author: SANDSTROM, Justice. CROTHERS, Justice,

text:
    2008 ND 110
    STATE of North Dakota, Plaintiff and Appellee v. Ned William NASTROM, Defendant and Appellant.
    No. 20070306.
    Supreme Court of North Dakota.
    June 5, 2008.

      Reid Alan Brady, Assistant State’s Attorney, Fargo, N.D., for plaintiff and ap-pellee.
    Richard Edward Edinger, Fargo, N.D., and Richard David Varriano (on brief), Moorhead, MN, for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Ned William Nastrom, Jr., appeals from a criminal judgment for willful failure to pay child support entered after a conditional guilty plea. Nastrom argues the felony prosecution was barred by a three-year statute of limitations. We hold the criminal prosecution is not barred by the statute of limitations because it was brought within three years of a court order for Nastrom to pay child support ar-rearages. We affirm.

I

[¶ 2] In June 1983, Nastrom was adjudged to be the father of a child born in 1982, and Nastrom was ordered to pay $150 per month in child support until the child turned 18 or was otherwise emancipated. On February 9, 2007, the State charged Nastrom with a class C felony under N.D.C.C. § 12.1-37-01(1) for willful failure to pay child support, alleging that between February 10, 2004, and February 9, 2007, Nastrom willfully failed to pay child support in an amount ordered by a court or other governmental agency in an amount greater than $2,000. An affidavit by an attorney for the Regional Child Support Enforcement Unit stated that: (1) between January 31, 2004, and April 30, 2006, Nastrom had been ordered to pay $200 per month for child support and had failed to make any payments during 22 of those months; (2) between May 1, 2006, and February 5, 2007, Nastrom had been ordered to pay $360 per month for child support and had failed to make any payment during four of those months; (3) between January 31, 2004, and February 5, 2007, Nastrom had been ordered to pay a total of $9,200, but had paid only $3,840; and (4) as of February 5, 2007, Nastrom’s child support balance was $27,026.27.

[¶ 3] Nastrom moved to dismiss the criminal prosecution, claiming it was begun more than three years after the commission of the offense and was barred by the three-year statute of limitations for a felony. The State resisted Nastrom’s motion, asserting the action was not barred by the statute of limitations, because valid court orders for Nastrom to pay child support arrearages for past due support had been entered within three years from the beginning of the criminal action on February 9, 2007. The State provided the district court with copies of the original June 1983 judgment; a December 11, 2003, court order for Nastrom to pay $200 per month toward his arrearages; an April 15, 2004, court order finding Nastrom in contempt and ordering him to continue paying $200 per month toward his arrearages; and a March 30, 2006, court order finding Nas-trom in contempt and ordering him to pay $360 toward his arrearages.

[¶ 4] The district court denied Nas-trom’s motion to dismiss, concluding “child support arrearages” were considered the same as “child support” for purposes of N.D.C.C. § 12.1-37-01. The court decided the criminal prosecution against Nastrom was not barred by the three-year statute of limitations, because there were numerous orders for him to pay child support arrearages within three years from the beginning of the action on February 9, 2007. Nastrom entered a conditional guilty plea under N.D.R.Crim.P. 11(a)(2), reserving his right to appeal and seek review of the denial of his motion to dismiss.

[¶ 5] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. Nastrom’s appeal is timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 29-28-06.

II

[¶ 6] Nastrom argues the three-year statute of limitations for felonies in N.D.C.C. § 29-04-02 bars this action because the commission of the offense was when the child turned 18 in February 2000, and the action was not begun until February 9, 2007. He claims the plain and unambiguous definition of child support in N.D.C.C. § 14-09-09.10(3), which is incorporated into N.D.C.C. § 12.1-37-01, does not include child support arrearages for past due support. He argues the district court failed to follow Fuson v. Schaible, 494 N.W.2d 593, 599 (N.D.1992), in which a majority of this Court held the statute of limitations for civil child support enforcement proceedings begins when the obligation terminates. He argues that under Fuson and the plain language of N.D.C.C. §§ 29-04-02 and 12.1-37-01, the prosecution is barred by the statute of limitations. The State responds that child support includes child support arrearages under N.D.C.C. § 12.1-37-01 and that this action is not barred by the three-year statute of limitations because there were court orders for payments of arrearages between February 10, 2004, and February 9, 2007, which were within the three-year statute of limitations for a felony prosecution for willful failure to pay child support.

[¶ 7] Section 29-04-02, N.D.C.C., provides that “[ejxcept as otherwise provided by law, a prosecution for any felony other than murder must be commenced within three years after its commission.” Nas-trom was charged with willful failure to pay child support under N.D.C.C. § 12.1-37-01(1), which states that “[a] person is guilty of an offense if the person willfully fails to pay child support in an amount ordered by a court or other governmental agency having authority to issue the orders.” For purposes of N.D.C.C. § 12.1-37-01, “child support has the meaning provided in section 14-09-09.10.” N.D.C.C. § 12.1-37-01(5). Section 14-09-09.10(3), N.D.C.C., defines “child support” as:

payments for the support of children, including payments for health insurance coverage or other medical support, and combined payments for the support of children and spouses or former spouses, however denominated, if the payment is required by the order of a court or other governmental agency having authority to issue such orders.

[¶8] The issue in this case involves when Nastrom committed the alleged offense of willful failure to pay child support within the meaning of N.D.C.C. §§ 29-04-02 and 12.1-37-01 and turns on whether “child support in an amount ordered by a court” means only orders for current support or includes orders for ar-rearages. The interpretation of a statute is a question of law, fully reviewable on appeal. Sauby v. City of Fargo, 2008 ND 60, ¶ 8, 747 N.W.2d 65; State v. Skarsgard, 2007 ND 159, ¶5, 740 N.W.2d 64. Our primary goal in interpreting a statute is to ascertain legislative intent. Sauby, at ¶ 8; Skarsgard, at ¶ 5. We first seek to ascertain the meaning of a statute from the language itself, giving the words in the statute their plain, ordinary, and commonly understood meaning, unless defined by statute. N.D.C.C. § 1-02-02; Skarsgard, at ¶ 5. Statutes are construed as a whole to harmonize them and give meaning to related provisions. N.D.C.C. § 1-02-07; Sau-by, at ¶ 8. When a statute is ambiguous because it is susceptible to differing but rational meanings, we may consider extrinsic aids to ascertain intention of the legislation. See N.D.C.C. § 1-02-39; State v. Buchholz, 2005 ND 30, ¶6, 692 N.W.2d 105. In construing statutes of limitations, we are also guided by the principle that statutes of limitation are construed liberally in favor of the accused and against the prosecution. State v. Hersch, 445 N.W.2d 626, 631 (N.D.1989).

[¶ 9] The plain language of N.D.C.C. §§ 12.1-37-01 and 14-09-09.10 does not support Nastrom’s argument that for purposes of the statute of limitations for willful failure to pay child support, the commission of the offense occurred when the child reach majority. Rather, the plain language of N.D.C.C. § 12.1-37-01 explicitly provides a person is guilty of the offense “if the person willfully fails to pay child support in an amount ordered by a court or other governmental agency having authority to issue the orders.” The plain language of the definition of child support says it means “payments for the support of children ... however denominated, if the payment is required by the order of a court or other governmental agency having authority to issue such orders.” N.D.C.C. § 14-09-09.10(3). Those statutes contemplate a court order for child support and do not differentiate between a current child support obligation or an obligation for past-due support. Section 12.1-37-01(5), N.D.C.C., specifically incorporates the meaning of “child support” in “section 14-09-09.10.” Under the plain language of one of the subsections of N.D.C.C. § 14-09-09.10, “past-due support” is “child support” that is not paid by certain dates. N.D.C.C. § 14-09-09.10(14). The denomination of “past-due support” as a form of “child support” in N.D.C.C. § 14-09-09.10 is indicative of a legislative intent to include past-due support or arrearages within the meaning of child support for purposes of N.D.C.C. § 12.1-37-01. Other statutes about child support also recognize a court may issue orders for child support arrearages if there is no current monthly child support obligation. See N.D.C.C. § 14-09-09.30(2). When construed together to harmonize related provisions, we conclude the plain language of N.D.C.C. § 12.1-37-01 authorizes a criminal prosecution for failure to pay child support, which includes arrearages, “in an amount ordered by a court or other governmental agency having authority to issue such orders.”

[¶ 10] Nastrom’s reliance on Fuson v. Schaible, 494 N.W.2d 593 (N.D.1992), is misplaced. In Fuson, in an action to collect on a civil judgment, a majority of this Court said the limitation period for collection on a civil judgment begins when the duty to support terminates, not on each individual payment’s due date, and “[o]nce the child support obligation terminates, the statute of limitations begins to run, not before.” 494 N.W.2d at 594, 598-99 (dissenting opinion by Justice Levine, which became majority opinion of Court on statute of limitations issue). See also Ruscheinsky v. Ulrich, 2000 ND 133, ¶ 11, 612 N.W.2d 283 (reaffirming Fuson for child support before April 2, 1999, and recognizing that after April 2, 1999, ordered, due, and unpaid child support was exempted from civil judgment statute of limitations under 1999 N.D. Sess. Laws eh. 140, § 1, and N.D.C.C. § 14-08.1-05(1)). Fuson and Ruscheinsky involved the statute of limitations for enforcement of civil judgments for child support and did not involve a criminal prosecution under the specific language of N.D.C.C. § 12.1-37-01.

[¶ 11] Nastrom’s reliance on People v. Monaco, 474 Mich. 48, 710 N.W.2d 46 (2006), is also misplaced. That case involved an issue about whether failure to pay child support was a continuing offense. Id. at 50-51, 710 N.W.2d 46. The Michigan Supreme Court said the plain language of Michigan’s criminal statute said the crime of felony nonsupport was complete when an obligor failed to pay support in the amount ordered at the time ordered and did not specify that having an arrear-age was a violation of the statute. Id. Under N.D.C.C. § 12.1-37-01, the crime of willful failure to pay child support is committed when there is a failure to pay child support, which may include arrearages, in an amount ordered by a court or other governmental agency having authority to issue orders.

[¶ 12] This record includes court orders in April 2004 and March 2006 for Nastrom to pay child support arrearages, which were within three years from the date when this criminal prosecution was begun in February 2007. The plain language of N.D.C.C. § 12.1-37-01 authorizes a prosecution for willful failure to pay child support, which includes child support ar-rearages, in an amount ordered by the court. We conclude the predicate for this criminal prosecution was satisfied, and the district court did not err in denying Nas-trom’s motion to dismiss.

Ill

[¶ 13] We affirm the judgment.

[¶ 14] CAROL RONNING KAPSNER, and MARY MUEHLEN MARING, JJ., concur.

CROTHERS, Justice,

concurring in part and dissenting in part.

[¶ 15] I concur with that part of the Majority Opinion concluding that Nas-trom’s reliance on Fuson v. Schaible, 494 N.W.2d 593 (N.D.1992), and Ruscheinsky v. Ulrich, 2000 ND 133, ¶ 11, 612 N.W.2d 283, is misplaced, and that the Michigan decision of People v. Monaco, 474 Mich. 48, 710 N.W.2d 46 (2006), is unhelpful to our analysis. However, I respectfully dissent from those portions of the Majority Opinion that expansively- — -and in my opinion, improperly — apply the “the plain language” of our statutes.

[¶ 16] Our point of beginning is that this case is not about whether Nastrom has a legal obligation to support his child — that issue has been conclusively resolved and delinquent amounts have been reduced to judgment as a matter of law. See N.D.C.C. § 14-08.1-05(1)(a). Rather, the narrow question here is whether the statute of limitations permits a criminal action against Nastrom when past-due support, and not the support itself, is owed during the three years preceding the criminal charge.

[¶ 17] The applicable criminal law provides:

“A person is guilty of an offense if the person willfully fails to pay child support in an amount ordered by a court or other governmental agency having authority to issue the orders.
For purposes of this section, ‘child support’ has the meaning provided in section 14-09-09.10.”

N.D.C.C. § 12.1-37-01(1) and (5).

[¶ 18] The specified section defining “child support” provides:

“ ‘Child support’ means payments for the support of children, including payments for health insurance coverage or other medical support, and combined payments for the support of children and spouses or former spouses, however denominated, if the payment is required by the order of a court or other governmental agency having authority to issue such orders.”

N.D.C.C. § 14-09-09.10(3).

[¶ 19] This Court’s precedents, rules of statutory interpretation mandated by the Legislature, and notions of due process instruct that criminal laws are interpreted narrowly and that statutes of limitation are applied in favor of the accused. See State v. Plentychief, 464 N.W.2d 373, 375 (N.D.1990) (citing City of Bismarck v. Sholy, 430 N.W.2d 337, 338 (N.D.1988) (“It is a well-settled rule of statutory construction that criminal statutes are strictly construed in favor of the defendant and against the government.”)); State v. Hersch, 445 N.W.2d 626, 631 (N.D.1989) (“We are also guided by the principle that statutes of limitation are to be construed liberally in favor of the accused and against the prosecution.”) (citation omitted).

[¶20] Here, the State admits that no child support was due within three years of prosecution and that this criminal proceeding is based solely on Nastrom’s failure to pay past-due amounts. The applicable penal statute incorporates the definition of “child support” found in N.D.C.C. § 14-09-09.10. That definition of “child support” chosen by the Legislature could have included “past-due support,” the definition for which also is found in section 14-09-09.10. But the Legislature did not include “past-due support” in the penal statute. Instead, the Majority has done what the Legislature did not; it imported the definition of “past-due support” into the definition of “child support” for purposes of a prosecution under N.D.C.C. § 12.1-37-01. See Majority Opinion at ¶ 9. Doing so, the Majority swims against the current of our precedent and the rules of statutory interpretation. Doing so, the Majority runs afoul of the Century Code’s admonishment that “[w]hen the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” N.D.C.C. § 1-02-05. I therefore respectfully dissent from that portion of the Majority’s analysis that effectively amends section 12.1-37-01(1), N.D.C.C., and from the result reached in this case.

[¶ 21] GERALD W. VANDE WALLE, C.J., concurs.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2008 ND 108
    STATE of North Dakota, Plaintiff and Appellee v. Edward Dana CURTIS, Defendant and Appellant.
    No. 20070250.
    Supreme Court of North Dakota.
    June 5, 2008.

      Gary Lee Delorme, Assistant State’s Attorney, Fargo, N.D., for plaintiff and ap-pellee.
    Daniel James Borgen, Grand Forks Public Defender Office, Grand Forks, N.D., for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Edward Curtis appealed from a judgment of conviction entered upon a jury verdict finding him guilty of theft of property. We affirm, concluding: (1) Curtis’s constitutional right to compel attendance of witnesses was not violated; (2) Curtis’s prosecution was not precluded by the civil dispute doctrine; and (3) the evidence was sufficient to support the conviction.

I

[¶ 2] On October 14, 2005, Curtis opened an account at Northland Educators Federal Credit Union, depositing a $55,540 check drawn on a Canadian bank. After converting the funds under the prevailing exchange rate to $45,341 in United States dollars, the credit union applied a tentative deposit to Curtis’s account. The credit union then forwarded the check as a foreign collection item for processing.

[¶ 3] Over the next two weeks, Curtis called the credit union several times asking whether the check had cleared and whether the funds were available for withdrawal. On October 27, 2005, the credit union received notification that the check had cleared, and a teller at the credit union called Curtis and informed him the funds were available. Curtis went to the credit union that same day and purchased $10,000 in cashiers checks and $29,600 in money orders with funds from his account.

[¶ 4] On the next day, October 28, 2005, the credit union was informed by an intermediary bank that the Canadian check had not cleared. The credit union’s manager called Curtis to advise him that the check had not cleared and the credit union would be withdrawing funds from his account. According to the manager’s testimony, Curtis responded:

Holy shit, I’ve already spent some of that money. I’ve given some of those checks out and I’ve given some of those money orders out.

The manager testified she told Curtis to return the checks or money orders still in his possession to the credit union. Curtis testified that he had already mailed out all of the checks and money orders when the credit union advised him the check was no good.

[¶ 5] Curtis did not return any of the checks or money orders, and did not respond to the credit union’s attempts to contact him by phone and by certified mail. The credit union obtained copies of the money orders after they were presented for payment. At trial, the State introduced as exhibits copies of fifteen of the money orders Curtis had received from the credit union, each in the amount of $800. Fourteen of the money orders bore dates after October 28, 2005, the day Curtis was notified the Canadian check had not cleared and was told to return any checks or money orders still in his possession. The fifteenth money order was not dated, but had cleared on November 7, 2005.

[¶ 6] While investigating the case, police learned that Curtis had been posting comments about the matter on an internet website. In a posting dated November 8, 2005, Curtis had written:

Subject: RE [phproductstaxrevolt] shut em down!
There is just mountains of junk to learn to be free, that means you just ain’t free having to learn it all? Are you or anyone out there good with bank law? I got a good one going and it plays beauteful [sic] in my game plan! I have 5 grand for the best, most humorous legal brief on my bank discrepancy; — ] the briefs will mainly be used to advertise and poke them all with! I set up a pretty good game, It is still me VS them, I can pick em and I love poken but the nitty gritty that keeps me out of jail I never have time for? if you want to read the papers served me, get back to me, want make this a winner!

[¶ 7] Curtis was charged with theft of property in violation of N.D.C.C. §§ 12.1-23-02(1) and 12.1-23-05(1), and with forgery in violation of N.D.C.C. § 12.1-24-01. The forgery charge was dismissed before trial. The theft of property charge was tried to a jury, with Curtis representing himself and attorney Steven Mottinger serving as standby counsel. The jury returned a verdict of guilty, and judgment of conviction was entered.

II

[¶ 8] Curtis contends his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and under N.D. Const. art. I, ¶ 13, were violated when he did not receive adequate assistance to subpoena witnesses necessary for his defense. He alleges that either Mottinger, as his standby counsel, or the court should have ensured that all of the witnesses Curtis wished to call to testify were subpoenaed.

[¶ 9] The issue of which witnesses to call for Curtis’s defense was a matter of contention throughout the proceedings. Curtis wished to present a defense based upon his views that the banking system and judicial system were illegal and corrupt, and were persecuting him. Curtis sought to subpoena five witnesses, including agents of the FBI, Homeland Security, and the United States Marshal’s office, to assist in this defense.

[¶ 10] Curtis had initially sought court-appointed counsel, and Mottinger was appointed to represent him. At a June 7, 2007, pretrial conference, Mottinger advised the court that he and Curtis disagreed over the nature of the defense to present, and specifically disagreed about which witnesses to call. Mottinger explained that Curtis wished to subpoena several witnesses who Mottinger believed had “nothing relevant to testify to.” Curtis indicated that he wanted to represent himself, and agreed to allow Mottinger to serve as standby counsel. In agreeing to serve as standby counsel, Mottinger clearly expressed that he would not issue subpoenas to witnesses who had no relevant testimony to offer:

MR. MOTTINGER: Your Honor, I am more than willing to be available to answer questions, any questions, Mr. Curtis may have or to offer suggestions to him. I am a little bit disinclined to sit at counsel table with him. I believe that as an Officer of this Court, it is incumbent upon me to make decisions in terms of whether or not witnesses Mr. Curtis suggests to subpoena are appropriate or not—
DEFENDANT: They are.
MR. MOTTINGER: — I don’t want to get put in a position of having to issue those subpoenas. If Mr. Curtis wants to represent himself, that is fine. If the Court deems it appropriate for me [to] stand by, not at counsel table, to offer assistance and suggestions to Mr. Curtis, I am more than willing to do that as a courtesy to the Court and as a courtesy to the system.

The court indicated Mottinger would serve as standby counsel.

[¶ 11] During the trial, Curtis indicated to the court that he had attempted, through the clerk of court and Mottinger, to subpoena agents of the FBI, Homeland Security, BCI, and the United States Marshal’s office. Mottinger explained to the court that he had advised Curtis that he believed those witnesses had no relevant testimony and would not be permitted to testify, and he would not subpoena them. Curtis asserts on appeal that Mottinger and the court should have assisted him in procuring the attendance of these witnesses.

[¶ 12] Curtis’s argument is premised upon his constitutional right to compel the attendance of witnesses in his favor. See U.S. Const. Amend. VI (“the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor”). A criminal defendant’s Sixth Amendment right is not absolute, and does not guarantee the right to secure the attendance and testimony of any and all witnesses. United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982); State v. Hilgers, 2004 ND 160, ¶25, 685 N.W.2d 109; State v. Stockert, 2004 ND 146, ¶ 12, 684 N.W.2d 605; State v. Treis, 1999 ND 136, ¶ 11, 597 N.W.2d 664. The trial court “is not obligated to issue every subpoena requested by a defendant.” Hilgers, at ¶ 82. The defendant has the burden of showing that the testimony would have been both favorable and material to his defense. Valenzuela-Bernal, at 867, 102 S.Ct. 3440; Hilgers, at ¶ 25; Stockert, at ¶ 12; Treis, at ¶ 11. “Whether the district court’s refusal to issue a subpoena violates the Sixth Amendment is a question of law, and our standard of review for a claimed violation of a constitutional right is de novo.” Hilgers, at ¶ 25 (quoting Treis, at ¶ 11); see also Stockert, at ¶ 12.

[¶ 13] The record is devoid of any showing by Curtis that these witnesses would have provided favorable and material testimony to aid his defense to the theft charge. Rather, the record demonstrates Curtis intended to use these witnesses to present to the jury his beliefs that the banking system and judicial system were illegal and corrupt, and were intentionally persecuting him. At the pretrial conference, Curtis attempted to explain why he wanted these witnesses present:

I am not guilty of nothing and I am standing. I am not budging. I am willing to defend myself and all I want is an impartial jury that I can present my case to. And, I do want some like Homeland Security, FBI — they have all interviewed me, they’ve all known me. I mean, I want FBI present at the trial because I got charges I want to file on this man because he has stolen my life. This is the Bill of Rights. Every single one has been broke. I haven’t done nothing wrong. I mean, I’ve got a little bit on the writing but, I mean, I am not a professional writer. I have never threatened anyone and that was never my intent. Homeland Security, FBI, BCI, every single agency has been over to my house. I have talked to them and I care about my daughter’s future. You people don’t. I mean, I am looking out after her future. I see what is going on. I mean, Saddam Hussein never thought they were doing any crimes neither when they were like butchering people. Germany never thought they were doing any crimes when Nazi’s were in charge. I mean, our justice system is nuts and I am willing to prove it. We haven’t had a money system since 1933. I’ve researched this, I know. I mean I put up a website. I challenged any judge, any lawyer in the state to read my website and prove me guilty of anything. I know I did no crime. This is a pony show.

The court then attempted to explain to Curtis that the trial would be limited to issues relevant to the theft charge:

THE COURT: The second point I want to make is that you need to understand that it is not going to be a free for all with you able to present whatever you want to present—
DEFENDANT: I have — that whole pile there—
THE COURT: — a Judge and all of us who work in this system are required to keep the trial focused on the issues and the issues have only to do with the allegations in those complaints and they nothing to do with what the FBI thinks or what other agencies that you are talking about may think—
DEFENDANT: I want them there for my protection from the justice system. You are all paid by the State, I am not.

The issue was again discussed in chambers during Curtis’s jury trial, and the record indicates some of Curtis’s proposed witnesses were federal agents who may have interviewed Curtis regarding a separate case in which he was charged with harassment for sending threatening facsimiles to numerous North Dakota attorneys and judges, but who had not been involved in investigation of the theft charges. See State v. Curtis, 2008 ND 93, 748 N.W.2d 709 (upholding Curtis’s criminal conviction for harassment).

[¶ 14] Curtis failed to make any showing what these witnesses would have testified to, and failed to show that they would have provided any evidence favorable or relevant to his defense on the theft charge. Accordingly, the district court did not err in failing to issue subpoenas for the witnesses.

[¶ 15] Curtis also asserts his standby counsel had a duty to issue any subpoenas he requested. This Court has cautioned that “a defendant’s right to self-representation is not a license to abuse the dignity of the courtroom, nor to ignore rules of procedure.” State v. Hart, 1997 ND 188, ¶ 6, 569 N.W.2d 451. An attorney participating as standby counsel remains an officer of the court, and he therefore must “always aid in facilitating the judicial process.” State v. Stokes, 243 N.W.2d 372, 375 (N.D.1976). An attorney also has the duty to raise only issues which are not frivolous, and may not participate in the abuse of legal procedure. See N.D.R. Prof.. Conduct 3.1.

[¶ 16] Curtis failed to demonstrate that these witnesses had any favorable or relevant testimony to support a legitimate defense to the theft charge. When afforded the opportunity at the pretrial conference to explain the relevance of these witnesses, Curtis launched into a diatribe about the illegality and corruption of the judicial system and money system, labeled the proceedings a “pony show,” indicated he wanted the FBI present so he could file charges on the man who had “stolen [his] life,” and wanted federal agents present “for my protection from the justice system.” In similar circumstances, the court in United States v. Bell, 9 F.App’x 733, 735 (9th Cir.2001), held that a defendant’s rights to compulsory process and due process were not violated when the attorney acting as his hybrid counsel refused to subpoena federal agents to support the defendant’s frivolous claims of government spying and evidence planting.

[¶ 17] Curtis’s proffered reasons for seeking to subpoena the witnesses in this case were patently frivolous and do not demonstrate that the witnesses would have provided any relevant or favorable testimony. The failure of the district court and standby counsel to secure the attendance of these witnesses therefore did not violate Curtis’s constitutional rights.

Ill

[¶ 18] Relying upon State v. Brakke, 474 N.W.2d 878 (N.D.1991), and State v. Meyer, 361 N.W.2d 221 (N.D.1985), Curtis contends the district court erred as a matter of law in allowing the criminal proceedings to continue when the matter should have been adjudicated civilly.

[¶ 19] In Brakke and Meyer, this Court applied what has been termed the “civil dispute doctrine.” See State v. Perreault, 2002 ND 14, ¶ 7, 638 N.W.2d 541. In Meyer, the defendant had been charged with obstructing a public road. The only disputed issue in the case was whether a road across Meyer’s property had become a public road by prescription. This Court reversed a judgment of conviction, holding that the dispute was ill-suited for a criminal proceeding and should have been resolved in a civil action:

[W]here, as here, there is a legitimate dispute as to whether or not the necessary requirements have been met to make the road in question a road by prescription as specified in Section 24-07-01, N.D.C.C., a criminal action is ill-suited to a settlement of that dispute. Rather, we believe the proper procedure is to institute a civil action wherein the issue of whether or not the road in question has become a public road by prescription may be determined in the atmosphere of civil, rather than criminal, litigation. That procedure appears to be the procedure commonly used in North Dakota in the past to settle these disputes.

Meyer, 361 N.W.2d at 222-23 (footnotes omitted).

[¶ 20] In Brakke, the defendants were convicted of theft for harvesting crops on land owned by a bank. Brakke had planted crops on the property in the spring, and the bank had subsequently been awarded half of the property in a partition judgment. This Court reversed the convictions, concluding there was a legitimate dispute, which had never previously been addressed by this Court, over ownership of growing crops on land which is subsequently partitioned. We reasoned that “[a] criminal theft trial is not the proper vehicle for resolving property law questions of this nature.” Brakke, 474 N.W.2d at 882.

[¶ 21] In subsequent cases, however, we have held the civil dispute doctrine is limited to cases where there is a legitimate property or contract dispute that is better suited for resolution in a civil matter. Thus, in State v. Trosen, 547 N.W.2d 735, 738-39 (N.D.1996), this Court held that, where an accountant for a nonprofit corporation billed and paid himself for eight quarters of work in a nine-month period, there was no legitimate contract dispute and criminal theft charges were appropriate. We noted, however, that the accountant’s actions in paying himself for other fees and expenses beyond the basic contract “might arguably constitute a legitimate contractual dispute better suited for resolution in a civil matter.” Id. at 738.

[¶ 22] In Perreault, 2002 ND 14, ¶ 13, 638 N.W.2d 541, this Court reversed a district court order dismissing theft charges against a principal in a limited liability company who had allegedly written checks against the business’s line of credit for his personal obligations. The defendant alleged he had the authority to write checks on the line of credit as a draw on future profits. Id. at ¶ 11. Noting that it was undisputed the defendant had written checks on a business line of credit to cover his personal debts and submitted phony invoices to the bank to secure release of the funds, this Court concluded that, unlike Brakke and Meyer, the case did not present a unique question of property law nor did it involve an issue traditionally settled in a civil forum. Perreault, at ¶ 10.

[¶ 23] Curtis contends this matter is appropriate for civil resolution because, at the time he acquired the checks and money orders on October 27, 2005, he was authorized by the credit union to withdraw funds from his account. Curtis argues:

In order for a criminal act to have been committed, there must be a showing that at the time Mr. Curtis purchased the certified checks and money orders, Mr. Curtis somehow knew the check was not good and that Mr. Curtis acted with deceit in obtaining the money.

The State does not contend, however, that the theft occurred on October 27 when Curtis initially received the checks and money orders. Rather, the State alleges that the theft occurred when Curtis “knowingly presented, uttered and cashed money orders for goods and services” after he had been advised by the credit union that the Canadian check was no good and he should return any checks or money orders still in his possession.

[¶ 24] Curtis has not presented any legitimate dispute that he was somehow entitled to the funds after the Canadian cheek had failed to clear. He does not assert that the Canadian check actually was good and that he therefore had a legitimate claim to the funds. Curtis’s only claim to the funds was his frivolous assertion at trial that, once the credit union made a mistake and advised him the funds were available, he should get to keep the money. There is no legitimate dispute presented on a unique issue of property, contract, or other civil law, and the issues in this case would not be more appropriately settled in a civil forum.

[¶ 25] We conclude the district court did not err in concluding this matter was appropriate for criminal proceedings.

rv

[¶ 26] Curtis contends the evidence was not sufficient as a matter of law to support his conviction of theft of property under N.D.C.C. §§ 12.1-23-02(1) and 12.1-23-05(1).

[¶ 27] Under N.D.C.C. § 12.1-23-02(1), “[a] person is guilty of theft if he ... [k]nowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another with intent to deprive the owner thereof.” Under N.D.C.C. § 12.1-23-05(1), theft is a class B felony if the property or services stolen exceed $10,000 in value.

[¶ 28] When a jury verdict is challenged on appeal based on the sufficiency of the evidence, our standard of review is highly deferential to the jury’s verdict. State v. Jacob, 2006 ND 246, ¶ 6, 724 N.W.2d 118; State v. Laib, 2005 ND 191, ¶ 6, 705 N.W.2d 815. When reviewing challenges to the sufficiency of the evidence, we must draw all inferences in favor of the verdict. State v. Curtis, 2008 ND 93, ¶ 5, 748 N.W.2d 709; State v. Barendt, 2007 ND 164, ¶ 9, 740 N.W.2d 87. We will reverse a criminal conviction only if, after viewing the evidence and all reasonable evidentiary inferences in the light most favorable to the verdict, no rational factfinder could have found the defendant guilty beyond a reasonable doubt. Curtis, at ¶ 5; Barendt, at ¶ 9.

[¶ 29] Viewing the evidence in the light most favorable to the verdict, and drawing all reasonable evidentiary inferences in favor of the verdict, the evidence shows that Curtis was told on October 28, 2005, that the Canadian check was not good, the funds would be withdrawn from his account, and Curtis should immediately return any checks or money orders still in his possession to the credit union; Curtis thereafter, with knowledge that he was not entitled to keep the money, issued at least fourteen money orders in the amount of $800 each to various third parties; on November 8, 2005, Curtis wrote in an internet posting that he had a “bank discrepancy,” he had “set up a pretty good game,” he had “a good one going and it plays beauteful[sie] in my game plan,” “[i]t is still me VS them,” and made reference to “the nitty gritty that keeps me out of jail,” all allowing an inference that this was part of a planned scheme; and at trial, Curtis testified that all he had done was “cheat a cheater” before they cheated him. We conclude the evidence was sufficient to support the conviction of theft under N.D.C.C. §§ 12.1-23-02(1) and 12.1-23-05(1).

V

[¶ 30] We have considered the remaining issues and arguments raised by the parties and find them to be without merit, unnecessary to our decision, or expressly waived. We affirm the judgment of conviction.

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

      . Mottinger was designated as standby counsel, but at trial, with the permission of Curtis and the district court, he served as hybrid counsel, essentially acting as co-counsel. See Johnson v. State, 2004 ND 130, ¶ 20, 681 N.W.2d 769; State v. Ochoa, 2004 ND 43, ¶ 4, 675 N.W.2d 161. Although Curtis handled most of his own defense, Mottinger was allowed to make objections, argue motions, and present part of the closing argument.


author: KAPSNER, Justice.

text:
    2008 ND 109
    LeRoy K. WHEELER, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
    Nos. 20070163, 20070165.
    Supreme Court of North Dakota.
    June 5, 2008.

      LeRoy K. Wheeler, Bismarck, N.D., pro se.
    Mark Jason McCarthy, Assistant State’s Attorney, Grand Forks, N.D., for respondent and appellee.
   KAPSNER, Justice.

[¶ 1] LeRoy Wheeler appeals from a district court judgment dismissing his application for post-conviction relief and subsequent order denying his petition for rehearing. On appeal, Wheeler argues the district court erred in denying him an evidentiary hearing because he raised a genuine issue of material fact about jury partiality by asserting a juror made an allegedly false statement during voir dire. Wheeler also asserts that the district court erred in refusing to issue subpoenas for him to obtain material to support his assertion of alleged juror misconduct. We affirm, concluding that Wheeler failed to provide competent evidence to support his claim in response to the State’s motion to dismiss and that the district court did not abuse its discretion by failing to grant Wheeler’s requested discovery.

I

[¶2] In 2004, Wheeler was charged with encouraging the deprivation of a minor, two counts of contributing to the delinquency of a minor, and gross sexual imposition. In May 2005, a trial was held in the district court, and Wheeler was convicted on the charges. On direct appeal, this Court summarily affirmed Wheeler’s convictions. State v. Wheeler, 2006 ND 95, 719 N.W.2d 384.

[¶ 3] In March 2007, Wheeler filed a verified application for post-conviction relief, asserting grounds of alleged juror misconduct. Wheeler claimed one of the jurors from his trial perjured herself during voir dire by claiming she had no knowledge of Wheeler or the facts of the case. Wheeler asked the district court to grant him an evidentiary hearing on the issue of juror misconduct and to reverse his convictions and order a new trial after the hearing. In response to Wheeler’s application, the State filed a motion to dismiss, arguing there was no evidence supporting Wheeler’s allegations and his application was res judicata or misuse of process because he failed to pursue his claim during the trial proceedings.

[¶ 4] The district court denied Wheeler’s request for an evidentiary hearing and dismissed his application for post-conviction relief. The court reasoned Wheeler had already had the opportunity to raise the issue that his right to an impartial jury was violated during his prior direct appeal to this Court and, further, Wheeler’s claim was simply a “variation of a theme” previously asserted in his direct appeal. The district court also concluded Wheeler’s application must be denied because it was a misuse of process and his claim of juror misconduct lacked factual support. The court held Wheeler had adequate opportunity during voir dire to question the juror, had passed for cause prior to exercising his peremptory challenges, and was thus barred from asserting that the particular juror was biased against him. The court concluded that Wheeler’s request for an evidentiary hearing would result in nothing more than a “fishing expedition.” The court denied Wheeler’s request for rehearing.

II

[¶ 5] Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure. Laib v. State, 2005 ND 187, ¶ 11, 705 N.W.2d 845. A petitioner for post-conviction relief has the burden of establishing grounds for relief. Steen v. State, 2007 ND 123, ¶ 12, 736 N.W.2d 457. In Sambursky v. State, 2006 ND 223, ¶ 7, 723 N.W.2d 524, we explained:

A district court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. N.D.C.C. § 29-32.1-09(1); Johnson v. State, 2006 ND 122, ¶19, 714 N.W.2d 832; Heyen v. State, 2001 ND 126, ¶ 6, 630 N.W.2d 56. We review an appeal from summary denial of post-conviction relief as we would review an appeal from a summary judgment. Johnson, at ¶ 19; Heyen, at ¶ 6. The party opposing the motion for summary dismissal is entitled to all reasonable inferences to be drawn from the evidence and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact. Heyen, at ¶ 6. For summary judgment purposes, the evidentiary assertions of the party opposing the motion are assumed to be true. Dinger v. Strata Corp., 2000 ND 41, ¶ 14, 607 N.W.2d 886.

Thus, the party moving for summary dismissal has the initial burden of showing there is no genuine issue of material fact. See Weaver v. State, 2003 ND 47, ¶ 5, 658 N.W.2d 352; Mertz v. State, 535 N.W.2d 834, 836 (N.D.1995). If the party moving for summary dismissal shows the absence of a genuine material fact issue, the burden then shifts to the responding party to demonstrate the existence of a genuine issue of material fact. Weaver, at ¶ 5; Owens v. State, 1998 ND 106, ¶ 13, 578 N.W.2d 542. “The party opposing the motion may not merely rely upon the pleadings or upon unsupported, conclusory allegations, but must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact.” Owens, at ¶ 13.

[¶ 6] The burden of the party moving for summary dismissal, however, may be discharged in some cases by pointing out to the district court that there is an absence of evidence to support the non-moving party’s case. Weaver, at ¶ 6 (internal quotation and citation omitted).

Once the movant shows the trial court there is no evidence in the record to support the petitioner’s claims (and therefore nothing the State can point to in support of its assertion there is no such evidence), the movant has put the petitioner on his proof and a minimal burden has shifted to the petitioner to provide some competent evidence to support his claim. The State is permitted to shift the burden to the petitioner in this manner in those cases in which the State, as movant, would otherwise be required to prove the complete absence of any evidence supporting the petitioner’s claims and allegations in order to meet its initial burden of showing there are no contested issues of fact. In other cases, the movant’s initial burden must still be met before the burden can be shifted to the petitioner to produce evidence prior to the hearing to support his claim.

Weaver, at ¶ 6 (citations omitted). If reasonable inferences raise a genuine issue of material fact, the nonmoving party is entitled to an evidentiary hearing. Owens, 1998 ND 106, ¶ 13, 578 N.W.2d 542.

[¶ 7] In his verified application for post-conviction relief, Wheeler cites juror misconduct as the basis for his application, asserting a juror deliberately perjured herself “by hiding her knowledge of Wheeler during Voir Dire examination.” Wheeler’s application also stated: “[The juror] claimed she had no knowledge of Wheeler or the facts of this case, but in fact evicted the McLeod family from the apartment they were living in that was managed by her ... on the ground that they had a registered sex offender living there, namely LeRoy K. Wheeler-They were evicted after Wheeler[’]s arrest and Wheeler had no contact with the McLeod family since the arrest except for James McLeod, a defense witness. Wheeler never spoke to James after the arrest until trial.... It was still not revealed to Wheeler that the McLeod family was evicted until Wheeler seen [sic] James in the Department of Corrections in August of 2005, during the direct appeal process of his criminal convictions.”

[¶ 8] The parties do not dispute that the juror in question completed a detailed juror questionnaire, in which the juror admitted that she might know James McLeod, one of Wheeler’s witnesses at trial, because McLeod “[m]ay have been son to the couple who lived @ [sic] one of my properties.” According to the juror questionnaire, the juror’s occupation was listed as a property manager. The juror also indicated that she had not read or heard anything about Wheeler or his case. During trial, Wheeler, proceeding pro se, questioned the juror, and the juror again indicated that she recognized the name of witness McLeod because she had a family with the same name on one of her properties, but the juror did not believe he was one of the residents on the property. The juror also stated she did not know McLeod and would have no difficulty being fair and impartial.

[¶ 9] In Wheeler’s reply to the State’s motion to dismiss, Wheeler alleges that the McLeod family was actually evicted from their apartment by the juror and, further, that the juror “told the McLeod family that they had to move because they had a registered sex offender living there, and the only one living there that was registered was Wheeler, and for this reason Wheeler is entitled to an evidentiary hearing to develope [sic] his case.” These allegations in Wheeler’s reply, however, were not supported by affidavits or testimony which could constitute competent evidence to support his claim. Although Wheeler asserts that he received this information from James McLeod during a chance meeting at the state penitentiary, Wheeler offered no affidavit from McLeod to support the assertions.

[¶ 10] Wheeler acknowledges the “underdevelopment” of his claim in his reply brief and on appeal, but attributes this to the juror because of her silence and alleged false testimony. In this case, based upon Wheeler’s post-conviction relief application, because the State, in moving for dismissal, would be required to prove the complete absence of any evidence supporting Wheeler’s claim that the juror actually knew him, a minimal burden shifted to Wheeler to provide some competent evidence to support his claim. See Weaver, 2003 ND 47, ¶ 6, 658 N.W.2d 352. Wheeler argues that the district court should have permitted him to pursue discovery and issue subpoenas to obtain the required competent evidence. Wheeler also asserts that he is limited in obtaining even a basic affidavit because he is incarcerated and has chosen to proceed pro se in his application for post-conviction relief.

[¶ 11] We acknowledge that Wheeler faces limitations in his ability to collect evidence because he is incarcerated. However, we note that he has chosen to proceed pro se, even though appointed counsel could have assisted in gathering competent evidence that could have supported his allegations. Nonetheless, the fact remains that Wheeler has presented no competent evidence to meet even a minimal burden of demonstrating a material fact issue.

[¶ 12] Although the district court dismissed Wheeler’s application without an evidentiary hearing upon grounds including misuse of process, we conclude Wheeler’s failure to present any competent evidence in response to the State’s motion to dismiss was the appropriate grounds for dismissal of his application for post-conviction relief. We will not reverse the district court’s correct result merely because the court’s reasoning is incorrect if the result is the same under the correct law and reasoning. Hanson v. Boeder, 2007 ND 20, ¶21, 727 N.W.2d 280; State ex rel. North Dakota Hous. Fin. Agency v. Center Mut. Ins. Co., 2006 ND 175, ¶ 12, 720 N.W.2d 425.

[¶ 13] We conclude the district court did not err in denying Wheeler an eviden-tiary hearing and dismissing his application for post-conviction relief because Wheeler failed to present any competent evidence to support his claim in response to the State’s motion to dismiss.

Ill

[¶ 14] Wheeler argues the district court erred in failing to issue subpoenas for him to support his claim of juror misconduct.

[¶ 15] Under N.D.C.C. § 29-32.1-08, “[t]he court, for good cause, may grant leave to either party to use the discovery procedures available in criminal or civil proceedings. Discovery procedures may be used only to the extent and in the manner the court has ordered or to which the parties have agreed.” We have also said the district court has broad discretion in defining the scope of discovery, and we will not reverse a court’s discovery decision absent an abuse of discretion. Bertsch v. Bertsch, 2007 ND 168, ¶ 10, 740 N.W.2d 388. Generally, the enforcement of subpoenas is a matter committed to the court’s sound discretion. Nesvig v. Nesvig, 2006 ND 66, ¶12, 712 N.W.2d 299. See also Moore v. State, 2006 ND 8, ¶ 5, 711 N.W.2d 606 (affirming by summary disposition and concluding district court did not abuse discretion in quashing subpoena of television reporter); State v. Jensen, 333 N.W.2d 686, 692 (N.D.1983) (holding district court did not abuse discretion in refusing to compel discovery and denying applications for subpoenas duces tecum where court determined the sought materials were irrelevant). “The district court abuses its discretion only when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination.” Nesvig, at 1112.

[¶ 16] The district court denied Wheeler’s evidentiary hearing and did not issue subpoenas that Wheeler requested. The district court determined that Wheeler’s request for an evidentiary hearing would result in nothing more than a “fishing expedition.” Cf. Smith v. State, 389 N.W.2d 808, 811-12 (N.D.1986) (holding court did not abuse its discretion in granting protective order precluding pretrial depositions, in part, because depositions would have constituted “fishing expeditions”). Because Wheeler failed to provide any competent evidence to show even minimal support for his assertion of juror misconduct, the district court properly concluded that his claim lacked factual support. Although Wheeler now argues that he must be allowed discovery under the post-conviction relief statutes, he must initially demonstrate “good cause” for the district court to grant leave to use discovery procedures, rather than merely relying upon his own bare assertions relating to matters about which he was not competent to testify. See N.D.C.C. § 29-32.1-08.

[¶ 17] On this record, we therefore conclude the court did not abuse its discretion by not granting leave to issue subpoenas requested by Wheeler.

IV

[¶ 18] The district court judgment and order are affirmed.

[¶ 19] GERALD W. VANDE WALLE, C. J., MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.


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

text:
    2008 ND 111
    John Daniel LAWRENCE, aka Dan Lawrence, Plaintiff and Appellant v. Tina Lucille DELKAMP, Defendant and Appellee.
    No. 20070131.
    Supreme Court of North Dakota.
    June 5, 2008.

      Loren Cay McCray (argued), Bismarck, N.D., for plaintiff and appellant.
    Tina L. Delkamp, pro se, Harrisonville, MO, defendant and appellee; submitted on brief.
   MARING, Justice.

[¶ 1] John Daniel Lawrence appeals a district court order which denied Lawrence’s contempt motion; determined that Tina Delkamp, the mother of his child, is entitled to the tax exemption for their child; and determined Lawrence is no longer responsible for fifty percent of the uncovered medical expenses of their child. Lawrence argues the district court abused its discretion by not allowing him to call Delkamp as a witness to testify telephoni-cally during the hearing. We hold the district court did not abuse its discretion by denying Lawrence’s request to call Del-kamp to testify. Under N.D.R.Civ.P. 43(a), a district court may allow a witness to testify telephonically. However, the admissibility of telephonic testimony is conditioned on good cause in compelling circumstances and the availability of appropriate safeguards. In this case, the district court determined it was appropriate to have a third party onsite to identify Delkamp and administer an oath to her before the court would allow her to testify telephonically. This determination was made within the district court’s discretion. We, therefore, affirm the district court’s order.

I

[¶ 2] This is Lawrence’s fifth appeal in his child custody and support determination against Delkamp. See Lawrence v. Delkamp, 2006 ND 257, 725 N.W.2d 211; Lawrence v. Delkamp, 2003 ND 53, 658 N.W.2d 758; Lawrence v. Delkamp, 2000 ND 214, 620 N.W.2d 151; Lawrence v. Delkamp, 1998 ND 178, 584 N.W.2d 515. In the most recent decision, Lawrence, 2006 ND 257, 725 N.W.2d 211, we reversed and remanded a January 27, 2006, Order on Motion for Contempt and to Amend Judgment; a subsequently entered fifth amended judgment; a March 3, 2006, Order Denying Relief from Judgment; and an April 12, 2006, Order Denying the Motion to Amend Order. Id. at ¶ 14. This Court instructed the district court to set a hearing on the parties’ contempt motions. Id.

[¶ 3] On remand, the court scheduled a hearing for March 6, 2007. Delkamp moved to hold Lawrence in contempt because, despite the fact that Lawrence did not have insurance coverage for their child’s eyeglasses, Lawrence required Del-kamp to attempt to run any eye-care costs through Lawrence’s medical insurance before Lawrence would pay his share of the child’s eyeglass expenses. Lawrence moved to hold Delkamp in contempt for failure to provide tax forms. Approximately one month before the March hearing, Delkamp requested by letter to appear telephonically to avoid the financial burden of traveling to North Dakota from her Missouri residence. Lawrence did not object. The district court granted Del-kamp’s request.

[¶4] During the hearing, Lawrence’s counsel called two witnesses to testify: Lawrence and a Wal-Mart vision center employee. After Lawrence testified on direct examination, Delkamp, acting pro se, cross-examined Lawrence. During her cross-examination, Delkamp at times made statements instead of asking questions of Lawrence. For example, at one point in her questioning of Lawrence, she said,

Back on the 2005 ruling Mr. Lawrence denied wanting to pay any medical bills because he said I did not send the medical bills or the vision through his insurance. He has just testified, however, though, that he does not have vision insurance for glasses. Therefore, Wal-Mart would not have sent anything through that.

At another point, her cross-examination consisted of the following:

So, Mr. Lawrence, in the receipt of September — let me get my date here. September of 2005, you also refused that particular bill not willing to pay for it. You had indicated that I did not send you the receipt for it; therefore, you did not pay for it.
And my question is, I also sent a receipt to your attorney that he has acknowledged with a letter of September 21st. So you are not aware that you had had a set of glasses that you needed to pay for in September of 2005?

The district court reminded Delkamp that her role was to ask questions. Lawrence’s counsel did not object at any time during Delkamp’s questioning of Lawrence.

[¶ 5] After Lawrence’s testimony, Lawrence’s counsel told the court he wished to call Delkamp as a witness to testify. The court inquired whether anyone was onsite with Delkamp who could swear her in or verify her identity. Delkamp responded that only her child was there. The court decided not to allow her to testify, stating the court allowed her to appear by telephone, “but simply to appear, not as a witness.” The hearing concluded with closing arguments by both parties.

[¶ 6] On March 9, 2007, the district court issued an Order from Remand on Motion for Contempt and to Amend Judgment. The order stated that the district court order of January 27, 2006, would stand; that Lawrence is no longer responsible for fifty percent of the uncovered medical expenses of the child; and that Delkamp, in compensation for this change, is entitled to the tax exemption for the child. Lawrence appeals the March 9, 2007, order. He asserts the statements Delkamp made during cross-examination of Lawrence constituted testimony, and he contends the district court abused its discretion by not allowing him to cross-examine Delkamp. Lawrence requests this matter be remanded for further proceedings.

II

[¶ 7] When deciding evidentiary matters, a district court has broad discretion. State v. Friedt, 2007 ND 108, ¶8, 735 N.W.2d 848. This Court will overturn the district court’s admission or exclusion of evidence only if the district court has abused its discretion. Id. “Abuse of discretion occurs when a trial court acts arbitrarily, unconscionably, or unreasonably, or when a decision is not based on a rational mental process.” Id.

[¶ 8] Rule 43(a), N.D.R.Civ.P., concerns the form and admissibility of evidence in civil proceedings:

In every trial, the testimony of witnesses must be taken orally or by non-oral means in open court, unless otherwise provided by statute or these rules. Testimony must be taken orally unless a witness is unable to reasonably communicate orally. All evidence must be admitted which is admissible under the statutes of this State, the North Dakota Rules of Evidence, or other rules adopted by the North Dakota Supreme Court. The court may, upon the agreement of the parties, or for good cause shown in compelling and unexpected circumstances, and upon appropriate safeguards, permit presentation of testimony in open court by contemporaneous transmission from a different location. Notice must be given to the other parties as soon as reasonably possible for testimony by contemporaneous transmission or by a witness who is unable to reasonably communicate orally.

[¶ 9] Rule 43(a), N.D.R.Civ.P., was amended in 1999 to explicitly provide that witnesses may testify by contemporaneous transmission for good cause in compelling and unexpected circumstances, and upon appropriate safeguards, and that testimony of a witness may be given in open court by non-oral means if the witness is unable to reasonably communicate orally. N.D.R.Civ.P. 43(a) explanatory note. The explanatory note to N.D.R.Civ.P. 43(a) explains that “the amendment is not intended to allow contemporaneous transmission based upon mere convenience for a witness as the requirement for ‘good cause shown in compelling and unexpected circumstances’ is not met.” The note continues, “The parties may agree to such evidence, but trial court approval is necessary.” Id.; see also Guardianship/Conservatorship of Van Sickle, 2005 ND 69, ¶ 15, 694 N.W.2d 212 (stating, “[t]he presentation of testimony by contemporaneous transmission is not allowed for the mere convenience of a witness, and even if the parties agree to contemporaneous transmission, it must be approved by the court”).

[¶ 10] Although our rules now permit admission of testimony taken via contemporaneous transmission, we previously acknowledged the shortcomings of telephonic testimony. See Gust v. Gust, 345 N.W.2d 42, 45 (N.D.1984) (stating, “[i]n testimony by telephone the image of the witness cannot be seen nor does it disclose if the witness is using or relying upon any notes or documents and, as a result, meaningful communication is effectively curtailed or prevented.... Above all, in testimony by telephone the trier of facts is put in a difficult, if not impossible, position to take into account the demeanor of the witness in determining the witness’ credibility.”). Likewise, the advisory committee notes to the corresponding federal rule, F.R.Civ.P. 43, caution,

The importance of presenting live testimony in court cannot be forgotten. The very ceremony of trial and the presence of the factfinder may exert a powerful force for truthtelling. The opportunity to judge the demeanor of a witness face-to-face is accorded great value in our tradition.

When telephonic testimony is allowed, “Safeguards must be adopted that ensure accurate identification of the witness and that protect against influence by persons present with the witness.” Id.

Ill

[¶ 11] Lawrence maintains the district court abused its discretion by not allowing him to call Delkamp as a witness. He argues Delkamp’s cross-examination of Lawrence constituted testimony because her questions included declaratory statements. He asserts he was prevented from exercising his basic rights in the adversarial process by not being allowed to call Delkamp to testify so he could cross-examine her. Lawrence asserts telephonic testimony is commonly allowed. He contends he should have been allowed to call Delkamp as a witness because Delkamp’s request to appear by telephone fulfilled the notice requirement of N.D.R.Civ.P. 43(a). We disagree. We hold the district court did not abuse its discretion by refusing to allow Delkamp to testify telephonically.

[¶ 12] Rule 43(a), N.D.R.Civ.P., states, “In every trial, the testimony of witnesses must be taken orally or by non-oral means in open court .... ” (Emphasis added.) This sentence provides the general rule that witnesses’ testimony must be taken in open court. We have already established that “orally in open court” means a witness must be physically present in court so the trier of fact can observe the witness’ demeanor. See Gust, 345 N.W.2d at 44 (interpreting the pre-1999 version of N.D.R.Civ.P 43(a), which provided, “In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by statute or these rules. All evidence shall be admitted which is admissible under the statutes of this State, the North Dakota Rules of Evidence, or other Rules adopted by the North Dakota Supreme Court.”). In reaching that decision, we looked to the statutory definition of “oral examination.” See Gust, at 44. Section 31-04-04, N.D.C.C., defines “oral examination” as “an examination in the presence of the jury or tribunal which is to decide the fact or act upon it, the testimony being heard by the jury or tribunal from the lips of the witness.”

[¶ 13] We acknowledge that telephonic testimony is presented under N.D.R.Civ.P. 43 in our courts. The fact that testimony is presented in open court by contemporaneous transmission does not, however, change that N.D.R.Civ.P. 43(a) merely permits, and does not mandate, courts to allow presentation of testimony by contemporaneous transmission. See N.D.R.Civ.P. 43(a) (stating, “[t]he court may, upon the agreement of the parties, or for good cause shown in compelling and unexpected circumstances, and upon appropriate safeguards, permit presentation of testimony in open court by contemporaneous transmission from a different location” (emphasis added)); see also J.P. v. Stark County Social Services Bd., 2007 ND 140, ¶ 16, 737 N.W.2d 627 (stating, “[w]hen the word ‘may’ is used in a statute, it is generally used to imply discretionary or optional conduct”).

[¶ 14] Rule 43(a), N.D.R.Civ.P., requires that courts ensure “appropriate safeguards” are in place before permitting presentation of testimony in open court by contemporaneous transmission. One mechanism used by our courts to convey the importance of truthtelling to witnesses is the administration of the oath or affirmation. See Tice v. Mandel, 76 N.W.2d 124, 137 (N.D.1956) (stating the object of requiring an oath “is first to affect the conscience of the witness and thus compel him to speak the truth, and also to lay him open to punishment for perjury in case he willfully falsifies”). Before testifying, a witness must declare he or she will testify truthfully by oath or affirmation. N.D.R.Ev. 603. The oath or affirmation is to be “administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.” Id. Persons authorized to administer oaths in recorded court proceedings are governed by N.D. Sup.Ct. Admin. R. 25 and N.D.C.C. § 44-05-01(7).

[¶ 15] Here, the court would not allow Delkamp to testify because no one was onsite with Delkamp to administer her oath or verify her identity other than her child. Considering the important function served by the proper administration of an oath or affirmation to a witness, we hold the district court did not act arbitrarily, unconscionably, or unreasonably under the circumstances by denying Lawrence’s request to call Delkamp as a witness. We do not now determine the validity of telephon-ically-administered oaths under Rule 43(a). Cf Gregg v. Gregg, 776 P.2d 1041 (Alaska 1989) (holding that a judge may administer oaths telephonieally under Alaska civil rules). We hold that, under the facts and circumstances of this case, it was within the district court’s discretion to determine there were not adequate safeguards in place and to deny Lawrence’s request to call Delkamp to testify.

[¶ 16] In addition, we note that Lawrence never objected to Delkamp’s appearance by telephone. He also could have taken steps to ensure Delkamp was available as a witness by giving reasonable notice requesting the court permit Del-kamp to testify as a witness telephonieally and by arranging for appropriate safeguards. See N.D.R.Civ.P. 43 (stating, “[n]otiee must be given to the other parties as soon as reasonably possible for testimony by contemporaneous transmission ... ”). Rule 43(a), N.D.R.Civ.P., requires not only appropriate safeguards, but also good cause shown in compelling and unexpected circumstances. This case does not present an unforeseen need for the testimony of a remote witness. Both Delkamp and Lawrence had previously submitted affidavits and evidence to support their motions for contempt. The court noted that the only new piece of evidence provided at the hearing on the contempt issue was Lawrence’s own testimony that he did not have eyeglass insurance coverage. Lawrence did not present any evidence to support good cause or compelling and unexpected circumstances to justify Del-kamp’s telephonic testimony.

IV

[¶ 17] We hold the district court did not abuse its discretion by denying Lawrence’s request to call Delkamp to testify telephonieally. Under N.D.R.Civ.P. 43(a), a district court may allow witnesses to testify telephonieally. However, the admissibility of telephonic testimony is conditioned on good cause in compelling circumstances and the availability of appropriate safeguards. In this case, the district court determined it was appropriate to have a third party available onsite with Delkamp to identify her and administer an oath to her before the court would allow her to testify telephonieally. This determination was made within the district court’s discretion. We, therefore, affirm the district court’s March 9, 2007, order.

[¶ 18] CAROL RONNING KAPSNER, J., concurs.

VANDE WALLE, Chief Justice,

concurring specially.

[¶ 19] It seems inherently unfair to allow Delkamp to appear by telephone, cross-examine Lawrence and, in so doing, make statements that appear to be testimonial, but disallow Lawrence to, in turn, cross-examine Delkamp. It is particularly disturbing when one of the reasons given by the court is that there was no one onsite to verify the identity of Delkamp on the telephone. I assume that the identity of Delkamp was verified to the satisfaction of the trial court or the court would not have allowed her to cross-examine Lawrence. Section 28-14-10, N.D.C.C., and N.D.R.Ct. 6.3 establish the order of trial in a civil case and refer only to the plaintiff and defendant or the parties as persons entitled to participate in the proceedings. If the trial court did not know it was Delkamp on the telephone cross-examining Lawrence this order should be reversed.

[¶ 20] Rule 3.2, N-D.R.Ct., under which the motion for contempt was brought, provides at 3.2(b) that “[i]f permitted by the court, a hearing may be held using electronic means, including telephonic conference or interactive television.” However, when evidence is to be taken and the hearing is not merely for the purpose of hearing oral argument, there must be compliance with N.D.R.Civ.P. 43(a). Rule 3.2 and Rule 43(a) both require approval of the trial court. Lawrence gave no notice to Delkamp that her testimony would be taken by contemporaneous transmission and the approval of the trial court was not obtained as required by N.D.R.Civ.P. 43(a). Had that notice been given and approval obtained, the trial court would have been in a position to determine the proper administration of the oath to Del-kamp.

[¶ 21] I am persuaded that the result in this case is the correct result notwithstanding the apparent unfairness. Lawrence may have been misled by the trial court’s approval of Delkamp’s request to “appear” by telephone, but approval of a party’s “appearing” by telephone is not coterminous with testifying by telephone. The words “appear,” “appearing,” or “appearance” are words of art in the legal sense. Black’s Law Dictionary 94 (7th ed.1999) defines “appearance” as “[a] coming into court as a party or an interested person, or as a lawyer on behalf of a party or interested person.” There are a number of cases in which this Court has written on whether or not a party has made an “appearance” for purposes of requiring notice before default judgment may be entered. Generally we have broadly construed the term “appearance” for that purpose. See State v. $38,000 U.S. Currency, 2008 ND 96, 748 N.W.2d 420, and cases cited therein. It is apparent that consent to an “appearance” by telephone is not synonymous with a more limited and focused requirement in Rule 43(a) to obtain the trial court’s consent before a witness may testify by telephone.

[¶ 22] Under the circumstances of this case had I been the trial judge I might have allowed Lawrence to cross-examine Delkamp after having placed her under oath. However, in view of N.D.R.Civ.P. 43(a), I cannot conclude the trial court abused its discretion in refusing to do so when there was no prior notice or request by Lawrence.

[¶ 23] DANIEL J. CROTHERS, J., concurs.

SANDSTROM, Justice,

dissenting.

[¶ 24] I agree with the specially concurring opinion that the proceeding in the district court was fundamentally unfair. Because the proceeding was fundamentally unfair, we should reverse the district court even if we think the result may have been the same had the proceeding been fair. Sandbeck v. Rockwell, 524 N.W.2d 846, 853 (N.D.1994) (Sandstrom, J., dissenting) (“Procedural due process requires notice and a meaningful opportunity for a hearing appropriate to the nature of the case.” State v. One Black 1989 Cadillac, 522 N.W.2d 457, 463 (N.D.1994)). “Respect for law and human dignity can best be fostered by a process that is fair and just.” Rockwell, at 852.

[¶ 25] I would reverse and remand for a fair proceeding.

[¶ 26] Dale V. Sandstrom


author: SANDSTROM, Justice.

text:
    2008 ND 113
    Gary Dean OLSON, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
    No. 20070071.
    Supreme Court of North Dakota.
    June 5, 2008.
    Douglas W. Nesheim, Fargo, N.D., for petitioner and appellant.
    Leah J. Viste, Assistant State’s Attorney, Fargo, N.D., for respondent and ap-pellee.
   SANDSTROM, Justice.

[¶ 1] More than thirty years after being convicted of murdering his wife, Gary Dean Olson appeals a district court judgment denying his application for post-conviction relief, arguing the district court should have ordered DNA testing of evidence that cannot be found. We affirm.

I

[¶ 2] Olson was convicted of murdering his wife in 1977 and was sentenced to life in prison. The conviction was affirmed in State v. Olson, 274 N.W.2d 190 (N.D.1978).

[¶ 3] In May 2005, Olson applied for post-conviction relief under N.D.C.C. eh. 29-32.1, claiming DNA testing on some of the physical evidence presented at trial would exonerate him. In his application, Olson requested DNA testing on certain items of evidence from trial, including some cigarette butts and bedding. Following Olson’s initial application, the legislature added a new section to North Dakota’s Postconviction Procedure Act, N.D.C.C. § 29-32.1-15, which allows for DNA testing of evidence under certain circumstances and which provides:

1. Without limitation on a court’s authority to order discovery under section 29-32.1-08, a person convicted of a crime may make a motion for the performance of forensic DNA testing to demonstrate the person’s actual innocence if:
a. The testing is to be performed on evidence secured in relation to the trial which resulted in the conviction; and
b. The evidence was not subject to the testing because either the technology for the testing was not available at the time of the trial or the testing was not available as evidence at the time of the trial.
2. A person who makes a motion under subsection 1 must present a prima facie case that:
a. Identity was an issue in the trial; and
b. The evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material aspect.
3. The court shall order that the testing be performed if:
a. A prima facie case has been established under subsection 2;
b. The testing has the scientific potential to produce new, noncumulative evidence materially relevant to the defendant’s assertion of actual innocence; and
c. The testing requested employs a scientific method generally accepted within the relevant scientific community. The court shall impose reasonable conditions on the testing designed to protect the state’s interests in the integrity of the evidence and the testing process.

Olson supplemented his initial application in August 2006 to include a reference to the new law.

[¶ 4] A hearing on the request for DNA testing was held in September 2006. Olson was the only person to testify at the hearing. He testified that hair, fibers, fingerprints, and a blanket were offered into evidence at trial. He testified he wanted DNA testing to be done on the evidence because DNA testing was not available at the time of trial. The district court denied Olson’s request for DNA testing, concluding he did not meet his burden to establish a chain of custody on the evidence to be tested. There was no evidence presented that any of the items were still in existence or had been subject to a sufficient chain of custody to establish they had not been altered in any way.

[¶ 5] Following the court’s ruling, the Cass County Clerk of Court discovered some of the evidence received at trial. A hearing was held regarding the discovered trial evidence. Prior to the hearing, the court issued an order stating Olson had the burden of establishing that the evidence had been subject to a chain of custody sufficient to establish it had not been substituted, tampered with, replaced, or altered in any material respect, as required under N.D.C.C. § 29-32.1-15(2)(b). He also had the burden to identify the specific method of DNA testing he was requesting and to establish that the requested testing employs a scientific method generally accepted in the relevant scientific community under N.D.C.C. § 29-32.1-15(3)(c).

[¶ 6] At the hearing, the Cass County Clerk of Court testified she discovered some hair, but was unable to locate the entire contents of the criminal file. She testified she did not find any bedding or clothing. She testified that evidence is kept for approximately twenty-five years after completion of the sentence. Other trial exhibits were also not found, but Olson’s attorney thought only the hair, cigarette butts, bedding, and clothing would have contained DNA. An affidavit from Olson’s DNA expert was also submitted at the hearing. The affidavit stated that DNA analysis of the items discovered in the criminal file “would not provide significant probative information and would not satisfy the criteria that additional testing would have the potential to produce new evidence relevant to the defendant’s assertion of innocence.” Following the hearing, the court concluded that the clerk’s testimony regarding the existing evidence met Olson’s burden of establishing a chain of custody. The court also concluded that DNA testing of the discovered evidence would not have the scientific potential to produce new, noncumulative evidence material to Olson’s assertion of innocence. Therefore, Olson’s application for post-conviction relief was denied.

[¶ 7] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 29-32.1-03. Olson’s appeal was timely under N.D.R.App.P. 4(d). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 29-32.1-14.

II

[¶ 8] On appeal, Olson argues that he presented a prima facie case under N.D.C.C. § 29-32.1-15(2) and that the district court erred in limiting the inquiry on DNA testing to only those items found by the clerk of court. He argues he should be allowed to look into the whereabouts of the evidence not found in the criminal file.

[¶ 9] Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure. Moore v. State, 2007 ND 96, ¶ 8, 734 N.W.2d 336. The petitioner bears the burden of establishing grounds for post-conviction relief. Flanagan v. State, 2006 ND 76, ¶ 10, 712 N.W.2d 602. Whether a prima facie case has been established is a question of law. Heng v. Rotech Medical Corp., 2006 ND 176, ¶ 13, 720 N.W.2d 54. Questions of law are fully renewable on appeal. J.P. v. Stark County Social Services Bd., 2007 ND 140, ¶ 9, 737 N.W.2d 627.

[¶ 10] The North Dakota legislature adopted N.D.C.C. § 29-32.1-15 in 2005. 2005 N.D. Sess. Laws ch. 289, § 1. Under the statute, it was Olson’s burden to establish a sufficient chain of custody regarding the evidence for which he requested DNA testing. The district court concluded that he established a prima facie case with respect to the existing evidence but that testing it would not have the potential to produce new, noncumulative evidence materially relevant to his assertion of innocence.

[¶ 11] Olson argues he should be allowed to conduct discovery to determine the whereabouts of the evidence not found in the criminal file. He argues he established a prima facie case by showing that the evidence was received at trial and should therefore still be in the State’s custody.

[¶ 12] To establish a prima facie case under N.D.C.C. § 29-32.1-15(2)(b), one must present testimony or otherwise show that evidence still exists and has not been substituted, tampered with, replaced, or altered in any material aspect. The clerk of court’s testimony regarding the existing evidence was sufficient to establish a pri-ma facie case under N.D.C.C. § 29-32.1-15(2)(b). But Olson was unable to show that the remaining evidence for which he requested testing, apart from its having been received at trial, was subject to a sufficient chain of custody or was even still in existence. Although the clerk testified it is the court’s practice to keep evidence for approximately twenty-five years following the completion of a sentence, we are not aware of any law that requires the State to keep evidence for a specific period of time. We conclude Olson did not establish a prima facie case under N.D.C.C. § 29 — 32.1—15(2) (b).

[¶ 13] Olson had the opportunity to conduct discovery under N.D.C.C. § 29-32.1-08 of the Postconviction Procedure Act to locate the missing evidence, but there is no evidence indicating he did so. He is unable to seek that remedy on appeal. See Heng, 2006 ND 176, ¶ 9, 720 N.W.2d 54 (“We do not address issues raised for the first time on appeal.”).

Ill

[¶ 14] The district court’s judgment is affirmed.

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


text:
    2008 ND 106
    In the Matter of the GUARDIANSHIP AND CONSERVATORSHIP OF V.J.V.N., an Allegedly Incapacitated Person. S.D.F., Petitioner and Appellant v. L.K. and V.K.-R., Respondents.
    No. 20080024.
    Supreme Court of North Dakota.
    June 5, 2008.
    Matthew H. Olson and Carol K. Larson, Pringle & Herigstad, P.C., Minot, ND, for petitioner and appellant; submitted on brief.
    L.K. and V.K.-R., respondents; no appearance.
   KAPSNER, Justice.

[¶ 1] S.F. appeals an order appointing S.F. as the guardian of V.N., but denying S.F. compensation for guardianship services. We reverse and remand the order of the district court.

I

[¶ 2] V.N., the ward in this action, has four adult children: S.F., who resides in San Antonio, Texas; A.R., who resides in Minot, North Dakota; A.A.V.N., who resides in Bothell, Washington; and V.K.-R., who resides in Minot, North Dakota. V.N. also has a granddaughter, L.K., who is the daughter of V.K.-R.

[¶ 3] On July 27, 2007, S.F. made a motion for temporary guardianship and conservatorship of her mother, V.N. The district court granted the motion, appointing S.F. as V.N.’s temporary guardian and conservator. On August 20, 2007, S.F. petitioned the district court to appoint her the permanent guardian and conservator of V.N. On September 5, 2007, L.K., V.N.’s granddaughter, cross-petitioned to become the guardian and conservator of V.N. A.A.V.N. and A.R. each filed a Waiver of Notice and Nomination of Guardian, in which each nominated S.F. as guardian of V.N.

[¶ 4] On October 5, 2007, a hearing was conducted on S.F.’s petition for guardianship and conservatorship. At the hearing, L.K. withdrew her cross-petition for guardianship and conservatorship, making S.F. the only party petitioning to be appointed guardian and conservator. At the time the hearing was conducted, three of V.N.’s children, A.A.V.N., A.R., and S.F., were in favor of S.F. being nominated guardian. V.K.-R., V.N.’s fourth child, did not petition the district court nor did she attend the hearing. A guardian ad litem, a physician, and a visitor provided reports to the district court before the permanent guardianship and conservatorship appointments were ordered. The reports of the guardian ad litem and visitor noted anger and mistrust between family members, but recommended that a family member, rather than a third party, serve as V.N.’s guardian.

[¶5] On October 8, 2007, the district court issued an order granting S.F.’s petition in part, appointing S.F. as guardian and a public administrator, Mark Wester-eng, as conservator of V.N. This order provided S.F. was not entitled to any compensation for her services as V.N.’s guardian and denied her request to serve as V.N.’s conservator. The October 8, 2007, order stated:

The Court ... appoints [S.F.], daughter of [V.N.], as Guardian. [S.F.], as Guardian, shall have the powers and duties set out in accordance with § 30.1-28-12 of the NDCC. It is directed that those powers and duties be specifically delineated in the documentation giving said authority to the Guardian. The Guardian shall not be entitled to any remuneration for her duties as Guardian.

[¶ 6] On October 10, 2007, S.F. submitted a request for reconsideration and clarification in which S.F. requested the district court reconsider its appointment of Westereng as conservator, and the district court permit S.F. reasonable compensation for her services as V.N.’s guardian. In response to S.F.’s request for reconsideration and clarification, the district court issued a second order on October 24, 2007, which denied S.F.’s request to be appointed conservator and denied compensation for her expenses as guardian. On October 24, the district court also received letters from V.N.’s fourth child, V.K.-R., and granddaughter, L.K., alleging S.F. should not serve as V.N.’s guardian because of alleged abuse, the potential for S.F. to commit financial misconduct, and other family problems existing in S.F.’s home in Texas. V.K.-R. and L.K. requested the district court reverse the guardianship order and return V.N. to North Dakota. The district court, noting both the guardian ad litem and visitor had expressed concerns about anger and mistrust between the family members, reaffirmed its intention to appoint Mark Westereng as conservator of V.N. and to deny S.F. compensation for services as guardian. The October 24, 2007, order stated:

The Court has, in its Order of October 8th, 2007, made the decision to allow [S.F.] the opportunity to exercise care for her mother. This decision was based upon a showing by [S.F.] at the hearing that she has a great need to give her mother a better life now. She expressed a great deal of compassion for her mother, a heartfelt concern for her mother’s well being, and an overriding necessity to meet all of her needs. This included all of the physical, emotional and psychological needs of [V.N.]. The Court was convinced by [S.F.] that you cannot place a monetary value on such an expression of concern and compassion. [S.F.] made it clear that assets and financial gain played no part in her Petition to the Court for Guardianship. The Court found [V.N.’s] well being, in the care of her daughter, [S.F.], to be an overriding concern. Accordingly, this is [S.FJ’s opportunity to put forth her expression into one of clear action for the benefit of her mother without any personal gain beyond the knowledge and satisfaction she should derive from her actions alone.
No personal remuneration is required to accomplish these actions of love and caring. This is also a Finding of Fact. Room, board and services provided by [S.F.] and at [S.FJ’s home, to include [S.FJ’s family members, shall not be recoverable as an expense to [V.NJ’s estate.

(Emphasis in original).

[¶ 7] On November 15, 2007, the district court issued an order appointing S.F. guardian and Westereng conservator of V.N. and denying S.F. compensation for services rendered or expenses paid as guardian.

[¶ 8] S.F. appeals from this order, arguing she is entitled to compensation as guardian under N.D.C.C. § 30.1-28-12(10).

II

[¶ 9] “The district court has discretionary authority regarding the management of a protected person’s estate, and the court’s decisions on those matters will only be reversed on appeal for an abuse of discretion.” Estate of Allmaras, 2007 ND 130, ¶ 12, 737 N.W.2d 612 (citation omitted). “A district court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when it misinterprets or misapplies the law.” Id. (citation omitted). Questions of statutory interpretation and application are questions of law, which are fully reviewable on appeal. Guardianship of Shatzka, 2003 ND 147, ¶5, 669 N.W.2d 95 (citation omitted). While the record is replete with facts disputed by V.N.’s family members, the facts and allegations made by V.N.’s family are not determinative of the issue raised in this appeal. This appeal turns solely on questions of law: whether N.D.C.C. § 30.1-28-12(10) provides that the guardian of a protected person is entitled to reasonable compensation for expenses incurred as guardian and whether the district court may preemptively order the guardian shall not receive compensation.

[¶ 10] When this Court interprets statutes

“[o]ur duty is to ascertain the Legislature’s intent, which initially must be sought from the statutory language itself, giving it its plain, ordinary, and commonly understood meaning. N.D.C.C. §§ 1-02-02 and 1-02-03. If statutory language is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit, because the Legislature’s intent is presumed clear from the face of the statute. N.D.C.C. § 1-02-05. If statutory language is ambiguous, a court may resort to extrinsic aids, including legislative history, to interpret the statute. N.D.C.C. § 1-02-39. A statute is ambiguous if it is susceptible to meanings that are different, but rational.”

Guardianship/Conservatorship of Van Sickle, 2005 ND 69, ¶ 18, 694 N.W.2d 212 (quoting Van Klootwyk v. Baptist Home, Inc., 2003 ND 112, ¶ 12, 665 N.W.2d 679).

[¶ 11] The statute in question in this case is N.D.C.C. § 30.1-28-12(10), which reads:

The guardian is entitled to receive reasonable sums for services and for room and board furnished to the ward as approved by the court or as agreed upon between the guardian and the conservator, provided the amounts agreed upon are reasonable under the circumstances. The guardian may request the conservator to expend the ward’s estate by payment to third persons or institutions for the ward’s care and maintenance.

(Emphasis added). S.F. argues the district court abused its discretion in the order appointing guardianship and conserva-torship because the order expressly and preemptively denies S.F. any compensation for services she provides as V.N.’s guardian. S.F. argues such a denial is a misinterpretation and misapplication of N.D.C.C. § 30.1-28-12(10).

[¶ 12] The language of N.D.C.C. § 30.1-28-12(10) is unambiguous. The language provides the guardian is “entitled to receive” compensation, so long as such compensation is approved by the district court or conservator and the amount of compensation requested is reasonable under the circumstances. The meaning of the word “entitle” is: “[t]o grant a legal right to or qualify for.” Black’s Law Dictionary 553 (7th ed.1999). Thus, N.D.C.C. § 30.1-28-12(10) grants to S.F. the right to receive compensation for her services as guardian, conditioned upon the district court’s or conservator’s determination that the compensation requested by S.F. is reasonable. The plain and ordinary meaning of the language of this statute indicates the Legislature intended to give the district court the discretion to consider what compensation is reasonable under the circumstances of any given guardianship, but this statutory language does not permit the district court to completely and preemptively reject a guardian’s request for compensation if such a request is reasonable.

[¶ 13] The district court made a variety of findings to support its conclusion that S.F. was not performing as guardian for personal gain and that it would be difficult to place a value on certain everyday services S.F. provided, such as providing emotional support to her mother. The plain language of the statute, however, does not remove a guardian’s right to reasonable compensation simply because the guardian seeks to provide services for reasons other than receipt of financial compensation. This statute does not create an exception for compensation because a guardian’s motives are based upon emotional, rather than financial, gain. There is evidence in the record to support the district court’s factual findings regarding the family relationships and S.F.’s non-economic motives in pursuing the guardianship appointment, but these factual findings are immaterial to the determination of whether S.F. is entitled to reasonable compensation for her guardianship services. However, in holding a guardian’s motives are immaterial to the guardian’s rights to reasonable compensation, we do not hold that such inquiry and determination is immaterial to the appointment of the guardian.

[¶ 14] We note the district court further found there was distrust between V.N.’s children, particularly with respect to alleged financial motives underlying the guardianship. Accordingly, the district court appointed a public administrator to serve as V.N.’s conservator and to protect against potential financial misconduct at the hands of any of V.N.’s children. Because S.F. is not V.N.’s conservator, under N.D.C.C. § 30.1-28-12(10), S.F. would not have unfettered discretion to compensate herself for guardianship services provided; S.F. instead must approach and receive the approval of the conservator or district court for compensation for guardianship services.

[¶ 15] The plain and ordinary meaning of the language in N.D.C.C. § 30.1-28-12(10) grants to S.F. the right to reasonable compensation. Therefore, the district court abused its discretion when it misinterpreted and misapplied the statute, ordering S.F. was preemptively denied any compensation while serving as V.N.’s guardian.

Ill

[¶ 16] We reverse and remand the order of the district court. In addition to the district court’s reconsideration of the order’s provision for compensation for V.N.’s guardian, the district court may also reconsider the appointment of the guardian on remand to the extent the district court relied upon lack of financial motivation in determining the appointment of V.N.’s guardian.

[¶ 17] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.