author: VANDE WALLE, Chief Justice.

text:
    2008 ND 68
    BRUCE J. WENZEL ESTATE, Plaintiff and Appellee v. Curtis WENZEL, Defendant and Appellant.
    No. 20070264.
    Supreme Court of North Dakota.
    April 17, 2008.

      Duane H. Schurman, Schurman Law Firm, Walhalla, ND, for plaintiff and ap-pellee.
    Neil W. Fleming (argued) and Lawrence D. DuBois (on brief), Fleming, DuBois & Fleming, PLLP, Cavalier, ND, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Curtis Wenzel appealed a district court judgment and amended judgment regarding assets he owned jointly with the Bruce J. Wenzel Estate (“Estate”). We reverse and remand for further proceedings in accordance with this opinion.

I.

[¶ 2] Curtis and Bruce Wenzel jointly owned land, buildings and machinery used for agricultural purposes. After Bruce Wenzel’s death in October 2004, Curtis Wenzel and the Estate could not agree on how to sell or partition the assets. Since 2005, Curtis Wenzel has used the farm machinery without paying rent to the Estate and has paid certain bills related to the assets. The Estate disputed several bills incurred by Wenzel, including bills for machinery repairs and manure cleaning.

[¶ 3] After a February 2007 bench trial, the district court divided the land and ordered Wenzel to buy out the Estate’s share of the farm machinery for the sum of $74,300. In reaching this amount, the district court gave Wenzel credit for one-half of certain bills he paid, but gave him no credit for a 2006 combine repair bill and only one-third credit for a 2006 manure cleaning bill. The Estate was awarded interest at the rate of six percent in lieu of Curtis Wenzel paying rent for his use of the machinery. The amended judgment differs from the original judgment only in that it contains an amended paragraph reflecting Curtis Wenzel’s failure to exercise an option to buy a particular tract of land from the Estate instead of being awarded less tillable acres.

II.

[¶ 4] Curtis Wenzel argues the district court erred as a matter of law in partitioning the farm machinery by ordering him to pay the Estate for one-half the value of the jointly owned machinery.

[¶ 5] A trial court’s findings in a partition action will not be reversed on appeal unless they are clearly erroneous. McKechnie v. Berg, 2003 ND 136, ¶ 11, 667 N.W.2d 628. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after reviewing all the evidence, we are left with a definite and firm conviction a mistake has been made. Id. Questions of law are fully reviewable on appeal. Kienzle v. Selensky, 2007 ND 167, ¶ 9, 740 N.W.2d 393.

[¶ 6] Section 32-16-01, N.D.C.C., provides that when several co-tenants hold and are in possession of “real or personal property as partners, joint tenants, or tenants in common” an action “may be brought by one or more of such persons for a partition thereof according to the respective rights of the persons interested therein and for a sale of such property or a part thereof, if it appears that a partition cannot be made without great prejudice to the owners.” The statute further provides that “[r]eal and personal property may be partitioned in the same action.” Id.

[¶ 7] Partition is an equitable remedy governed by equitable principles. McKechnie, at ¶ 11. Trial courts have “wide judicial discretion in partition actions to ‘do equity1 and to make a fair and just division of the property or proceeds between the parties,” and “great flexibility in fashioning appropriate relief for the parties.” Id. (citation omitted). While this Court has stated that forced sales are strongly disfavored, Schnell v. Schnell, 346 N.W.2d 713, 716 (N.D.1984), they remain an option. However, the parties have not cited, and we have not found, a case or statute in this jurisdiction or other jurisdictions that authorizes forced purchases by ordering one party to buy another party’s share of jointly owned property, absent a prior agreement to purchase. See, e.g., 59A Am.Jur.2d, Partition §§ 11, 181 (1987) (discussing the powers of courts in equitable remedies but not mentioning forced purchases).

[¶ 8] In support of the forced purchase, the Estate cites to N.D.C.C. § 32-16-41, which provides that when partition cannot be made equal between the parties without prejudice to the rights and interests of some of them, and a partition is ordered, “the court may adjudge compensation to be made by one party to another on account of the inequality....” The statute further provides that “[i]n all cases, the court has power to make compensatory adjustment between the respective parties according to the ordinary principles of equity.” Id. We do not equate the authority “to make compensatory adjustment between the respective parties” with the authority to require a party to purchase property the party does not wish to purchase when the remedy of a forced sale is available. The complexities of the remedy of a forced purchase are too great and we are unwilling to imply a power to require such a remedy without specific statutory authority akin to the existing statutory authority to require a forced sale.

[¶ 9] The only other authority cited by the Estate to support the notion of a forced purchase are statutes governing partnership law. The district court specifically found a partnership did not exist between Curtis and Bruce Wenzel. Furthermore, the statutes governing partnerships specifically provide for forced purchases in some instances. See, e.g., N.D.G.C. § 45-19-01.

[¶ 10] We conclude a trial court’s equitable powers in partition actions do not include the power to order one party to buy out the other party’s share of jointly owned property.

[¶ 11] We remand for the district court to determine whether the personal property can be partitioned without great prejudice to the parties, and if not, to order a sale of the machinery in its entirety. Although Curtis Wenzel argues he is entitled to partition-in-kind, that may not necessarily be without great prejudice in this case in light of the amount of time that has passed and Curtis Wenzel’s sole use of the machinery since 2005 without rent payments. On remand, the district court should also determine whether the Estate is entitled to interest or fair rental value as compensation for the period of time in which the machinery was used solely by Curtis Wenzel.

III.

[¶ 12] Curtis Wenzel also argues that the district court erred in denying him credit for a 2006 combine repair bill, in only allowing credit for one-third of a 2006 manure cleaning bill and in awarding him lesser-valued grain storage.

[¶ 13] After hearing the testimony, the district court found the machinery was used solely by Curtis Wenzel from 2005 to 2007, that part of the manure bill was for manure accumulated after Bruce Wenzel’s death in 2004 and that the manure was spread solely on Curtis Wenzel’s land. Counsel for Curtis Wenzel admitted that the district court likely took into account the location of the grain bins when, dividing the grain storage and the grain storage was divided equally based on bushels of storage. Further, the district court heard testimony regarding alleged damage to grain bins. The task of weighing the evidence and judging the credibility of witnesses belongs to the trier of fact, and we do not reweigh credibility nor resolve conflicts in the evidence. McKechnie v. Berg, at ¶ 19. The district court was not clearly erroneous in disallowing credit for the 2006 combine repair bill, in allowing credit for one-third of the manure bill and in its division of the grain storage.

[¶ 14] We reverse and remand for further proceedings in accordance with this opinion.

[¶ 15] DALE V. SANDSTROM, DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2008 ND 67
    Clifford and Ruth OYLOE, Appellants v. NORTH DAKOTA DEPARTMENT OF HUMAN SERVICES, Appellee.
    No. 20070251.
    Supreme Court of North Dakota.
    April 17, 2008.

      Damian J. Huettl, Larson, Latham and Huettl, Bismarck, N.D., for appellants.
    Jean R. Mullen, Office of Attorney General, Bismarck, N.D., for appellee.
   MARING, Justice.

[¶ 1] Clifford and Ruth Oyloe appeal from a judgment affirming a Department of Human Services decision denying their applications for Medicaid benefits because irrevocable trust assets exceeded Medicaid eligibility limits. We conclude the Department correctly determined that the trust proceeds from the sale of the Oyloes’ home were available assets to pay for their care, rendering the Oyloes ineligible for Medicaid benefits. We affirm.

I

[¶ 2] The parties stipulated to the facts. On March 26, 1993, the Oyloes established an irrevocable trust and transferred various real property interests into the trust, including their home in Williston. Steve L. Oyloe was appointed trustee. Under the general terms of the trust agreement, the Oyloes were designated the beneficiaries of the trust income during their lifetimes, and their children were designated the beneficiaries of the trust assets upon the deaths of the Oyloes. The Oyloes eventually became residents of the Bethel Lutheran Home in Williston.

[¶ 3] The trust gave the trustee discretion to sell the Oyloes’ home if the Oyloes no longer resided there under paragraph 2(b), which provides:

During the joint lifetime of the Grantors, if there ever comes a time when neither of the Grantors is living in the personal residence of the Grantors transferred into trust and it is unlikely to ever be occupied by them again, the Trustee has the option to sell said personal residence and immediately distribute the proceeds from the sale in accordance with the terms of paragraph l.(d) of this Agreement, subject only to the requirements of paragraph 4.

(Emphasis added.) The trust agreement, however, does not contain a “paragraph l.(d).”

[¶ 4] The parties stipulated:

The Oyloes intended for the Trustee to sell the home if neither Ruth nor Clifford resided in the home. The Oyloes further intended that, after the sale of the home, the Trustee shall distribute the sales proceeds to the residuary beneficiaries of the trust. The Oyloes’ attorney who assisted them with the drafting and establishment of the Trust inadvertently failed to change the dis-positive provision of section 2(b) of the Trust. Specifically, the attorney failed to change the reference in section 2(b) to “paragraph l.(d)” to read, “paragraph 2.(0.”

Paragraph “2.(c)” of the trust agreement provides for distribution of trust assets to residuary beneficiaries upon the Oyloes’ deaths and states:

Upon the death of the survivor of the Grantors, the Trustee shall divide the trust estate into as many equal shares as shall equal in number those of the children of the Grantors who shall be then living, and those of the children of the Grantors who shall have predeceased the surviving Grantor leaving issue then living. The Trustee shall pay over and distribute outright one such equal share to the issue of each such deceased child, by representation, and one such equal share to each such child who shall be living at the death of the surviving Grantor. If there be no such children or issue of the Grantors then living, to the persons who would be entitled to inherit the same in accordance with the laws of the State of North Dakota, then in force, as if the Grantors had then died intestate, a resident of the State of North Dakota, and owning such property.

[¶ 5] On September 28, 2006, the trustee sold the Oyloes’ home and the net sale proceeds of $122,498.90 were deposited into the trust account. The Oyloes applied for Medicaid, but their applications were denied because their home and its sale proceeds were considered countable assets which exceeded Medicaid eligibility limits. The Department did not take the position that the other trust assets were countable assets for Medicaid purposes. The Administrative Law Judge (“ALJ”) concluded the trust agreement was a Medicaid-qualifying trust because it failed to specify how the proceeds of the sale of the home were to be distributed before the Oyloes’ deaths, and consequently, under the reasoning of Allen v. Wessman, 542 N.W.2d 748 (N.D.1996), the home sale proceeds reverted to the Oyloes and remained available assets to pay for their care. The Department adopted the ALJ’s recommendations, and the district court affirmed the Department’s decision.

II

[¶ 6] On appeal, the Oyloes argue the Department erred in determining the home sale proceeds are countable assets in determining Medicaid eligibility because the terms of the trust provide for the sale proceeds to be distributed under the provisions of paragraph 2(c), which relate to distributions to residuary beneficiaries. In the alternative, they argue the Department erred in refusing to consider extrinsic evidence of their intentions for distribution of the home sale proceeds.

[¶ 7] Our standard of review of the Department’s decision is the same as the standard applied by the district court under N.D.C.C. § 28-32-46. Christofferson v. North Dakota Dep’t of Health, 2007 ND 199, ¶ 7, 742 N.W.2d 799. We will overturn the Department’s decision only if:

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.

N.D.C.C. § 28-32-46. On appeal we consider whether the agency’s findings of fact are supported by a preponderance of the evidence, whether the conclusions of law are sustained by the agency’s findings of fact, and whether the agency’s decision is supported by the conclusions of law. Christofferson, at ¶ 8. Questions of law are fully reviewable on an appeal from an administrative decision. Tedford v. Workforce Safety & Ins., 2007 ND 142, ¶ 7, 738 N.W.2d 29.

A

[¶ 8] “Medicaid is a cooperative federal-state program designed to furnish financial assistance to needy persons for their medically necessary care.” Kryzsko v. Ramsey County Soc. Servs., 2000 ND 43, ¶ 6, 607 N.W.2d 237. A person must lack sufficient assets to meet the cost of necessary medical care and services to be eligible for Medicaid benefits. Estate of Pladson v. Traill County Soc. Servs., 2005 ND 213, ¶ 10, 707 N.W.2d 473. North Dakota participates in the Medicaid program and the Department has adopted rules in N.D. Admin. Code ch. 75-02-02.1 to implement the program and to determine the conditions of eligibility for Medicaid benefits. Kryzsko, at ¶ 6. The Medicaid program is intended to be the payor of last resort, and an individual’s resources must be virtually exhausted before Medicaid will pay for care. Roberts v. North Dakota Dep’t of Human Servs., 2005 ND 50, ¶ 7, 692 N.W.2d 922. An applicant for Medicaid benefits has the burden of proving eligibility. Id.

[¶ 9] In Estate of Pladson, 2005 ND 213, ¶ 10, 707 N.W.2d 473, we explained: with possessory rights.” N.D. Admin. Code § 75-02-02.1-01(2). Although certain assets are exempt or excluded from consideration, see N.D. Admin. Code §§ 75-02-02.1-27 and 75-02-02.1-28, other assets that are “actually available” must be considered in determining the applicant’s eligibility for Medicaid. N.D. Admin. Code § 75-02-02.1-25(1); Estate of Gross v. North Dakota Dep’t of Human Servs., 2004 ND 190, ¶ 8, 687 N.W.2d 460. Assets are “actually avail- . able” under N.D. Admin. Code § 75-02-02.1-25(1) when the assets are at the disposal of the applicant, recipient, or responsible relative who has a legal interest in a liquidated sum and that person has the legal ability to make the sum available for support, maintenance, or medical care. Estate of Gross, at ¶ 8.

Under the Department’s rules for determining Medicaid eligibility, a one-person unit is eligible for Medicaid benefits if the total value of that person’s assets does not exceed $3,000. N.D. Admin. Code § 75 — 02—02.1—26(l)(a); Linser v. Office of Attorney General, 2003 ND 195, ¶ 7, 672 N.W.2d 643. An “asset” is defined as “any kind of property or property interest, whether real, personal, or mixed, whether liquid or illiquid, and whether or not presently vested

[¶ 10] A Medicaid-qualifying trust is considered an available asset for Medicaid eligibility purposes. See Allen, 542 N.W.2d at 754. The federal law in effect at the time the Oyloes established the trust defined a Medicaid-qualifying trust as “a trust, or similar legal device, established (other than by will) by an individual (or an individual’s spouse) under which the individual may be the beneficiary of all or part of the payments from the trust and the distribution of such payments is determined by one or more trustees who are permitted to exercise any discretion with respect to the distribution to the individual.” 42 U.S.C. § 1396a(k)(2) (1992); see also N.D. Admin. Code § 75-02-02.1-31(6)(a)(l). A trust that meets this definition is a Medicaid-qualifying trust “[wjhether or not the medicaid qualifying trust is irrevocable or is established for purposes other than to enable a grantor to qualify for medical assistance,” or “[wjhether or not the discretion described in paragraph (2) is actually exercised.” 42 U.S.C. § 1396a(k)(3) (1992); see also N.D. Admin. Code § 75-02-02.1-31(6)(c). This Court has noted “the statutory definition of a Medicaid qualifying trust in 42 U.S.C. § 1396a(k) (1992) ‘does not require that a trustee have unbridled discretion, but indicates that any discretion to distribute assets is sufficient.’ ” Allen, 542 N.W.2d at 752 (quoting Gulick v. Department of Health & Rehab. Servs., 615 So.2d 192, 196 (Fla.Ct.App.1993)).

[¶ 11] The Oyloes contend the trust is not a Medicaid-qualifying trust because under the terms of the trust agreement, the trustee has the option to either distribute the home sale proceeds in accordance with nonexistent paragraph 1(d) or hold them for distribution under the residuary beneficiary provision of paragraph 2(c), and because paragraph 1(d) does not exist, the trustee is obligated to hold the proceeds for the residuary beneficiaries of the trust until the Oyloes’ deaths. We reject the Oyloes’ argument because it does not comport with the actual language of the trust and conflicts with this Court’s precedent.

[¶ 12] Paragraph 2(b) of the trust agreement gives the trustee the option to sell the Oyloes’ personal residence and “immediately distribute the proceeds from the sale in accordance with the terms of paragraph l.(d).” (Emphasis added.) The trustee is given only an option to sell or to not sell the residence. If the trustee exercises the option to sell, the trust agreement does not grant the trustee another option to hold the sale proceeds until the Oyloes deaths and then distribute the proceeds to the residuary beneficiaries. The trustee’s retention of the sale proceeds for distribution to residuary beneficiaries under paragraph 2(c) would violate the requirement in paragraph 2(b) that the proceeds be “immediately” distributed.

[¶ 13] Although there is no provision in the trust agreement delineating who should receive immediate distribution of the proceeds, this Court’s decision in Allen, 542 N.W.2d 748, provides guidance. In Allen, 542 N.W.2d at 750, a trust gave the trustees the discretion to terminate the trust and distribute the principal and undistributed income “as described in paragraph 2 of this trust.” However, the set-tlor was still alive, and paragraph 2 “only direct[ed] how the trustees must distribute Trust income during Allen’s life and how all assets must be distributed after Allen’s death.” Id. at 753. The trust did “not direct how Trust assets must be distributed if the trustees exercise their discretion to terminate the Trust during Allen’s life.” Id. In concluding these circumstances resulted in the trust constituting a Medicaid-qualifying trust, this Court relied on well-settled trust principles:

If a trust fails and the settlor made no provision for distribution, the trustee must restore the trust property to the settlor. V William F. Fratcher, Scott on Trusts § 411 (1989). “The cases are so numerous and the rule so well settled that it is unnecessary to cite them.” Id. at n. 1 (citations to typical cases omitted). If a trust is terminated by exercise of a trustee’s discretion, and the settlor has not specified “who shall receive the trust property on the termination of the trust, the trustee will ordinarily hold the trust property upon a resulting trust for the settlor or his successors in interest.” IV William F. Fratcher, Scott on Trusts § 345.3, p. 555 (1989). Because Allen did not specify who should receive the Trust property if the trustees exercised their discretionary power to terminate the Trust during his life, they would then hold the property for Allen. Thus, applying 42 U.S.C. § 1396a(k)(l) (1992), all of the Trust assets are “deemed available” to Allen. Furthermore, applying 42 U.S.C. § 1396a(k)(3)(B) (1992), even if the trustees do not actually exercise their discretion to terminate the Trust during Allen’s lifetime, the Trust assets are “deemed available” to Allen.

Id.

[¶ 14] The circumstances surrounding the Oyloes’ trust resemble the situation in Allen. Although the trust in Allen was terminated and failed in its entirety, “[a] resulting trust [in favor of the settlor] arises not only where an intended trust fails altogether but also where it fails in part. Where the intended trust fails in part, there is a resulting trust of so much of the property as is not appropriated to the part of the trust that does not fail.” V William F. Fratcher, Scott on Trusts § 411.2, p. 30 (1989). See also Ronald Chester and George G. Bogert, The Law of Trusts and Trustees § 451, pp. 280-81 (3rd ed.2005) (resulting trust arises when express trust “fail[s] in whole or in part”); 76 Am.Jur.2d Trusts § 135, p. 191 (2005) (resulting trust may arise “where an express trust fails in whole or in part”). The partial failure of the trust in this case is not a distinguishing feature that renders the Allen principles inapplicable here. Nor do we perceive a substantive difference between the reference here to a nonexistent paragraph and the failure in Allen to provide for a contingency in the trust document.

[¶ 15] The trustee in this case was given the discretionary power to sell the Oy-loes’ personal residence and immediately distribute the proceeds from the sale. Because the distribution provision related to the sale of the personal residence failed, a resulting trust arose in favor of the Oyloes, and all proceeds from the sale reverted to the Oyloes. The result would not differ if the trustee had not exercised his discretion to sell the home. See Allen, 542 N.W.2d at 753. Under federal and state Medicaid law, those proceeds must be considered an asset available to the Oyloes for purposes of determining their eligibility for Medicaid benefits.

B

[¶ 16] The Oyloes contend the reference to a nonexistent paragraph renders the trust ambiguous and, therefore, the Department erred in failing to consider the undisputed extrinsic evidence of the Oyloes’ intentions in resolving the ambiguity.

[¶ 17] In Allen, 542 N.W.2d at 752-53, this Court rejected an identical contention:

Allen contends that the hearing officer and Department were required to consider extrinsic evidence about his intent and were bound by the county court’s findings interpreting the Trust. Allen urges that his intent to preserve the Trust assets for family members is not against public policy. On the other hand, the Department takes the position that extrinsic evidence and the county court decision are irrelevant and contrary to federal law for the Medicaid program.
The Department ruled that both Allen’s intent to preserve his assets for relatives and the county court’s construction of the Trust were irrelevant to Allen’s eligibility for Medicaid benefits. These rulings by the Department correctly applied the federal law. As Bleazard v. Utah Dep’t of Health, 861 P.2d 1048, 1050 (Utah App.1993), explained, “State Medicaid plans must comply with federal requirements, including those regarding eligibility.”
If [Allen’s] indicated intent is actually carried out, Allen will have transferred his considerable wealth to two cousins

and two nephews, and will have largely shifted the cost of his medical care to the public and taxpayers. This intent is against public policy.

Public policy will not allow the social safety net for persons who are old, poor, and unfortunate to be exploited by those who are affluent.

As in Allen, the Oyloes’ stated intention to have the sale proceeds distributed to their children conflicts with public policy, and we conclude the Department did not err in refusing to consider this extrinsic evidence.

[¶ 18] We conclude the Oyloes’ trust is a Medicaid-qualifying trust and the Department did not err in refusing their applications for benefits.

Ill

[¶ 19] We conclude the Department’s findings of fact are supported by a preponderance of the evidence, the conclusions of law are sustained by the findings of fact, and its decision is supported by the conclusions of law. The judgment upholding the Department’s decision is affirmed.

[¶ 20] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ. concur.


text:
    2008 ND 69
    STATE of North Dakota, Plaintiff and Appellee v. Jayson Glenn LOOMER, Defendant and Appellant.
    Nos. 20070235, 20070236, 20070237, 20070238, 20070239.
    Supreme Court of North Dakota.
    April 17, 2008.

      Fallon M. Kelly, State’s Attorney, Lisbon, ND, for plaintiff and appellee.
    Robin L. Olson, Olson Law Office, Grand Forks, ND, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Jayson Loomer appealed from judgments of conviction entered after he was found guilty of five counts of terrorizing and sentenced to two years imprisonment on each charge. We affirm the district court’s judgments and sentences.

I.

[¶ 2] In April 2006, Loomer was charged with seven counts of reckless endangerment after he fired a shotgun near teenagers in a school parking lot in Sheldon, North Dakota. The Complaints did not mention firearm use specifically but cited N.D.C.C. § 12.1-32-02.1 and Chapter 12.1-32 as penalty sections. Chapter 12.1-32, N.D.C.C., deals with penalties and sentencing and N.D.C.C. § 12.1-32-02.1 provides mandatory prison terms for armed offenders. In August 2006, Amended Complaints were issued changing the charges to seven counts of terrorizing in violation of N.D.C.C. § 12.1-17-04. The Amended Complaints cited N.D.C.C. § 12.1-32-02.1 and Chapter 12.1-32 as penalty sections but did not mention firearm use specifically.

[¶ 3] At an October 2007 preliminary hearing, the district court told Loomer the minimum mandatory sentence for each terrorizing charge was one year in prison. The day of the preliminary hearing, seven Informations were issued specifically for the offense of terrorizing, in violation of N.D.C.C. § 12.1-17-04. The Informations mentioned Loomer’s firearm use and cited “Penalty Section 12.1-32 of North Dakota Century Code.” Loomer was found guilty of five counts of terrorizing after a bench trial. Prior to sentencing, the district court notified Loomer that the correct minimum mandatory sentence for each charge was two years imprisonment. Loomer was sentenced to two years imprisonment on each charge, with the sentences to run concurrently.

II.

[¶ 4] Loomer argues he was denied due process when the district court incorrectly informed him of the minimum mandatory sentence. A court must inform a defendant of any mandatory minimum penalty before accepting a plea of guilty. N.D.R.Crim.P. 11(b)(1)(H). For a not guilty plea, the Rules of Criminal Procedure do not require specific notice of a mandatory minimum sentence. City of Fargo v. Bommersbach, 511 N.W.2d 563, 565 (N.D.1994). The district court was not required to advise Loomer of the minimum mandatory sentence because he was entering a plea of not guilty. Even if specific notice at an arraignment of a mandatory minimum sentence for a not guilty plea was required, noncompliance would not constitute reversible error absent prejudice to the defendant. Id. Loomer argues prejudice resulted because the district court likely would not have sentenced him to two years on each charge but for the two year mandatory minimum sentence. There is no evidence in the record to support this contention. Loomer does not argue that he would have defended his case differently or changed his plea had he known the correct mandatory minimum sentence. He has failed to show prejudice resulting from the district court’s erroneous statement at his preliminary hearing regarding the minimum mandatory sentence.

III.

[¶ 5] Loomer also argues he was denied due process because the Informations were substantially different from the Amended Complaints and the proper procedure was not followed to alter the Infor-mations.

[¶ 6] When deciding a due process claim, we consider whether a constitutionally protected property or liberty interest is at stake and, if so, whether minimum procedural due process requirements were met. Whitecalfe v. N.D. Dept. of Transp., 2007 ND 32, ¶ 20, 727 N.W.2d 779. Procedural due process is analyzed by applying a balancing test, considering three factors:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Id. (citation omitted). A defendant has a constitutionally protected right under the sixth amendment to be advised of the charges against him. See City of Grand Forks v. Mata, 517 N.W.2d 626, 628 (N.D.1994).

[¶ 7] The complaint is a written statement of the essential facts constituting the elements of the offense charged and is the initial charging document for all criminal offenses. N.D.R.Crim.P. 3(a). All felony prosecutions in the district court must be by indictment after grand jury inquiry or information after preliminary examination. N.D.R.Crim.P. 7(a)(1). An information must be a plain, concise, and definite written statement of the essential facts constituting the elements of the offense charged. N.D.R.Crim.P. 7(c)(1). When a felony is initially charged by complaint, the subsequent prosecution must be by indictment or information. N.D.R.Crim.P. 7, Explanatory Note. There is no requirement that an information duplicate a complaint. Rather, a complaint and information are separate documents.

IV.

[¶ 8] Loomer also argues the In-formations lacked proper allegations of firearm use, making the minimum mandatory sentence for armed offenders inapplicable to his ease.

[¶ 9] The Informations contained proper firearm allegations and the minimum mandatory sentence for armed offenders was correctly applied to this case. A mandatory minimum sentence will apply “when possession of a ... firearm has been charged and admitted or found to be true in the manner provided by law.” N.D.C.C. § 12.1-32-02.1. The district court found Loomer’s firearm possession to be proven after his bench trial so our analysis focuses on whether Loomer’s possession of a firearm was properly charged. The statement in the Informations that Loomer placed the victims in fear of their safety by “discharging a firearm in the immediate area of the victim in the City of Sheldon causing the victim to flee in fear of his life” was a sufficient charge of firearm possession under N.D.C.C. § 12.1-32-02.1. See State v. Meier, 447 N.W.2d 506, 510 (N.D.1989) (upholding an Information alleging use of a rifle even if the Information does not contain the specific language of N.D.C.C. § 12.1-32-02.1).

[¶ 10] Rule 7(c)(1), N.D.R.Crim.P., states, “For each count, the indictment or information must give the official or customary citation of the statute, rule, regulation, or other provision of law which the defendant is alleged to have violated.” The Informations cited the terrorizing statute, N.D.C.C. § 12.1-17-04. Section 12.1-32-02.1, N.D.C.C., a penalty provision, does not require that the statute be cited in an information. Because neither the statute nor the rule require the citation to the penalty statute, the citation to ch. 12.1-32 is mere surplusage and the failure to cite specifically to N.D.C.C. § 12.1-32-02.1 is not an error or omission in citation.

[¶ 11] Unless a defendant was prejudi-cially misled, neither an error in the citation nor its omission is a ground to dismiss the indictment or information or to reverse a conviction. N.D.R.Crim.P. 7(c)(2). Even if we were to hold there was an error in the citation or omission of a citation, which we do not, Loomer has nonetheless failed to demonstrate that he was prejudi-cially misled by the error or omission. The underlying charge in the Amended Complaints and Informations did not change. Loomer pled not guilty and exercised his right to a trial. The Complaints and Amended Complaints referenced N.D.C.C. § 12.1-32-02.1 and ch. 12.1-32. There was extensive questioning at the preliminary hearing regarding Loomer’s firearm use. The district court informed Loomer at the preliminary hearing that the State was making firearm allegations, stating “[T]hey do allege the discharge of a firearm so that would invoke a minimum penalty in these charges.” Finally, the Informations described Loomer’s firearm use. The record conclusively shows Loom-er had sufficient notice of the possible application of N.D.C.C. § 12.1-32-02.1 to his terrorizing charges and was not preju-dicially misled by the reference to N.D.C.C. ch. 12.1-32 instead of N.D.C.C. § 12.1-32-02.1.

[¶ 12] We affirm the district court’s judgments and sentences.

[¶ 13] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, DALE V. SANDSTROM and DANIEL J. CROTHERS, JJ., concur.


author: SANDSTROM, Justice.

text:
    2008 ND 72
    Suellen BATEMAN, Appellant v. CITY OF GRAND FORKS, Appellee.
    No. 20070217.
    Supreme Court of North Dakota.
    April 17, 2008.

      Beth Angus Baumstark (argued), and Derrick L. Braaten (appeared), Sarah Vo-gel Law Firm, P.C., Bismarck, N.D., for appellant.
    Howard D. Swanson, City Attorney, Grand Forks, N.D., for appellee.
   SANDSTROM, Justice.

[¶ 1] Suellen Bateman appeals from a district court judgment affirming a flood-control special assessment levied against her property. We conclude the district court did not err in concluding that the Special Assessment Commission did not abuse its discretion in apportioning the assessments and that the assessment on Bateman’s property was not arbitrary, capricious, or unreasonable. We affirm.

I

[¶ 2] In 1997, the city of Grand Forks suffered from a devastating flood, which caused millions of dollars in damage to private and public property. As a result, a massive permanent flood protection project was devised, which included flood levees, flood walls, tieback levees, pumping facilities, storm water improvements, retention ponds, gated pipes, outfall structures, and modification and extension of the English Coulee diversion channel. The goal of the project was to reduce direct flooding from the Red River of the North, to reduce backup flooding into the English Coulee from the Red River, to reduce flooding from the English Coulee, and to reduce overland flooding. Part of the financing for the project came from special assessments imposed on properties that benefit from the project. The assessments occurred in three rounds, with the first assessment in 2001, the second in 2003, and the third in 2006. The 2006 assessments were levied against property recently annexed to the city of Grand Forks within the special assessment district that had not previously been assessed.

[¶ 3] For all three rounds of assessments, the Special Assessment Commission calculated the benefits and special assessments using the effective front footage for residential properties and square footage for non-residential properties. The Special Assessment Commission found that 32 percent of the area of the city is residential in nature and 68 percent is nonresidential in nature. The Special Assessment Commission found the front footage formula reasonably approximates the usable space of residential properties and the square footage reasonably approximates the usable space of non-residential properties. The Special Assessment Commission considered other assessment methods, including assessments based on property elevation, property value, distance from the river, type or style of construction presently existing on a property, whether a property was currently in the one-hundred-year floodplain, whether a property had structures damaged in the 1997 flood, and square footage of existing buildings, but concluded those methods did not accurately quantify the benefit received from the enhanced flood protection. The Special Assessment Commission reduced the area assessed on undeveloped agricultural property by 30 percent because it concluded that would be the approximate area necessary to accommodate future platting of public right-of-way for streets, infrastructure, and utilities, and therefore should be excluded from the square footage calculation of benefit. The Special Assessment Commission also reduced cemetery assessments and the assessments on certain properties near or adjacent to the English Coulee because it concluded those properties receive a reduced benefit from the project.

[¶ 4] On June 19, 2006, the Grand Forks City Council approved the recommendation of the Special Assessment Commission to assess all newly annexed properties located within the assessment district. The Special Assessment Commission determined benefits and assessments for the newly annexed properties and created a list of the benefits and proposed assessments for each property. Notice of the proposed assessments and a public hearing to consider objections was published in the local newspaper on September 9 and 16, 2006.

[¶ 5] Bateman owns non-residential, agricultural land within the city limits of Grand Forks, west of Interstate 29, and within the boundaries of the city’s flood protection system. A portion of the property, consisting of approximately 1.28 acres, was annexed in 2003. Other portions of the property were already within city limits and had been assessed in 2001 and 2003 for the flood protection project. In August 2006, the Special Assessment Commission sent Bateman written notice that on the basis of the property’s area, the recently annexed portion of her property would be assessed $4,195.61 for the flood protection project. Bateman’s property received a 30 percent reduction in the area assessed because the property is undeveloped agricultural land. The property is in an area that was previously identified as a future assessment area for the flood protection project, but had not been assessed in 2001 or 2003 because it was not within the city limits.

[¶ 6] On September 27, 2006, the Special Assessment Commission held a public hearing to consider protests and objections. Bateman appeared at the hearing and protested the assessment, questioning why her property would be assessed since it is located four miles from the river and did not benefit from the flood protection project. The Special Assessment Commission rejected Bateman’s protest and approved the assessment without modification. Bateman received written notice that the Special Assessment Commission did not modify the proposed assessment and that she could protest the assessment at a City Council meeting on October 16, 2006. Notice of the confirmation of the special assessments was published in the newspaper.

[¶ 7] In October 2006, Bateman sent the City a written appeal objecting to the Special Assessment Commission’s actions. The City Council considered Bateman’s objections to the assessment at an October 16, 2006, City Council meeting, and Bate-man appeared at the meeting with her attorney to protest the assessment. Bate-man argued her property should not be assessed because her property does not receive a special benefit from the project, and she objected to the procedure the City used to annex and assess her property. The City Council denied Bateman’s protests and certified the assessment. On November 6, 2006, the City Council adopted written findings about Bateman’s protest.

[¶ 8] Bateman appealed the decision to the district court. The court ruled the City complied with state law by calculating the benefit each parcel of land receives; the Special Assessment Commission’s decision to specially assess Bateman’s land was not arbitrary, capricious, or unreasonable, because the property is especially benefit-ted by the project; and Bateman failed to demonstrate the Special Assessment Commission acted arbitrarily, capriciously, or unreasonably in apportioning the special assessments. The court affirmed the City Council’s decision and entered judgment for the City.

[¶ 9] The district court had subject matter jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 40-26-01. The plaintiffs appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01 and 40-26-01.

II

[¶ 10] This Court’s review of a decision about special assessments is limited partially because of the separation of powers doctrine:

The special assessment commission is in essence a legislative tribunal created by legislative authority to “(1) determin[e] the benefits accruing to the several tracts of land in an improvement district by reason of the construction of an improvement and (2) assess[] the costs and expenses thereof against each tract in proportion to the benefit received.” Accordingly, judicial review is limited to assuring that local taxing authorities do not act arbitrarily, capriciously, or unreasonably. Courts are not to act as a super grievance board, and we do not try special assessment cases anew or reweigh the evidence. Rather, we begin with the presumption that assessments for local improvements are valid, and the burden is on the party challenging the validity of the assessments to demonstrate they are invalid.

Serenko v. City of Wilton, 1999 ND 88, ¶ 20, 593 N.W.2d 368 (citations omitted).

[¶ 11] Section 40-23-07, N.D.C.C., provides the statutory requirements that must be followed in deciding benefits and apportioning assessments:

Whenever the commission makes any special assessment, the commission shall determine the particular lots and parcels of land which, in the opinion of the commission, will be especially benefited by the construction of the work for which the assessment is to be made. The commission shall determine the amount in which each of the lots and parcels of land will be especially benefited by the construction of the work for which such special assessment is to be made, and shall assess against each of such lots and parcels of land such sum, not exceeding the benefits, as shall be necessary to pay its just proportion of the total cost of such work, or of the part thereof which is to be paid by special assessment, including all expenses incurred in making such assessment and publishing necessary notices with reference thereto and the per diem of the commission.

This Court has said there are three requirements that must be met for a special assessment to conform to N.D.C.C. § 40-23-07:

“The special benefit accruing to each lot or parcel of land from the improvement must be determined. The special assessment levied against each lot must be limited to its just proportion of the total cost of the improvement. The assessment against any lot or parcel of land must not exceed the benefit which has been determined to have accrued thereto.”

Cloverdale Foods Co. v. City of Mandan, 364 N.W.2d 56, 61 (N.D.1985) (quoting Northern Pacific R.R. v. City of Grand Forks, 73 N.W.2d 348, 351 (N.D.1955)).

A

[¶ 12] Bateman argues the City acted arbitrarily, capriciously, and unreasonably in basing the cost of the assessment on the combined cost of the English Coulee Diversion and the construction of the dike. Relying on Cloverdale, 364 N.W.2d 56, she argues it is not necessarily improper to combine the two projects for purposes of creating a special assessment improvement district, but contends a property within the improvement district can only be assessed on the basis of the cost of the portion of the project from which it actually receives a benefit. Bateman claims her property does not receive a benefit from the construction of the dike along the Red River and the only benefit it does receive is from the diversion of the English Coulee. She claims the amount of her assessment would be less if she were assessed only for the English Coulee project, and the amount of her assessment far exceeds the minimal benefit she receives from the English Coulee project.

[¶ 13] In Cloverdale, 364 N.W.2d at 57, the city of Mandan created an improvement district for the purpose of constructing an interceptor sewer and improving the city’s waste-water lagoon facility. The interceptor sewer served only a portion of the city, but the waste-water lagoon facility treated water from the entire city. Id. at 58. The city created one improvement district, but each property within the district was assessed for each project separately depending on whether it received a benefit from only the waste-water lagoon or also from the interceptor sewer. Id. Cloverdale argued the special assessment commission acted arbitrarily and unreasonably in using an impermissible method to determine benefits and to apportion assessments for the improvements. Id. at 59. This Court upheld the assessments, concluding the method used to calculate benefits had a relationship to the improvements, Cloverdale received a special benefit from the improvements, Cloverdale’s assessment was justly proportional to the cost of the improvements, and Clover-dale’s assessment did not exceed the benefits it received. Id. at 62.

[¶ 14] While this Court affirmed the city of Mandan’s decision to split the cost of the two projects within the entire sewer improvement and to assess each property on the basis of the benefit it receives from each project, we did not say this was the only way a city could assess properties for an improvement involving more than one project. Here, multiple individual projects collectively form the overall flood protection improvement and are necessary to accomplish the overall goal of protecting the city from flooding. The effectiveness of the flood protection improvement would be reduced if any of the individual projects were not completed. The English Coulee Diversion is only one component of the overall flood protection project, and it is not a separate improvement that must be assessed separately. Moreover, multiple related projects may be included in a single improvement and the total cost of the improvement may be divided and assessed to all properties that receive a special benefit from the improvement, so long as the assessment is not more than the special benefit the property receives. See, e.g., Village of South Jacksonville v. Emberton, 52 Ill.App.2d 90, 201 N.E.2d 545, 547 (1964); Crampton v. City of Royal Oak, 362 Mich. 503, 108 N.W.2d 16, 20 (1961); Bisbee v. City of Fairmont, 593 N.W.2d 714, 719 (Minn.Ct.App.1999); Quality Homes, Inc. v. Village of New Brighton, 289 Minn. 274, 183 N.W.2d 555, 561-62 (1971). We conclude the Special Assessment Commission did not act arbitrarily, capriciously, or unreasonably in assessing properties within the improvement district on the basis of the total cost of the flood protection project.

B

[¶ 15] Bateman argues the City arbitrarily decided the benefits and apportioned the assessments for each property. She claims the City incorrectly found each square foot of property receives the same benefit from the improvements and, therefore, assessed each square foot of nonresidential property at the same rate. She claims it is arbitrary to conclude all nonresidential properties within the city benefit equally from the project and thus should be assessed equally, because properties closer to the river and those at lower elevations will receive greater benefits. She argues the City arbitrarily used the same rate for the assessment of all non-residential land without looking at the difference in the benefits received. Instead, Bateman asserts that to decide the benefits her land receives from the project, the City should have looked at whether the land was developed, how it is currently used, its distance from the river, and whether a prior requirement for flood insurance has been eliminated.

[¶ 16] A special assessment commission’s broad discretion includes choosing the method used to decide benefits and apportioning costs to individual properties. Serenko, 1999 ND 88, ¶ 21, 593 N.W.2d 368. The assessments levied against property must be limited to a “just proportion,” but “the process of quantifying benefits accruing to each lot inevitably rests on the judgment and discretion of the special assessment commission.” Haman v. City of Surrey, 418 N.W.2d 605, 608 (N.D.1988). There is no precise formula for quantifying benefits. Id. “[A]n ‘assessment may be apportioned according to frontage, area, value of, or estimated benefits to, the property assessed, or according to districts or zones, or on any other reasonable basis that is fair, just, and equitable.’ ” Serenko, at ¶ 21 (quoting Cloverdale, 364 N.W.2d at 61). The method used to apportion the assessment cannot be arbitrary and must have some relation to the benefits. Cloverdale, 364 N.W.2d at 61. A city may adopt any mode of apportionment that is fair and legal and would secure an assessment in proportion to the benefits accruing as nearly as practicable, if there is no statute prescribing the method to use. Id.‘[I]t is the total work product which was used in determining the final assessment which is important, rather than the exact method used in determining the assessment.’ ” Id. (quoting United Pub. Sch. Dist. No. 7 v. City of Burlington, 196 N.W.2d 65, 69 (N.D.1972)).

[¶ 17] Here, the Special Assessment Commission concluded that all property within the improvement district benefits from the flood protection project and that using the square footage of non-residential properties was the best method to apportion the assessments on the basis of the benefits each non-residential property receives from the flood protection project. We have upheld assessments based on square footage in the past. See Serenko, 1999 ND 88, ¶ 23, 593 N.W.2d 368. The Special Assessment Commission considered other methods to apportion the assessments but found those methods did not accurately quantify the amount of benefit each property receives from the enhanced flood protection. While the Special Assessment Commission assessed each square foot of non-residential property at the same rate, except agricultural property and cemeteries which receive reduced assessments, the Special Assessment Commission did not find all properties receive the same benefit. Rather, the assessments and benefits were based on the size of the property, and the Special Assessment Commission decided there was a relationship between the size of the property and the benefit it receives. The Special Assessment Commission has discretion to choose the method to decide benefits and apportion assessments, and it was not required to limit the assessments on the basis of a property’s current use and the benefits it currently receives from the improvement. See Haman, 418 N.W.2d at 608.

[¶ 18] We conclude the Special Assessment Commission properly exercised its discretion in choosing the method of assessment, the method used was not arbitrary, and substantial evidence supports the decision.

C

[¶ 19] Bateman claims the City acted arbitrarily, capriciously, and unreasonably in deciding the special benefits her property receives from the flood protection project. She contends her property does not receive any special benefits from the flood protection project, and therefore the assessment constitutes an unconstitutional taking.

[¶ 20] “ ‘[T]he process of quantifying benefits accruing to each lot inevitably rests on the judgment and discretion of the special assessment commission.’ ” Farmers Union Cent. Exch., Inc. v. Grand Forks County, 443 N.W.2d 907, 910 (N.D.1989) (quoting Haman, 418 N.W.2d at 608). The special assessment commission has the discretion to determine benefits and to apportion assessments, but that discretion is limited by the requirement that an assessment cannot exceed the benefits the land receives from the improvement. Cloverdale, 364 N.W.2d at 60. When an assessment exceeds the benefits to the property assessed, the excess is a taking of property without due process of law. Id. at 61.

[¶ 21] The City Council found the flood protection project provides many benefits, including: preserving and protecting life, property, public health, and public welfare through enhanced protection from flooding of the Red River, backup into the English Coulee, flooding of the English Coulee, and protection from overland flooding; enhancing storm water facilities; reducing costs and effects of cleanup following flood events; enhancing potential development; preventing damage to and the disruption of private commerce; preventing damage and disruption of public services, utilities, facilities, communications, transportation, law enforcement, fire protection, health, potable water, garbage collection, and sewer services; reducing the cost of temporary flood protection; reducing the number of homes required to carry flood insurance; and preventing flooding of undeveloped land, which increases the potential for development.

[¶ 22] While those are general benefits most of the City enjoys, including Bateman, the City Council also found the flood protection project would specifically benefit Bateman’s property because the English Coulee Diversion project will control, reduce, or eliminate damage from overland flooding, which will enhance and/or promote commercial development of the property and will reduce or eliminate overland flooding that may harm or destroy crops, affect the manner of timing of agricultural operations, and affect access to or from the property. The City Council found Bateman’s property is adjacent to newly developed non-residential developments and is in an area with great potential for commercial development in the near future. The City Council also found the benefits to Bateman’s property exceed the assessment, and the Special Assessment Commission found Bateman’s property receives benefits of $5,244.51 and assessed the property $4,195.61.

[¶ 23] In prior cases, this Court has said that whether a property benefits from an improvement does not depend only on the property’s present use; rather, possible future uses may also be considered:

“It is natural for the average property owner to resent the burden thus laid upon him, and he easily persuades himself that the thing for which he is asked to pay is a detriment, rather than a benefit, to his land, and ordinarily it is not difficult for him to find plenty of sympathizing neighbors who will unite in supporting his contention. Indeed, the benefits to be derived in such cases are ordinarily not instant upon the inception or completion of the improvement, but materialize with the developments of the future. They are none the less benefits because their full fruition is postponed, or because the present use to which the property is devoted is not of a character to be materially affected by the improvement.”

Haman, 418 N.W.2d at 608 (quoting Soo Line R.R. v. City of Wilton, 172 N.W.2d 74, 83 (N.D.1969)).

[¶ 24] Bateman’s property is in a developing area, and the City Council found there was great potential for future commercial development in the area. The City Council also found Bateman’s property receives immediate benefits from the flood protection project because the project will reduce or eliminate flooding that may affect or harm agricultural operations. There was evidence the property is in an area that has been prone to flooding in the past, but since the English Coulee Diversion has been in place, there have not been any flooding problems. While Bateman may plan to continue farming the land for the foreseeable future and the property may not currently utilize the full benefit of the flood protection, the evidence supports the City Council’s findings that Bateman’s property receives a special benefit from the flood protection project and that the benefits exceed the assessment.

D

[¶25] We conclude the special assessments conform to N.D.C.C. § 40-23-07, Bateman’s property receives a special benefit from the flood protection project, the assessment levied against Bateman’s property is limited to its just proportion of the total cost of the improvements, and the assessment does not exceed the special benefits Bateman’s property receives. Bateman has failed to meet her burden of showing the Special Assessment Commission acted arbitrarily, capriciously, or unreasonably.

Ill

[¶26] We conclude the special assessment against Bateman’s property was not arbitrary, capricious, or unreasonable, and we affirm the district court judgment.

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


author: CROTHERS, Justice.

text:
    2008 ND 70
    STATE of North Dakota, Plaintiff and Appellee v. Melissa Victoria GENDRON, Defendant and Appellant.
    No. 20070199.
    Supreme Court of North Dakota.
    April 17, 2008.

      Justin Jon Schwarz, Assistant State’s Attorney, Bismarck, ND, for plaintiff and appellee.
    Kent M. Morrow, Bismarck, ND, for defendant and appellant.
   CROTHERS, Justice.

[¶ 1] Melissa Gendron appeals the district court’s order requiring payment of $7,968.52 in restitution arising out of Gen-dron’s guilty plea to theft of property, a class C felony. Gendron argues the district court erred in determining the amount of restitution by not considering the value of merchandise she returned to the store. Gendron also claims the district court’s order results in double recovery because some of the stolen items were accounted for twice. We conclude the district court did not abuse its discretion when it determined the restitution amount, and the district court’s order is affirmed.

I

[¶ 2] On December 12, 2006, an assistant manager at Kohl’s department store in Bismarck received an anonymous phone call reporting a theft. The loss-prevention supervisor reviewed the store’s security tapes, which showed a cashier, Gendron, discounting merchandise without authorization and pretending to ring up merchandise without actually charging customers for the items. Gendron admitted to the theft when confronted by Kohl’s loss-prevention manager. Gendron handwrote and signed a statement acknowledging she allowed “people to receive free merchandise without them paying.” She stated she would “get as much of the merchandise back or will pay for any/all merchandise .... The final total of the shortages are [sic][$]7543.43. I am willing to pay it all [b]ack.” Gendron was taken into custody by law enforcement.

[¶ 3] Gendron pleaded guilty to theft of property on March 13, 2007. A restitution hearing was held on June 21, 2007, at which time the State requested Gendron pay Kohl’s $7,963.52. There is no formal accounting of the stolen items; instead, a series of documents generated by Kohl’s loss-prevention team was admitted into evidence. These documents consist of “journal roll entries] and receipts” from the cash register equipment and notes assembled by the team enumerating the stolen items. The staff at Kohl’s determined the value of the stolen merchandise by comparing the journal roll entries to the security tapes. Kohl’s contends Gendron perpetrated fifteen incidents of theft between November 28, 2006 and December 12, 2006. Notes on the journal roll entries indicate the value of merchandise that was improperly discounted and the value of merchandise that was given to customers without being scanned. The journal entry and receipt system offered by Kohl’s is not precise; some of the values are approximate. The total value of stolen merchandise documented by the journal roll entries and the employee observations of the security tape is $8,109.50.

[¶ 4] Gendron claims she returned much of the merchandise subsequent to the confrontation with the loss-prevention manager. A report authored by the loss-prevention supervisor indicates Gendron’s sister returned $222.40 worth of merchandise on December 15, 2006. Gendron testified that the day after her arrest, she returned approximately $100 worth of merchandise to a police detective. Gen-dron claims she also returned $2,696.33 worth of merchandise on or about December 20, 2006. According to Gendron, many of these items had price tags attached and were in perfect condition. She claims she arrived at the $2,696.33 total by adding up the prices listed on the price tags. Gen-dron also offered into evidence a compact disc containing pictures showing the purported condition of the merchandise when it was returned. At the hearing, Gendron argued the value of the returned merchandise should be deducted from the total amount of restitution. Gendron requested a deduction of an additional $2,093.66 because she disputes Kohl’s assessment of the journal roll entries. She claims several items were listed twice on the journal roll entries and were valued as two separate items. Thus, Gendron argued, Kohl’s recovered twice for the same item.

[¶ 5] Kohl’s contends much of the returned merchandise was not fit for sale because it was used, dirty or out of stock. A loss-prevention manager testified the police held the returned merchandise as evidence and, when it was finally returned to the store, the products were no longer “in [the] system” and therefore could not be sold. These items were returned to Kohl’s distribution center. The manager did not know whether the merchandise was ultimately sold or destroyed. Kohl’s contends only $145 worth of merchandise was saleable. In its restitution request, Kohl’s deducted $145 from the total value of stolen items.

[¶ 6] The district court ordered $7,963.52 in restitution consistent with Kohl’s request. The order does not indicate any factual findings or other underlying considerations for the restitution award. Gendron claims the district court abused its discretion by ordering that she pay $7,963.52 because the court did not act within the limits of N.D.C.C. § 12.1-32-08, which controls payment of restitution.

II

[¶ 7] Restitution orders will be affirmed unless the district court acted outside the limits set by statute, which is similar to an abuse of discretion standard. State v. Tupa, 2005 ND 25, ¶ 3, 691 N.W.2d 579. “A district court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law.” Id.

[¶ 8] Section 12.1-32-08(1), N.D.C.C., states, in pertinent part,

“1. Before imposing restitution or reparation as a sentence or condition of probation, the court shall hold a hearing on the matter with notice to the prosecuting attorney and to the defendant as to the nature and amount of restitution. The court, when sentencing a person adjudged guilty of criminal activities that have resulted in pecuniary damages, in addition to any other sentence the court may impose, shall' order that the defendant make restitution to the victim or other recipient as determined by the court, unless the court states on the record, based upon the criteria in this subsection, the reason it does not order restitution or orders only partial restitution.... In determining whether to order restitution, the court shall take into account:
“a. The reasonable damages sustained by the victim or victims of the criminal offense, which damages are limited to those directly related to the criminal offense and expenses actually incurred as a direct result of the defendant’s criminal action. ...
“b. The ability of the defendant to restore the fruits of the criminal action or to pay monetary reparations, or to otherwise take action to restore the victim’s property.”

(Emphasis added.) The State has the burden of proving the amount of restitution by a preponderance of the evidence. State v. Gill, 2004 ND 137, ¶ 7, 681 N.W.2d 832. Trial courts have a wide degree of discretion when determining restitution awards. Tupa, 2005 ND 25, ¶ 8, 691 N.W.2d 579. “Evidentiary imprecision on the amount of damages does not preclude recovery.” Keller v. Bolding, 2004 ND 80, ¶ 21, 678 N.W.2d 578. When the quantity of damages awarded “may be hard to prove, the amount of damages is to be left to the sound discretion of the finder of facts.” B.W.S. Invs. v. Midr-Am Restaurants, 459 N.W.2d 759, 764 (N.D.1990).

A

[¶ 9] Gendron argues the value of merchandise she returned should have been deducted from the restitution amount because the returned merchandise was in marketable condition. Evidence in the record bears out this contention, including the photographs of the returned merchandise. The photographs show many of the items in their original packaging with price tags attached. While merchandise that was unused but determined to be unmer-chantable because it was no longer “in [the] system” was returned to Kohl’s distribution center, no evidence indicated what ultimately happened to many of the items Gendron returned. Scott Miller, Kohl’s loss-prevention manager, testified about what may have happened to this merchandise.

“Q: You said when they’re damaged out where do they go?
“A: We send them out to the distribution center and take them off our system. They’re out of our system already.
“Q: I mean, do you sell them to like other stores like Kohl’s or-—
“A: No. I’m not—
“Q: Not Kohl’s, excuse me, like TJ Maxx, discount stores?
“A: I have no idea what happens to it once it leaves our store.
“Q: And you don’t know — do you know how much Kohl’s receives for those items? I mean, do you sell them?
“A: Well, we have to fill out a sheet where we put the price and then our price and we put zeros down, that’s all I know. So we get nothing.
“Q: Okay. But, I mean, you send them to someplace else and you get nothing in return for them?
“A: Exactly.
“Q: You said a distribution center, is that associated with Kohl’s?
“A: DC, yes.
“Q: And you don’t know what happens to them after?
“A: I have no idea.
“Court: Okay. You don’t know if they donate them or sell them? Do you?
“A: I don’t know.”

Based on this testimony, some of the items Gendron returned to Kohl’s may have been sold and may have provided at least some minimal salvage value. While the court could have considered a salvage value, we cannot say the district court abused its discretion by not doing so. The valuation of shoplifted merchandise that has later been recovered can be difficult to precisely determine. It is not uncommon for merchandise to sell for less than the amount listed on the price tag, and it is impossible to determine with certainty what merchandise would have sold for had it not been stolen. It is impractical to expect shoplifting victims to track recovered merchandise to determine the ultimate sale price. Given the difficulties inherent in calculating such measures of damages, the determination is “left to the sound discretion of the finder of facts.” See B.W.S. Invs., 459 N.W.2d at 764. The value of merchandise Gendron returned to Kohl’s was not completely excluded from consideration in the restitution award. Gendron was credited for $145 of saleable merchandise. The district court therefore did not act arbitrarily, unreasonably or unconscionably by failing to account for the value of merchandise returned but considered unmarketable by Kohl’s.

B

[¶ 10] Gendron also claims the restitution award reflects inaccuracies in Kohl’s accounting of the stolen merchandise. Gendron correctly points out that the journal roll entry and receipt system contains approximate values for merchandise. For example, documentation from one transaetion contains a note reading “approximately 5 items Passed [$]450.00.” For this transaction, there is no indication of what type of merchandise was stolen or how the loss-prevention team determined its value. Nonetheless, we cannot conclude the district court acted arbitrarily, unreasonably or unconscionably by allowing the restitution amount to be based partially on approximate values.

[¶ 11] Gendron also questions the accuracy of Kohl’s mathematical calculations. Gendron argues Kohl’s requested recovery for the difference between the retail price and the discounted price for items she discounted without authorization. She claims Kohl’s again requested recovery of the retail price of the exact same items and, thus, received double recovery. No evidence supports this argument.

Ill

[¶ 12] Under the applicable standard of review the district court did not act arbitrarily, unreasonably or unconscionably. Therefore the district court did not abuse its discretion when determining the amount of restitution, and the district court’s order is affirmed.

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


text:
    2008 ND 64
    CITY OF FARGO, Plaintiff and Appellee v. Glenn Richard LEVINE, Defendant and Appellant.
    No. 20070098.
    Supreme Court of North Dakota.
    April 17, 2008.

      Renata June Olafson Selzer (submitted on brief), Fargo City Prosecutor’s Office, Fargo, ND, for plaintiff and appellee.
    Steven M. Light (submitted on brief), Larivee & Light, Fargo, ND, for defendant and appellant.
   CROTHERS, Justice.

[¶ 1] Glenn Levine appeals the district court’s criminal judgment following his conditional guilty plea to the charge of driving under the influence under section 8-0310 of the Fargo Municipal Code. Levine argues the district court erred in denying Levine’s motion to compel disclosure of the source code of the Intoxilyzer device. We affirm, concluding Levine failed to show Fargo had possession, custody or control of the code.

I

[¶ 2] On April 26, 2006, Levine was stopped for speeding and for running a stop sign. The arresting officer noted an odor of alcohol and other indications of intoxication. The officer claims Levine admitted to having several drinks. After field sobriety and preliminary breath testing, Levine was arrested and charged with driving under the influence. Intoxilyzer results showed an alcohol concentration of 0.12 percent. As part of his defense, Levine moved to compel disclosure of the Intoxilyzer computer source code to verify the accuracy of the test results. A hearing on the motion was held October 17, 2006. At the hearing, Dr. Robert Howard, a chemist, testified on Levine’s behalf. Howard is the chief operating officer of Medscan Laboratory and Advanced Drug Testing, a company providing third-party drug and alcohol testing for employers. Howard has used Intoxilyzer machines in his work with Medscan and has professional experience designing source code. Howard testified the source code used in Intoxilyzer machines varies among jurisdictions and, when purchasing a machine, the buyer specifies certain types of programming. He concluded that without access to the source code of a particular machine, the defendant cannot accurately challenge the reliability of the test results.

[¶ 3] Levine argued to the district court that the source code is stored in the Intoxilyzer machines and contains the “commands for sequencing the operation [of the machine,] ... data entry questions, ... operational parameters and mathematical formulas” required for breath testing. Fargo argued the source code was not discoverable because it is not within the “eare[,] custody and control” of the City. After hearing these arguments, the district court denied the motion to compel disclosure.

[¶ 4] Levine appeals, claiming N.D.R.Crim.P. 16 requires disclosure of the source code because the rule is designed to provide the defendant access to incriminating evidence so he may better defend himself. He also argues he is entitled to the source code under the Sixth Amendment.

II

A

[¶ 5] We review discovery motions under the abuse of discretion standard. Guskjolen v. Guskjolen, 391 N.W.2d 639, 641 (N.D.1986). “A district court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably, when its decision is not the product of a rational mental process leading to a reasoned determination, or when it misinterprets or misapplies the law.” Leet v. City of Minot, 2006 ND 191, ¶ 7, 721 N.W.2d 398. “If a discovery violation is not of a constitutional magnitude, it is reversible error only upon a showing that the defendant has been denied substantial rights. No substantial rights are affected when the defendant was not significantly prejudiced by the discovery violation.” City of Grand Forks v. Ramstad, 2003 ND 41, ¶ 25, 658 N.W.2d 731 (internal citations omitted).

[¶ 6] Rule 16(a)(1)(D) and (E), N.D.R.Crim.P., states:

“Upon a defendant’s written request, the prosecuting attorney must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings, or places, or copies or portions of any of these items, if the item is within the prosecution’s possession, custody, or control, and:
(i) the item is material to preparing the defense;
(ii) the prosecution intends to use the item in its case-in-chief at trial; or
(iii) the item was obtained from or belongs to the defendant.”
“Upon a defendant’s written request, the prosecuting attorney must permit a defendant to inspect and to copy or photograph the results or reports of any physical or mental examinations, and of any scientific tests or experiments if:
(i) the item is within the prosecution’s possession, custody, or control;
(ii) the prosecuting attorney knows — or through due diligence could know — that the item exists; and
(iii) the item is material to preparing the defense or the prosecution intends to use the item in its case-in-chief at the trial.”

If a party fails to disclose evidence under this rule, the district court may order disclosure, grant a continuance, exclude the evidence, excuse the disclosure or “enter any other order that is just under the circumstances.” N.D.R.Crim.P. 16(d)(2).

[¶ 7] North Dakota adopted N.D.R.Crim.P. 16 from the Federal Rules of Criminal Procedure. State v. Ensminger, 542 N.W.2d 722, 723 (N.D.1996). No North Dakota cases explain the analytical framework for discovery in a criminal case when a party denies “possession, custody, or control” of evidence. “When a state rule is derived from a federal rule, we treat the federal interpretation of the rule as persuasive authority.” Id. Under the federal rule, like the North Dakota rule, a defendant making a Rule 16 request must show the evidence is material to his defense. See United States v. Little, 753 F.2d 1420, 1445 (9th Cir.1984); United States v. Cobb, 271 F.Supp. 159, 162 (D.N.Y.1967). “[E]vidence is material if there is a strong indication that it will play an important role in uncovering admissible evidence, aiding witness preparation ... or assisting impeachment or rebuttal.” United States v. Graham, 83 F.3d 1466, 1474 (D.C.Cir.1996) (quotations omitted). “Materiality is not established by a general description of the documents sought or by a conclusory argument that the requested information was material to the defense.” Little, 753 F.2d at 1445.

[¶ 8] Here, Levine attempted to establish materiality through testimony showing how the machine processes data and how it handles ambient interference. According to Levine the source code is necessary to his defense because the Intoxilyzer results depend heavily on these computations. The district court did not determine materiality; instead it concluded the dispositive question was whether the code was in Fargo’s possession, custody or control.

[¶ 9] Before discovery will be ordered, the defendant must make a prima facie showing that the requested evidence is within the possession, custody or control of the government. See N.D.R.Crim.P. 16(a)(1)(D) and (E); see also Fed. R.Crim.P. 16(a)(1)(E) and (F); United States v. Rosenberg, 10 F.R.D. 521, 523 (D.N.Y.1950) (requiring a showing in the defendant’s motion to compel that the Government had obtained documents). If the defendant makes a prima facie showing, the Government must disclose the evidence or, if the Government maintains the evidence is unavailable, it must make “every effort to account for their whereabouts and provide defendant with a written explanation for the same.” United States v. Konefal, 566 F.Supp. 698, 707-08 (D.N.Y.1983). In effect, the burden shifts to the Government to show the evidence is not in its possession, custody or control. United States v. Bailleaux, 685 F.2d 1105, 1113-14 (9th Cir.1982).

[¶ 10] Federal courts have applied this procedure not only to evidence alleged to be in the actual possession of the prosecution but also to evidence the prosecution could have obtained through reasonable diligence. Bailleaux, at 1113-14 (holding that after defendant’s prima facie showing, disclosure is required if the existence of the evidence “is known or could have become known to the attorney for the Government through the exercise of reasonable diligence”)- Our case law echoes this position: “Limiting application of Rule 16 to materials in the actual possession of the prosecution ‘unfairly allows the prosecution access to documents without making them available to the defense.’ ” Ramstad, 2003 ND 41, ¶ 19, 658 N.W.2d 731 (quoting United States v. Robertson, 634 F.Supp. 1020, 1025 (E.D.Cal.1986), aff'd, 815 F.2d 714 (9th Cir.1987)).

[¶ 11] Here, the district court concluded, “[t]his item is not in the possession, custody or control of the City of Fargo, [and] it will not be with any sort of diligence.” The district court’s conclusion here stands in contrast to In re Comm’r of Pub. Safety, 735 N.W.2d 706, 713 (Minn.2007), where the source code for operation of the Intoxilyzer 5000 was discoverable. The Minnesota district court ordered discovery from the state after concluding the state owned the source code. Id. at 709. The conclusion was based on evidence that the code was created exclusively for Minnesota and on an “ownership of copyright” provision in Minnesota’s contract documents with the manufacturer. Id. at 708-09.

[¶ 12] In our case, Levine offered no evidence that the Intoxilyzer software was created for Fargo or that Fargo owned the code. Nor did he provide evidence that Fargo was otherwise in possession or control of the computer code. In place of such evidence, Levine argued Fargo’s possession and control of the Intoxilyzer machine was sine qua non possession of the source code. We reject the argument, as apparently did the district court, given the lack of proof showing Fargo had possession, custody or control of the source code.

[¶ 13] Furthermore, the failure to produce the source code was not in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Brady instructs that a due process violation occurs when the prosecution suppresses evidence favorable to an accused “if the evidence is material to guilt or punishment.” State v. Muhle, 2007 ND 132, ¶ 25, 737 N.W.2d 647. A threshold requirement for Brady is that the government possess the evidence. See State v. Goulet, 1999 ND 80, ¶ 15, 593 N.W.2d 345. We determined above that the district court did not err by concluding the code was not in Fargo’s custody, possession or control for purposes of analysis under Rule 16. That conclusion also satisfies the Brady requirement with equal thrust.

[¶ 14] Levine failed to meet his prima facie burden of showing Fargo had possession, custody or control of the code. We therefore conclude the district court did not abuse its discretion by denying Levine’s discovery motion.

B

[¶ 15] Levine also argues the source code must be disclosed under the Sixth Amendment to the United States Constitution. Under the Sixth Amendment, a criminal defendant has the right to confront witnesses against him. City of Fargo v. Komad, 2006 ND 177, ¶ 5, 720 N.W.2d 619. The Sixth Amendment requires exclusion of testimonial statements of witnesses who fail to appear at trial unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

[¶ 16] Levine claims the Intoxilyzer should be treated as a witness and examination of the source code should be a prerequisite for admission of the device’s “testimony” or test results. This Court

has not determined whether reports generated by laboratory equipment are testimonial under Crawford. State v. Campbell, 2006 ND 168, ¶ 11, 719 N.W.2d 374. Even if the results were determined testimonial, N.D.C.C. § 39-20-07(5) designates the “director or an employee of the state crime laboratory” as the proper source of information about testing devices and methodology. While the machine may not be “cross-examined” directly, the defendant has the opportunity to cross-examine the “director or an employee of the state crime laboratory,” who has been designated to speak to the accuracy of the test results. See Berger v. State Highway Comm’r, 394 N.W.2d 678, 686 (N.D.1986) (stating accuracy of test results should be challenged by cross-examination of the State Toxicologist). Levine chose to plead guilty rather than to avail himself of the right to cross-examine the State Toxicologist. The requirement of confrontation under the Sixth Amendment has been satisfied. See Campbell, 2006 ND 168, ¶ 13, 719 N.W.2d 374.

Ill

[¶ 17] We affirm the district court’s judgment, concluding the district court did not abuse its discretion in denying Levine’s motion to compel disclosure of the source code because Levine failed to show Fargo had possession, custody or control of the code.

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


author: KONENKAMP, Justice.

text:
    2008 SD 22
    Roscoe PRIMEAUX, Petitioner and Appellant, v. Bob DOOLEY, Warden, Mike Durfee State Prison, Springfield, South Dakota, Respondent and Appellee.
    No. 24516.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 11, 2008.
    Decided March 19, 2008.
    Keith Goehring, Parkston, South Dakota, Attorney for petitioner and appellant.

      Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for respondent and appellee.
   KONENKAMP, Justice.

[¶ 1.] Petitioner was convicted by a jury in 1981 of second degree murder and two counts of aggravated assault. Over the next two decades, he filed several requests for writs of habeas corpus in both state and federal court. In this appeal on his second habeas petition in state court, petitioner argues that he was denied his constitutional right to have a jury composed of a fair cross section of the community. The habeas court denied petitioner’s request for relief, concluding that although there was some disparity it was not sufficient to violate his constitutional rights. He appeals, and we affirm.

Background

[¶ 2.] In December 1981, Roscoe Pri-meaux was convicted by a jury of second degree murder and two counts of aggravated assault. He was sentenced to life without the possibility of parole for the second degree murder conviction, four years in prison for the first aggravated assault conviction, and six years for the second. The four and six year sentences were to run concurrently with his life sentence. Primeaux appealed his convictions, and this Court affirmed. State v. Primeaux, 328 N.W.2d 256 (S.D.1982).

[¶ 3.] Primeaux then filed several re-, quests for writs of habeas corpus in federal and state courts. In 1984, he filed a petition in federal district court asserting that (1) his life sentence constituted cruel and unusual punishment, and (2) the South Dakota state court did not have jurisdiction to convict him. The petition was dismissed without prejudice because he had not yet asserted the issues in state court. In 1988, Primeaux filed another petition in federal court, but later requested that it be dismissed because he had not exhausted his state-court remedies. Later that same year, he filed a petition in state court claiming that his trial counsel was ineffective for various reasons. After the habeas court denied his petition, he appealed to this Court asserting that (1) his trial counsel was ineffective; (2) the habeas court erred when it did not appoint a psychologist for the habeas proceeding; and (3) the state court did not have jurisdiction over him. This Court reviewed his claims and denied habeas relief in Primeaux v. Leapley, 502 N.W.2d 265 (S.D.1993).

[¶ 4.] In 1994, Primeaux filed a petition in federal court advancing essentially the same issues asserted in his state-court petition. The federal district court denied his claims, and the Eighth Circuit Court of Appeals affirmed. Primeaux again challenged the state’s jurisdiction over him by filing another habeas petition in federal court in 1996. The petition was dismissed because all parties stipulated that the state had jurisdiction. In 2004, Primeaux filed another petition in federal court asserting, among other things, that his constitutional rights were violated because the jury that convicted him did not represent a fair cross section of the community and that one of the Native American jurors was excluded with a preemptory challenge on an improper basis under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The federal court denied his petition because he failed to comply with 28 USC 2244(b)(2) and (b)(3)(A), which required him to assert these claims in his previous federal habeas applications or provide an order from the court of appeals granting the federal district court permission to consider the successive application.

[¶ 5.] In 2005, Primeaux brought another habeas corpus action in state court. In his supplemental petition, he asserted that (1) his constitutional rights to an impartial jury were violated because the jury panel did not represent a fair cross section of the community; (2) his equal protection rights were violated because one juror was excluded solely on account of the juror’s race; and (3) he was denied his right to effective assistance of counsel when his trial attorney failed to object to the makeup of the jury panel and the exclusion of a juror because of that juror’s race. The State responded that Primeaux’s petition should be dismissed because (1) under SDCL 21-27-3.2, the State is prejudiced by the application being twenty-five years after the filing of the judgment and conviction; (2) res judicata and collateral estop-pel bar relief because Primeaux failed to raise these issues in his previous habeas petition; (3) Batson does not apply retroactively; and (4) SDCL 21-27-16.1 prohibits the filing of successive habeas petitions where there is no reasonable cause for the petitioner’s failure to raise the issues in a previous petition.

[¶ 6.] A hearing was held in November 2006. The habeas court examined whether (1) Primeaux received effective assistance of counsel in his previous habeas corpus proceedings; and (2) the selection of the jury violated his constitutional rights. Findings of fact and conclusions of law and an order were issued denying the petition. According to the court, Primeaux “did not present any evidence regarding the effectiveness of counsel on the prior habeas corpus attack.” Further, the court found that despite a disparity on the jury panel, it had “no reason to believe that the low representation of Native Americans on the jury selection panel was in any way done intentionally, or done as a blocking on account of that person’s race.”

[¶ 7.] Primeaux appeals asserting that he was “unconstitutionally denied his right to have a jury drawn from a fair cross section of the community during his December 1981, jury trial.”

Standard of Review

[¶ 8.] Our standard of review on habeas corpus is well established:

Habeas corpus is a collateral attack on a final judgment, and therefore our scope of review is limited. Lodermeier v. Class, 1996 SD 134, ¶ 3, 555 N.W.2d 618, 621. A habeas applicant bears the initial burden to establish a colorable claim for relief. Jenner v. Dooley, 1999 SD 20, ¶ 11, 590 N.W.2d 463, 468. Accordingly, the State has only the burden of meeting the petitioner’s evidence. Davi v. Class, 2000 SD 30, ¶ 26, 609 N.W.2d 107, 114. The habeas court’s factual findings are reviewed under the clearly erroneous standard, while legal conclusions are reviewed de novo. Meinders v. Weber, 2000 SD 2, ¶ 5, 604 N.W.2d 248, 252 (citations omitted).

Rodriguez v. Weber, 2000 SD 128, ¶ 12, 617 N.W.2d 132, 138.

Analysis and Decision

[¶ 9.] The State first asserts that Pri-meaux’s petition should be dismissed under SDCL 21-27-16.1, because there is no factual or legal reason why he was prevented from challenging the jury selection process in his first petition for a writ of habeas corpus filed in state court in 1988. Primeaux contends that SDCL 21-27-16.1 does not bar his request for relief because he was denied effective assistance of counsel. He also asserts that since the issue of whether the jury selection process violated his constitutional rights is meritorious and has not yet been considered, SDCL 21-27-16.1 should not apply.

[¶ 10.] “Grounds not raised in the original application cannot be raised in a subsequent application unless the court finds ‘reasonable cause’ for their omission from the original application.” Goodroad v. Weber, 2003 SD 132, ¶ 4, 671 N.W.2d 838, 839 (citation omitted). To establish reasonable cause, Primeaux must show: (1) “[cjause for his omission or failure to previously raise the grounds for habeas relief;” and (2) “[a]ctual prejudice resulting from the alleged constitutional violation.” See Gregory v. Solem, 449 N.W.2d 827, 830 (S.D.1989) (citing Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)); see also Jackson v. Weber, 2001 SD 30, ¶ 11, 637 N.W.2d 19, 22. Cause, according to the United States Supreme Court, “does not turn on whether counsel erred or on the kind of error counsel may have made.” Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986). Rather, if the representation by habeas counsel is not ineffective under Strickland, then “the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Id. (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Examples offered by the Court include: “a showing that the factual or legal basis for a claim was not reasonably available to counsel, see Reed v. Ross, 468 U.S. [1, 16, 104 S.Ct. 2901, 2910, 82 L.Ed.2d 1 (1984)] or that ‘some interference by officials,’ Brown v. Allen, 344 U.S. 443, 486, 73 S.Ct. 397, 422, 97 L.Ed. 469 (1953), made compliance impracticable!]]” Id.

[¶ 11.] Primeaux has not established cause for omitting the jury selection issue in his 1988 state-court habeas petition. He presented no evidence to the habeas court to establish that his previous habeas counsel was ineffective, thereby justifying his failure to earlier assert the issue. While in his brief to this Court, Primeaux contends that his previous habe-as counsel was ineffective, he has failed to support this assertion. Because Primeaux has not established that his previous habe-as counsel was ineffective, he must identify “some objective factor external to the defense [that] impeded counsel’s efforts to comply with the State’s procedural rule.” See Murray, 477 U.S. at 494, 106 S.Ct. at 2648, 91 L.Ed.2d 397. This he has not done. There is no factual or legal basis to show that his right to challenge the jury selection process was unavailable to him in 1988, as his constitutional right to have a jury representing a fair cross section of the community existed when he was convicted, when he brought his direct appeal to this Court, and when he filed his first habeas petition. Moreover, Primeaux makes no claim that interference by any official precluded him from asserting this issue previously. Therefore, Primeaux has not satisfied the cause prong of the cause and prejudice test, and SDCL 21-27-16.1 bars consideration of the jury selection issue.

[¶ 12.] Even if Primeaux was not barred from asserting his jury cross section issue, his claim would be unpersuasive. In St. Cloud v. Class, this Court examined the same issue asserted by Pri-meaux, and upheld the State’s jury selection process. See 1996 SD 64, 550 N.W.2d 70. In St. Cloud, we were asked to examine the constitutionality of the makeup of a 1989 jury. Id. ¶ 7. We wrote:

To establish a prima facie challenge, the defendant must show that:
(1) the group excluded is a “distinct” group in the community;
(2) the representation of this group in the jury pool is not fair and reasonable in relation to the number of such persons in the community;
(3) this under representation is due to the systematic exclusion of the group from the jury-selection process.

Id. ¶ 10 (quoting State v. Lohnes, 432 N.W.2d 77, 83-84 (S.D.1988) (citing Duren v. Missouri, 439 U.S. 357, 363, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979); Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970))).

[¶ 13.] In this case, the first element is satisfied, as the State does not dispute that Native Americans are a distinct group. In regard to the second element, the habeas court found that the evidence established that 16.9 percent of the population of Charles Mix County at the time of Pri-meaux’s trial was Native American, and fifty-four people were on the jury panel, three being Native American. Therefore, according to the court, Native Americans represented 5.5 percent of the jury panel, creating an 11.4 percent disparity.

[¶ 14.] Despite the disparity identified by the habeas court, the State contends that Primeaux failed to prove that the under representation was unfair or unreasonable. In particular, the State relies on St. Cloud, where we held that a 12.5 percent disparity was not unfair or unreasonable in relation to the number of persons in the community. See 1996 SD 64, ¶¶ 19-21, 550 N.W.2d at 75-76. In response, Primeaux relies on several federal cases and contends that a disparity of over 10 percent satisfies the second prong. See United States v. Garcia, 991 F.2d 489 (8th Cir.1993); United States v. Clifford, 640 F.2d 150 (8th Cir.1981); United States v. White Lance, 480 F.Supp. 920 (D.C.S.D.1979).

[¶ 15.] In State v. Hall, we recognized that the United States Supreme Court had not identified what percent constituted a constitutional violation, but that “an absolute percentage difference of fifteen percent or more would require supplementation of the jury panel.” 272 N.W.2d 308, 310-11 (S.D.1978) (citing United States v. Test, 550 F.2d 577 (10th Cir.1976); Foster v. Sparks, 506 F.2d 805 (5th Cir.1975)). In light of the fact that a 15 percent disparity required supplementation, in St. Cloud, we held that an absolute disparity of 12.5 percent did not establish under representation that was unreasonable. 1996 SD 64, ¶¶ 20-21, 550 N.W.2d at 76.

[¶ 16.] Similarly, the disparity in Pri-meaux’s case of 11.4 percent does not amount to unfair and unreasonable under representation sufficient to satisfy the second prong. Moreover, despite the disparity, the under representation was not the result of any inherent discrimination in the jury selection process or systematic exclusion of Native Americans. South Dakota’s former process for selecting prospective jurors by using the list of registered voters was previously reviewed and accepted in St. Cloud, 1996 SD 64, ¶¶ 22-26, 550 N.W.2d at 76-77, and Clifford, 640 F.2d at 155-56. Neither Court found a systematic exclusion of Native Americans from South Dakota juries in violation of defendants’ constitutional rights. According to the court in Clifford, “The mere fact that one identifiable group of individuals votes in a lower proportion than the rest of the population does not make a jury selection system illegal or unconstitutional.” 640 F.2d at 156. Then, in St. Cloud, we acknowledged the holding in Clifford and other federal cases, and found that the State’s jury selection process did not systematically exclude Native Americans. 1996 SD 64, ¶¶ 22-26, 550 N.W.2d at 76-77.

[¶ 17.] Primeaux’s final claim is that his constitutional right to a fair and impartial jury was violated because the Charles Mix County Auditor did not follow SDCL 16-13-1 through SDCL 16-13-10 when he, alone, selected the persons for the master jury list for his trial. This argument also is precluded. Although Pri-meaux did present this issue in his petition for a writ of habeas corpus, he failed to seek any ruling from the habeas court. “[N]o error is preserved for review on appeal when the court below fails to rule on a matter presented for decision.” State v. Sickler, 334 N.W.2d 677, 679 (S.D.1983) (citing American Fed. Sav. & Loan Ass’n v. Kass, 320 N.W.2d 800, 803 (S.D.1982)). See also State v. Nelson, 1998 SD 124, ¶ 7, 587 N.W.2d 439, 443 (citations omitted) (“Issues not advanced at trial cannot ordinarily be raised for the first time on appeal.”).

[¶ 18.] Affirmed.

[¶ 19.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.

       The habeas court did not specifically bar Pri-meaux's petition under SDCL 21-27-16.1. However, it did note that Primeaux could not continually seek relief on individual issues by filing repeated habeas petitions. In its oral ruling, the court said that it was examining “whether you can continually challenge through a habeas corpus petition decisions that have already been made.... It is and has been the determination of the courts of this land, both the United States and the South Dakota Supreme Court, that basically you must examine all of the matters on a collateral attack. You do not get to individually take each of them, take a run at it and then turn around when one fails, to make another argument that you hope will free you.”