack and it was landing on my left — lower left leg and shoe.
Q He saw you standing there; correct?
A Yes. He couldn’t miss me.
Q Was he urinating on you or not?
A Yes.
Q Could you see that happening?
A Yes.
Q Where on your body was he urinating on?
A Lower left leg, shoe.
Q ... Deputy Sandvig, again drawing your attention to what we left off with, working at the Cass County jail on July 27th, 2000, approximately 6:00 p.m. or 6:10 p.m., I believe you testified someone urinated on you; would that be correct?
A Yes.
Q How do you know that someone urinated on you?
A When I was vacuuming up the water in front of Michael Weaver’s cell, like I said, I could see him standing very close to the door behind me. When I turned around, he was smiling and saying, “I told you I was going to piss out the door.” And when I looked down towards the floor, I seen the stream of what I believed to be his urine coming out — in between the cracks of the door, landing on my lower leg and going onto the floor. By looking at the urine, there was discolor in the water, yellow tinge and whatnot. I could see it was coming out of his body at that time.
Q Could you tell where on his body, perhaps it’s a silly question, but could you tell where on his body by looking at yourself?
A By looking through the Plexiglas, it was coming up from his penis.

[¶ 12] The jury could certainly infer from this evidence that Weaver caused the contact “knowingly.” Viewed in the light most favorable to the State, Deputy Sand-vig’s testimony indicated Weaver was urinating through the gap in the plexiglass onto Sandvig’s leg; Weaver was within eighteen inches of Sandvig; Weaver was laughing at Sandvig while he urinated on him; Weaver was so close he “couldn’t miss” seeing Sandvig; and Weaver continued urinating on Sandvig after Sandvig turned and saw Weaver laughing. From this evidence, the jury could reasonably have concluded that Weaver knew, or had “a firm belief, unaccompanied by substantial doubt,” see N.D.C.C. § 12.1-02-02(l)(b), that he was causing the contact.

[¶ 13] We conclude the trial court did not err in denying Weaver’s motion for judgment of acquittal.

Ill

[¶ 14] Weaver argues the trial court committed obvious error in instructing the jury on the definition of “knowingly” and in failing to instruct on the lesser included offense of recklessly causing contact by bodily fluids.

A

[¶ 15] Weaver did not object to the instruction defining “knowingly” and did not request any alternative instruction on culpability. Nor did Weaver object to the trial court’s failure to instruct on the lesser included offense or request an instruction on that offense.

[¶ 16] Although the trial court is initially responsible for correctly instructing the jury on the law of the case, both the prosecution and the defense have the responsibility to request and object to specific instructions. State v. Erickstad, 2000 ND 202, ¶ 17, 620 N.W.2d 136. In order to preserve the issue for appellate review under N.D.R.Crim.P. 30(c), a party must specifically object to the instruction at trial and distinctly state the ground for objection. Erickstad, at ¶ 17; State v. Mathre, 1999 ND 224, ¶ 5, 603 N.W.2d 173. If the defendant desires a more comprehensive instruction on any point of law than what the trial court has indicated it will give, the defendant must request specific written instructions, and if he fails to do so he cannot predicate error upon omissions in the charge given. Erickstad, at ¶ 18. When the defendant fails to properly object to a proposed instruction, or fails to specifically request an instruction or object to omission of an instruction, the issue is not adequately preserved for appellate review and our inquiry is limited under N.D.R.Crim.P. 52(b) to whether the jury instructions constitute obvious error affecting substantial rights. State v. Miller, 2001 ND 132, ¶ 24, 631 N.W.2d 587; Erickstad, at ¶ 18.

[¶ 17] Rule 52(b), N.D.R.Crim. P., allows this Court to correct obvious errors or defects affecting substantial rights even if they were not brought to the attention of the trial court. Erickstad, 2000 ND 202, ¶ 21, 620 N.W.2d 136. We exercise our power to consider obvious error cautiously and only in exceptional circumstances where the defendant has suffered serious injustice. Miller, 2001 ND 132, ¶ 25, 631 N.W.2d 587. We very rarely find obvious error under N.D.R.Crim.P. 52(b). Miller, at ¶ 25. In determining whether there has been obvious error, we examine the entire record and the probable effect of the alleged error in light of all the evidence, and the burden is upon the defendant to show the alleged error was prejudicial. Erickstad, at ¶ 22. An alleged error does not constitute obvious error unless there is a clear deviation from an applicable legal rule under current law. Miller, at ¶ 25; Erickstad, at ¶ 22.

B

[¶ 18] Weaver argues the trial court committed obvious error in its jury instruction defining “knowingly.” The court instructed the jury.

The word “knowingly” means that when the Defendant engaged in the conduct, he knew or had a firm belief, unaccompanied by a substantial doubt, that he was doing so, whether or not it was his purpose to do so.

This instruction is essentially a verbatim quotation of the applicable statutory definition of “knowingly” found in N.D.C.C. § 12.1-02-Q2(l)(b).

[¶ 19] Weaver argues the instruction constitutes obvious error because it allowed the jury to convict him even if “he did not intend to urinate on any police officer.” In effect, Weaver is arguing he can only be convicted if the State proves he intentionally caused contact by bodily fluids. However, “intentionally” is a higher level of culpability set out in N.D.C.C. § 12.1-02-02(l)(a):

1. For the purposes of this title, a person engages in conduct:
a. “Intentionally” if, when he engages in the conduct, it is his purpose to do so.

The legislature has specified that the level of culpability required to establish class C felony contact by bodily fluids is “knowingly,” not “intentionally.” N.D.C.C. § 12.1-17-11(3).

[¶ 20] The trial court’s instruction mirrored the statutory definition of “knowingly.” This did not constitute a deviation from an applicable legal rule under current law and therefore was not obvious error.

C

[¶ 21] Weaver did not request an instruction on any lesser included offenses and did not object to the trial court’s failure to give one. Weaver argues, however, that the trial court committed obvious error when it failed to instruct on the lesser included offense of recklessly causing contact by bodily fluids.

[¶ 22] Assuming that the class A misdemeanor of recklessly causing contact by bodily fluids is a lesser included offense of the class C felony of knowingly causing contact by bodily fluids, and assuming there was evidence to support instructing on such a lesser included offense, we nevertheless find no obvious error in this case. A defendant has the right to waive instructions on lesser included offenses as a trial tactic, taking an all-or-nothing risk the jury will not convict of the charged offense. State v. Mathre, 1999 ND 224, ¶ 7, 603 N.W.2d 173; State v. Tweed, 491 N.W.2d 412, 416 (N.D.1992). When a defendant adopts such an all-or-nothing trial strategy, the trial court’s failure to instruct on lesser included offenses does not constitute obvious error. Mathre, at ¶ 7; State v. Wright, 470 N.W.2d 594, 597 (N.D.1991). We explained the rationale for this result in Mathre, at ¶¶ 7-8:

The issue presented in this case is whether a defendant’s failure to request lesser included offenses instructions without an explicit waiver of his right to such instructions should constitute obvious error, giving the silent defendant the right to a second trial. On balance, we think not.
As a matter of logic and common sense, it seems only reasonable a jury asked to consider the possibility of self-defense should be told the full range of possibilities, including that a defendant’s honest belief in the need for self-defense, if negligently or recklessly held, may support a conviction of a lesser included offense. But, the reasonableness of requiring complete instructions evaporates when combined with the defendant’s option of waiving the instructions. With that possibility added, a reasonable requirement becomes unreasonable because a defendant by requesting an instruction on self-defense, and saying nothing about instructions on lesser included offenses, could create, with his silence, the possibility of “obvious” reversible error.

[¶ 23] The same result holds true in this case. Weaver adopted an all- or-nothing approach at trial and failed to request an instruction on recklessly causing contact by bodily fluids. Weaver has had his “shot” at an acquittal on the greater charge, and now on appeal argues it was obvious error for the court to fail to give an instruction on the lesser included offense. We cautioned in Mathre, at ¶ 8, that “[a] cunning defendant might do exactly that, hoping in the rush and confusion of the trial the court might well overlook the possibility” of lesser included offenses, thereby creating obvious error. We concluded that fairness and justice are better served by requiring defendants to request instructions on lesser included offenses, and the failure to give the instruction when none was requested did not constitute obvious error. Id. at ¶ 9.

[¶ 24] We conclude the trial court’s failure to instruct on the class A misdemeanor of recklessly causing contact by bodily fluids was not obvious error.

IV

[¶ 25] Weaver argues he should be granted a new trial because it is apparent from the record on appeal that the assistance of his counsel at trial was plainly defective. Weaver contends his counsel (1) should have objected to the court’s instruction on the definition of “knowingly,” (2) should have requested an instruction on a lesser included offense, and (3) should have requested sanctions based upon the State’s failure to preserve evidence.

[¶ 26] The failure to preserve evidence argument is based upon Deputy Sandvig’s admission that he washed the clothes he had been wearing when the incident took place. Weaver argues Sand-vig knew the clothing would be relevant in the criminal proceedings and should have preserved this evidence. When evidence is neither plainly exculpatory nor inculpa-tory, a defendant must show the police acted in bad faith in failing to preserve the potentially useful evidence. State v. Steffes, 500 N.W.2d 608, 613 (N.D.1993). Weaver’s trial counsel questioned Sandvig about his failure to preserve the evidence and argued to the jury that Sandvig’s actions raised a reasonable doubt about Weaver’s guilt. Weaver contends on appeal that his counsel’s failure to move for dismissal of the charges or request an instruction that it may be inferred the evidence would have been unfavorable to the State’s case constituted ineffective assistance of counsel.

[¶ 27] We have often stated that claims of ineffective assistance of counsel should be raised through a petition for post-conviction relief, rather than upon direct appeal:

A claim of ineffective assistance of counsel at trial should not be brought on direct appeal, but rather through a petition for post-conviction relief. A post-conviction relief proceeding enables the parties to fully develop a record on the issue of counsel’s performance and its impact on the defendant’s case. Claims of ineffective assistance of counsel are ordinarily unsuited to summary disposition without an evidentiary hearing. However, when an ineffective assistance of counsel claim is asserted on direct appeal, we will examine the record to determine if the assistance of counsel was plainly defective. If we cannot readily determine assistance of counsel was plainly defective and there are no other grounds for reversal, then the defendant can later pursue the claim at a post-conviction proceeding where an adequate record can be developed.

State v. Fraser, 2000 ND 53, ¶ 23, 608 N.W.2d 244 (quoting State v. Burke, 2000 N.D. 25, ¶ 35, 606 N.W.2d 108).

[¶ 28] We have reviewed the record on appeal and cannot readily determine that counsel’s assistance was plainly defective. Weaver may pursue these claims in a post-conviction proceeding, where an adequate record can be developed.

V

[¶ 29] The criminal judgment is affirmed.

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

SANDSTROM, Justice,

concurring specially.

[¶ 31] I agree with much of the majority’s opinion, and write separately on the issue of a lesser included offense instruction.

[¶ 32] Convicted of knowingly causing contact by bodily fluids with a law enforcement officer or correctional facility employee, the defendant contends the trial court erred by failing to instruct on the lesser included offense of recklessly causing such contact.

[¶ 33] The defendant did not ask for a lesser included offense instruction, nor object to the trial court’s failure to give one. The majority says the defendant could have waived — and implicitly did waive — his right to a lesser included offense instruction, assuming he was entitled to one. I write to point out that the defendant was not entitled to a lesser included offense instruction, and such an instruction would have been improper.

[¶ 34] The defendant admitted urinating out of his cell. The officer testified the defendant was very close, laughed, and spoke about what he was doing. The officer testified there was no way the defendant did not know. The defendant’s defense was that the officer lied. The defendant testified the officer was not present when the incident took place, and the officer testified he was present when the incident took place. If the jury had believed the defendant’s testimony, the defendant could not have been convicted of either offense. “An instruction on the lesser included offense would have been improper because the evidence would not permit the jury to rationally convict the defendant of the lesser offense and acquit him of the greater.” State v. McDonell, 550 N.W.2d 62, 63-64 (N.D.1996) (The district court did not err by not giving an instruction on the lesser included offense of sexual assault, because the only contested issue was the consent of the victim.); see also State v. Tweed, 491 N.W.2d 412, 413-14 (N.D.1992) (it was not error to refuse an instruction on the lesser included offense of negligent homicide, because the evidence did not show the defendant’s conduct was negligent but rather showed the defendant’s conduct was at least reckless). The trial court did not err, because the evidence presented did not entitle the defendant to a lesser included offense instruction. Indeed, the trial court would have erred by giving the instruction.

[¶ 35] Dale V. Sandstrom, J.


author: NEUMANN, Justice.

text:
    2002 ND 10
    Earl R. ST. CLAIRE, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
    No. 20010133.
    Supreme Court of North Dakota.
    Jan. 15, 2002.

      Earl R. St. Claire (on brief), pro se, Faribault, MN, for petitioner and appellant.
    Brett M. Shasky, Assistant State’s Attorney, Fargo, for respondent and appel-lee.
   NEUMANN, Justice.

[¶ 1] Earl Russell St. Claire appeals the summary dismissal of his application for post-conviction relief. We affirm.

[¶ 2] On October 25, 1999, St. Claire pleaded guilty to five counts of felonies involving controlled substances. St. Claire was sentenced to five years of imprisonment on each count, to be served concurrently. On November 2, 1999, St. Claire moved to withdraw Ms guilty plea. After a hearing on November 24, 1999, the district court denied the motion to withdraw the plea, granted an extension of time within which to appeal, and directed the appointment of counsel for an appeal. The record does not show an appeal by St. Claire.

[¶ 3] In a December 14, 1999, application for post-conviction relief, St. Claire alleged he was convicted on October 25, 1999, and sentenced to five years of imprisonment on an open guilty plea, which he entered after he was told “some felonies were to be dropped and ... I would only get 1 yr;” and he alleged he had asked to withdraw his plea because he “was denied any evidence and ... was tricked.” St. Claire asserted he was entitled to post-conviction relief, because (1) his attorney told the court he was guilty, (2) his attorney and the prosecutor led him to believe some felonies would be dropped and he would be sentenced to just one year of imprisonment, (3) an informant “used blackmail to coerce me into committing the crime,” and he “was denied all evidence,” and (4) he “made a complaint ... and because of this he was wrongly convicted.”

[¶ 4] The State moved for summary judgment, alleging (1) St. Claire was represented by counsel when he pled guilty on an open plea and asserted “the pleas were being made knowingly and voluntarily, and were made without promises, threats or coercion;” (2) all evidence was disclosed to St. Claire and his counsel, including three attorneys over a ten-month period and the judge determined the issues were without merit on his plea withdrawal hearing; and (3) all of the arguments and issues were raised at the sentencing and the plea withdrawal hearing and were fully and finally heard.

[¶ 5] St. Claire responded with a letter alleging: (1) he-was never allowed to review all the evidence; (2) his attorney told him “that I would have no problem getting ... 1 yr 1 day;” the attorney and the prosecutor were discussing dropping some of the charges; and the attorney was going to meet with the judge; (3) “Monday Oct. 25, 1999 I went to Court believeing [sic] I would only get 1 yr 1 day and that I would only get charged with some of the charges;” (4) attorney Mottinger told him he was sentenced to 5 years “because I made the Complaint against Duane Stanley,” an investigator on the ease; and (5) attorney Mottinger “agreed that he would hold a paycheck I had” and “he has probably went as far as committing Forgery” and “I have wrote the bar board about this also.”

[¶ 6] In an order issued January 6, 2000, the court denied St. Claire’s application for post-conviction relief and granted the State’s motion for summary disposition. The court explained: (1) The five-year sentence was not unjust; (2) while St. Claire expected a sentence of one year and one day, his attorney’s request for a 5 year sentence, with all but a year and a day suspended, was rejected by the court; (3) St. Claire’s claim his confession was coerced was without merit; (4) St. Claire’s claim his confession was obtained by violating his privilege against self-incrimination was without merit; and (5) St. Claire’s claim the prosecution failed to disclose evidence was without merit, as the prosecution disclosed the evidence to his attorneys. The court also noted the issues had all been raised in St. Claire’s hearing on his request to withdraw his guilty plea. St. Claire did not appeal the dismissal of his application.

[¶ 7] By petition of August 17, 2000, St. Claire sought habeas corpus relief. The district court dismissed the petition on October 25, 2000. The record does not show an appeal by St. Claire.

[¶ 8] On October 9, 2000, St. Claire filed a second application for post-conviction relief, asserting: (1) He was lied to and coerced into making an unlawful plea; (2) the State retaliated because he filed a complaint against Stanley; (3) his right to appeal was violated because the court did not appoint counsel until after the time for appeal expired; (4) the court has denied his right to counsel since he reported attorney Mertz’s misconduct to the bar board; (5) there was no presentence investigation; (6) there was no testimony taken; (7) the prosecutor did not provide him with evidence; and (8) ineffective assistance of counsel, noting “I raise the same grounds on this as before,” and attorney Mottinger committed forgery and theft against him, and Mottinger told the court St. Claire was guilty.

[¶ 9] The State asserted St. Claire’s claims he was coerced into committing the offenses, coerced into pleading guilty, and about misconduct by attorney Mottinger, the investigator, and the prosecutor, had been found to be without merit in earlier plea withdrawal and habeas corpus proceedings, or were frivolous. The State contended the claims had already been fully and finally heard or amounted to a misuse of process, and sought summary disposition on the ground there was no genuine issue of material fact.

[¶ 10] The court determined “the allegations and charges made by the Petitioner are simply a re-iteration of earlier allegations and charges that were addressed by the previous post-conviction application,” and granted the State’s request for summary disposition. St. Claire appealed and requested appointed counsel.

[¶ 11] An applicant for post-conviction relief has the burden of establishing grounds for relief. Berlin v. State, 2000 ND 206, ¶ 7, 619 N.W.2d 623. Post-conviction proceedings are civil in nature. Abdi v. State, 2000 ND 64, ¶ 8, 608 N.W.2d 292. Under N.D.C.C. § 29-32.1-09(1), “a trial court may summarily dismiss an application for post-conviction relief if there is no genuine issue of fact and the moving party is entitled to judgment as a matter of law.” Syvertson v. State, 2000 ND 185, ¶ 13, 620 N.W.2d 362, cert. dismissed, — U.S. -, 121 S.Ct. 1428, 149 L.Ed.2d 342 (2001). “A party opposing a motion for summary disposition under the Uniform Post Conviction Procedure Act must raise an issue of material fact.” Owens v. State, 2001 ND 15, ¶ 8, 621 N.W.2d 566, cert. denied, — U.S. -, 121 S.Ct. 2204, 149 L.Ed.2d 1034 (2001).

[¶ 12] “If the moving party establishes there is no genuine issue of material fact the burden shifts to the nonmov-ing party to show a genuine issue of fact exists.” Syvertson v. State, 2000 ND 185, ¶ 13, 620 N.W.2d 362. “The resisting party may not merely rely on pleadings or unsupported conclusory allegations,” but “must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact.” Id. “Our review of a summary denial of post-conviction relief is similar to our review of an appeal of a summary judgment.” Id.

[¶ 18] Section 29-32.1-12, N.D.C.C., provides, in part:

1. An application for postconviction relief may be denied on the ground that the same claim or claims were fully and finally determined in a previous proceeding.
2. A court may deny relief on the ground of misuse of process. Process is misused when the applicant:
a. Presents a claim for relief which the applicant inexcusably failed to raise either in a proceeding leading to 'judgment of conviction and sentence or in a previous postconviction proceeding; or
b. Files multiple applications containing a claim so lacking in factual support or legal basis as to be frivolous.
3.Res judicata and misuse of process are affirmative defenses to be pleaded by the state.

“Section 29-32.1-12(2), N.D.C.C. authorizes denial of an application for post-conviction relief on the ground of misuse of process.” Berlin v. State, 2000 ND 206, ¶ 11, 619 N.W.2d 623. Raising issues in a second post-conviction application which could have been raised in an earlier application is a misuse of process. Id. at ¶ 12. A defendant is not entitled to post-conviction relief if the contentions raised are simply variations of previous arguments. Id. at ¶ 13.

[MJisuse of process under N.D.C.C. ch. 29-32.1 occurs (1) if the defendant has inexcusably failed to raise an issue in a proceeding leading to judgment of conviction and now seeks review in a first application for post-conviction relief; (2) if the defendant inexcusably fails to pursue an issue on appeal which was raised and litigated in the original trial court proceedings, (citation omitted); and finally, (3) if a defendant inexcusably fails to raise an issue in an initial post-conviction application, (citation omitted).

Clark v. State, 1999 ND 78, ¶ 23, 593 N.W.2d 329.

[¶ 14] St. Claire’s allegations (1) he was lied to and coerced into pleading guilty; (2) the State retaliated against him because he filed a complaint against Mr. Stanley, one of the investigators in St. Claire’s case; (3) the prosecutor did not provide him with certain evidence for review; and (4) about ineffective assistance of counsel, that his attorney told the trial court he was guilty, and that his attorney had committed forgery and theft against him in the attorney’s handling of a check St. Claire gave the attorney, were litigated and resolved in the first post-conviction relief proceeding. They are res judicata under N.D.C.C. § 29-32.1-12(1).

[¶ 15] St. Claire’s assertion that his right to appeal was violated because the court did not appoint counsel until after the time for appeal had expired is without merit. After St. Claire moved to withdraw his guilty plea on November 2, 1999, the trial court denied his motion to withdraw his plea, granted an extension of time within which to appeal, directed the appointment of counsel for an appeal, and appointed counsel. Furthermore, this issue could have been, but was not, raised in the first application and raising it now is a misuse of process.

[¶ 16] St. Claire’s assertion the court has denied his right to counsel since he reported attorney Mertz’s misconduct to the bar board is without merit. “The appointment of post-conviction counsel is a matter of trial court discretion; we will not reverse the trial court’s refusal to appoint counsel absent an abuse of that discretion.” Crumley v. State, 2000 ND 110, ¶ 11, 611 N.W.2d 165. A trial court may properly deny a request for appointment of counsel if the applicant for post-conviction relief is able to file an application without assistance, and the application, read most favorably toward the applicant, does not raise the possibility of a substantial issue of fact or law. Bell v. State, 2001 ND 188, ¶ 19, 636 N.W.2d 438; Hopfauf v. State, 1998 ND 30, ¶ 3, 575 N.W.2d 646. “It is not an abuse of discretion for the trial court to refuse to appoint counsel when the application for relief is completely without merit.” Crumley, at ¶ 11. St. Claire was able to file an application for post-conviction relief, but the application did not raise the possibility of a substantial issue of fact or law.

[¶ 17] St. Claire complains there was no presentence investigation. St. Claire inexcusably failed to raise this issue in his first application for post-conviction relief, and raising it now is a misuse of process.

[¶ 18] St. Claire complains no testimony was taken to find out what occurred when the crimes were committed. Rule 11(e), N.D.R.Crim.P., requires that the court be satisfied “that there is a factual basis for the plea” before accepting a plea of guilty. The rule does not require testimony. St. Claire’s attorney, in St. Claire’s presence, stipulated in open court that “there’s an adequate factual foundation established.” St. Claire’s complaint is without merit. Furthermore, St. Claire inexcusably failed to raise this issue in his first application for post-conviction relief, and raising it in this second application is a misuse of process.

[¶ 19] St. Claire’s complaint he was not allowed an evidentiary hearing on his application for post-conviction relief is without merit. An applicant for post-conviction relief is only “entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact.” Crumley v. State, 2000 ND 110, ¶ 12, 611 N.W.2d 165. St. Claire has not presented competent admissible evidence raising a genuine issue of fact.

[¶ 20] The order granting the State’s motion for summary disposition dismissing St. Claire’s second application for post-conviction relief is affirmed.

[¶ 21] GERALD W. VANDEWALLE, C.J., MARY MUEHLEN MARING, CAROL RONNING KAPSNER and DALE V. SANDSTROM, JJ., concur.


text:
    2002 ND 8
    CITY OF FARGO, Plaintiff and Appellee, v. William Eugene TIPLER, Defendant and Appellant.
    No. 20010209.
    Supreme Court of North Dakota.
    Jan. 15, 2002.
    Stephen R. Dawson, Assistant City Prosecutor, Fargo, ND, for plaintiff and appellee.
    L. Patrick O’Day, Jr., Fargo, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] William Tipler appeals from a judgment based on a jury verdict convicting him of driving under suspension. Ti-pler argues the trial court erred in not allowing him to read a prepared statement to the jury during closing arguments. We conclude the trial court did not abuse its discretion in preventing Tipler from reading a statement which collaterally attacked the underlying license suspension and urged the jury to ignore the applicable law. See State v. Ebach, 1999 ND 5, ¶ 5, 589 N.W.2d 566 (“The control and scope of closing arguments are left to the discretion of the trial court.”); State v. Stuart, 544 N.W.2d 158, 163 (N.D.1996) (“A driver cannot collaterally attack the suspension or revocation of his license when he is later criminally charged with driving under suspension or revocation.”); State v. Tolley, 23 N.D. 284, 286, 136 N.W. 784, Syll. 10 (1912) (“The jury must accept the law from the court, and apply such law to the facts.”); see also Wisconsin v. Bjerkaas, 163 Wis.2d 949, 472 N.W.2d 615, 619 (Ct.App.1991) (There is no “right to have a jury decide a case contrary to law or fact, much less a right to an instruction telling jurors they may do so or to an argument urging them to nullify applicable laws.”). We further conclude substantial evidence supports the jury’s verdict of guilty. We affirm.

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


author: VANDE WALLE, Chief Justice.

text:
    2002 ND 7
    In the Interest of J.S. William Pryatel, M.D., Petitioner and Appellee, v. J.S., Respondent and Appellant.
    No. 20010314.
    Supreme Court of North Dakota.
    Jan. 15, 2002.

      Charles J. Gilje (argued) and Kenneth L. Dalsted (on brief), Special Assistant Attorneys General, Gilje and Dalsted, Jamestown, ND, for petitioner and appel-lee.
    Randall L. Hoffman, Jamestown, ND, for respondent and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] J.S. appealed from a district court order authorizing his continued treatment at the North Dakota State Hospital for one year. J.S. alleges the district court was clearly erroneous in ordering continuing treatment. Further, J.S. alleges the district court was clearly erroneous in failing to adequately determine the least restrictive treatment as an alternative to hospitalization. We affirm the district court’s order.

[¶ 2] This is J.S.’s seventh appeal to this Court from various mental health commitment or treatment orders. See In the Interest of J.S., 2001 ND 10, 621 N.W.2d 582 (J.S.VI); In the Interest of J.S., 1998 ND 92, 578 N.W.2d 91 (J.S.V); In the Interest of J.S., 545 N.W.2d 145 (N.D.1996) (J.S.IV); In the Interest of J.S., 530 N.W.2d 331 (N.D.1995) (J.S.III); In the Interest of J.S., 528 N.W.2d 367 (N.D.1995) (J.S.II); In the Interest of J.S., 499 N.W.2d 604 (N.D.1993) (J.S.I).

[¶ 3] J.S. has resided at the State Hospital since 1989, when he was admitted for the tenth time. He is a 65-year-old male who is diagnosed as a schizophrenic with psychotic behavior and symptoms. A petition to continue J.S.’s treatment was filed in the district court. On November 28, 2001, the district court heard arguments and testimony on the petition. At the conclusion of the hearing, the district court issued an order continuing J.S.’s treatment at the State Hospital for a period of one year. J.S. timely appealed seeking expedited review in this Court as provided for by N.D.C.C. § 25-03.1-29; N.D.R.App.P. 2.1(a).

[¶ 4] “Our review of an appeal under N.D.C.C. ch. 25-03.1 is ‘limited to a review of the procedures, findings, and conclusions of the lower court.’ ” J.S. VI, 2001 ND 10, ¶ 4, 621 N.W.2d 582 (quoting J.S. V, 1998 ND 92, ¶ 13, 578 N.W.2d 91). “To balance the competing interests of protecting a mentally ill person and of preserving that person’s liberty, our standards of decision require trial courts to use a clear and convincing standard of proof while we use a more probing ‘clearly erroneous’ standard of review.” J.S. III, 530 N.W.2d 331, 333 (N.D.1995). As we have explained in the past, “ ‘we will affirm an order for involuntary treatment unless it is induced by an erroneous view of the law or if we are firmly convinced it is not supported by clear and convincing evidence.’ ” Id. (quoting In Interest of R.N., 513 N.W.2d 370, 371 (N.D.1994)).

[¶ 5] “Before a court can order the extension of a continuing-treatment order, it must find that the patient continues to be a ‘person requiring treatment,’ as defined in NDCC 25-03.1-02(11).” J.S. IV, 545 N.W.2d 145, 147 (N.D.1996). “To make this finding, a two-part analysis is required: ‘(1) the court must find that the [patient] is mentally ill, and (2) the court must find that there is a reasonable expectation that, if not treated, there exists a serious risk of harm to the [patient], others, or property.’ ” Id. (quoting In Interest of K.J.L., 541 N.W.2d 698, 700 (N.D.1996)). “If the court concludes that the patient continues to be a ‘person requiring treatment,’ it must further find that ‘alternative treatment is not adequate and that hospitalization is the least restrictive alternative.’ ” Id. (quoting J.S. I, 499 N.W.2d at 606).

[¶ 6] Two expert witnesses, Robert Gulkin, Ph.D. and William Pryatel, M.D., testified at the hearing and submitted reports to the district court. Both testified J.S. had been diagnosed as a schizophrenic and diabetic. Both experts testified J.S. was resistant to taking his medication for both his mental and physical illnesses and would likely not take his medicine if he was not forced to do so. In fact, both experts stated in their reports filed with the court that J.S. has openly stated he will discontinue medication as soon as he is discharged. Further, both experts testified that without taking his diabetes medicine he would harm himself, and if J.S. did not take the medicine used to control his mental illness he may become a risk to others. As a result of J.S.’s resistance to medication, both experts concluded J.S. must be cared for in an inpatient program such as the one found at the State Hospital to ensure his continued medical treatment.

[¶ 7] A patient has the right to the least restrictive conditions necessary to achieve the treatment purposes. N.D.C.C. § 25-03.1-40(2). “ ‘In some cases, a reporting doctor may reasonably conclude that less restrictive alternatives to hospitalization simply do not exist.’ ” J.S. VI, 2001 ND 10 ¶ 16, 621 N.W.2d 582 (quoting J.S. IV, 545 N.W.2d 145, 148 (N.D.1996)). This is such a case. The experts agree that J.S. should be held against his will in an in-patient treatment program.

[¶ 8] Accordingly, we affirm the extension of the continuing-treatment order.

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