author: VANDE WALLE, Chief Justice.

text:
    2004 ND 224
    STATE of North Dakota, Plaintiff and Appellee v. Matthew LINGHOR, Defendant and Appellant.
    No. 20030360.
    Supreme Court of North Dakota.
    Dec. 14, 2004.

      Nicole E. Foster, State’s Attorney, Willi-ston, ND, for plaintiff and appellee.
    Kevin J. Chapman, Chapman Law Office, Williston, ND, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Matthew Linghor appealed from a jury conviction for conspiracy to manufacture a controlled substance — methamphetamine, a class A felony. Linghor claims evidence discovered during a traffic stop should have been suppressed and that the State’s retrial of his case violated the prohibition against double jeopardy. We affirm Linghor’s conviction.

[¶ 2] Williams County Deputy Sheriff Terry Sherven made a traffic stop of an automobile in which Matthew Linghor was a passenger. Deputy Sherven detected an odor of anhydrous ammonia coming from the automobile and, in plain view in the backseat, saw what he determined to be paraphernalia used to make drugs. Deputy Sherven called for assistance. While waiting for assistance to arrive, Deputy Sherven questioned the driver of the automobile, William Ostwald. Ostwald indicated a can of paint thinner, which was part of the alleged drug paraphernalia located in the backseat, belonged to- Linghor. Although the record is not entirely clear, it appears Ostwald made this statement outside of Linghor’s presence. Deputy James Borseth and Special Agent Steven Gutknecht responded to Deputy Sherven’s request for assistance. Special Agent Gutknecht viewed the interior of the car, determined that a mobile methamphetamine lab was present, and instructed Deputy Sherven to arrest Ostwald, who had been placed in Deputy Sherven’s automobile. As it was cold outside, Special Agent Gutknecht decided to tow the automobile to a law enforcement garage for a thorough search. Deputy Sherven removed Linghor from the automobile. Special Agent Gutknecht performed a quick examination of the automobile’s interior, but he ceased this activity to" focus on Deputy Sherven’s search of Linghor. Following a pat-down search, which did not reveal the presence of á weapon, Deputy Sherven had Linghor empty his pockets. Linghor removed a Wal-Mart receipt from his pocket and the officers noted that items on the receipt, which could be used to manufacture methamphetamine, were present in the automobile. The officers handcuffed Linghor, placed him in Deputy Borseth’s automobile, and read him his Miranda rights. While waiting for the tow truck, Special Agent Gutknecht interviewed Ostwald and Linghor and both allegedly confirmed that Linghor purchased certain items listed on the Wal-Mart receipt. These interviews occurred before Linghor’s formal arrest, which Special Agent'Gutknecht ordered during his comprehensive search of the automobile at the law enforcement center. This formal arrest occurred approximately 20 minutes after discovery of the Wal-Mart receipt. At trial, Linghor asked the district court judge to suppress the Wal-Mart receipt and his statements in which he admitted purchasing items on the Wal-Mart receipt found in the automobile, but the trial judge denied the request. The State introduced this evidence at trial. Linghor’s trial resulted in a hung jury and a mistrial. The State tried Linghor again and the second trial, which contained an additional State’s witness who resolved factual inconsistencies in the State’s case, resulted in a conviction.

I.

[¶ 3] The standard of review for a trial court’s denial of a suppression motion is well-established. This Court has stated:

We will defer to a trial court’s findings of fact in the disposition of a motion to suppress. Conflicts in testimony will be resolved in favor of affirmance, as we recognize the trial court is in a superior position to assess credibility of witnesses and weigh the evidence. Generally, a trial court’s decision to deny a motion to suppress will not be reversed if there is sufficient competent evidence capable of supporting the trial court’s findings, and if its decision is not contrary to the manifest weight of the evidence.

State v. Kitchen, 1997 ND 241, ¶ 11, 572 N.W.2d 106 (internal citations omitted). “While we defer to the trial court’s findings of fact, questions of law are fully reviewable.” State v. Hawley, 540 N.W.2d 390, 392 (N.D.1995).

A.

[¶ 4] The Fourth Amendment of the United States Constitution, applicable to the states through the Fourteenth Amendment, and Art. I, § 8 of the North Dakota Constitution, protect individuals from unreasonable searches and seizures. State v. Boline, 1998 ND 67, ¶ 19, 575 N.W.2d 906. To realize this protection of individual rights, all evidence obtained by unreasonable searches and seizures is inadmissible against the defendant at trial. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (applying the exclusionary rule to state courts); see also State v. Handtmann, 437 N.W.2d 830, 837 (N.D.1989) (“The fruit-of-the-poisonous-tree doctrine is an extension of the exclusionary rule and prohibits the indirect use of information obtained in illegal searches and seizures.”). A warrantless search is unreasonable unless it falls within a recognized exception to the warrant requirement. State v. Kunkel, 455 N.W.2d 208, 209-10 (N.D.1990).

[¶ 5] A search incident to a valid custodial arrest is one exception to the warrant requirement, and the U.S. Supreme Court defined the scope of this exception in Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (holding that an officer making a lawful custodial arrest may search the ar-restee and the area within the arrestee’s immediate control). In certain circumstances, a search can even precede an arrest. State v. Overby, 1999 ND 47, ¶ 8, 590 N.W.2d 703. Where the search precedes arrest, however, it must be shown that (1) probable cause to arrest existed before the search, and (2) the arrest and search were substantially contemporaneous. Id. (citing Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980)). Another exception to the warrant requirement is the doctrine of inevitable discovery. State v. Phelps, 297 N.W.2d 769, 774 (N.D.1980). The inevitable-discovery exception establishes that evidence derived from an unlawful search is not inadmissible under the fruit-of-the-poisonous-tree doctrine if it is shown the evidence would have been uncovered without the unlawful action. Id.

B.

[¶ 6] Linghor asserts probable cause to arrest must be particularized with respect to each person arrested and that a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search a person. Linghor contends his presence in the automobile, which he did not own, was not enough for law enforcement to suspect him of criminal activity or search his person. Linghor asserts the pocket search was not conducted incident to his arrest. He argues the police had no probable cause to arrest him until they uncovered the Wal-Mart receipt, and the fruits of this illegal search cannot retroactively provide the probable cause to arrest him. Linghor notes the 20 minute delay between the discovery of the Wal-Mart receipt and his formal arrest, which allegedly allowed police time to compare the items on the receipt with the items in the automobile, and argues it highlights the lack of pre-search probable cause to arrest. Linghor also takes issue with the district court’s determination that he was under arrest at the time of the pocket search. Finally, Linghor labels' as fruit of the poisonous tree his statements in which he allegedly admitted purchasing certain items from the Wal-Mart receipt. The State counters that the search of Lin-ghor’s person was valid under two exceptions to the warrant requirement for searches and seizures, the search-incident-to-arrest exception where the search precedes the arrest and the inevitable-discovery doctrine.

C.

[¶ 7] We conclude the officers had probable cause to arrest Linghor at the time of the pocket search and, when viewed objectively, had placed Linghor under arrest by the time of the search. Deputy Sherven’s search is therefore justified as a search performed incident to Lin-ghor’s arrest.

[¶ 8] Under North Dakota law an officer is authorized to arrest a person, without a warrant, for a public offense committed or attempted in the officer’s presence; when the person arrested has committed a felony, although not in the officer’s presence; and when a felony in fact has been committed and the officer has reasonable cause to believe the person arrested to have committed it. N.D.C.C. § 29-06-15(l)(a-c). Upon seeing the methamphetamine paraphernalia in plain view in the automobile, the officers had probable cause to believe that some drug-related crime was either committed or attempted. Therefore, this statute, either as a whole or in part, provided the officers with the requisite authority to arrest the responsible parties without first obtaining a warrant. The primary question is whether officers had probable cause to believe Lin-ghor committed this crime.

[¶ 9] The case of Maryland v. Pringle, 540 U.S. 366, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003), is dispositive of this issue. In Pringle, a police officer stopped an automobile for speeding and obtained the driver’s consent to search the car. Id. at 798. The car had three occupants. Id. The search revealed the presence of a large amount of cash in the glovebox and five plastic baggies containing cocaine behind the back-seat armrest. Id. Pringle was a front-seat passenger in the car. Id. None of the automobile occupants admitted ownership of the drugs and all three were arrested. Id. The Maryland Court of Appeals held that, “absent specific facts tending to show Pringle’s knowledge and dominion or control over the drugs, ‘the mere finding of cocaine in the back armrest when [Pringle] was a front seat passenger in a car being driven by its owner is insufficient to establish probable cause for an arrest for possession.’ ” Id. at 799 (quoting Pringle v. Maryland, 370 Md. 525, 805 A.2d 1016, 1027 (2002)). The U.S. Supreme Court unanimously rejected this line of reasoning, which is nearly identical to that advanced by Linghor.

[¶ 10] The Supreme Court stated:

The long-prevailing standard of probable cause protects citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime, while giving fair leeway for enforcing the law in the community’s protection. On many occasions, we have reiterated that the probable-cause standard is a practical, nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.
The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances. We have stated, however, that the substance of all the definitions of probable cause is a reasonable ground for belief of guilt, and that the belief of guilt must be particularized with respect to the person to be searched or seized.

Id. at 799-800 (internal citations and quotations omitted). Further, “[i]n assessing whether there is probable cause to arrest, police officers need not have knowledge or facts sufficient to establish guilt [at trial], only knowledge that would give a prudent person reasonable grounds to believe an offense has been or is being committed.” State v. Overby, 1999 ND 47, ¶ 13, 590 N.W.2d 703 (citing Torstenson v. Moore, 1997 ND 159, ¶ 17, 567 N.W.2d 622). The Supreme Court in Pringle concluded, “[t]o determine whether an officer had probable cause to arrest an individual, we examine the events leading up to the arrest, and then decide whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause.” Pringle, 124 S.Ct. at 800.

[¶ 11] Turning to the specific facts in Pringle, the Supreme Court stated:

We think it an entirely reasonable inference from these facts that any or all three of the occupants had knowledge of, and exercised dominion and control over, the cocaine. Thus a reasonable officer could conclude that there was probable cause to believe Pringle committed the crime of possession of cocaine, either solely or jointly.
Pringle’s attempt to characterize this case as a guilt-by-association case is unavailing. His reliance on [Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979)] is misplaced. In Ybarra, police officers obtained a warrant to search a tavern and its bartender for evidence of possession of a controlled substance. Upon entering the tavern, the officers conducted patdown searches of the customers present in the tavern, including Ybarra. Inside a cigarette pack retrieved from Ybarra’s pocket, an officer found six tinfoil packets containing heroin. We stated:
“[A] person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Sibron v. New York, 392 U.S. 40, 62-63, [88 S.Ct. 1889, 20 L.Ed.2d 917] (1968). Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be.” 444 U.S., at 91, 100 S.Ct. 338, 62 L.Ed.2d 238.
We held that the search warrant did not permit body searches of all of the tavern’s patrons and that the police could not pat down the patrons for weapons, absent individualized suspicion. Id, at 92, 100 S.Ct. 338, 62 L.Ed.2d 238.
This case is quite different from Ybar-ra [.] Pringle and his two companions were in a relatively small automobile, not a public tavern. In Wyoming v. Houghton, 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999), we noted that “a car passenger' — -unlike the unwitting tavern patron in Ybarra — will often be engaged in a common enterprise with the driver, and have the same interest in concealing the fruits or the evidence of their wrongdoing.” Id., at 304-305, 119 S.Ct. 1297, 143 L.Ed.2d 408. Here we think it was reasonable for the officer to infer a common enterprise among the three men. The quantity of drugs and cash in the car indicated the likelihood of drug dealing, an enterprise to which a dealer would be unlikely to admit an innocent person with the potential to furnish evidence against him.

Pringle, 124 S.Ct. at 800-01.

[¶ 12] Linghor’s situation is indistinguishable from Pnngle. The facts that do serve to distinguish Linghor’s case from Pringle strengthen the finding that probable cause to arrest Linghor existed. The drug-paraphernalia evidence in this case was far larger than the cash and drugs discovered in Pringle. The smell of anhydrous ammonia emanating from the automobile was immediately noticeable to Deputy Sherven standing outside the car. Both of these facts indicate Linghor “had knowledge of, and exercised dominion and control over, the [drug paraphernalia]. Thus a reasonable officer could conclude that there was probable cause to believe [Linghor] committed the crime of possession of [drug paraphernalia relating to methamphetamine], either solely or jointly.”

[¶ 13] In addition, upon being stopped by Deputy Sherven, and before the search of Linghor’s pocket, Ostwald indicated that a can of paint thinner located in the backseat belonged to Linghor. Although this statement came in the form of an explanation meant to exculpate both Ostwald and Linghor, a reasonable police officer could nonetheless view such a statement as an indication that Linghor played some role in supplying the components to the underlying drug offense. Ostwald’s statement, while not critical to validating the officers’ conduct, nonetheless provided probable cause to believe Linghor was involved in a conspiracy to manufacture methamphetamine. In contrast to the silence exhibited in Pringle, Ostwald’s statement regarding Linghor’s ownership of the paint thinner buttresses our determination that probable cause to arrest Linghor existed. Therefore, it is objectively reasonable to infer a “common enterprise” between Ostwald and Linghor and we find Linghor’s “guilt-by-association” defense untenable.

[¶ 14] Was Linghor in fact under arrest at the time of the pocket search? “The existence of an arrest is a question of law.” City of Wahpeton v. Johnson, 303 N.W.2d 565, 567 (N.D.1981). “An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the person making the arrest.” N.D.C.C. § 29-06-09. On appeal, much was made of the fact that Linghor was not “formally” placed under arrest until approximately 20 minutes after the pocket search. Indeed, Special Agent Gutknecht testified Linghor was simply being detained before the time of his formal arrest. However, an officer’s subjective intent or outward statements do not necessarily control whether, or when, a party is under arrest. See Stansbury v. California, 511 U.S. 318, 322-25, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (discussing the custody determination for Miranda purposes and its relationship to an arrest). Rather, we objectively examine the totality of the circumstances to determine whether an arrest occurred. Id. As we have stated, “formal words of arrest are not a condition precedent to the existence of an arrest.” State v. Anderson, 336 N.W.2d 634, 639 (N.D.1983). Stated differently, an arrest can occur before an officer formally informs a suspect he is under arrest. The proper, objective test asks whether circumstances existed that would have caused a reasonable person to conclude he was under arrest and not free to leave. Wishnatsky v. Bergquist, 550 N.W.2d 394, 398 (N.D.1996). The benefit of taking such determinations out of the subjective or discretionary realms and placing them on objective ground is obvious. Without such a protection of individual rights, for example, the police would be free to relentlessly question a suspect without first informing him of his constitutional rights, all by delaying the “magic words” that would trigger a custodial arrest. See generally Yarborough v. Alvarado, 541 U.S. 652, -, 124 S.Ct. 2140, 2147-49, 158 L.Ed.2d 938 (2004) (applying an objective, reasonable-person test for custody); Miranda v. Arizona, 384 U.S. 436, 455-58, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (recognizing the role of warnings in reducing the likelihood suspects will fall victim to constitutionally impermissible practices of police interrogation in coercive, custodial environments).

[¶ 15] Here, we believe a reasonable person in Linghor’s situation would have concluded he was under arrest when he was removed from the automobile by Deputy Sherven, if not earlier. We do not believe a reasonable person, found in an automobile smelling of anhydrous ammonia with an abundance of drug paraphernalia in plain sight, would feel free to exit the car, much less leave the crime scene. This fact is reinforced by the presence of three officers on the scene. Further, Special Agent Gutknecht actually stopped searching the automobile to- observe Linghor when he was removed from the car. The presence of these three officers, two of whom were exclusively focused on Linghor as he was removed from the vehicle, would cause a reasonable person to conclude he was not free to leave.

[¶ 16] In any event, it is apparent Lin-ghor was under arrest well before being formally informed of such at the law enforcement center. After the Wal-Mart receipt was discovered, Linghor was almost immediately placed in handcuffs, taken to Deputy Borseth’s automobile, and read his Miranda rights. Here, the facts similar to those in the Pringle decision highlight the abundance of probable cause to arrest that existed before the search of Linghor’s person. The absolute restraint of Linghor’s movement that occurred immediately after the pocket search, coupled with the knowledge that a search can precede an arrest and still be valid, reinforces our holding. See Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980).

[¶ 17] The officers had probable cause to arrest Linghor prior to the pocket search and had restrained his freedom of movement upon removing him from the automobile, if not before, and the search of Linghor’s person is appropriate as a search incident to arrest. Finally, the evidence in the record, which was not contested on appeal, is that Linghor’s incriminating statements regarding the Wal-Mart receipt were made after he knowingly, intelligently, and voluntarily waived his Miranda rights. The search that produced the receipt was legal. The statements derived from the search cannot be excluded as fruit of the poisonous tree and were properly admitted at trial.

II.

[¶ 18] Linghor argues his conviction from the second trial should be overturned on double-jeopardy grounds because the district court erred in declaring a hung jury and a mistrial in the first case. He points out the jury only deliberated approximately two-and-a-half hours before declaring itself hung and argues the jury should have been required to continue to deliberate, even if it meant coming back for a second day. Also, Linghor notes the jury could not reach agreement on relatively simple factual questions as to which there were inconsistencies in the State’s case. For example, the jury was confused about the discrepancy between the product identification number on a can of paint thinner introduced into evidence and the number listed on a corresponding True Value receipt found on Linghor’s person. Linghor finds fault with the State being allowed to add a new witness at the second trial, the manager of True Value, who explained the discrepancy between the identification numbers on the can of paint thinner and the True Value receipt. Linghor believes this amendment gave the State a second chance to try their case, free from the errors and oversights that resulted in a hung jury in the first trial. Contending the State commenced the first trial without sufficient evidence to convict, Linghor submits they should not have been afforded a second opportunity to accomplish their aim. These errors, he argues, denied him the opportunity to have his future decided by the first jury, a body Linghor believes likely would have found him not guilty.

A.

[¶ 19] Section 29-01-07, N.D.C.C., provides:

No person can be twice put in jeopardy for the same offense, nor can any person be subjected to a second prosecution for a public offense for which he has once been prosecuted and convicted, or acquitted, or put in jeopardy, except as is provided by law for new trials.

N.D. Const, art. I, § 12 states, in part, “[n]o person shall be twice put in jeopardy for the same offense.” And, finally, the Fifth Amendment to the United States Constitution provides, in part, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” The double-jeopardy prohibition of the Fifth Amendment is applicable to the States through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The North Dakota statutory and constitutional double-jeopardy provisions should be read so as to afford protections consistent with the Fifth Amendment to the U.S. Constitution. State v. Allesi, 216 N.W.2d 805, 817-18 (N.D.1974).

[¶ 20] “The general rule is that a person is put in jeopardy when his trial commences, which in a jury case occurs when the jury is empaneled and sworn, and in a non-jury trial when the court begins to hear evidence.” State v. Berger, 235 N.W.2d 254, 257 (N.D.1975); see also Allesi, 216 N.W.2d at 813 (discussing United States v. Jorn, 400 U.S. 470, 479-80, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); Wade v. Hunter, 336 U.S. 684, 688, 69 S.Ct. 834, 93 L.Ed. 974 (1949)). “But in cases in which a mistrial has been declared prior to verdict, the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial.” Illinois v. Somerville, 410 U.S. 458, 467, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). “[The Double Jeopardy Clause] does not prohibit retrial in every instance when the first trial has terminated prior to a verdict.” Allesi, 216 N.W.2d at 814. The U.S. Supreme Court has also stated:

The double-jeopardy provision of the Fifth Amendment, however, does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed.

Wade v. Hunter, 336 U.S. at 688-89, 69 S.Ct. 834. Each case in which a double-jeopardy violation is asserted must turn upon its own facts, Downum v. United States, 372 U.S. 734, 737, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963), and the U.S. Supreme Court has “disparaged rigid, mechanical rules in the interpretation of the Double Jeopardy Clause.” Serfass v. United States, 420 U.S. 377, 390, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975) (internal quotations omitted).

[¶ 21] The landmark decision construing the Double Jeopardy Clause in the mistrial context is United States v. Perez, 9 Wheat. 579, 22 U.S. 579, 580, 6 L.Ed. 165 (1824). The U.S. Supreme Court stated:

We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital eases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.

Id. Thus, manifest necessity and the ends of public justice are the basic controlling principles in determining whether a mistrial was properly granted so that a defendant may be retried. Berger, 235 N.W.2d at 259.

[¶ 22] The U.S. Supreme Court subsequently underscored the breadth of a trial judge’s discretion to declare a mistrial.

[The Perez ] formulation, consistently adhered to by this Court in subsequent decisions, abjures the application of any mechanical formula by which to judge the propriety of declaring a mistrial in the varying and often unique situations arising during the course of a criminal trial. The broad discretion reserved to the trial judge in such circumstances has been consistently reiterated in decisions of this Court.

Somerville, 410 U.S. at 462, 93 S.Ct. 1066. In Gori v. United States, 367 U.S. 364, 368, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961), the U.S. Supreme Court further stated:

Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant’s consent and even over his objection, and he may be retried, consistently with the Fifth Amendment.

Although the U.S. Supreme Court has held that “[a] trial judge properly exercises his discretion to declare a mistrial if an impartial verdict cannot be reached,” Somerville, 410 U.S. at 464, 93 S.Ct. 1066 the Supreme Court has also recognized the seriousness of the trial judge’s decision, stating:

The determination by the trial court to abort a criminal proceeding where jeopardy has attached is not one to be lightly undertaken, since the interest of the defendant in having his fate determined by the jury first impaneled is itself a weighty one. Nor will the lack of demonstrable additional prejudice preclude the defendant’s invocation of the double jeopardy bar in the absence of some important countervailing interest of proper judicial administration.

Id. at 471, 93 S.Ct. 1066.

B.

[¶ 23] On appeal, Linghor relied heavily on the U.S. Supreme Court opinion in Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). As the Supreme Court subsequently summarized Downum:

In Downum v. United States, the defendant was charged with six counts of mad theft, and forging and uttering stolen checks. A jury was selected and sworn in the morning, and instructed to return that afternoon. When the jury returned, the Government moved for the discharge of the jury on the ground that a key prosecution witness, for two of the six counts against defendant, was not present. The prosecution knew, prior to the selection and swearing of the jury, that this witness could not be found and had not been served with a subpoena. The trial judge discharged the jury over the defendant’s motions to dismiss two counts for failure to prosecute and to continue the other four. This Court, in reversing the convictions on the ground of double jeopardy, emphasized that “each case must turn on its facts,” 372 U.S., at 737, 83 S.Ct. 1033, and held that the second prosecution constituted double jeopardy, because the absence of the witness and the reason therefor did not there justify, in terms of “manifest necessity,” the declaration. of a mistrial.

Somerville, 410 U.S. at 464-65, 93 S.Ct. 1066. The Downum Court’s rationale is that, “in the absence of sufficient evidence to convict, the district attorney cannot by any act of his deprive the defendant of the benefit of the constitutional provision prohibiting a person from being twice put in jeopardy for the same offense.” Cornero v. United States, 48 F.2d 69, 71 (9th Cir.1931) (opinion extensively quoted in Dow-num ). Linghor analogizes that the prosecutor in his case empaneled the first jury without possessing sufficient evidence to convict, namely the True Value manager who was able to resolve the inconsistency between the product identification number on the can of paint thinner and the corresponding number on the True Value receipt. The first jury explicitly cited this inconsistency as a central, divisive issue in its response to the court’s request for a written list of matters hindering the jury’s progress.

[¶ 24] The Downum case is distinguishable from Linghor’s situation. In Dovmum, the prosecutor empaneled the jury without sufficient evidence to convict and then explicitly sought to “rectify” , this mistake by having the jury discharged. Linghor argues the State proceeded at the first trial with insufficient evidence to convict, thus triggering the dismissal. But, Linghor’s argument could be made in any case in which a jury was unable to reach a unanimous decision. What is critical is what, if anything, the State did during the trial to trigger a dismissal. Here, the State took no action to force a dismissal.

[¶ 25] Mistrials will frequently result because of confusion over the evidence presented. Here, in contrast with many mistrial situations, the State was able to pinpoint what piece of evidence seemed to confound the first jury. Armed with this knowledge, the State took steps to address this deficiency in the second trial. Although these steps presumably aided the State, this is not the type of benefit that implicates the Double Jeopardy Clause. In every case, the State must make decisions about what evidence to present to the jury. Mistakes will inevitably be made. Whether the State knew of the discrepancy regarding the can of paint thinner, thought the distinction unimportant, or believed they could explain the inconsistency through other evidence is irrelevant. The State empaneled a jury, tried their case, and was willing to let the first jury decide Linghor’s fate. That the first jury was unable to reach a unanimous verdict does not automatically lead to a double-jeopardy bar. As Downum itself described, “it has been agreed that there are occasions when a second trial may be had although the jury impaneled for the first trial was discharged without reaching a verdict and without the defendant’s consent. The classic example is a mistrial because the jury is unable to agree.” Downum, 372 U.S. at 735-36, 83 S.Ct. 1033.

[¶ 26] We cannot conclude the trial judge abused his discretion in finding the first jury hung and declaring a mistrial. Trial judges must both encourage a jury to work diligently to reach a verdict, yet not push the jury to a point where their decision will no longer be the product of an impartial deliberative process. Although we refrain from attempting to quantify these delicate decisions, the rather short length of deliberation that occurred in this case raises concerns. Nonetheless, the record reveals the trial judge in Linghor’s ease struggled with these issues and spent considerable time discussing available options with the attorneys involved. The trial judge inquired into the divisive issues stymying the jury’s progress and took a poll of the jurors to determine whether they thought a verdict could be reached, to which eleven jurors said they could not reach a verdict. Given the depth of this division and the resultant threat it posed to an impartial verdict, the trial judge acted within the confines of his discretion, manifest necessity, and the ends of public justice in declaring a mistrial.

[¶ 27] We affirm Linghor’s conviction.

[¶ 28] CAROL RONNING KAPSNER, DALE V. SANDSTROM and WILLIAM A. NEUMANN, JJ., concur.

I Concur in the Result.

Mary Muehlen Maring.


source: Caselaw Access Project

author: NEUMANN, Justice.

license: Public Domain

text:
    2004 ND 223
    STATE of North Dakota, Plaintiff and Appellee v. Charles JASTER, Defendant and Appellant.
    No. 20030355.
    Supreme Court of North Dakota.
    Dec. 14, 2004.

      Michel W. Stefonowicz, State’s Attorney, Crosby, N.D., for plaintiff and appellee.
    Tom P. Slorby, Slorby Law Office, Minot, N.D., for defendant and appellant.
   NEUMANN, Justice.

[¶ 1] Charles Jaster appealed from a criminal judgment entered on a jury verdict finding him guilty of reckless endangerment. We conclude that, although the district court abused its discretion in denying Jaster’s motion to excuse two jurors for cause, the error is not reversible error. We further conclude the district court did not abuse its discretion in its challenged evidentiary rulings, and its instructions to the jury adequately informed the jury of the applicable law. We affirm.

I

[¶ 2] Charles and Erika Jaster, although divorced, were living together in Crosby during November 2002. At approximately 1:30 a.m. on November 24, 2002, Erika went to the police department to report that she and Jaster had been involved in a physical altercation at their home. The chief of police, Lauren Thront-veit, saw that Erika was bruised and bleeding, and he called another police officer and the county sheriff for back-up. Throntveit telephoned Jaster at his residence and told him they needed to discuss the incident. Jaster eventually agreed to talk to the officers if they would come to his residence.

[¶ 3] When Throntveit and the other officers arrived at the residence, they went to the back door because the front door was weather-proofed shut. After Thront-veit knocked on the door, Jaster answered and stood in the doorway. Throntveit explained the domestic violence laws to him and told Jaster he was under arrest. Jaster slammed the door shut and locked it. The officers broke open the door and discovered Jaster holding a handgun. Throntveit testified the handgun was pointed directly at him. After a struggle, the officers removed the handgun from Jaster and arrested him. The handgun was functional and loaded.

[¶ 4] Jaster was charged with class C felony reckless endangerment. During his jury trial, Jaster testified that the officers interrupted his attempt to commit suicide and that he never pointed the handgun at them. The two officers who accompanied Throntveit testified they did not see Jaster point the handgun at himself during the encounter. The jury found Jaster guilty.

II

[¶ 5] On appeal, Jaster argues the district court erred in refusing to grant his motion to excuse two jurors for cause, erred in admitting hearsay testimony into evidence, and erred in instructing the jury on reckless endangerment.

A

[¶ 6] Jaster argues the district court erred in failing to grant his motion to excuse two jurors for cause.

[¶ 7] During voir dire, two jurors stated that the prosecutor was presently performing legal work for them on estates that had not been closed. Jaster challenged the two jurors for cause. The State did not oppose the challenge for cause, but the district court denied the motion, reasoning “[tjhere is an implied bias, but it is not one that is an automatic. I am not going to approve for cause, you can use your peremptories on those if you wish.” Jaster used a peremptory challenge to exclude one of the jurors. The other juror served as an alternate juror, but was released from service before the jury began its deliberations.

[¶ 8] We review a district court’s decision on whether to excuse a juror for cause under an abuse of discretion standard. State v. Schwab, 2003 ND 119, ¶ 16, 665 N.W.2d 52. A district court must excuse a juror if the court “is of the opinion that grounds for challenge for cause are present.” N.D.R.Crim.P. 24(b)(2). Section 28-14-06(3), N.D.C.C., provides that “[cjhallenges for cause may be taken on one or more of the following grounds ... [sjtanding in the relation of ... attorney and client ... with either party.” Section 29-17-36(2), N.D.C.C., similarly provides that “[a] challenge for implied bias of a juror may be taken for all or any of the following causes ... [t]he relationship of ... attorney and client.” We have said “[a]n attorney-client relationship is one of the exclusive ‘causes’ of an implied bias that warrants dismissal of a juror.” State v. Thompson, 552 N.W.2d 386, 388 (N.D.1996). In State v. Smaage, 547 N.W.2d 916, 919-20 (N.D.1996), this Court held that a district court did not abuse its discretion by denying an implied bias challenge to a juror where the record failed to show a prosecutor’s direct and current client relationship with the juror. However, the record in this case shows the prosecutor had a direct and current client relationship with the two challenged jurors. Contrary to the district court’s reasoning, this Court has ruled a challenge for cause must be granted if an implied bias has been established under N.D.C.C. § 29-17-36. See State v. Rummel, 326 N.W.2d 64, 67 (N.D.1982). We conclude the district court abused its discretion in failing to grant Jaster’s challenge for cause of these two jurors because of their current attorney-client relationship with the prosecutor.

[¶ 9] Although the district court erred, the error does not require reversal under the circumstances. First, it appears that Jaster exercised only five of his six peremptory challenges. See N.D.R.Crim.P. 24(b)(1) (providing each side is entitled to six peremptory challenges when a twelve-person jury is to be impaneled). A defendant must exhaust all peremptory challenges before objecting to the denial of a challenge for cause. See Thompson, 552 N.W.2d at 388; City of Bismarck v. Holden, 522 N.W.2d 471, 473 (N.D.1994). Second, in State v. Entzi, 2000 ND 148, ¶ 10, 615 N.W.2d 145, the defendant argued “the court refused to excuse two jurors for cause, and he ‘was forced to use two of his peremptory challenges to bump these biased jurors,’ thereby prejudicing his right to exercise peremptory challenges.” We explained:

In United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 777, 145 L.Ed.2d 792 (2000), the Supreme Court recognized peremptory challenges are not of constitutional dimension, but “are one means to achieve the constitutionally required end of an impartial jury,” and held “that if the defendant elects to cure” a trial court’s erroneous refusal to excuse a potential juror for cause, “by exercising a peremptory challenge, and is subsequently convicted by a jury on which no biased juror sat, he has not been deprived of any rule-based or constitutional right.” We hold a party’s right to exercise peremptory challenges is not violated if the party uses a peremptory challenge to exclude a juror the trial court refused to excuse for cause, and no biased jurors sit.

Id.

[¶ 10] Because Jaster used a peremptory challenge to exclude one of the jurors and the other juror was released as an alternate juror before the jury began its deliberations, no biased jurors sat on his case and Jaster has not been deprived of any rights. We conclude the district court’s error in failing to grant the challenge for cause is not reversible error.

B

[¶ 11] Jaster challenges the district court’s allowance of certain prosecution testimony, mainly on hearsay grounds. The district court allowed Throntveit to testify that Jaster cursed at him and threatened him while being transported from Crosby to the Williams County Jail in Williston. The court also allowed Thront-veit to testify that, before going to Jaster’s residence, Erika told him “there had been a fight between Mr. Jaster and his wife.” The court also allowed one of the other officers to testify that, before going to Jaster’s residence, he put on a bulletproof vest because “I was advised that he had guns in the house, and that he would shoot a police officer.”

[¶ 12] A district court has broad discretion in evidentiary matters, and we will not overturn a district court’s decision to admit or exclude evidence unless the court abused its discretion. State v. Wiest, 2001 ND 150, ¶ 9, 632 N.W.2d 812. The abuse of discretion standard therefore applies when reviewing a district court’s evi-dentiary rulings under the hearsay rule. State v. Stoppleworth, 2003 ND 137, ¶ 6, 667 N.W.2d 586. While N.D.R.Ev. 403 gives a district court the power to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, we have said this power should be sparingly exercised. State v. Klose, 2003 ND 39, ¶ 28, 657 N.W.2d 276. Under N.D.R.Ev. 403, a district court is vested with wide discretion to control the introduction of evidence at trial, and our review is limited to determining whether that discretion was abused. State v. Beciraj, 2003 ND 173, ¶ 27, 671 N.W.2d 250. A district court abuses its discretion only when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law. Stoppleworth, at ¶ 6.

[¶ 13] Generally, hearsay evidence is inadmissible. N.D.R.Ev. 802. Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.D.R.Ev. 801(c). Under N.D.R.Ev. 803(3), a “statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health)” is “not excluded by the hearsay rule, even though the declarant is available as a witness.” Thus, a statement is not excluded as hearsay if it is offered to establish the declarant’s state of mind. State v. Faul, 300 N.W.2d 827, 832-33 (N.D.1980).

[¶ 14] Throntveit’s testimony about Jaster cursing at him and threatening him while Jaster was being transported to jail obviously was not offered to prove his character in violation of N.D.R.Ev. 404(b), but was offered to show Jaster’s state of mind. We have recognized that evidence of threatening statements are relevant to a defendant’s state of mind. See State v. Hart, 1997 ND 188, ¶ 20, 569 N.W.2d 451. Jaster claimed he was attempting to commit suicide and did not point the handgun at law enforcement officers, and these statements to Thront-veit were certainly relevant to dispute that claim as to his state of mind. Testimony about Jaster’s cursing and threats was admissible under Rule 803(3), and the district court did not abuse its discretion in admitting this evidence.

[¶ 15] Throntveit’s testimony that Erika told him there had been a domestic dispute and the other officer’s testimony that he put on a bulletproof vest because he had been advised Jaster had guns in the house and would shoot a police officer also are not hearsay under the circumstances. A statement that is not offered to prove the truth of the matter asserted is not hearsay. State v. Kelly, 2001 ND 135, ¶ 22, 631 N.W.2d 167. The State was not attempting to establish that a fight had occurred or that Jaster had weapons at his residence and would shoot a police officer, but offered the evidence to establish and explain the law enforcement officers’ presence at Jaster’s residence and the reason they took precautionary measures during the investigation. See State v. Schimetz, 328 N.W.2d 808, 814 (N.D.1982) (holding deputy sheriffs testimony that he had been told person was stabbed was not hearsay when statement was of fered to establish and explain the deputy sheriffs presence and investigation of the accident). We cannot say the district court erroneously found the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice, and we conclude the district court did not abuse its discretion in admitting this testimony.

C

[¶ 16] Jaster argues the district court erred in instructing the jury on the elements of reckless endangerment.

[¶ 17] On appeal, jury instructions are fully reviewable. State v. Wilson, 2004 ND 51, ¶ 11, 676 N.W.2d 98. Jury instructions must correctly and adequately inform the jury of the applicable law and must not mislead or confuse the jury. State v. Jahner, 2003 ND 36, ¶ 13, 657 N.W.2d 266. We review jury instructions as a whole to determine whether they adequately and correctly inform the jury of the applicable law, even though part of the instruction standing alone may be insufficient or erroneous. State v. Barth, 2001 ND 201, ¶ 12, 637 N.W.2d 369. It is well settled that if the instructions to the jury, when considered in their entirety, correctly advise the jury about the applicable law, there is no error even though the district court refused to submit a requested instruction which itself was a correct statement of the law. State v. Hammeren, 2003 ND 6, ¶ 13, 655 N.W.2d 707. We will reverse only if the instructions, as a whole, are erroneous, relate to a central subject in the case, and affect a substantial right of the accused. Wilson, at ¶ 11.

[¶ 18] Reckless endangerment is proscribed by N.D.C.C. § 12.1-17-03, which provides:

A person is guilty of an offense if he creates a substantial risk of serious bodily injury or death to another. The offense is a class C felony if the circumstances manifest his extreme indifference to the value of human life. Otherwise it is a class A misdemeanor. There is risk within the meaning of this section if the potential for harm exists, whether or not a particular person’s safety is actually jeopardized.

[¶ 19] The district court based the instruction on NDJI-Criminal K-8.20 (1990), and instructed the jury:

RECKLESS ENDANGERMENT
(Under Circumstances Manifesting Extreme Indifference to Value of Human Life)
A person who creates a substantial risk of serious bodily injury or death to another human being under circumstances manifesting extreme indifference to the value of human life is guilty of Reckless Endangerment. There is risk if the potential for harm exists, whether or not a person’s safety is actually jeopardized.
ESSENTIAL ELEMENTS OF OFFENSE
The State’s burden of proof is satisfied only if the evidence shows, beyond a reasonable doubt, the following essential elements:
1. On or about November 24, 2002, in Divide County, North Dakota, the Defendant, Charles Jaster, created a substantial risk of serious bodily injury or death to a Crosby Police Officer;
2. The Defendant created the risk under circumstances manifesting his extreme indifference to the value of human life; and
3. That the Defendant engaged in the conduct recklessly.

[¶ 20] Jaster first argues the instruction is deficient with regard to the culpability requirement. Because N.D.C.C. § 12.1-17-08 does not specify any culpability, Jaster argues the culpability required is “willfully” under N.D.C.C. § 12.1-02-02(2). The district court rejected Jaster’s request to have the word “willfully” inserted after the word “risk” in the jury instruction.

[¶ 21] In State v. Hanson, 256 N.W.2d 364, 367 (N.D.1977), this Court held that the culpability required for reckless endangerment under N.D.C.C. § 12.1-17-03 is “recklessly.” The term “willfully” is defined in N.D.C.C. § 12.1-02-02(1)(e) as including the term “recklessly.” Inclusion of the term “willfully” in the instruction is therefore unnecessary and would likely result in misleading or confusing the jurors. The district court did not err in refusing to include the term “willfully” in the jury instruction.

[¶ 22] Jaster also argues that the term “particular,” which prefaces “person’s safety” in N.D.C.C. § 12.1-17-03, should have been included in the pattern jury instruction’s definition of reckless endangerment. Jaster requested that the word “particular” be included in the instruction, but the court refused.

[¶ 23] Section 12.1-17-03, N.D.C.C., states that “[t]here is risk within the meaning of this section if the potential for harm exists, whether or not a particular person’s safety is actually jeopardized.” In Hanson, 256 N.W.2d at 368, this Court concluded that in situations where a group of persons, not individually identified, is endangered the “State need not prove that any one ‘particular person’ ... was endangered,” but the State must prove “that one or more persons in the group were endangered.” Therefore, to convict a person of reckless endangerment the State must prove that at least one person was endangered or jeopardized by the defendant’s conduct, but the State need not identify the person or persons endangered or jeopardized. It is unclear why the term “particular” was omitted from the pattern jury instruction that was used in this case. The omission of the term “particular” could lead a jury to believe it is irrelevant whether a person’s safety is actually jeopardized or endangered. We conclude the omission of the word “particular” from the pattern jury instruction’s definition of reckless endangerment renders that part of the instruction erroneous.

[¶ 24] Even though this part of the instruction, standing alone, is erroneous, we believe the instruction as a whole adequately and correctly informed the jury of the applicable law. See Barth, 2001 ND 201, ¶ 12, 637 N.W.2d 369. The “ESSENTIAL ELEMENTS OF OFFENSE” part of the instruction made reference to a “particular person” by requiring the jury to find beyond a reasonable doubt that Jaster “created a substantial risk of serious bodily injury or death to a Crosby Police Officer.” Consequently, the jury nevertheless was required to find that at least one Crosby police officer was endangered or jeopardized. Under these circumstances, we conclude the instruction, although erroneous in part, adequately and correctly informed the jury of the applicable law.

Ill

[¶ 25] The criminal judgment is affirmed.

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


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

text:
    2004 ND 225
    John D. HUFF, M.D., Plaintiff and Appellant v. NORTH DAKOTA STATE BOARD OF MEDICAL EXAMINERS-INVESTIGATIVE PANEL B, Defendant and Appellee.
    No. 20040151.
    Supreme Court of North Dakota.
    Dec. 14, 2004.

      Ralph A. Vinje, Vinje Law Firm, Bismarck, N.D., for plaintiff and appellant.
    John M. Olson, Olson Cichy Bliss, Bismarck, N.D., for defendant and appellee.
   MARING, Justice.

[¶ 1] John D. Huff, M.D., appealed a district court order affirming a license suspension order of the North Dakota State Board of Medical Examiners (“Board”). Under the circumstances presented in this case, we conclude Huffs testimony established the requisite standard of care and his deviation from it. We affirm.

[¶ 2] The Board’s Investigative Panel B issued a complaint against Huff arising out of the administration of an Ishihara test, or “I-test,” to Shawn Anderson by a nurse and then by Huff. An Ishihara test is a test “for color vision deficiency that utilizes a series of pseudoisochromatic plates on which numbers or letters are printed in dots of primary colors surrounded by dots of other colors; the figures are discernible by individuals with normal col- or vision.” PDR Medical Dictionary at 1804 (2d ed.2000). The complaint alleged, in part:

Respondent has engaged in the performance of dishonorable, unethical, or unprofessional conduct likely to deceive, defraud or harm the public within the meaning of N.D.C.C. § 43-17-31(6), and/or Respondent engaged in gross negligence in the practice of medicine within the meaning of N.D.C.C. § 43-17-31(15), specifically:
A patient being examined for a trucker’s license had failed the Ishihara Test for color blindness which was administered by an LPN. Responded subsequently re-issued the test and proceeded to manually assist the patient by tracing out the numbers or symbols with the patient’s index finder. The Respondent further permitted the patient to keep both eyes open during the exam. Upon conclusion of the test, Respondent crossed out the failed results on the patient’s medical chart and deceptively wrote that the patient had passed the test once he had the exam explained to him. Respondent’s actions violated appropriate protocol for the Ishihara Test.

[¶ 3] After a hearing, an administrative law judge (“ALJ”) made the following recommended findings of fact, among others:

14. Huff said further the appropriate protocol for giving the I-test for someone with congenital color-blindness is to give the book of plates (exhibit 2B) to the patient, give the patient some instructions, and give them three seconds to identify the plates....
15. The I-test can also be used to evaluate someone with acquired color blindness. Huff said that when giving it to someone with this condition the key is to give them more time with each chart and to coach them. He said that in this circumstance the patient is allowed to trace the figures with a brush or a finger. He said when giving the I-test there needs to be adequate lighting.
24. Huff also said that Winter’s writing that Anderson had missed all of the plates except one of those plates he was shown (thirteen plates missed) was totally inconsistent with someone who had 20/20 vision, if the test is administered by a skilled individual.
25. Huff said that based on what he perceived to be Anderson’s problem he went ahead and tried to evaluate Anderson for being affected by toxic substances....
26. When Huff administered the I-test to Anderson he said [he] explained to Anderson that he could take as much time as he wanted on the test, that he could hold the book in any position he wanted, and that he could also take his finger and trace the numbers or images. Huff said he explained that and showed Anderson how to do it by taking his hand and showing him how to trace. Huff said that he followed Anderson through all of the plates, coaching him as he went through the book, reminding him to trace and to take his time to identify the charts. Huff said he actually helped Anderson trace one of the plates, the first plate in the I-test, by taking his finger and showing him how to trace the number and then told him to do the same on all of the other images, saying that if he could identify them without tracing that was fine, but if he could not, to take his finger and trace out the figure. Huff said that he would occasionally prompt Anderson on other figures, verbally reminding him that he could trace. Huff said that Anderson could see the image on plate number one, the one which Huff traced with him. Huff said that given enough time with verbal coaching and prompting him, Anderson could identify all of the images (numbers or patterns) on the other plates, some presenting more difficulty than others. Huff said he gave Anderson encouragement throughout the test.
27.At the conclusion of administering the I-test to Anderson, Huff wrote a note on Anderson’s chart, “was able to identify all the figures once he had the exam explained to him.” Then, Huff marked through the previous results for the I-test, the results listed on the chart by Winter....
29. At the hearing, Huff agreed that if the evidence showed that he had taken Anderson’s finger with his hand and traced the figures for each of the plates of the I-test found in the book, exhibit 2B, it would have been inappropriate for him to do so.
33. The rules of the I-test are rules for determining congenital color-blindness. Huff used the test for evaluation not in accordance with the I-test rules. Huff said there is no[] set of rules for use of the I-test as he used it. Huff said he relied on his training and experience.
37. Sandy Winter is an LPN at TRE. She is certified as an ophthalmic assistant and an optometrie assistant. She has experience over the years in giving the I-test and has been trained to do it....
38. Winter checked Anderson in at TRE on December 14, 2000.She gave him the I-test. She said that she explained the I-test to him and then with an occluder had him look one eye at a time at the book, at each of the plates in order. Exhibit 2B. Anderson correctly identified plate numbers 1 and 9 with either eye. She said that Anderson had difficulty with all of the other plates frequently saying that he could not see anything....
41. Marlene Johnson is a certified ophthalmic assistant and certified optician at TRE....
43. Johnson was with Huff when he began examining Anderson. She watched Huff examine Anderson and g[a]ve him some tests. She watched Huff give Anderson the I-test....
44. Johnson said that after Anderson told Huff that he could not see most of the figures, Huff helped Anderson by taking his hand and helping him physically trace the figures, encouraging him and coaching him as they went. Johnson said that Anderson did not trace any of the figures on his own. Even then, she said, Anderson was having trouble and several times said he couldn’t see the figures, but Huff encouraged him by saying, “can’t you feel the figure.” Again, Johnson said that Huff continually tried to help Anderson by physically helping him trace and by coaching and encouraging him.
47. After Johnson testified, Huff denied tracing with Anderson’s finger on more than one plate. Huff said that if the I-test would have been given with him holding Anderson’s finger and helping him trace on every figure of the I-test, that would be inappropriate, unprofessional, and gross negligence. Huff said he “can not image it being done.”
56. Anderson said that he had much difficulty with the first test given by Winter. He said that he had the same amount of difficulty taking the test given by Huff.
57. Anderson said that Huff assisted him at the beginning of the test. He said that Huff took his finger with Huffs hand and traced figures during the test, more than three times. He said that if he did any figures without physical assistance from Huff it was after a long while. He said that he could do the test after Huff showed .him by tracing with him.

[¶ 4] In analyzing the evidence, the ALJ found:

The ALJ chooses to believe the evidence of Anderson which was supported by the evidence of Johnson and Farris. There is no doubt, based on that evidence, that Huff did give the I-test to Anderson when he was dilated and that he actually helped Anderson with the I-test by taking Anderson’s finger with his hand and tracing the numbers and figures on the I-test with him. Huff traced with Anderson’s hand more than once, probably more than three times.
Huff crossed out Winter’s findings of the I-test she gave Anderson and then wrote that Anderson “was able to identify all the figures once he had the examination explained to him.” Exhibit 1.
Huff did not appropriately conduct the I-test. Huff deceptively wrote that Anderson was able to identify all the figures of the I-test, implying that he passed the test. In fact, when Huff initially wrote a note to Dr. Andrzejew-ski he implied the same. Exhibit 1, page 4. When Huff later wrote to Dr. Andrzejewski about Anderson he specifically said that “once the patient had the test explained to him he was able to identify all of the plats [sic] with no difficulty ... [m]y impression is a normal color test, a normal eye exam and an excellent candidate for his truck-driving license.” Exhibit 1, page 3.
The evidence shows, by the greater weight of the evidence, that Huffs actions in crossing out Winter’s failed I-test results on Anderson’s medical chart, writing something different, and then, in effect, writing to Dr. Andrzejewski that Anderson had passed the I-test, under the circumstances, is dishonorable, unethical and unprofessional conduct likely to deceive, defraud or harm the public, and further, was gross negligence. Huff acknowledged that if he did what is alleged he did violate the law as alleged. The evidence shows he did what was alleged. In the face of two contrary witnesses, Huff continues to deny that he actually held Anderson’s finger with his hand and helped him to trace figures on the I-test. Huff is not to be believed.

The ALJ concluded, among other things:

2. The evidence shows, by the greater weight of the evidence, that Huff violated the provisions of N.D.C.C. § 43-17-31(15) and ([]6) by his actions on December 14, 2000, in that he inappropriately aided a patient on the Ishi-hara Test, crossed out a nurse[’]s recording showing the patient failed the test, wrote a statement on the patient’s record indicating that the patient had passed the test, and wrote to another physician indicating that the patient had passed the test, identifying all of the plates, when the patient did not identify all of the plates except with help by Huff that was inappropriate. Such actions were dishonorable, unethical, and unprofessional and likely to deceive, defraud, or harm the public, in violation of N.D.C.C. § 43-17-31 ([]6), and were gross negligence in the practice of medicine within the meaning of N.D.C.C. § 43-17-31(15).

[¶ 5] The ALJ recommended an order suspending Huffs license. The Board adopted the ALJ’s recommended findings, conclusions and order, entering the following order:

Dr. John D. Huffs license to practice medicine in North Dakota is suspended for one year, but none of the suspension shall be actually invoked at this time provided that Dr. Huff, within one year from the date of this order, pay to the Board a $2,000 fine under such terms and conditions as the Board shall specify by separate letter; attend an ethics course of the Board’s choosing as the Board shall specify by separate letter; and pay to the Board the sum of the actual costs, including reasonable attorney’s fees, incurred by the Board and Investigative Panel B in the investigation and prosecution of the case, under terms and conditions as the Board shall specify by separate letter.

[¶ 6] Huff appealed to the district court, which affirmed the Board’s order. The dispositive issue is whether or not expert testimony was necessary about the required standard of care and whether or not Huff deviated from that standard.

II

[¶ 7] Section 43-17-03, N.D.C.C., requires the governor to appoint a state board of medical examiners consisting of eight doctors of medicine, a doctor of osteopathy, and two public members, who “must ... [n]ot be affiliated with any group or profession that provides or regulates health care in any form.” Section 43-17-30.1 authorizes the Board to take disciplinary action against a licensed physician. Section 43-17-31, N.D.C.C., provides, in part:

Disciplinary action may be imposed against a physician upon any of the following grounds:
6.The performance of any dishonorable, unethical, or unprofessional conduct likely to deceive, defraud, or harm the public.
15. Gross negligence in the practice of medicine.

[¶ 8] Administrative agency decisions are subject to limited judicial review. See, e.g., Elshaug v. Workforce Safety & Ins., 2003 ND 177, ¶ 12, 671 N.W.2d 784:

Under N.D.C.C. §§ 28-32-46 and 28-32-49, the district court, and this Court on further appeal, must affirm an administrative agency decision unless one of the following is present:
1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8.The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

On appeal from an administrative agency decision, we do not substitute our judgment for that of the agency or make independent findings, determining only if a reasoning mind reasonably could have concluded the findings were supported by the weight of the evidence in the entire record, and deferring to the hearing officer’s opportunity to judge the credibility of witnesses. Aamodt v. North Dakota Dep’t of Transp., 2004 ND 134, ¶ 12, 682 N.W.2d 308. An agency’s decisions on questions of law are fully reviewable. Linser v. Office of Attorney General, 2003 ND 195, ¶ 6, 672 N.W.2d 643.

[¶ 9] Huff contends that when a professional’s license is at stake, expert testimony is necessary on the applicable standard of professional conduct and on the issue of whether that standard was met. “Disciplinary proceedings differ significantly ... from civil legal malpractice actions.” In re Disciplinary Action Against McKechnie, 2003 ND 22, ¶ 16, 656 N.W.2d 661. We believe there are also significant differences between physician disciplinary proceedings and medical malpractice actions. In the context of lawyers, disciplinary proceedings deal with minimum levels of conduct and, in large part, the rules themselves set the standard of “conduct” while an action for malpractice deals with the reasonableness of a lawyer’s conduct under particular circumstances. Id. Under N.D.C.C. § 43-17-31, however, physician disciplinary proceedings can be based on both types of conduct.

[¶ 10] We recognize the propriety of expert testimony in physician disciplinary proceedings and its necessity in cases involving standards of physician conduct. A majority of the jurisdictions that have addressed the subject require expert testimony when a physician’s license is at stake. See cases collected in Martin v. Sizemore, 78 S.W.3d 249, 271 n. 12 (Tenn.Ct.App.2001); and James J. Watson, Annotation, Necessity of Expert Evidence in Proceeding for Revocation or Suspension of License of Physician, Surgeon, or Dentist, 74 A.L.R.4th 969 (1989).

[Competent expert testimony must be introduced if the issues in the administrative proceeding require establishing the applicable standards of professional conduct and determining whether particular conduct fell below these standards. Requiring the introduction of expert testimony in cases of this sort protects the fairness of the contested case proceedings, the integrity of the administrative record, and the right to meaningful judicial review of administrative decisions.

Sizemore, 78 S.W.3d at 271 (citation omitted). The Sizemore court posited four reasons for requiring expert testimony in such cases: “First, persons facing the loss or suspension of their professional license in a contested case proceeding have the right to confront, cross-examine, and rebut the evidence against them,” id. at 269; “Second, an administrative agency’s fact-finding must be limited to evidence properly included in the administrative record,” id. at 270; “Third, many administrative boards and agencies are no longer comprised solely of persons with expertise in the regulated field or profession” and expert testimony is necessary “to enable the board members lacking expertise in the profession at issue to perform their adjudicatory responsibilities,” id.; and “Finally, permitting board members to substitute their own expert opinions for necessary expert.testimony undermines the ability of reviewing courts to determine whether the agency’s decision is based on substantial and material evidence,” id. at 271.

[¶ 11] The Board asserts that expert testimony is not necessary, relying on Ferguson v. Hamrick, 388 So.2d 981, 983 (Ala.1980) (no prohibition against board members relying on their expertise where the legislature had not required expert testimony and had vested authority to judge professional conduct in a body wholly composed of medical experts); Croft v. Arizona State Bd. of Dental Exam’rs, 157 Ariz. 203, 755 P.2d 1191, 1198 (Ct.App.1988) (expert testimony not necessary in a disciplinary proceeding when a majority of the Board and its investigative members were licensed dentists “familiar with the standard of care required”); Jutkowitz v. Department of Health Servs., 220 Conn. 86, 596 A.2d 374, 387-88 (1991) (“expert testimony is necessary in a licensing matter unless the board that hears and decides a case is composed of at least a majority of experts in the field”); Little v. North Carolina State Bd. of Dental Exam’rs, 64 N.C.App. 67, 306 S.E.2d 534, 539 (1983) (a board composed of licensed dental professionals is qualified within itself to judge whether a dentist met the required standard of proficiency); and Davidson v. State, 33 Wash.App. 783, 657 P.2d 810, 812 (1983) (expert testimony subject to cross-examination is not .necessary before a disciplinary board “almost exclusively composed of experts in the chiropractic field” and “[c]consequently ... entitled to rely on its own specialized knowledge”). The Board also contends that, even if expert testimony is ordinarily required, it was not necessary in this instance because expert testimony would not have been helpful, the conduct was so egregious expert testimony was unnecessary or fell under an “egregious blunder” exception, or the requisite expert testimony was provided by Huff.

[¶ 12] Like the court in Balian v. Board of Licensure in Med., 722 A.2d 364, 369 (Me.1999), we agree that if an act is blatantly illegal or improper, or if a licensee admits to a violation, a disciplinary board need not introduce expert evidence to establish the necessary standard. However, in a physician disciplinary proceeding before a board like this one, having some members who are not medical experts and physician members who are medical professionals but may not be experts in the field of medicine practiced by the physician appearing before them, we believe requiring expert testimony in a case in which such testimony would be helpful will best protect “the fairness of the contested case proceedings, the integrity of the administrative record, and the right to meaningful judicial review.” Martin v. Sizemore, 78 S.W.3d 249, 271 (Tenn.Ct.App.2001).

[¶ 13] Expert testimony was provided to the Board in the following colloquy between Huff, who is certified as an ophthalmologist, a physician who has specialized in the treatment of eye diseases, and the Board’s attorney:

MR. OLSON:
Now, I believe you already testified to the fact that if this test would have been given the way that Marlene Johnson described the way that you gave the Ishihara test, you concluded that that would be inappropriate, correct? The way Marlene Johnson described it.
DR. HUFF:
Me holding the patient’s finger ...
MR. OLSON:
Yes.
DR. HUFF:
... and guiding it?
MR. OLSON:
Yes.
DR. HUFF:
Yes, that’s inappropriate.
MR. OLSON:
And that would be unprofessional?
DR. HUFF:
Yes.
MR. OLSON:
And that would even be gross negligence, if you’re ah ...
DR. HUFF:
Well, I can’t imagine it being done.

[¶ 14] Huff asserts he “did not give Mr. Anderson the I-test in the manner described by Ms. Johnson.” “It is the agency’s responsibility to assess the credibility of witnesses and to resolve conflicts in the evidence.” Kraft v. State Bd. of Nursing, 2001 ND 131, ¶ 25, 631 N.W.2d 572. Determining the credibility of witnesses and the weight to be given their testimony is the exclusive province of the hearing officer. Torstenson v. Moore, 1997 ND 159, ¶ 8, 567 N.W.2d 622. The Board chose “to believe the evidence of Anderson which was supported by the evidence of Johnson and Farris,” and found “Huff is not to be believed.” There is evidence from which the Board could reasonably find that Huff did “give Mr. Anderson the I-test in the manner described by Ms. Johnson.” The Board found that “Huffs actions ... [were] dishonorable, unethical and unprofessional conduct likely to deceive, defraud or harm the public, and further, was gross negligence.” From our review of the record, we conclude a reasoning mind reasonably could have concluded that the Board’s findings were supported by the weight of the evidence in the entire record.

Ill

[¶ 15] Our conclusion that a reasoning mind reasonably could have concluded that the Board’s findings were supported by the weight of the evidence in the entire record renders resolution of Huffs other issues unnecessary. We need not address questions, the answers to which are unnecessary for the determination of an appeal. Olander Contracting Co. v. Gail Wachter Invs., 2002 ND 65, ¶ 48, 643 N.W.2d 29; Hospital Servs., Inc. v. Brooks, 229 N.W.2d 69, 71 (N.D.1975).

rv

[¶ 16] Affirmed.

[¶ 17] WILLIAM A. NEUMANN, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.

VANDE WALLE, Chief Justice,

concurring specially.

[¶ 18] I agree with the majority opinion that, absent a blatantly illegal or improper act on the part of the holder of a medical license, expert testimony the licensee has violated the standards of the profession is necessary in order to suspend or revoke that license. The majority opinion, relying on Martin v. Sizemore, 78 S.W.3d 249 (Tenn.Ct.App.2001), outlines well the reasons for that requirement.

[¶ 19] It is obvious from the record before us, that the State Board of Medical Examiners and its counsel at the administrative hearing believed no such expert testimony was necessary because the Board itself is the expert. But, as the majority opinion notes, not all members of the Board are physicians and those members who are physicians will not always be expert in the area of medicine at issue. Yet, employing another exception to the requirement of expert testimony, apparently from the decision in Balian v. Board of Licensure in Med., 722 A.2d 364 (Me.1999), the majority nevertheless affirms the decision of the agency based on Dr. Huffs own testimony admitting that his actions, if performed in the manner alleged, would be inappropriate and unprofessional. Huff, of course, denies he performed the test in the manner alleged.

[¶ 20] To the extent this case turns on the credibility of witnesses before the Board, I concur in the result reached by the majority opinion. Credibility is not an issue this Court decides on appeal. I am uncomfortable with the scant evidence of professional misconduct the attorney for the Board was able to wring from Huffs own lips. While I cannot conclude it was error on the part of the ALJ or the Board to rely on Huff as their expert witness, there is surely a certain irony in so doing, particularly when his credibility on other matters is rejected by the ALJ and by the Board. Nevertheless it is the evidence upon which the Administrative Law Judge relied and, in adopting the recommended findings of the ALJ, the evidence upon which I must assume the Board of Medical Examiners relied.

[¶ 21] I submit, however, that in the future it would be audacious for the Board to enter into these proceedings without the benefit of an expert witness, expecting to extract from the licensee the necessary expert testimony to sustain the charge of misconduct.

[¶ 22] Gerald W. Vande Walle, C.J.


author: KAPSNER, Justice.

text:
    2004 ND 227
    Elizabeth M. GIBB, f/k/a Elizabeth M. Sepe, Plaintiff and Appellee, v. Francis J. SEPE, Defendant and Appellant.
    No. 20040211.
    Supreme Court of North Dakota.
    Dec. 17, 2004.

      Wayne T. Anderson, Fargo, ND, for plaintiff and appellee.
    Maureen Holman, Serkland Law Firm, Fargo, ND, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Francis Sepe appeals from the district court's denial of his motion to terminate his spousal support obligation and award of attorney fees to Elizabeth Gibb (f/k/a Elizabeth Sepe). We affirm the denial of the motion to terminate spousal support and reverse the award of attorney fees.

I.

[¶ 2] Sepe and Gibb were married in 1976 and divorced in 1996. They have two children, both of whom have reached the age of majority. At the time of the divorce Gibb worked as a learning disabilities specialist at North Dakota State University and earned approximately $17,542 annually. Sepe was a physician with the Fargo Clinic and earned approximately $213,341 annually. They led a fairly conservative lifestyle, owning a home worth $145,000, driving older vehicles, and seldom taking vacations.

[¶ 3] The parties stipulated the terms of their divorce in a Marital Termination Agreement. They agreed Sepe would pay Gibb spousal support of $1,000 per month until both children graduated from high school. At that time Sepe was to pay $3,000 per month until Gibb reached the age of 65 unless she had remarried. If Gibb remarried, support was to remain at $1,000 per month until she was 65. The agreement specifically stated spousal support would not terminate upon Gibb’s remarriage. The terms of the agreement were incorporated into the divorce judgment.

[¶ 4] Gibb remarried in 2000. It is undisputed that she and her current husband enjoy a comfortable lifestyle. Their 2002 income tax returns showed combined income of $528,815. Gibb drives a newer vehicle, lives in a larger home, and has taken numerous vacations with her husband. She continues to work at NDSU, but is now a part-time employee working 20 hours per week and earning around $20,000 annually. She also owns investment property with her husband; that property generated income of $259,884 in 2002.

[¶ 5] Sepe has also remarried since the divorce. He now drives newer vehicles and lives in a larger house. His income has increased and was $349,000 in 2003.

[¶ 6] Sepe filed a motion to terminate his spousal support obligation on December 21, 2003, arguing there was a material change in Gibb’s circumstances and spousal support was no longer necessary or proper. A hearing was held in front of Referee John Dietz on February 11, 2004. Referee Dietz denied Sepe’s motion to terminate his support and awarded Gibb attorney fees of $1,000. Judge Norman Backes reviewed the case and affirmed the referee’s decision. Sepe appealed.

II.

[¶ 7] A district court retains jurisdiction to modify a spousal support award as long as the award continues. Meyer v. Meyer, 2004 ND 89, ¶ 5, 679 N.W.2d 273. A spousal support award may be modified when there has been a material change in circumstances, and the party seeking modification bears the burden of proving such a change. Id. A material change is a change that substantially affects the parties’ financial abilities or needs and was not contemplated by the parties at the time of the initial decree. Id. A district court’s determination of whether there has been a material change is a finding of fact and will not be reversed on appeal unless it is clearly erroneous. Id. A finding is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or this Court, upon review of all the evidence, is left with a definite and firm conviction a mistake has been made. Id.

[¶ 8] The parties agreed on Gibb’s spousal support award at the time of their divorce. This Court encourages agreements between divorcing parties and has stated a stipulated support amount should be changed “with great reluctance by the trial court.” Meyer, 2004 ND 89, ¶ 8, 679 N.W.2d 273 (quoting Toni v. Toni, 2001 ND 193, ¶ 11, 636 N.W.2d 396). However, this Court has also recognized that even stipulated awards can be modified upon a showing of a material change in circumstances. Meyer, at ¶ 8. Sepe had the burden of proving a material change in circumstances justifying termination of his support obligation.

[¶ 9] Sepe argues a material change in Gibb’s circumstances occurred when she remarried a man with high income and assets. He does not claim the parties did not anticipate that she would remarry, but rather they did not expect her to remarry “so well.” He argues the parties did not expect she would remarry a man whose earning potential was as high as or higher than Sepe’s. The referee found: “[t]he Court finds that the parties clearly agreed that spousal support would continue after [Gibb] remarried. It was clearly anticipated that [Gibb] would remarry. The continuation of spousal support was not contingent upon whether [Gibb] married ‘well’ or ‘poorly.’ ” This contemplated change was taken into consideration by the district court when it adopted the parties’ stipulation and fashioned its original divorce decree.

[¶ 10] There is no doubt Gibb’s circumstances have improved as a result of her remarriage. She lives in a larger home, takes more vacations, and is the joint owner of a lucrative commercial property. However, her wages have increased only slightly, while Sepe’s have increased significantly. Much of Gibb’s lifestyle is supported by her current husband. Sepe has not met the burden of proving Gibb’s remarriage was an unanticipated change that substantially affected her financial abilities. He has not shown any decrease in his ability to pay. The district court’s decision to leave Sepe’s spousal support obligation in place was not clearly erroneous.

III.

[¶ 11] A district court has discretion to award attorney fees under N.D.C.C. § 14-05-23, and this Court will not overturn an award unless it finds the district court abused its discretion. Jorgenson v. Ratajczak, 1999 ND 65, ¶ 16, 592 N.W.2d 527 (quoting Bakes v. Bakes, 532 N.W.2d 666, 669 (N.D.1995)). A district court should consider the needs and abilities of the parties to pay when making an award of attorney fees. Id. A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner. Jorgenson, at ¶ 17.

[¶ 12] The referee awarded $1,000 in attorney fees to Gibb. Sepe argues this amount was not supported by the evidence, and Gibb should have been required to submit an affidavit showing how the fees were incurred. He further argues Gibb did not demonstrate her inability to pay her attorney fees. The referee did not make any findings of fact to support the award. The district court, without any findings on Gibb’s ability to pay, found the referee did not abuse his discretion.

[¶ 13] This Court has stated that when one party seeks attorney fees of more than a token amount, the request should be accompanied by an affidavit documenting the work performed. Jorgenson, 1999 ND 65, ¶ 26, 592 N.W.2d 527 (citing First Trust Co. v. Conway, 423 N.W.2d 795, 796-97 (N.D.1988)). Attorney fees of $1,000 is more than a token amount; Gibb should have submitted an affidavit stating the work performed by her attorney.

[¶ 14] Gibb also did not demonstrate an inability to pay her own attorney fees. “While her wage income is not substantial, she is the joint owner of a profitable commercial property. There is nothing in the record to indicate Gibb is unable to pay her attorney fees. Because no affidavit documenting work performed was submitted, no need shown, and no findings made explaining the basis for the award, we find the district court abused its discretion and we reverse the award of attorney fees.

IV.

[¶ 15] We hold the district court did not err in determining Sepe had not met his burden of proving a material change in circumstances such that his spousal support obligation should terminate, and affirm the denial of his motion to terminate spousal support. We further hold the district court abused its discretion in awarding Gibb attorney fees when no affidavit was submitted documenting Gibb’s need or the work performed and reverse the award of attorney fees.

[¶ 16] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., BRUCE A. ROMANICE, D.J., concur.

[¶ 17] The Honorable BRUCE A. ROMANICE, D.J., sitting in place of MARING, J., disqualified.